Atlanta Injury Lawyer Blog

The Name of the Game is Blame: The Saga of Apportionment, Part Two

April 2, 2019 | Robin Frazer Clark

There have been two recent appellate decisions in Georgia that address the morass that is apportionment: FDIC v. Loudermilk, No. S18Q1233 (Ga. S. Ct. March 13, 2019) and Trabue v. Atlanta Women’s Specialists, LLC, No. A18A1508 (Ga. Ct. App. March 7, 2019). Since the Georgia Legislature passed a new scheme of how a plaintiff receives justice in our Civil Justice System some 14 years ago, called “apportionment,” there have been 1,328 Georgia appellate opinions that mention apportionment. This suggests that the law as passed was anything but a model of clarity.

The Georgia Supreme Court’s opinion in FDIC v. Loudermilk reminds me of Mark Twain’s quotation: “The rumors of my death have been greatly exaggerated.” I believe the rumors of the death of joint and several liability have been greatly exaggerated, ever since its passage in 2005. Loudermilk makes it clear that joint and several liability is alive and kicking and coexists peacefully right next to apportionment. Loudermilk, authored by Justice Sarah Warren, involved a claim against a group of bank directors alleging that the former directors and officers were negligent and grossly negligent under Georgia law for their approval of ten commercial real-estate loans. This case was tried to a jury in the Northern District of Georgia and the jury rendered a $5 Million verdict against the individual former bank officers. The bank officers appealed the verdict to the 11th Circuit Court of Appeals, which certified the question of whether the Georgia law of apportionment applied to this scenario to the Georgia Supreme Court. The Georgia Supreme Court answered no, that the statute did not end joint and several liability for co-defendants determined to have acted “in concert.” The Court held “Georgia historically has recognized this principle: “[i]t has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff’s damage.” Gilson v. Mitchell, 131 Ga. App. 321, 324, 205 S.E.2d 421 (1974), aff’d, 233 Ga. 453, 454, 211 S.E.2d 744 (1975) (“We conclude that the opinion of the Court of Appeals correctly states the law of Georgia on this subject and we adopt [its] opinion.”). Cf. City of Atlanta v. Cherry, 84 Ga. App. 728, 731-733, (67 S.E.2d 317) (1951) (rejecting joint-tortfeasor status although plaintiff alleged that defendants acted in concert because plaintiff failed to allege adequately that there was “concerted action in operating [an airport runway] in such a way as to injure plaintiff”).” Fed. Deposit Ins. Corp. v. Loudermilk, S18Q1233, 2019 WL 1303652, at *8 (Ga. Mar. 13, 2019).

This rule supports what many plaintiff’s lawyers have been saying since 2005, i.e., that there is no apportionment until a jury says there is apportionment. Thus, not only apportionment but also joint and several liability charges must be given to a jury and counsel must be allowed to argue joint and several liability.

Fulton County Jury Sends City of Atlanta a Clear Message: Inspect Our Streets for Dangers!

February 25, 2019 | Robin Frazer Clark

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You may have missed it, but last week a Fulton County, Georgia jury sent a message to the City of Atlanta to inspect their streets for dangers to the motoring public. The message came in the form of a $1.4 Million verdict against the City of Atlanta, for severe personal injuries to a woman who was injured when she drove over a manhole whose cover had become dislodged. The plaintiff, Ms. Pamela Dale, suffered a compression fracture to her spine, multiple lacerations on her arm and permanent nerve damage to her arm and hand. She accrued about $89,000 in medical bills and was unable to perform her job for several weeks, and she had to work part-time for several more weeks. Her car was a total loss. She was represented by Attorney Michael Baskin.

For its defense, the City of Atlanta argued first that this was a state road so the Georgia Department of Transportation had responsibility for maintaining it. So the City of Atlanta attempted to blame someone else for its own negligence. Then the City argued it did not have to inspect its own streets to find problems that could injure someone driving on them. The City of Atlanta Department of Watershed Management manager testified that the city did not routinely inspect manholes and there was no evidence that it had advance notice of any defect in the manhole prior to the accident. Apparently, the jurors didn’t like that. They told plaintiff’s counsel after the verdict that they were very concerned with the City of Atlanta not inspecting its own streets on a routine basis and, therefore, essentially waiting until a citizen was injured from a defect in the street to inform the City about the problem. The City of Atlanta literally argued they only received notice of a problem with a street once someone had been hurt by it. Does this strike you as crazy? Or at least surprising? That’s the way it struck the jurors. According to Attorney Baskin, the jurors were “absolutely appalled at the city’s lack of inspections.”

And it’s not just the City of Atlanta that takes this position. Many other governmental entities do the exact same thing, i.e., only inspect streets or sidewalks after they receive a complaint about it from someone. They do not routinely inspect their own roads. I recently took the deposition of the Director of Public Works for DeKalb County, Georgia, and, interestingly, he said the same thing about DeKalb County, i.e., that DeKalb County relies on reports from citizens of any problem with a street, road or sidewalk before they get involved. DeKalb County Public Works does not inspect its roads and sidewalks proactively so as to avoid injury to a citizen. Nor does it have anyone inspecting their sidewalks to make sure they are in compliance with the Americans With Disabilities Act. This means a disabled person has to get hurt first on a DeKalb County road or sidewalk before DeKalb County will do anything to fix the problem. DeKalb asserts that citizens can get in touch with them by phone, email, Facebook or Twitter, and that is, in their minds, sufficient.

Are You Complying with the New School Bus Stopping Law? Were You Even Aware There Has Been A Change?

January 31, 2019 | Robin Frazer Clark

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You may have read recently about a little problem with the school bus stopping laws that the Georgia General Assembly is now trying to fix. Last year the Georgia Legislature amended the school bus stopping laws with a dozen words that are, apparently, having bad, unintended consequences, one of which is car drivers no longer believing they have to stop every time for every school bus. Those words were: ““including, but not limited to, a highway divided by a turn lane.”” School transportation officials from at least 102 counties caught the problem before it was passed, and even wrote a letter to then Governor Nathan Deal in April of 2018 before it passed on July 1, 2018, to try to put a quash on it. But to no avail. It passed. And with it came new concerns about children’s safety as they exit school buses.

Before this amendment, Georgia law required traffic in both directions to stop for a stopped school bus with it’s “STOP” sign out on any laned highway unless the directions were divided by a raised median. Here is the law on overtaking a stopped school bus:

(a) Except as provided in subsection (b) of this Code section, the driver of a vehicle meeting or overtaking from either direction any school bus stopped on the highway shall stop before reaching such school bus when there are in operation on the school bus the visual signals as specified in Code Sections 40-8-111 and 40-8-115, and such driver shall not proceed until the school bus resumes motion or the visual signals are no longer actuated.(b) The driver of a vehicle upon a highway with separate roadways or a divided highway, including, but not limited to, a highway divided by a turn lane, need not stop upon meeting or passing a school bus which is on a different roadway or on another half of a divided highway, or upon a controlled access highway when the school bus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.

My First and Last Murder Trial

January 22, 2019 | Robin Frazer Clark

MY FIRST AND LAST MURDER TRIAL

It’s January 4, 2019 and I am in Division 5 of the DeKalb County Superior Court, otherwise known as Judge Gregory Adam’s courtroom. I let the Deputies know I am a lawyer representing an accused person in a case and am here for the motions calendar. They instruct me to sit in the jury box. I do. As soon as I step in the jury box, a friend of mine, Jan Hankins, a Georgia Public Defender, says “I know you. What are you doing here?” She has that look on her face of seeing someone she knows but in the wrong setting. Things are out of context. She knows I am a plaintiff’s personal injury trial lawyer. She instantly computes that I have no Earthly business in a criminal motions hearing. I explain that I will be trying a murder trial with Mike Maloof, Jr. because I have always wanted to try a criminal case and in my 30 years of practicing law, I have never handled a criminal case. A mutual friend put Mike and me together and Mike welcomed my help. Jan’s response: “If trying a murder case is on your bucket list, you need a new list.”

It is true that in 30 years of practicing law I have never handled a criminal matter. I watch a lot of criminal trial shows on TV, though. Shouldn’t that qualify me a little bit? After all, I certainly know never to talk to the police or answer a single question they ask unless my lawyer is present. I know never to give the police consent to search my car. I know never to agree to take a sobriety test. I am armed with a lot of knowledge about the criminal justice system from this. So wouldn’t it be a neat chance to add to my plethora of TV criminal justice knowledge by trying a real murder case?

Were Georgia Roads Any Safer in 2018?

January 2, 2019 | Robin Frazer Clark

We have survived the Holidays and so it is appropriate we review car crash records to see how we Georgians did in 2018. Were we any safer? Have car collisions declined in any aspect?

Each year, the Georgia Governor’s Office of Highway Safety publishes a report that lists all collision statistics for our state for that year. This includes any bicyclists and pedestrians who are involved in collisions. You may find a wealth of traffic statistics in that report. In 2017, Georgia traffic fatalities for the year were 1468, a 4% decrease compared to 1527 on the

same date in 2016. This change, however, was not statistically significant. We do not yet have the official tally of Georgia highway fatalities for 2018 yet. As of Sept. 30, 2018, fatalities from traffic crashes in Georgia were down 11 percent year to date, which represents the largest decrease of Georgia’s traffic fatalities in 10 years. As of September 2018, there had been 128 fewer fatalities in 2018 over 2017. Although this sounds like progress, the decrease is still probably not statistically significant.

Jurors Want to Know: Why Are We Here?

December 5, 2018 | Robin Frazer Clark

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Jury duty is often the last thing people want to do. It interferes with their jobs, their family schedules and essentially everything people do on a daily basis. No one has jury duty scheduled on their calendar. So, it is often the case once citizens report for jury duty and are actually sitting in a courtroom going through jury selection, particularly in civil cases for money damages, that jurors want to know “Why is this case being tried? Why am I here?” Some people might, wrongly, assume it is because the plaintiff is greedy. But that is almost never the case. Rather, so often, the answer is because the insurance company for the defendant, the party at fault, refuses to be reasonable and refuses to resolve the case before trial. For some unknown reason, that seems to be more and more the answer to the jurors’ questions of “Why are we here?”

Several recent trials in Georgia demonstrate that completely. In a trial in Gwinnett County last month, a jury awarded $17.8 million to the widow of a man who plummeted three stories to his death after trying to close an improperly installed dormer window. No offer of settlement by the insurance company who represented the company at fault was even made until six days before trial. Understand, the trial occurred only after years of depositions, hearings, document exchange…known as discovery. Yet the insurer didn’t even attempt to broach resolution until six days before trial. The plaintiff’s settlement demand had only been $1 Million. Now the insurer is looking at a judgment for $17.8 Million. The insurer could have saved $16.8 Million had it even attempted resolution.

In another case recently tried in Cobb County, the jury returned verdicts for two plaintiffs of $77,000.00 to one plaintiff and $80,000.00 to the other. They also awarded an additional $35,000.00 for property damage. Highest offers prior to trial were $4,000 and $5,000 respectively. Yet the plaintiffs’ medical expenses alone, without even considering pain and suffering, were $12,000 and $9,000 respectively. When an insurer offers half of a plaintiff’s medical expenses it is not really trying to reach a good faith resolution of the case.

In Memory of Justice Harris Hines, My Friend

November 6, 2018 | Robin Frazer Clark

It is with a broken heart that I write about the untimely death of Justice Harris Hines, former Chief Justice of the Supreme Court of Georgia. Below is a wonderful obituary by Katheryn Tucker of The Daily Report.

Justice Harris Hines was a walking example of how we, as lawyers, should conduct ourselves both professionally and personally. He had a wonderful sense of humor and could tell a story better than Mark Twain. Our family enjoyed a close relationship with him and his beautiful wife, Helen, and I will be eternally grateful for the times we had together. They knew our daughter was a soccer goalkeeper in high school and often compared it to being the parents of a football field goal kicker, as they were with their son, Hap. We connected knowing that your child, as goalkeeper or as field goal kicker, could end up being the the MVP of a win or could be the blame for a heartbreaking loss. We enjoyed many dinners and State Bar trips together. One of my favorite moments was riding back to Jekyll Island on the bus from Jacksonville after UGA had beaten Florida and calling Justice George Carley to share the victory with him on the speakerphone. We sipped Woodford Reserve bourbon together on an Executive Committee trip to Lexington, Kentucky and often shared that fond memory with each other. I am thankful that just two weeks ago Bill and I enjoyed dinner with him and Helen at the American Board of Trial Advocates (ABOTA) dinner and we once again got to experience Harris’s sparkling sense of humor and laughter. He was proudly a Georgia Bulldog, and referred to The University of Georgia as simply “The University.” When we told him that our daughter, Alex, had just been admitted to the University of Georgia Law School, he was as proud and as happy for her as if she were his own grandchild.

I think the mark of a man can be summed up in one of my favorite scriptures, 1 Corinthians 13:1, that begins Love is patient, Love is kind. I believe we can easily substitute “Harris” for “Love” in that scripture , and that should give you the essence of Harris Hines: Harris was patient, Harris was kind, Harris was not jealous, Harris did not brag, Harris was not arrogant, Harris was not easily angered, Harris did not keep a record of wrongs, Harris did not rejoice in unrighteousness but rejoiced in truth.

Stonewall Bar Association Honors Judge Alex Manning

November 2, 2018 | Robin Frazer Clark

Last night I had the honor of introducing the recipient of the 2018 Stonewall Bar Association Conspicuous Service Award Winner, Judge Alex Manning. We had a wonderful evening with several hundred of my closest friends in the Fabulous Fox Egyptian Ballroom. Judge Manning gave an incredible, inspirational acceptance speech. I did not have all the time I wanted to introduce her. She has an awe-inspiring personal story and she is an example of service to her community. To further honor Judge Manning, I want to share my full introduction of her here. I am proud to know Judge Manning and proud to call her my friend. What a great night!

ALEX MANNING INTRO STONEWALL BAR ASSOC. DINNER NOVEMBER 1, 2018 BY ROBIN FRAZER CLARK	11/01/2018

Good Evening.

It is my distinct pleasure and proud honor to introduce to you tonight, the recipient of the Stonewall Bar Association Conspicuous Service Award, the Honorable Alexandra Manning.

Judge Alex Manning is a Judicial Officer in the Family Division of the Superior Court of Fulton County. She presides over some of the most contentious and sensitive calendars in Fulton County, including Child Support Contempt, TRO’s and Name Changes. She consistently and with the utmost respect for the rule of law and for the dignity of all those who appear before her, Judge Manning presides with both a firm hand and compassion. Judge Manning often handles name change petitions for transgender persons. Those who are seeking gender affirming name changes are often the most marginalized in our society and so come to court, understandably, vulnerable, with fear and intimidation of the formal court procedures. Many expect a judge who has little interest in helping them achieve their goal and even less understanding of why they desire to do so in the first place. You can imagine most of their reactions when they meet Judge Manning, who treats them with the dignity and respect they deserve but which they have rarely experienced by the government. Even though in 2018 we are still seeing some Superior Court judges refusing to grant a name change to a transgendered person out of some misguided personal beliefs, Judge Manning is not only a breath of fresh air in a sometimes-stagnant environment but is also the standard bearer for how judges should treat all citizens who come before them.

Judge Manning constantly demonstrated her support of the LGBTQ community before taking the bench. As a practicing lawyer she participated on a pro bono basis as co-counsel in a same gender marriage case in Dooly County, prior to the passage of Obergefell v. Hodges, in which she was able to protect the rights of a surviving spouse married in Washington, D.C., at a time when Georgia did not recognize same gender marriages. She also represented one of the first transgender individuals in the process of playing as a competitive NCAA athlete on the team that matched with gender identity. In her practice as a family lawyer she made handling second parent adoptions for LGBTQ parents a priority, even when not all Georgia court were even permitting second parent adoptions by a person of the same gender as the original adoptive parent.

Long before her legal career, Judge Manning established herself in law enforcement. She was a pioneer as one of the first waves of female certified firefighters in DeKalb County. She then went onto become a lead narcotic agent in the Georgia Bureau of Investigations and was appointed to the Governor’s Strike Force. She then became a Detective and K-9 handler and received both a Medal of Valor and Police Officer of the Year. While obtaining her undergraduate degree from Mercer University, Judge Manning worked as Senior Investigator with the Fulton County District Attorney’s Office in the Crimes Against Women and Children Unit and also at the Douglas County Public Defender’s Office. She then went to Vermont Law School and graduated in May 2006.

I first met Judge Manning when I was introduced to her at Lawyers Club by her loving partner, Lisa Liang. Lisa had wanted us to meet after learning I had successfully represented an Army Veteran in obtaining a Presidential Pardon for his military conviction of Conduct Unbecoming an Officer. His so-called unbecoming conduct was having a homosexual relationship with another man in the Army. My client was convicted and served two years in Ft. Leavenworth Prison and then was dishonorably discharged. After six years of representing him, we were overjoyed when we received word from the Pardon Counsel in the Department of Justice that President Obama was pardoning my client. As it turns out, Judge Manning endured a very similar episode in her life. Years before she distinguished herself as a GBI narcotics agent and before she was a Medal of Valor recipient and before she was named Police Officer of the Year, and before she became a respected judge on the Fulton County Family Court bench, she was discharged from the United States Army while a private. The reason for her discharge? Failure to adapt to military standards, which is Army speak for she was gay. Judge Manning disclosed this for the first time to attendees at a Vermont Law School conference on what was then the Federal policy on gays in the military, “Don’t Ask Don’t Tell (DADT). After revealing her long-kept secret, Alex began advocating for the repeal of DADT, including nationwide petitioning institutions of higher learning to ban military recruiting on campuses until DADT was repealed. Vermont Law School was one of the first to do so. Alex continued this important advocacy in Georgia until DADT was finally repealed in 2011.

Can you imagine an American citizen wanting to serve her Country and being told the only reason she won’t be allowed to do so is who she loves? Sounds crazy, doesn’t it? But, although DADT has been abolished, and although same gender citizens may now be married in any state in the United States, it would be wrong to say we are out of the woods of discrimination and we don’t ever have to worry about that again. We need look no further than to our current Administration’s constant threat to reinstitute a ban on gays and transgendered people in the military. Or the current Justice Department’s intervening in a private employment lawsuit arguing that the ban on sex discrimination in the Civil Rights Act of 1964 does not protect workers on the basis of their sexual orientation. Or the recent sentencing of a gay man to death by a South Dakota jury because sending him to prison for life would be sending him “where he wants to go and he shouldn’t be able to spend his life with men in prison.” The United States Supreme Court refused to grant the defendant’s certiorari petition on the basis of what was clearly anti-gay bias of the jury. Thus, you see why we must continue fighting the good fight.

In last year’s Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868, 197 L. Ed. 2d 107 (2017), Justice Kennedy wrote that “racial bias [is] a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.” Until we can easily substitute “sexual orientation bias” with “racial bias” in this sentence, we have not realized the Constitution’s promise of justice for all.

So, it is not hyperbole to say Judge Manning is a true American hero, for her example, for her sacrifice, for her honesty and openness, for her dedication to equality and to justice for all. She is exactly who we want on the bench, who can bring to bear her toughness forged by personal struggle but tempered with deep compassion. And it is with that courage in mind that tonight we fittingly honor Judge Alex Manning.

Please join me in congratulating Judge Manning.

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50^th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.

The Problem with Juror No. 7: When Can the Trial Judge Remove a Juror?

October 1, 2018 | Robin Frazer Clark

I have been following the talc trials against Johnson & Johnson regarding the claims that their powder product gives women ovarian cancer and lung cancer. I hope you have been, too. They are, obviously, very interesting. I can’t look at the Johnson & Johnson powder of bottle sitting on the vanity of the locker room where I work out without thinking about the cases and the many women who have died of these cancers allegedly from years and years of use of Johnson & Johnson powder. The most recent trial in California was just recently declared a mistrial by the trial judge, Judge Margaret Oldendorf. The case is Weirick v. Brenntag North America, BC656425, California Superior Court for Los Angeles County (Pasadena). It involved a claim that use of Johnson & Johnson powder had caused the plaintiff’s mesothelioma, a specific type of lung cancer. The Plaintiff, Weirick, 59, is a school counselor who said she’s been using J&J’s talc products, such as baby powder and the company’s former Shower-to-Shower line, for more than 40 years. She was diagnosed with mesothelioma in 2017 and said her only exposure to asbestos came from use of talc products. Previous juries had come out with verdicts of $25.75 million and $117 million for the plaintiffs, a defense verdict and two mistrials.

This latest trial in California was particularly interesting due to the alleged misconduct of one juror, now scandalously known as “Juror No. 7.” (By the way, if you are ever on a jury and in the course of the trial become known by your Number, it is never a good thing). Juror No. 7, apparently, refused to deliberate with the other 11 jurors, to the point that the foreman asked the judge to replace the juror with an alternate. The defense objected and asked for a mistrial. The plaintiff’s counsel agreed to the substitution. This is interesting because it was never disclosed what side Juror No. 7 was holding out for; Juror No. 7 could have been a juror favorable for the defense and yet defense counsel objected and moved for a mistrial. In fact, it was never disclosed which side the entire jury was leaning in favor of, only that at the time a mistrial was called by the trial judge, the vote was 8-4. At that time, neither side knew which side had the 8 jurors. Since then, it has come to light that the 8 jurors favored the Plaintiff. George Chen, a 30-year old computer analyst and one of the eight who favored a plaintiff verdict, said he was “a little frustrated” and “really wanted to push this through.” He said the four members who voted for the defense seemed to have ”the mindset of … business people” concerning what a responsible company should do.

Even if there were mere traces of asbestos, J&J should have provided warnings, Chen said, because “people have a right to know.” Moreover, he noted, J&J for decades has offered a baby powder made with corn starch, and could have retired the talc version to eliminate any risk.

What is the Role of a Trial Judge?

August 16, 2018 | Robin Frazer Clark

What is the role of a trial judge? This question may often be debated among lawyers and between lawyers and judges themselves and maybe even by law students in school, but rarely is it a hot topic discussed in the public by non-lawyers. Until now. You may be following the Paul Manafort trial, in which the trial judge has been both criticized and congratulated for his conduct in presiding over that trial. As I write this, the jury is out. By most news accounts, that trial judge, Hon. T.S. Ellis, has often made known his likes and dislikes to the jurors and the prosecution seems to be taking the brunt of the abuse. So much so, that the prosecution has filed at least two motions requesting the trial judge apologize and make it clear to the jury that his remarks are not to be taken as commentary on the strength or weakness of the prosecution’s case. Things seem to have finally boiled over when, one morning, the trial judge did just that, he essentially admonished himself to the jury for his comments and said “Put aside any criticism. I was probably wrong in that,” and Ellis said, concluding, “Any criticism of counsel should be put aside — it doesn’t have anything to do with this case.” “This robe doesn’t make me anything other than human.”

“This robe doesn’t make me anything other than human.” Think about that for a second. Who else wears a cape at work? A Super Hero? Every word that comes out of a trial judge’s mouth in front of a jury has some persuasion attached to it…some hidden meaning. Jurors often take their cues from the trial judge. If the trial judge doesn’t seem to like a certain attorney, well, guess what? The jury probably won’t like that attorney, either. Jurors may be thinking: “Who does the judge think should win? He’s the expert, he knows. Does he like the defense attorney better than the plaintiff’s attorney? Does she think the plaintiff is exaggerating? He was rude to the female lawyer…maybe he thinks she is incompetent? What will he think of us if we find for the plaintiff? And return a large verdict? Maybe he thinks that shouldn’t happen in his courtroom?” As one trial lawyer said about Judge Ellis. “He can be very dominating,” said Jim Brosnahan, a California trial lawyer who defended John Walker Lindh in the American Taliban casebefore Judge Ellis. “The interesting question is: Is it aimed fairly at both sides, or is it particularly at one side?” Also, keep in mind how extraordinary it is that Judge Ellis essentially apologized to the jury for his own comments, recognizing they may have sent the wrong signal to the jury. This is a very rare occurrence for a judge to do that.

First, let me say, that we are blessed with many wonderful trial judges in Georgia. I have tried nearly 75 jury trials in the last 30 years of practicing law, all in Georgia, and with the very blatant exception of one Superior Court judge (she knows who she is), I have always been treated with the utmost respect and courtesy by our trial judges. Even when we may disagree, we do so with civility, not taking personal shots at one another. That is not to say that some aren’t demanding, or controlling, or picky, or even temperamental. Many trial judges are all of those things, because they are human and sometimes the stress of a trial gets to them the way it gets to everyone involved or they simply see their role as being in command of their courtroom. It has been my experience that our Georgia trial judges treat all those who come before them with the civility expected out of someone who wears a robe, has her name on a courtroom and has been given the authority by the State to preside over a trial, which is often one of the most important moments in a citizen’s life.