Articles Posted in Trial

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Two weeks ago, I tried an auto injury case in front of a six (6) person jury in the State Court of Cobb County, Georgia.  Judge Carl Bowers was the presiding judge at this trial and made fair and consistent rulings on the evidence. Prior to this trial, State Farm had undergone some type of a reorganization and the supervisor was contacted (versus the adjuster) by the defense lawyer as to settlement authority. It was relayed to me the morning of the trial that the supervisor had decided to offer zero dollars – no in-depth explanation was provided.  But that was okay because I had prepared for this trial and both my client and I were ready.  By way of background, Cobb County has been known as a conservative venue for car wreck cases.  However, with changing demographics and opinion regarding human losses and injuries caused by car crashes, that old assumption is no longer true.

Let me tell you the facts of our case.  In July of 2012, my client was operating a Lincoln Town car (built like a tank) and was stopped at an intersection at a red light when the defendant collided into his vehicle from the rear.  As luck would have it, the collision was captured on the dash cam video of a Douglas County Sheriff who had been traveling down the road in the opposite direction. However, Georgia State Patrol had jurisdiction of the wreck and completed their investigation.  In my career, I think I have only had several cases that reflected the car crash on video. After investigation, the trooper cited defendant for following too closely behind my client’s vehicle than was reasonable and prudent.

In terms of the property damage, my client’s vehicle was totaled and his trunk reflected intrusion of several feet.  The strength of the impact caused my client’s seat to break and my client was forcibly thrown backwards striking his head and neck against the back seat.  He does not recall losing consciousness but felt a headache and some neck pain at the scene despite telling both the defendant and the trooper that he was not hurt.

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In 2011, I filed suit against the Cobb County Board of Health (and its employee) for damages caused to my client due to a rear end collision that took place in Marietta on November 23, 2009.  My client  was stopped on Pat Mell Road with his left turn signal activated waiting for traffic so as to turn into his driveway.  My client’s roommate was outside the home and witnessed a Ford Econoline (owned by Cobb County Board of Health and operated by an employee) van slam into the rear of my client’s vehicle. The impact was so great that it broke my client’s car seat, knocked my client unconscious and propelled his vehicle 50’ from the point of impact.

My client’s roommate immediately ran after the car to the point where the vehicle had come to a rest following the crash.  Upon his arrival, my client was slumped back in his seat and unable to speak.  My client was taken by ambulance to the Wellstar Kennestone Hospital.  After he was discharged from the hospital, my client followed up with an orthopedic surgeon on January 4, 2010.  My client received conservative treatment from the provider including physical therapy and prescription medication for continuing pain in the low back that traveled down his legs.

My client underwent a magnetic resonance image test or what is commonly referred to as an “MRI” of his low back. The MRI test produced a computerized image of the internal body tissue of the low back. The MRI demonstrated a disk herniation (a protrusion of fibrous material outside of the disc in the spine) in his low back at the lumbar (low back) five sacrum (low back) one level.  A herniated disc is analogous to a jelly donut that has been squeezed hard enough to allow jelly to squirt out the side.  After the MRI, my client received several epidural steroid injections in his low back over the course of several months that did not provide any appreciable improvement from pain.

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In Georgia, the injured person has the ability to file or commence a lawsuit in Superior, State or Magistrate Court. This blog post will deal specifically with the nature and nuances of the Magistrate Court or what has been popularly referred to as small claims court and personal injury lawsuits. Magistrate Court is a court of limited jurisdiction in Georgia, meaning that the small claims court can only entertain or hear certain court cases. In Georgia, the amount in controversy in the Magistrate Court is capped at $15,000 or lower. There have been movements in the past to increase this jurisdictional cap as a way to aid backlogged court cases, but–to date–nothing has been passed. For a brief overview of Magistrate Court in Georgia, please visit this link.

Filing Your Petition (Complaint)

Most of the clerks in the larger counties in Georgia have preprinted petitions that the petitioner can fill out and file with the Clerk of Magistrate Court along with their filing fee. Typically, the petitioner would allege that defendant breached a duty by violating a rule of the road of Georgia (statute) and consequently caused damages in the amount of $X bills and pain and suffering. Sometimes, if the property damage of your vehicle has not been resolved previously, you would add in the property damage claim at this juncture. However, be careful, because the jurisdictional limit of the court is only $15,000. If you think your injuries or your injuries and property damage are worth more than the $15,000 limits, then small claims court is not for you and you should speak to an experienced personal injury attorney for advice and consultation.
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If you are reading this post, then you have probably fallen victim (like so many others before you – and certainly after you) to an offer of settlement from an auto insurance adjuster that does not fully and completely compensate you for your injuries and the human losses (aka pain and suffering) associated with those injuries. Rest assured, you are not alone. Many others have traveled this exact same path and emerged victorious. However, the path is not always easy and–like most things that are worth the wait–this path does take time.

You see, auto insurance companies like to play the odds. The insurers know that a good percentage of folks will take whatever sum of money the insurance companies offer them to settle their personal injury claim. The trick for the insurer is to increase this percentage every year. The “treat” is that this sum is typically below what I like to call fair settlement value (“FSV”) of the bodily injury claim. FSV is the value (typically a range) that an injured person would likely receive from the insurer after calling the insurer’s bluff, filing a suit and settling that suit after a period of discovery (to be explained later in this post)–either by voluntary mediation (mutual get together of insurance representative, your attorney, mediator and you) or other informal communication. Insurance companies save money by dangling low ball settlement offers to the hungry.

Ok. So you didn’t bite at the proverbial apple on the short tree and you are about to file suit. Now what?

Step One – Finding the Defendant and Getting Defendant Served With Summons and Complaint
In Georgia, the individual defendant must be sued in his/her county of residence. If a corporation, then such corporation is generally served in the county where its registered agent (agent appointed by corporation to accept service of complaint and summons) is located. Depending on the specific Georgia County, either the sheriff or the marshal (and sometimes a specially appointed process server) will serve a copy of the summons (notice of suit) and the complaint (the actual law suit) personally upon the defendant. The fee for this service is generally included in the filing fee that you pay to the clerk of court in the county where you file the suit.

Step Two – Answer of the Defendant
Under Georgia law, generally the defendant has 30 days from the date of service of the summons and complaint to file an answer to your complaint. This answer must be filed in the court where you filed the complaint, and a copy should be forwarded to you by the defendant. In most cases, the defendant typically denies that he/she is indebted, obligated or responsible to you for any harm in the answer.

Step Three – Discovery Period of Six Months
Under court rule and Georgia law, the plaintiff and the defendant have six months from the date the answer of the defendant was filed to conduct discovery. What is discovery you ask? Discovery is the formal process where the parties can discover information about each other that is relevant to the case. For example, a defendant in a personal injury lawsuit would like to find out the plaintiff’s work history, injury history, injury treatment history, version of the incident that caused harm and personal background.

Most plaintiffs fear discovery. But in reality, it is very simple and if conducted appropriately, fairly painless. It usually consists of one party sending multiple written questions (interrogatories) to your attorney that encompasses one of the categories listed above. After the interrogatories are completed, one party will typically schedule the deposition (oral questions) directed to the other party which is recorded by a court reporter at a mutually convenient time in your lawyer’s office. Depositions can last less than an hour to several hours. Further, the parties usually file requests for documents to employer and treating physicians among others.
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