Atlanta Injury Lawyer Blog

Can a Jury Believe What It Sees?

July 25, 2014 | Robin Frazer Clark

Can a jury believe what it sees? That may seem like a stupid question, but a new study confirms it’s not. G. Daniel Lassiter, Ph.D., of Ohio University, recently conducted a series of experiments using focus groups and videotapes of criminal interrogations. Mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Along the same lines we are definitely aware that people confess to crimes they did not commit. This has been proven scientifically time after time. But why?

Is State Farm Really Like a Good Neighbor? Who Does My Insurance Agent Really Work For?

July 8, 2014 | Robin Frazer Clark

Do I have a case against my insurance agent? I feel like my insurance adjuster cared more for the insurance company than for me, her client. Who does my insurance agent really work for? Me or the insurance Company?

Good question! No doubt many of us think our insurance agent, with whom we have worked with, confided in and trusted, is our friend and our agent, not the insurance company. But as I often say in these blogs: Not so fast! Although the term “agent” is loosely thrown around in all sorts of scenarios, the actual word “agent” is loaded with ambiguity. Natch, if I have purchased my car and homeowners insurance through my “agent” I would assume that person works for me and would always have my best interests in mind. But, unfortunately, especially under Georgia Law, it doesn’t always operate so smoothly.

For example, if an insurance “agent” is independent and sells policies for multiple insurance companies, chances are he or she would be considered an “agent” of the insured who must favor the insured’s interests over the company’s. If, however, the insurance “agent” is an employee of the insurance company and not independent, then chances are this type of insurance “agent” is actually an agent of the company, not of you, and that type of “agent”/employee would put the interests of the insurance carrier over your own.

Do I Have a Case?

June 24, 2014 | Robin Frazer Clark

Do I have a case? I am asked this countless times…at church, over cocktails, in the gym…anywhere where someone who knows I am a trial lawyer who represents injured individuals finds me and grabs me to ask. Do I have a case? Four little words, but so very complex.

In the world of personal injury law practice, I am a generalist. I take all variety of personal injury cases. The only limitation for me is whether I think I can prove the case and whether the damages justify my representation. So “Do I have a case” depends on many things, but first is can we prove one? The plaintiff in a personal injury lawsuit has the burden of proof, meaning the plaintiff must prove the case and the defendant really has no burden. The plaintiff must prove, by a preponderance of the evidence, four things: 1)duty; and 2) breach of duty; and 3) causation and 4) damages. “Preponderance of the evidence” is a cute little phrase that means nothing more than it is more likely than not. “Preponderance” is used in law school and should never be used again anywhere else, but especially not in a courtroom to a jury. The burden of proof simply means that a jury agrees it is more likely than not that this thing happened. And the plaintiff must prove all four necessary elements; three out of four is not good enough.

Sometimes determining whether someone owed you a duty not to injure you is simple. Like in a car wreck case in which you have been rear-ended. Every driver on our Georgia roads owes every other driver on our roads a duty not to follow too closely and not to rear-end the car in front of them. So if you have been rear-ended in a car wreck, you can easily prove #1 and #2, duty and breach. In our car wreck case example, it is #3 and #4 that get a little harder. Damages means you have an injury to which you attribute to the car wreck. Damages are simple enough usually…if you suffered a broken leg in a car wreck, a leg which was perfectly fine before the car wreck, you have both damages and causation, meaning you can prove the broken leg was caused by the wreck and not from something else, not from some other force. If however, you believe you have injured your back or neck in a rear-end car wreck but no broken bones, the task of proving causation, that the force of the car wreck caused the neck or back injury and nothing else, gets a bit harder. Factors involved here on whether you can prove causation include your past medical history and whether you had ever been treated for neck or back problems before the wreck. For example, let’s say you were involved in our rear-end car wreck on the way to the hospital for back surgery for a chronic back problem. It would be pretty difficult to prove the car wreck caused you to have a back injury that now needs surgical treatment. You were already on your way to get that surgical treatment before the wreck ever occurred! See how this works? Those are the tougher cases and they often come down to expert testimony from your treating physicians about what they believe caused your back injury.

Can I Sue the County?

June 12, 2014 | Robin Frazer Clark

I am asked this question a lot: “Can I sue ______?” The short answer is always yes, you can sue anybody. The real question is “If I sue _____, will I win?” Because although you can file a lawsuit against anybody for practically anything, what matters is whether you would win the case, whether that type of cause of action is viable under Georgia Law, or whether that type of case would be thrown out long before you ever saw a jury. As a plaintiff’s personal injury trial lawyer, I must take and pursue cases for clients that only have a very high chance of success. My fee is entirely contingency based, meaning I don’t get paid, regardless of how much time and effort (blood, sweat and tears) I put into your case unless I win the case. Period. So when I hear these ridiculous claims that trial lawyers file “frivolous” lawsuits I get furious, because good trial lawyer could not possibly afford to file “frivolous” lawsuits. A lawyer who files “frivolous” lawsuits won’t be in business very long.

So today I am addressing the pretty often-asked question of whether I can sue the County. Let’s say the County, or a County employee, has harmed or physically injured you in some way and you want to sue them for money damages. Piece of cake, right? Not… so… fast!

Unlike the State and unlike most cities (municipalities) in Georgia, a Georgia County enjoys wide sovereign immunity. The State of Georgia has waived its sovereign immunity for personal injury claims by creating the Georgia Tort Claims Act. There are a million hoops you must go through under the GTCA first to be able to sue the state, but if you know how to go through those hoops and go through them all just the right way, you may have a successful personal injury claim against the State of Georgia. The same is true for cities in Georgia, although they fall under a different state statute that allows them to be sued for negligence. But no so for the counties. Which begs the question: Why are counties so unique?

Did You Think He Was Guilty, Too? The Lesson from the Jim Donnan Trial

May 27, 2014 | Robin Frazer Clark

The recent jury verdict in the Coach Jim Donnan trial surprised me. I thought the jury would find him guilty. That’s because, unlike the jury, I never heard all of the evidence admitted in court. All I heard was the media’s spin on things, which led me, without a doubt in my mind, to believe the jury would convict him.

Not so fast.

Remember innocent until proven guilty? Well, the State of Georgia just never made it that far in this trial. The jury foreman said:

Would You Be Upset If Your Home Were Wrongfully Foreclosed Upon?

May 13, 2014 | Robin Frazer Clark

The easy answer to the question I pose above is an emphatic “Yes!” Right? For any homeowner to have his or her home wrongfully foreclosed upon and scheduled to be sold at auction on the Courthouse steps, as we still do here in Georgia through nonjudicial forclosures ( a topic which deserves it’s own blog), would create enormous, undue emotional stress. Your home is, more than likely, the largest purchase you have ever made and has the highest financial investment value of anything you have ever personally invested in. We call our home our “castle.” So when a corporation wrongfully forecloses on your castle, your home, trying to sell the house right out from under your homeowning feet, don’t you think this would just naturally cause you some undue stress? Worrying whether you would lose your house? Lose your biggest investment? Lose the roof over your and your family’s heads? Should whoever did so wrongfully foreclose on your house have to face justice in the form of a jury?

One would thing so, but when it comes to our ever-increasing conservative Eleventh Circuit Court of Appeals, the answer, unfortunately, seems to be “not so fast.” In a recent 11th Circuit opinion, the Court held although a person in such a position of being wrongfully foreclosed upon may very well have a claim of intentional infliction of emotional distress, the amount of proof one must offer just to get past the judge and get to a jury may be impossible to meet, thus ending the homeowner’s ability to seek redress for the wrong. In Lodge v. Kondaur Capital Corp., et. al, issued on May 8, 2014, the Eleventh Circuit (of which Georgia is a part) held that the plaintiffs, the Lodges, had not offered enough “proof” of emotional distress suffered by them at the thought of their home being wrongfully foreclosed upon. The Lodges, at the time, were in bankruptcy. Federal bankruptcy laws forbid foreclosure upon a home that is in bankruptcy. The Defendants in Lodge willfully violated this law, known as the “Bankruptcy stay” and moved to foreclose upon the Lodges home, even though that was the very reason the Lodges had filed for bankruptcy.

The Court found against the Lodges, denying them the right to have a jury decide their case. The Court said the Lodges hadn’t offered the Court enough proof of emotional distress. But whether there is sufficient proof of a claim should be a question to be decided by a jury, not three appellate judges. As the attorney for the Lodges, Ralph Goldberg, noted in response to this narrow opinion, “I don’t understand why anybody would not think that…hearing that your house is about to be foreclosed upon is significant emotion distress. It seems to me they’re out of touch with how normal people lead their lives.”

Pedestrian Fatalities Down Nationwide but Not in Georgia

April 28, 2014 | Robin Frazer Clark

As a plaintiff’s personal injury trial lawyer in Atlanta, Georgia, I often check Georgia statistics regarding the number of car wrecks, bicyclists wrecks and pedestrian accidents, including fatalities. I noticed that Richmond County, Georgia has initiated a new program that targets jaywalking pedestrians or pedestrians caught not using crosswalks to educate them about the rules of the road for pedestrians and why they are so important to follow. So far this year, the Richmond County Sheriff’s Office has reported nine traffic fatalities. Four of the incidents involved pedestrian-versus-vehicle collisions. In 2013, police responded to 26 fatal traffic accidents, eight of which involved pedestrians.

Earlier this month, three teens and an Augusta man were struck by vehicles on Richmond County roads. The man and two of the teens died as a result of their injuries. The third teen remains hospitalized.

Unfortunately, Georgia and South Carolina, rank among the worst in the country for pedestrian and cycling fatality rates. And many of these incidents are hit-and-run crashes, where the at-fault driver hits a pedestrian and can easily make a quick get-away as his victim lies helpless and injured on the pavement. I have such a case pending right now in which the current issue is the filing of an uninsured motorist claim against the plaintiff’s own insurance carrier, State Farm Insurance Company, as they have denied coverage in every way possible under the sun. I blogged about this case awhile back and about the fact that when you are on foot and hit by a car as a pedestrian, you have an uninsured motorist claim against your own car insurance. Few people know this and most policies do everything they can to hide the fact that you have such a claim.

Wild Animal Attacks: Does the Premises Owner Have Liability?

April 18, 2014 | Robin Frazer Clark

As a plaintiff’s personal injury trial lawyer who handles premises safety cases on a regular basis, I have been reading with interest an article about a wrongful death lawsuit recently filed in Illinois against a condominium owner regarding the death of a resident killed by black swans on the property. The dead man actually cared for the black swans for the condo and the condo kept them on the property to keep away geese and limit geese droppings on the grounds. You may recall this incident when it first happened, as it was on national news, certainly made news here in Atlanta, and was a shocking event with a rather bizarre manner of death. On the morning of April 14, 2012, one of the swans attacked the man, Anthony Hensley, causing his kayak to topple, according to witnesses at the time. The bird continued to lunge at him as he struggled to make it to shore before he disappeared under water, authorities said after the attack. He was pronounced dead at a hospital after dive crews scoured the 50-foot-deep pond to find him, authorities added.

The lawsuit claims that the defendants “knew or should have known that mute swans are strongly territorial with a dangerous propensity to attack.” Amy Hensley’s attorney, Kenneth Apicella, pointed to Illinois’ Animal Control Act, which says that the owner of an animal that attacks a person in certain circumstances can be held liable for damages.

This case will be an interesting one to follow, but it begs the question: would such a case here in Georgia “fly” (sorry for the pun). My answer is probably not. The Georgia Supreme Court in 2012 decided a very similar case that involved the death of a woman by alligator. The case, The Landings Club v. Williams, 291 Ga. 397, 728 S.E.2d 577 (Ga. 2012) was watched with great interest in the Georgia legal community, as it could have meant enormous liability for landowners in Georgia, which our law have heavily favored since Oglethorpe first founded our beautiful state. In The Landings case, a woman who was visiting her family at a planned residential/golf club community that had several lagoons on the property, which was on Skidaway Island off the Georgia coast. No person had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time, went for a walk near one of the lagoons near her daughter’s home some time after 6:00 p.m. The following morning, Williams’ body was found floating in the lagoon. Williams’ right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after the alligator was killed, parts of Williams’ body were found in its stomach.

Jury Duty: The Tenet of the American Judicial System

April 7, 2014 | Robin Frazer Clark

I read with horror the article in today’s Fulton County Daily Report, our legal news organ, about a lawyer who received a summons for jury duty in DeKalb County and who then promptly and arrogantly emailed the judge informing the judge, Hon. Dax Lopex, DeKalb County State Court, that if selected for the jury she would blame the plaintiff and automatically find for the defendant. I find this offensive on so many levels it is hard to know where to start. As the 50th President of the State Bar of Georgia, as the Past President of Georgia Trial Lawyers Association, as an Officer of the Court who swore to uphold the Constitutions of the United States and the State of Georgia, and mainly, just as a plain old Georgia citizen, I find this behavior by this Georgia lawyer to be outrageous.

The jury system is the Hallmark of the American Justice System, both criminal and civil. As a plaintiff’s personal injury trial lawyer handling only civil money damages cases for injured people, the ability of my client to seek redress and justice for injury depends on Georgia citizens performing their civic duty in the form of jury duty. Everyone knows it is difficult to reorganize one’s week to attend jury duty and knows it is never convenient for someone to have to serve on a jury. But if you have read many of my blogs, you will already know that once someone has served on a jury (or even gone through the jury selection process) they become even more proud of the American Justice System and are proud for having performed their all-important role in it. For the vast majority of people, serving on a jury turns out to be one of the most meaningful things they have ever done for their community and their State. Very few citizens leave jury duty disgruntled at the process.

Thomas Jefferson said about juries: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Anyone who loves our great country would have to agree with that. Even though the jury system is not perfect, it is, without question, the best legal system in the world. Many countries have copied our judicial system. This conduct by anyone of denigrating our jury system would be reprehensible, but it is even more so for a lawyer, an officer of the court who has sworn to uphold the constitution, to do so. It is, frankly, unfathomable. Judge Lopez (rightfully) sentenced her to a night in jail for contempt of court. You would think a night in the DeKalb County jail would get someone’s attention, wouldn’t you? I guess we shall see, because Judge Lopez also referred the matter to the State Bar of Georgia’s Office of General Counsel for potential disciplinary proceedings against her.

Judge or Jury? Which Would You Prefer Decide Your Fate?

March 13, 2014 | Robin Frazer Clark

I have been watching with great interest news reports on the Oscar Pistorius trial that is going on right now in South Africa. Oscar is known as the “Blade Runner” as he runs on prosthetic legs and was the first person with prosthetics to run in the Olympics, not the Para-Olympics. He is, unquestionably, a celebrity in South Africa and hero there. He is widely loved by the citizens there. The Pistorius trial has proven to be South Africa’s “O.J. Simpson” trial, although we don’t know yet if it will have a similar outcome. The Proscecution alleges Pistorius intentionally shot his girlfriend, Reeva Steenkamp, through a closed bathroom door in his home during the middle of the night, killing her. There is no doubt that Oscar killed her; the question is, what was his intent? The issue of a criminal trial is often not who did it, but rather what was going on in the mind of the defendant at the time he did it?

It is an intriguing case. One of the things that interests me is that in South Africa, this case is being tried and will be decided by the judge, not a jury. The case has really put the legal system of South Africa in the spotlight. South Africa abolished jury trials in 1969, while the country was under apartheid, due to fears of racial prejudice by white jurors. Pistorius will be tried in a high court in Pretoria by Thokozile Matilda Masipa — the second black woman appointed to the bench since apartheid ended. This would almost certainly never occur in the United States. A criminal defendant can certainly consent to having a judge decide his fate, known as “bench trial,” but that is extremely rare, given that conventional wisdom says a criminal defendant has a better chance with a jury than a judge.

Likewise, for civil plaintiffs in cases asking for money damages for personal injuries, the kind of case I try, the conventional wisdom is to have the case decided by a jury, not a judge. Again, the parties could, by mutual consent, agree to have the case bench tried by a judge, but that would be highly unusual. One of the biggest risks of a bench trial is having the judge, that one person who decides your entire case, is against you? You lose! It sometimes takes four or five years for a civil case to reach a trial, and in one instant, based on who your judge is, you have lost because it was all or nothing…you had to convince one person and you couldn’t do it.