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Last night I had the great honor and distinct privilege, as President of the State Bar of Georgia, to recognize Judge Carla Wong McMillian, recently appointed by Governor Nathan Deal, as the first Asian Pacific American state appellate judge in the Southeast. This was an historic appointment by Governor Deal and the State Bar of Georgia salutes him, as well, in breaking this barrier for Asian Pacific Americans. I was proud to stand with the Honorable Al Wong, Judge, State Court of DeKalb County and the very first Asian Pacific American state court judge in Georgia, to recognize this nod to the need for vigilance and diversity.

Judge Wong McMillian’s colleagues from the Georgia Court of Appeals joined us, as did many members of the Georgia Asian Pacific American Bar Association (GAPABA) who co-sponsored the reception. Thank you also to Thomas Worthy, Governor Deal’s Deputy Executive Counsel, for joining us. My remarks from the evening are copied below. It was a wonderful night to celebrate diversity and take pride in the extraordinary appellate bench we have in Georgia. As I said last night, “each time a barrier is removed in the leadership of our courts, a door opens to a new generation of potential judges, which might include the next Thurgood Marshall, the next Sandra Day O’Connor, the next Robert Benham, the next Leah Ward Sears or the next Carla Wong McMillian. And that is something to be celebrated.”

Robin Frazer Clark

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Yesterday, as President of the State Bar of Georgia, I testified in front of the House Judiciary Committee in support of HB 242 which is a comprehensive Juvenile Justice Reform Act. It includes both Juvenile Criminal Justice reform and a rewrite of the Juvenile Code, which is Title 15 of the Official Code of Georgia. Below are my remarks to the House Judiciary Committee:

REMARKS OF ROBIN FRAZER CLARK TO THE JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES OF THE GEORGIA GENERAL ASSEMBLY

I am Robin Frazer Clark and am the President of the State Bar of Georgia, which is made up of nearly 44,000 lawyers, including judges, prosecutors, public defenders, private pratitioners and even Legislators. On behalf of the State Bar of Georgia, let me first thank you as members of the Georgia General Assembly for your dedication to the citizens of Georgia and your personal sacrifice I know each of you make to be here and make a difference. We appreciate you.

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I am in intense trial preparation this week for a medical malpractice trial I start on Tuesday in the DeKalb County State Court. As a plaintiff’s personal injury lawyer, I take just about any sort of case, including cases like the one I will try next week, against a physician for a medical error he committed during surgery. This type of case is known as a “medical malpractice” case, but all “malpractice” really means is “negligence,” and all “negligence” means is “carelessness.” In preparing for this trial I filed a Motion in Limine, which is a particular type of motion that seeks to limit the type of evidence that a jury is allowed to hear at trial. Part of my Motion in Limine is to prohibit argument or the charging of the jury on what is known in Georgia Law as the “presumption of due care.” It is a law that says doctors in Georgia are presumed to have used “due care” in their treatment of a patient, even though they are now being sued for it.

This strikes me as fundmentally unfair. No other Georgia citizen gets the benefit of a presumption by the jury that he or she exercised “due care.” This is even more unfair given the fact that to file a lawsuit against a Georgia doctor you have to attach to the Complaint an Affidavit by another doctor that says the Georgia doctor did, in face, commit malpractice, i.e., did not exercise due care. Presumption rebutted! Already!

Here is a portion of my Motion in Limine on the unfair “presumption of due care.”

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It was a tragic story of unspeakable loss when we learned of four siblings’ deaths in a Conyers, Georgia fire in a duplex on January 8, 2013. As a plaintiff’s personal injury lawyer, I so often help families deal with unexplainable loss and sorrow. We have since learned that the fire was started by a six year old brother of the four siblings who died. Apparently, the young boy was playing with a cigarette lighter in the stairwell of a duplex the family rented. I say “started the fire” instead of “caused their deaths” because the real “proximate” cause of the deaths was the lack of any smoke detectors in the rented duplex. “Investigators… determined that the only smoke alarm in the duplex was downstairs and that it had no battery in it. Dwayne Garriss, state fire marshal, said it is state law that smoke detectors must be placed outside any sleeping area. However, he said the landlord will face no liability, because the law carries no penalties for a first offense. It provides a $25 fine for a second offense.”

That’s a crime in and of itself, isn’t it? Certainly, failing to have the mandatory smoke detectors in place as required by law and then renting the duplex to a family with five small children is criminal. Under Georgia law (O.C.G.A. §25-2-40) an approved battery operated smoke detector is required in every apartment, house, condominium, and townhouse constructed prior to July 1, 1987. The smoke detector is to be located on the ceiling or wall at a point centrally located in the corridor or other area giving access to each group of rooms used for sleeping. Where the dwelling has more than one story, detectors are required on each story including cellars and basements, but not including uninhabitable attics. The detectors must be listed and meet the installation requirements of NFPA 72. The law is to be enforced by local building and fire code officials.

It seems that the landlord, at the very least, recklessly subjected the family to exactly this type of risk of death. Obviously, had there been smoke detectors, the alarms would have gone off and would have awakened the mother in time for her to save her childrens’ lives. Instead, they are dead and she is left with horrible burns on most of her body.

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It is a rather morbid statistic that the Georgia State Patrol keeps but it is helpful to keep track of, and that is the number of deaths on Georgia Highways during a holiday. For the just completed Thanksgiving Holiday, that unfortunate number is 19. This is an increase in the number of highway deaths from last year’s total at this same time of 13. There were also another 263 injuries from Georgia motor vehicle wrecks this year, down from 303 last year. Almost all of the fatal crashes involved either speed, alcohol, or the victim failing to use a seat belt.

The Governor’s Office of Highway Safety (GOHS) hopes these statistics and their efforts “will encourage responsible driving practices, and create safer roadways throughout the communities. With this information it is our hope that individuals and organizations work to reduce the number of motor vehicle crashes that occur yearly on Georgia roads and highways.” You can find more helpful information at http://www.gahighwaysafety.org/.

In my plaintiff’s personal injury law practice, I deal with death of someone’s loved one on a daily basis. I know that each of those 10 killed represents a loving family missing a beloved family member and I know that family is grieving over their loss. My heart goes out to each and every one that they may receive comfort and healing.

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Most people don’t realize this, but your own car insurance company, the one you pay premiums to to protect you, is your adversary, not your friend. You must treat them like an adversary whenever you are involved in a car wreck, even when it is not your fault. If you have purchased a non-mandatory type of coverage called “uninsured motorist coverage,” the minute you attempt to file a claim under that coverage your own insurance company and even your own insurance agent become your adversaries. Their sole goal at that point is not to pay you one cent under the uninsured motorist coverage. It doesn’t matter that you may have been an insured with that particular company for 40 years; these insurance companies have no loyalty whatsoever. How else do you think the insurance company has made literally billions of dollars in a down economy?

For example, State Farm, one of Georgia’s largest car insurers, managed a $777 million profit nationally in 2009. In just one month, February 2012,Progressive made $106.3 million in profit for the company, up 41 percent from the month before. Profits at GEICO were $587 million in 2011. These numbers are, obviously, nothing to sneeze at.

One way in which car insurance companies build up their other-worldly profits is through denial of claims, especially uninsured motorists claims. This type of coverage is insurance you buy to protect yourself in case you are injured either by another motorist who has no insurance at all (uninsured) or a motorist who has minimum mandatory insurance which is not enough to cover your medical bills. Little do you know that when you voluntarily pay those extra insurance premiums, the car insurance carrier will do everything in its power to avoid having to pay you even a dime. It becomes all out war and nasty litigation.

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Many of you know one of my favorite topics to opine upon as a plaintiff’s personal injury attorney in Atlanta, Georgia is distracted driving. I have seen too many families lose loved ones in car wrecks because of another driver’s ridiculous insistence on texting while driving. It is rampant in Atlanta and all over the State of Georgia. On nearly a nightly basis as I drive home from my Midtown office, stopped in bumper-to-bumper traffic, I see at least one driver texting while driving (TWD). I have lately even seem almost defiant drivers holding their IPhone or Blackberry in the same hand that is holding the steering wheel and texting while driving. This is NOT just a teenage driving problem; the violators I see on a daily basis almost all seem to be adults.

And now we receive a report that the tool Georgia legislators gave law enforcement officers to help reduce or eliminate texting while driving is not being used. In the two years after a ban on texting while driving in Georgia took effect on July 1, 2010, state records reveal that fewer than 50 people a month have been convicted of the offense, for a total of 1,281 convictions as of Sept. 17. Last year, there were 3,840 crashes attributed to cell phone use/distracted driving in Georgia, according to the Governor’s Office of Highway Safety. Nine were fatal and 955 resulted in serious injuries. So we know it remains a safety issue for Georgia’s motoring public.

There is no question that the message not to text while driving is being conveyed by various groups or corporations as public service messages. Three years ago, before a law was enacted against it, there was not public messaging about the evils of texting while driving. Now they seem to be everywhere, both in the private and public sector. For example, AT&T is campaigning across the country through its “Txtng & Driving … It Can Wait” program. Most news stations have public awareness campaigns against texting while driving, e.g., the “No Text Zone.” Car insurers, like State Farm Insurance Company, have joined the fight to reduce texting while driving, which makes sense given the fact that as one of Georgia’s largest car insurers, it must often have to pay for the mayhem caused by texting drivers. Billboards all over the state of Georgia implore you not to text while driving. One I saw recently said “TWD has G2G.”

REMARKS TO GAWL GEORGIA ASSOCIATION OF WOMEN LAWYERS, JUDICIAL LUNCHEON-OCTOBER 17, 2012-

ROBIN FRAZER CLARK, PRESIDENT, STATE BAR OF GEORGIA

Thank you, Susan, for that kind introduction and the very nice invitation of the GAWL to be with you here today. I see some dear friends in the audience today, and it’s always nice to have smiling faces in the audience.

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