Atlanta Injury Lawyer Blog

My Tribute to Justice Robert Benham, Georgia Supreme Court

April 8, 2015 | Robin Frazer Clark

Lawyers Club of Atlanta

Newsletter – February 2015

From the President

Friends:

I sat down at the bar at Lawyers Club the other night with my good friend and Past President Hal Daniel, the sole endeavor in mind being to enjoy a cup of cheer together following a long day at the office. After we ordered our “usuals” and eagerly awaited Kenny’s expert renditions, instead of the usual “How are you doing?, Hal asked me the following question: “What have you done today to make someone else’s life better?” Intriguing. What followed was a genuine reflection of my day and Hal’s to see if we could honestly lay claim to such a noble endeavor as making someone’s life better rather than just barely making it through a hard workday unscathed and still standing and breathing.

The question brought to mind one of my favorite stories about one of my heroes, Justice Robert Benham. My service as President of the State Bar fortunately provided me many opportunities to spend time with Justice Benham and hear many wonderful stories about his life growing up in Bartow County. Before I share this wonderful story with you, let me give you a little background on the Honorable Robert Benham as a reminder and to set the stage.

Justice Benham distinguished himself as the first African American to win statewide election in Georgia since Reconstruction. In 1989, Justice Benham was further distinguished as the first African American to serve on the Supreme Court of Georgia, following his appointment by Governor Harris.

He also made history both as the first African-American to establish a law practice in his hometown of Cartersville. In what can only be described as something straight out of a movie, when Justice Benham would walk down the street in Cartersville to go to the Bartow County Courthouse, many fellow African Americans would come out of their homes and out of their places of work to follow him down the street. The shouts of “Attorney Benham’s going to court,” “Mr. Benham’s going to court” could be heard as they followed their hero, then “Attorney Benham”, to the courthouse, because they knew Attorney Benham was going there to stand up for the little guy, the underdog, which they, undoubtedly, felt they also were. Attorney Benham became for many African Americans the embodiment of justice, and although he was walking to court to represent one specific accused person, dozens of other citizens felt he was also representing them.

Justice Benham’s first lesson of service to others probably came at the hands of his mother, who insisted that he shine shoes at the local barber shop. His mother had this view that if you ever plan to lead people that you must be willing to serve them first and there’s no more humbling experience than being down on your knees shining somebody’s shoes. As she said, “If you do that you won’t be full of yourself.”

So Justice Benham as a little boy, with his brothers, shined shoes at Bob Cagle’s barber shop. As I have heard Justice Benham say, “the American Dream is that a black child from Cartersville who shined shoes in a barber shop can grow up and shine in the Halls of Justice.”

Which brings me to the story that Hal’s question to me that night at Lawyers Club brought to mind. In the Kennesaw State University Department of History and Philosophy Summer Hill Oral History Project, Justice Benham described his family’s origins for insistence on service to others. “Family meals were not optional, they were required. A blessing was said at every meal and the children, my two brothers and I, were required to say a Bible verse. We could not say the same Bible verse anybody at the table said and we could not use the same Bible verse during that week, and that was required. There was no television on, and we were the only family in the neighborhood who had a television, but you did not watch TV while you were at the family meal and you engaged in discussion. Daddy would always ask, “Well, what are you going to do today?” And then we knew what was coming next, “What are you going to do today for somebody else?” That was at every breakfast.”

“What are you going to do today for somebody else?” Quite a lesson that Justice Benham never forgot. Years later, Dr. Martin Luther King, Jr. would say that life’s most persistent question is “What are you doing for others.” Life’s most persistent question has been the hallmark of Justice Benham’s life.

One of the hallmarks of the profession of law is a recognition that along with the privilege to practice law comes a duty to subordinate financial reward to social responsibility. We will celebrate many of our fellow lawyers who have done just that by offering themselves to public service through service on the bench at our cocktail meeting this month on Wednesday, February 18. Please come and thank our honored judiciary for their service. You won’t want to miss it.

Hal’s question was a good one to ponder and so I ask it of you, my fellow Lawyers Club of Atlanta members: What have you done today to make someone else’s life better?’

Let’s have a drink together soon at the club to discuss.

Cheers,

Robin Frazer Clark

Robin Frazer Clark

President 2014-15

Do I Have a Case Against a Police Officer for Excessive Force?

April 3, 2015 | Robin Frazer Clark

The recent news about a young veteran who had mental health problems and was found running naked in his apartment complex, who the police shot, has the attention of many Georgia residents, especially me. You probably have read or seen the story on the news. Anthony Hill was a 27 year old U.S. Veteran who had known mental health problems, including bipolar disorder. He was found running naked around his apartment complex knocking on doors. He had done no harm to anyone. He was obviously unarmed as he was naked! Witnesses indicate Mr. Hill was about 180 feet away from the DeKalb County police officer who ultimately shot him when the officer first encountered Mr. Hill. The DeKalb County police officer, like every other police officer, was armed with a taser. For unknown reasons, the officer pulled his gun instead and shot Mr. Hill. Mr. Hill died.

As far as I have seen in news reports, Mr. Hill had violated no law (except maybe public decency?), had harmed no one, had not touched the police officer, had not resisted arrest…in short had done absolutely nothing to justify being killed at the hands of a DeKalb County police officer. Is this excessive force? Absolutely! Is it a crime? Yes, I think it is. This conduct, shooting a totally innocent, obviously unarmed man rises to the level of a crime, manslaughter perhaps, and the DeKalb County District Attorney’s Office should seek an indictment. And if you don’t think for a minute that Mr. Hill could have been you or your loved one, you need to think again.

What is going on with police forces lately? There seems to have been a rash of unjustified shootings of innocent, unarmed people. Some of these shootings are race-related, for sure. But there doesn’t seem (at least right now) to be a racial issue involved with the shooting of Mr. Hill. What was involved was the patently obvious lack of appropriate training of police officers on how to deal with a person who is exhibiting signs of a psychotic break or mental instability.

Judge Ed Carriere: The Embodiment of Professionalism

March 13, 2015 | Robin Frazer Clark

The last two Fridays I have spent speaking at Continuing Legal Education Seminars sponsored by the Institute of Continuing Education. My topic: Ethics and Professionalism. In preparing for both presentations, I couldn’t help but think about a dear departed friend who was the embodiment of Ethics and Professionalism, Judge Ed Carriere. I recall as one of the highest honors of my year serving as President of the State Bar of Georgia the day I accompanied Chief Justice Carol Hunstein to Judge Carriere’s home and with his wife, Jane, present, Chief Justice Hunstein published the resolution below. It gave me goose bumps then and it does now in the remembering of it. I wish everyone could have known Judge Carriere. Certainly, everyone who did was changed for the better. I share with you the Joint Resolution honoring Judge Carriere. The Supreme Court of Georgia

Whereas: The Honorable Edward E. Carriere, Jr. has rendered more than four decades of service to the justice system and the legal profession in the State of Georgia; and

Whereas: Judge Carriere earned his law degree at Loyola University in California and was admitted to the State Bar of Georgia in 1971; and

What Does “Open Court” Mean?

March 10, 2015 | Robin Frazer Clark

The concept of an “Open Court” has been back in the news lately with the efforts of numerous groups to try to convince the United States Supreme Court to broadcast live the oral arguments on the marriage equality case coming up in April. I am a proponent of that. In this day and age of online streaming and immediate tweeting there is simply no good, legitimate reason not to allow all Americans live access to what is going on in the Country’s highest Court as it is happening. But the Justices on the U.S. Supreme Court, apparently, disagree. I understand that one objection to live broadcasting of arguments from Justice Kagen and Justice Sotomayor is they are afraid broadcasting arguments live might induce counsel before them to engage in theatrics and shenanigans. Folks, that is ridiculous. Utterly ridiculous. The Georgia Supreme Court has been broadcasting oral arguments before it for years without even a hint of theatrics from the counsel who appear before them. Members of the State Bar of Georgia are required to use the utmost deference before any judge, but particularly the Supreme Court. All members of the Bar know the proper etiquette to employ before the Court. The Court doesn’t have to worry about anything unseemly happening. And should there be any doubt about this whatsoever the Court is constantly manned by Georgia State Patrol Troopers. No one is going to do anything they shouldn’t do. This would be the same for the United States Supreme Court. The Georgia Court of Appeals, unfortunately, does not, at the moment, permit cameras in their courtroom. There is no explanation why other than perhaps a budgetary one. It is my understanding that when a new Judicial Building is built, in the footprint of the current Georgia Archives building, the Georgia Court of Appeals will then be equipped to allow live broadcast of oral arguments. I hope that is sooner rather than later.

The United States Supreme Court may be feeling the heat. It typically makes audio recordings of oral hearings before it available at the end of the week. In the marriage equality case, the Court announced it would make the audio recording available the day after the hearing. In its most recent announcement on the subject, the Court has even moved that up and has indicated it will now make the audio recording of the argument available to the public that afternoon, the same day as the oral argument. If this is true, ask yourself: what is the difference between that and simply allowing all Americans to hear the argument in real time, in the privacy of their homes or at their work desks? I can imagine “oral argument parties” where citizens host viewing parties complete with coffee and Krispy Kreme doughnuts (make mine a Java Chip, please), or maybe Mimosas and Bloody Marys, so that they may enjoy the arguments in the company of their friends who are of like mind. After all, most things have richer meaning when they are shared experiences.

The push for transparency of the United States Supreme Court is nothing new…it has been going on for years. Here is why it is so important. Our nation was founded on the concept of self-government, that “We The People” decide how our government will behave and “We The People” will decide how to govern ourselves according to the Rule of the Law and the sacred Constitution, which men fought and died for so we could be a Free Nation. The United States Supreme Court is the final arbiter of the Law. It is the only body in our Nation that decides with finality whether something does not violate the U. S. Constitution. Do men and women not respect something and hold onto its principles more when they have been involved in its making? When they can see for themselves the fairness and equality used in its creation? Lack of information breeds suspicion. Secrecy creates mistrust. With suspicion and mistrust comes their ugly cousin, contempt. Why would the United States Supreme Court wish to risk such a side effect of their rulings? Why wouldn’t the Supreme Court want their opinions to be embraced by “We The People,” such that their opinions would have the stamp of authority with the public they rightfully should? It could easily be accomplished simply by livestreaming their oral arguments.

What is an Activist Judge? Should I Care?

March 6, 2015 | Robin Frazer Clark

What exactly is an “activist judge” and why should I care? I often get this question at cocktail parties. In legal circles, the answer to the question “What is an activist judge” is usually answered “Any judge who rules against you.” But the term is being heard frequently in the news these days, perhaps because of several rulings coming from the United States Supreme Court and perhaps because of the piecemeal change in marriage equality being played out in various’ states’ Probate Courts on a seemingly daily basis.

An “activist judge” is actually a judge who is seen as attempting to legislate from the bench, a judge who, through her or his judicial rulings, is reading into the law something that is not actually there, or who is trying to create law as she or he thinks it should be even if the statute at issue doesn’t actually say or permit such a ruling. It is a judge or justice who makes rulings based on personal political views or considerations rather than on the law, or who issues rulings intended to have political effects. The label of “activist judge” has become pejorative, usually said with a roll of the eye, or a slight snicker of disdain, as if such a judge has no credibility or they are inherently bad. No judge, ostensibly, wants to be labeled an “activist judge.” For example, in Wisconsin the election for the State Supreme Court is around the corner and a challenger to an incumbent justice claims the incumbent is “activist” and, therefore, should be summarily disposed of. The name-calling also usually only applies to judges in appellate courts, who either correct error in the trial courts below or interpret the current law, whether statutory or common (case made) law, to determine how a case should turn out given its unique set of facts. Whether you deem a judge to be an “activist” sometimes appears to be no more than a political question and sometimes seems to come down to your political beliefs. If the judge ruled in opposition to your political beliefs, you may tend to label that judge “activist.” For example, the Conservative ThinkTank The Heritage Foundation, whose self-proclaimed mission “is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense,” has an entire page on its website devoted to calling out what it contends are rulings by activist judges or activist courts. Last month, prompted largely by recent court rulings on gay marriage, an Idaho House committee voted Monday to introduce a resolution calling for the impeachment of federal judges who don’t follow the original intent of the U.S. Constitution.

“Judicial Restraint” is often considered the opposite of “Judicial Activism.” “Judicial Restraint” is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate. In deciding questions of constitutional law, judicially restrained jurists go to great lengths to defer to the legislature. Judicially restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges.

Effort in Georgia To Eliminate Your Seventh Amendment Right to a Jury Trial

February 11, 2015 | Robin Frazer Clark

Did you know there is underway right now an effort in the Georgia Senate to eliminate your Seventh Amendment right to a jury trial in medical malpractice cases? That’s right. A bill has been introduced (again), SB 86, that seeks to eliminate jury trials in medical malpractice claims. This bill was introduced by Senator Brandon Beach from Alpharetta, and this is, at least, the second time around for the bill. Last year the same bill was introduced and a coalition made up of odd bedfellows, the Georgia Trial Lawyers Association (GTLA) and the Medical Association of Georgia (MAG), opposed it and it died a slow death. Like Lazarus, it has now been resurrected.

Supporters of the bill make the wild claim that this bill would reduce so-called “defensive medicine” where doctors supposedly order unnecessary medical tests. I find such a claim outrageous and offensive. Doctors should, likewise, be offended by this strategy. I have talked with many doctors and taken many depositions of doctors. I have never found them to order what they know are unnecessary medical tests. For a doctor to order what he or she knows to be an unnecessary test (and get paid for it, by the way) would be fraudulent and would violate every ethical oath the physician has ever taken. So that cannot be the real issue with this piece of legislation.

Who is behind it? Not the doctors themselves, as evidenced by the opposition of MAG, the doctors’ professional association. Not the citizens of Georgia. There has been no rallying cry that doctors shouldn’t be held accountable as every other citizen may be with he or she commits negligence that results in injury to someone. There have been no “runaway” verdicts in Georgia, either. Statistics show that doctors and hospitals win almost 85%-90% of all medical malpractice trials in Georgia.

The Unintended Consequences of Apportionment: Part I

January 15, 2015 | Robin Frazer Clark

What is apportionment? How does it affect my case? What does it mean? Can I ever get justice in my case with it?

These are typical questions I often get from my clients in personal injury cases. The issue of apportionment comes up now in just about every case filed. Apportionment is the premise of Georgia law that says a jury may (but is not required to) apportion other people or entities, who are not even being sued in the lawsuit, a percentage of fault should the jury so choose. In a lawsuit, a defendant may claim some other person or company is to blame also and may ask the jury to consider assessing some percentage of fault or blame to that other person or company who is not named as a defendant in the lawsuit. This is known as “apportionment,” i.e., the jury apportions fault or blame to whoever they think is at fault. Apportionment came into Georgia jurisprudence in 2005 through the wisdom of Georgia Legislature, part of sweeping reforms then known as “tort reform.” Interestingly, nearly all of these so-called reforms have now been elimimated as unconstitutional by our appellate state courts, e.g., a cap on non-economic damages. That cap lasted only as long as it took for a case with a verdict higher than the Legislature-imposed cap to make its way to the Georgia Supreme Court, where the Court promptly held the cap on damages to violate the Georgia Constitution. That case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010). Notice the Nestlehutt case was decided in 2010, so there were five years between the creation of that unconstitutional law and the undoing of it. There is no telling how many Georgia citizens were victims of malpractice during those intervening five years who didn’t receive justice.

When the law of apportionment first reared its ugly head, many practitioners and prognosticators, including mediators, declared certain types of cases “dead.” I can remember many of these folks pronounced the premature death of negligent security cases because the defendant apartment complex or defendant business would simply be able to blame the criminal defendant who perpetrated the crime and get off Scot free. Well, in the words of Coach Lee Corso, “Not so fast!” Fairly quickly after the implementation of apportionment, and after every defendant tried to blame everyone else in the world for their negligence, including a criminal, known or unknown, that myth was disproven. For example, in the Martin v. Six Flags Over Georgia case, in which a young man was severely beaten by a gang at Six Flags, for no reason other than the gang (some of whom were Six Flags employees) wanted to beat someone up, the jury returned a verdict of $35 Million. The Cobb County jury attributed to the gang members a total of 8% of that $35 million verdict, and split between the four of them, it came out to 2% per gang member/roughly $750,000 each. This means that Six Flags had to pay the remaining 92% totaling roughly $32 million dollars in damages.

Jury Duty: The Heart of American Government

January 5, 2015 | Robin Frazer Clark

I recently had jury duty in DeKalb County, Georgia, where I have been a resident for 15 years. In 15 years, I have received a summons for jury duty two times. I have never served on an actual trial jury. This is the ironic curse of being a trial lawyer. Most likely, I will never serve on a trial jury although my job involves persuading trial juries to see a case my client’s way. I have been in many, many courts throughout the State of Georgia and I am proud to say as a DeKalb County resident there is no better court experience than DeKalb County, from the deputies who check you through the metal detector, to the jury clerks who handle hundreds of jurors every day, to the courtroom staff of the trial judges, to the judges themselves. It is an extremely pleasant experience and trust me, I have been in many Georgia courthouses where that simply cannot be said.

I believe jury duty is the Heart of American Government. A trial jury is the smallest form of self-government ever conceived. Government by the People for the People, right? Trial by jury was so important to our nation’s Forefathers they enshrined it in the Seventh Amendment to the U.S. Constitution. Said President John Adams about trial by jury: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.” So with that attitude, I proudly stepped into the DeKalb County Courthouse, with jury summons in hand, not in my usual role as trial lawyer, but in the very important role as potential juror. Awesome! I can’t wait!

I went through the process of jury selection, called Voir Dire in law school and never called that again by me. It sounds too pretentious, doesn’t it? And jury “selection” is a misnomer…it is actually jury “deselection.” Trial Lawyers don’t get to look at the jury venire (another pretentious word for the jurors from whom the trial jury will be struck) and pick who looks best to them. It is the opposite of that. Trial lawyers get (usually) six peremptory strikes to take off the jurors who seem like they would be horrible jurors for their side of the case, for one reason or another. Each side of the trial strikes six jurors and whoever is left is your trial jury who will decide the case. Again, ironically, the jurors who end up deciding the case are usually the jurors you know the least about. They have often never even responded to any of your questions in “jury selection” so there were no red flags in their personal history to make you concerned about how they would see your case given their preconceived notions or their obvious leanings toward one side or the other. There are also strikes the Court (i.e., the trial judge) exercises called “strikes for cause” where it has been demonstrated that a juror could not possibly be impartial because of something that has happened in their lives perhaps so similar to the case to be tried that they have already made up their minds how the case should come out. Or maybe they have such deep religious beliefs that they are forbidden by their particular Faith to judge another human being and so would be incompetent to sit in judgment of another person. I was thinking about jury selection this morning as I was reading about the trial that begins to today in the Boston Marathon bombing. Jury selection in that Federal trial is estimated to take months and the jury venire from which a trial jury of twelve will be struck will consist of 1,200 jurors! Where in the courtroom do they put 1,200 jurors?

Can a Victim of Medical Malpractice Get Justice in Georgia?

December 3, 2014 | Robin Frazer Clark

I have been thinking a lot about “justice” lately. I have just finished a week long medical malpractice trial in DeKalb County in which I did not think justice was served for the family who lost their loved one (more on that in a minute) although I don’t criticize the jury in any way. That alone is probably a difficult concept for lay persons to accept, but it is the truth for trial lawyers. I also can’t remember a time when the word “justice” has been thrown out more in the media, in social media, in sermons and in everyday conversations than it has in the last few weeks due to the events in Ferguson, MO. That is extraordinary for the United States, a nation founded upon the very principles of justice. Try Googling “was justice served” and you’ll get a myriad (actually 1,920,000 ) of opinions regarding the Ferguson shooting, with about half of the articles responding in the affirmative and about half responding in the negative. Maybe this rough split of 50/50 is proof in and of itself that the justice system usually gets it right.

I was also skimming through a book titled “Justice” recently which noted that most Americans don’t take any oath to support and uphold the Constitution or even the laws of the state in which they reside. I find that interesting because I have done so several times, first when I was sworn in to practice law in the state courts of Georgia, then when I was sworn in the Georgia Court of Appeals, then when I was sworn in the Georgia Supreme Court, then when I was sworn in in the United States District Court for the Northern District of Georgia, then when I was sworn in to the United States Supreme Court, and then as an officer of the State Bar of Georgia and then, most recently, when I took the office of President of the State Bar of Georgia. That’s a lot of swearing!! But each time (at least 7, maybe more) I swore I would protect and defend the Constitution of the United States, the Constitution of the State of Georgia and the laws of the State of Georgia, “so help me God.” I take that oath as seriously as any single person has ever taken it. Part of that sacred oath is to protect and defend our justice system, criminal and civil. You will never hear me criticizing our justice system. There may be some things wrong with it, but it is still the greatest system ever devised by man for self-government. As Winston Churchill said about Democracy: “Democracy is the worst form of government except for all those others that have been tried.”

I say all of the above because after 27 years of practicing law in Georgia, I am on the verge of concluding that a victim of medical malpractice in this state cannot obtain justice. Jurors here in Georgia will look for the smallest shred of doubt, will do almost anything, not to hold a physician liable for his negligence. I can’t pinpoint one cause…there are probably many. TV advertisers must shoulder a lot of the blame. I am not a TV advertiser. I am an actual trial lawyer. When I stand in front of a jury to begin jury selection, those jurors are already suspicious of me because they know only of personal injury lawyers who advertise on TV with silly slogans or theme music, or has-been actors touting the lawyer’s legal acumen. Although I have never advertised on TV or anywhere for that matter, I am lumped in with those who do because I am a personal injury lawyer. I am guilty by association.

One More Step Toward Justice: Georgia Appellate Ruling Ensures Jury Trial in Road Design Case

November 14, 2014 | Robin Frazer Clark

I have written before about my case against the Georgia Department of Transportation and the City of Atlanta about a defective median installed in the middle of the City of Atlanta’s busiest street, Peachtree Street, in the heart of Buckhead at the intersection of Peachtree Street and Piedmont Road. This intersection may well be one of the busiest intersections in Buckhead, the city’s premiere retail, hotel and financial district. This median was installed in October 2007 and was opened for the motoring public without sufficient warning signage and without sufficient lighting. My clients’ daughter was killed in 2008 in a single car accident when the driver of her car hit the median, because it was not readily visible and was not appropriately marked. We filed suit in back in 2010 and are still fighting four years later. Various appeals have lengthened the litigation. We continue to fight. On November 12, 2014, we received a wonderful opinion from the Georgia Court of Appeals that will allow us to proceed with a jury trial against the City of Atlanta. Below if the opinion. We had already received a similar opinion regarding our claims of negligence against the Georgia Department of Transportation. This puts us one more step toward justice for the family.

Robin Frazer Clark 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 and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. 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.