Georgia Injury Lawyer Blog

As we all know, trial lawyers are under assault by the business community. We are accused of being sleazy, money hungry ambulance chasers. I need not further discuss this nationwide propaganda campaign, but suffice it to say, our public image has been and continues to be at risk. Accordingly, it is imperative that as trial attorneys we conduct ourselves as ambassadors for justice when we appear in a courtroom.
The best way to get a favorable result in any case is to exude confidence and to practice the highest standards of professionalism. This is a fundamental rule of trial practice. The plaintiff’s lawyer cannot afford to be viewed with skepticism by the jury. The jury must trust the trial lawyer and his sincerity.
Accordingly, it is absolutely vital that counsel exude professionalism in everything he does. The manner of one’s dress, the extent of his preparation, the manner in which he conducts himself, his competence and his demeanor all reflect on our profession as well as the case before the jury. If we are to overcome the negative stereotypes being advanced by enemies of our civil justice system, during closing argument, it is recommended that counsel continue to practice the highest standards of professionalism in the manner in which he conducts himself. If the jury sees for itself the extent of counsel’s preparation, the extent of his confidence and the extent to which he embodies the quest for fairness and justice, this will not only enure to the benefit of the client, this will help our profession as a whole. In short, it is good business to be professional and if one is to be successful in a summation, professionalism must be exhibited in the presentation.
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It is amazing to watch television commercials advertising lawyer services for personal injury cases. One often sees a client holding a fist full of cash praising their lawyer for securing a large cash settlement. The client is typically shown smiling and happily talking about how much money they received from their personal injury claim. These ads have often surprised me because it is typically only in the very serious case that clients receive large settlement amounts and in those cases, they usually deserve the amounts of the settlement because their injuries are typically horrendous. It is hard to imagine our clients smiling about these matters because typically large cash settlements mean that the victims have suffered life altering and permanent injuries from which they will never recover.

The insurance lobby has been successful in portraying personal injury claimants not as innocent victims, but rather as those seeking “jackpot justice.” The propaganda is that many people are not injured at all, they simply want money. Of course, given the human condition, there are always those who will embellish their injuries and who may be motivated by secondary gain. The propaganda is an insult to those victims who are unfortunate enough to be seriously injured by the negligence of a third party.

Our experience has proven over and over again that those who receive significant cash settlements are those who deserve such an award. A child has been killed, a leg has been lost, a back broken. These are hardly the kinds of injuries that result in people smiling about money. Usually money is inadequate to compensate the victim for the loss of their independence and a loss of the lifestyle that they experienced prior to injury. Thus, the myth of “jackpot justice” is just that, a myth. The truly deserving clients are not seeking money simply to inherit a windfall from a tragedy. Rather they are seeking justice, which can only be monetary compensation to provide some level of compensation for that which they have lost, which is usually the most precious gift of all, good health. Obviously, if someone’s health is impaired significantly enough their livelihood can be endangered and their earning capacity greatly diminished. Indeed, in many of our more serious cases, our clients can never work again and lose their career, their livelihood, their home, their credit and virtually everything they once had because of the severity of their injuries.

We reject the premise that personal injury victims are always seeking “jackpot justice.” Insurance companies will aways promote such propaganda because it serves their bottom line interests. Those attorneys who advertise with smiling clients full of cash in their hands unfortunately promote such stereotypical views that are then exploited by the insurance industry. In reality, those clients who receive cash awards in any significant amount are truly the most deserving as they have been seriously injured through no fault of their own and are usually well deserving of any compensation they receive.

Any lawyer who has a client with a claim against any branch of government knows full well that there needs to be investigation of that claim in order to be successful in prosecuting it. One of the first steps in the process is to serve a timely ante-litem notice claim within six months of the claims against a municipality or within twelve months if it involves a claim against the State or a county government agency. We have previously blogged about these requirements in other entries. Nonetheless, once counsel has filed a timely ante-litem pre-suit notice of a claim, counsel further needs to use Open Records Act requests available under Georgia law to request any and all documents that will be necessary to prosecute the claim. Some records are exempt from the Open Records Act such as criminal investigative documents in a pending criminal investigation, however, most public government documents can be obtained via an Open Records Act request as they are required to be maintained in the normal course of business.

An example of the type of documentation one might wish to secure via an Open Records Act request would be a request for insurance data for the city or county and other required government policies applicable to the incident. Obviously, the key is to demonstrate that there has either been a waiver of sovereign immunity through the purchase of available insurance coverage and/or the enactment of policies and procedures whereby counsel will be able to argue that there was a breach of a ministerial duty in failing to execute a simple ministerial duty required under local policies, procedures or state law.

Any time there is a potential claim against any governmental entity, sovereign immunity defenses loom large. The courts have been very protective of most governmental agencies and absent an exception to sovereign immunity, counsel will be unsuccessful in helping a client obtain redress for any damages caused by governmental negligence. However, there are numerous exceptions to sovereign immunity and through proper pre-suit investigation and utilization of the Open Records Act request and other investigative techniques, it is still possible in certain circumstances to successfully prosecute a personal injury claim against a government agency or employee. While every case is factually specific, investigation is the key in all of these cases.

Anybody with a claim again a governmental agency should always consult with experienced counsel to make sure that all ante-litem notices are sent out in a timely manner and that a proper investigation is conducted. Absent either, a claim may be lost even if it is potentially viable.

In the typical negligence case, it is not necessary that a jury be reminded that they have taken an oath to set aside any prejudice or biases they have and to render a verdict solely on the evidence and the law presented to them. However, there are cases of a more controversial nature where it might be necessary for counsel to consider reminding the jury of its oath. Examples would include medical malpractice cases and other controversial cases such as high speed police pursuits.
We all know about the propaganda campaign waged by the medical lobby and the Chamber of Commerce relative to caps on malpractice awards. As many observers have already noted, we do not need tort reform in Georgia because it has already occurred. The juries have been polluted by the massive propaganda campaign being waged against our clients. Thus, when a jury steps in the jury box, they may be fearful that if they return a verdict for a plaintiff, that they may be putting a doctor out of business or causing other doctors to leave this state. They may also be fearful that they will be participating in a “jackpot justice, lottery situation” where the plaintiff is made rich, as his attorney, while the poor doctor is sent home to pay the judgment himself. While we know that this propaganda is not true, nonetheless, juries have been so exposed to it that they may actually believe some of these falsehoods.
Accordingly, it might be necessary for counsel to advise the jury during summation that they promised during voir dire that they would follow the law and the evidence and that they should not disregard their oaths for fear of the collateral consequences of a just verdict.