Subscriber Editorials

When Paradise Becomes Hell: Proof and Argument of Damages for Loss of Consortium - John Romano, Romano Law

When Paradise Becomes Hell: Proof and Argument of Damages for Loss of Consortium

Our working definition of the word or term “consortium” must be as follows: A close and meaningful bonding, togetherness and relationship between persons created and developed by birth, marriage, adoption, or some other form of bonding where the persons have had an existing relationship and have or should have an existing relationship into the future, but where such relationship - whatever its level of existence - does not have to have been perfect to have been strong and meaningful.

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Judicial Reflections on Mediation - Hon. Susan B. Forsling

Judicial Reflections on Mediation - Hon. Susan B. Forsling

Having spent 33 years in the courtroom, as a trial attorney and judge, I have seen the first day of trial bring parties full of nervous and eager anticipation to finally pick their jury, tell their story and have their day in court once and for all. Implicit in this anticipation is a notion that they know the truth, and once the jury hears the truth, they will have a victory.

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RSD Is Real: How to Help the Adjuster, Judge and Jury Understand
by Nelson Tyrone, Tyrone Law Firm

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The purpose of this article is to offer an overview to lawyers of some of the key issues involved in obtaining significant settlements and verdicts on behalf of clients suffering from Reflex Sympathetic Dystrophy (RSD). Helping adjusters, judges and juries understand our client’s injury presents several unique challenges that, if not overcome, can leave our clients without significant recovery and, therefore, without necessary medical care. My hope is that this article can offer lawyers who are currently representing clients suffering from RSD the benefit of some of what we have learned from several years of RSD settlements and trials.

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Three Ways for Plaintiffs to use the Offer of Settlement Statute Offensively
by Paul Painter III, Bowen Painter & Gorman

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The Offer of Settlement statute, codified at O.C.G.A. § 9-11-68, can be a powerful weapon for plaintiffs, especially against stubborn defendants. The statute permits either party in a tort action to serve a written offer of settlement to the other party. The offer must conform to the statutory requirements and allow the receiving party thirty days to respond. If a defendant rejects or fails to answer the plaintiff’s demand, the statute entitles the plaintiffs to recover attorneys’ fees from that defendant if the final judgment is greater than 125% of the amount in the offer of settlement.

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On Becoming a Mediator, The Three Words That Changed History
by Joe Murphey, Miles Mediation

October 15, 2012Joe MurpheyMediation, Legal

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There are three words which, when uttered at pivotal moments in world history, changed everything, forever -- “Burn the boats!” Everyone knows the story of Hernan Cortes who, in 1519, landed on the shores of what is today the Mexican state of Veracruz. He had with him 600 men, some horses and guns, and he faced a Mayan army that outnumbered him a thousand to one. When Cortes ordered the destruction of his fleet, he spared himself from having to deliver a lot of inspirational speeches. The only way out for him and his army was forward; turning back was not an option. Nor was failure. But Cortes was not only making history when he burned his boats, he was repeating history. A thousand years before Cortes was born, Alexander the Great burned his boats when he hit the shores of Persia. Like Cortes and the conquistadors, Alexander’s Greek army was greatly outnumbered by the Persians. And like Cortes, he was victorious against all odds.

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"The Monkey's Paw" and the Punitive Damages Cap
by Mark Wortham, Hall Booth Smith & Slover, PC

September 19, 2012Mark WorthamTort Reform, Legal

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In W.W. Jacobs' 1902 horror short story, "The Monkey's Paw", the protagonist snatches a talisman made from a mummified monkey's hand from a fire. The smoldering, wiggling paw grants three wishes to the one possessing it, but the grant of those wishes results in an enormous cost for meddling with fate. Similarly, the Supreme Court of Georgia may have unknowingly thrown a talisman into the fire, possibly inviting someone to snatch it from the embers and challenge the constitutionality of the statutory cap on punitive damages. And similarly it may be better to leave it in the fire, rather than challenge fate.

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Medical Malpractice - A Defense Perspective
by Christina Wall, Carlock, Copeland & Stair, LLP

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Tort reform and healthcare reform rage on as topics of conversation, with ensuing discussions about the impact on quality of care for patients and quality of life for physicians. What gets lost in that discussion is the actual process the litigants experience when a suit is filed, as well as the impact that process has on the litigants--regardless of which side of the “v.”

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Tips on Assuring Failure (or Success) at Mediation
by Pat O'Connor, Oliver Maner LLP

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For those representing plaintiffs at mediation, there are at least two ways to guarantee that your client will not obtain an adequate settlement: failure to provide current information to the opposing side (especially true when dealing with insurers in cases involving medical expenses and lost wages) and failure to communicate. For those representing defendants, or the interests of insurers at mediation a similar problem exists - failure to exchange current information with the opposing side will almost certainly be an impediment, if not a bar, to settlement.

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Admitting Evidence of Collateral Sources - Can It Ever Benefit the Plaintiff?
by Tim Hall, Law Offices of Timothy K. Hall, LLC

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Georgia law (under the “collateral source rule”) generally prohibits the jury from hearing any evidence about health insurance or other “collateral sources” that have paid an injured party’s medical bills1. However, a defendant may admit collateral source evidence showing the existence of health insurance if a plaintiff somehow “opens the door” and makes this evidence relevant2. It often feels like an injured party is gaining an advantage by keeping out evidence of health insurance payments. The defense usually wants the jury to hear this evidence.

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Offers of Judgment: Pick up the Sword
by Robb Cruser & Rusty Grant, Cruser & Mitchell

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O.C.G.A § 9-11-68 is designed to encourage settlements by creating penalties to any party that rejected an offer to settle and then failed to beat that offer at trial by a defined statutory margin. For a defendant, the reward is set out in subsection (b) stating, “…the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred … if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.” With these words, Georgia law created a sword that Defendants are still figuring out how to wield for maximum reward.

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Using Data to Benchmark Case Value - by Ken Shigley

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Old time cobblers making shoes to fit would place a customer's foot on a "bench" and outline it to make a pattern for the shoe. That is at least one version of the origin of the term "benchmarking" as applied in the business process of determining best practices and performance metrics.

Those of us who work in resolution of personal injury and insurance disputes have long experience with jury trials, which remain the "gold standard" for resolution of our cases. We have seen the interaction of jurors with the fluid dynamics of unique aspects of each case -- personality and appearance of parties, details of liability and medical evidence, varying skills of advocates, idiosyncrasies of judges and the random exigencies of trials. While I have not seen an analysis of this in relation to chaos theory, someone should write it.

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The Importance of Focus Groups and Jury Research
by Geoff Pope, Pope & Howard, P.C.

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Jury research – primarily focus groups – has become an integral part of our firm’s case preparation. By way of background, we handle a variety of catastrophic injury cases, including trucking, products, aviation, medical negligence, and pretty much any other type of case that could produce a major injury. We have found that jury research is critical not just for trial preparation, but also in preparing for discovery and in evaluating a case for settlement purposes. We like to conduct focus groups before discovery begins and then continue the process at various points as the case progresses.

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Litigating Defective Children's Products Cases - by Steve Goldner

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Children represent the most vulnerable segment of society and arguably ought to receive even more protection than adults from harmful products. They can’t read warning labels and are often attracted to the very things that pose the greatest risk for harm. If the manufacturers of toys and other children’s products would follow the basic engineering/design principle of “First, design out any hazard,” children would be a lot safer. Unfortunately, this principle is lost in today’s world of mass marketing and internet commerce. Stores and warehouses are piled high with toys and juvenile products that fly off the shelves one day and are recalled the next. The Consumer Product Safety Commission (CPSC), pursuant to the Consumer Product Safety Act of 1972, is the federal regulatory agency that attempts to regulate virtually all children’s products, with one major exception. Child safety seats (automobile car restraints) are regulated by the National Highway Traffic Safety Administration (NHTSA).[1]

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Apportionment in Premises Liability – A Defense Perspective
by Matt Moffett & Wayne Melnick

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In a recent CaseMetrix editorial, an author presented his experiences regarding two “criminal attack” premises liability cases and how Georgia’s law regarding apportionment affected each of those trials. The editorial was written by a Plaintiff’s attorney sharing his perspective and experiences. This editorial is written not as a response to the previous one, but rather to present the perspective and experiences of attorneys that have tried apportionment, premises liability cases involving criminal attacks from the defense side of the bar.

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Criminal Attack Cases Under O.C.G.A § 51-3-1 - by Andy Rogers

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Successfully representing a crime victim in a premises liability case presents unique and difficult challenges. O.C.G.A § 51-3-1 requires owners of land to use ordinary care to keep their premises safe for their invitees. Generally, Georgia law does not require a third party such as the owner of an apartment complex, hotel or retail property to institute any particular security measures for the protection of its invitees, and the owner is not automatically liable for a criminal act that results in injury to someone on its premises.

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Mediation - A Plaintiff's Day in Court - by John Miles

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Often, the desire of most people injured by another’s negligence is that simple. When I began practicing law in 1988, a case could be filed and tried within a year and “having your day in court” was a reasonable expectation. With exploding numbers of cases filed, increases in attorney’s hourly rates and cuts to court budgets, getting a case to trial has become a long, arduous and expensive process.

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Mediation & The Truth About Settlement Values - by Bruce Barrickman

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As a litigator for 33 years and a mediator and arbitrator for 12 years, I believe that it is absolutely essential that a lawyer, as an advocate for his client, obtain as much credible information as possible about the true settlement value of the case before the day of mediation. I suspect there will be a certain amount of skepticism out there about me writing an article concerning this topic in a publication produced by a settlement and jury verdict research company. I can assure you that I have neither been asked to write nor paid for this article, and have not had my arm twisted to write about this topic. Instead, I firmly believe that not having a true sense of the value of his or her case before walking into mediation is one of the biggest mistakes a lawyer can make.

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