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The Disruptive Lawyer’s Oath: If You Don’t Succeed, Try, Try Again!

August 2, 2017

So, in this series, you've read real Disruptive Lawyer success stories. Newsflash! Even Disruptive Lawyers don't always succeed. But Excellence, Economy and Efficiency remain the driving force behind the Disruptive Lawyer's litigation actions. Disruption is both strategic and intentional, even in the face of rejections from plaintiff. And here is an illustration of this point. The Disruptive Lawyer was in his office when a long-time client called to say his company was being sued in a high-exposure case. The plaintiff's car had hit a guardrail and she was catastrophically injured, allegedly due to how the guardrail was manufactured and/or how…

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An Important Read for Carriers Who Write in New York – by Ross E. Pitcoff

July 20, 2017

The highest court in New York recently handed down a landmark decision which could have tremendous ramifications for cases in the State of New York, especially construction cases. The Court predominantly addressed the question of “When Does Coverage Extend to Additional Insureds in the State of New York?” The Court of Appeals, New York State’s highest court, essentially changed New York law when it ruled upon the Burlington Insurance Company’s (“Burlington”) action against the New York City Transit Authority (“NYCTA”) and MTA New York City Transit (“MTA”) for a declaratory judgment that the NYCTA and MTA were not additional insureds…

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Legal Alert: Americans with Disabilities Act Applies to Websites – by Robyn Oliver Webb

June 15, 2017

Court: Websites Need to Accommodate Blind Persons' Access Think the Americans with Disabilities Act (ADA) only applies to brick and mortar business operations? A recent decision by a federal judge in Florida suggests you may need to revise that opinion. The increasing wave of lawsuits challenging website accessibility under the ADA had, until last week, not been tested in court. Thus, for businesses considering whether to settle or fight these lawsuits, the potential damages from a trial were speculative and, frankly, not that scary. Then along came Gil v. Winn-Dixie, a suit brought by a blind plaintiff against the chain of…

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The Disruptive Lawyer Series: The Birth of the Disruptive Lawyer

June 4, 2017

Although the Disruptive Lawyer stories to date (and going forward) are all relatively recent, it seems appropriate to tell the story that triggered the Disruptive Lawyer mentality. So, let’s go back to 1996. The year Nebraska was #1 in college football, a new show called 3rd Rock from the Sun debuted, Braveheart won five Academy Awards, the Olympic Games commenced in Atlanta, Bill Belichick was fired by the Cleveland Browns, Mike Tyson TKO’d Frank Bruno, President Bill Clinton had not been impeached, a kid named Tiger won the U.S. Amateur, Tupac was murdered, O.J. was found innocent, Derek Jeter was Rookie…

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Claims Against Assisted Living Facilities – by Alan R. Jampol

April 13, 2017

Assisted living facilities (“ALFs”), referred to in California regulations as “Residential Care Facilities for the Elderly” (“RCFEs”), are state-licensed facilities that provide care to elders and certain other disabled individuals who are not sick enough to need full-time care offered by a skilled nursing facility “SNF”), but who need assistance in performing one or more “activities of daily living” (“ADLs”). There are far more ALFs in the state of California than there are skilled nursing facilities. An ALF is not required to have nurses on its staff (although many do); the employees that deal directly with residents are referred to…

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The Disruptive Lawyer Series: Everyone Deserves an Education – Especially the Plaintiff’s Lawyer

February 23, 2017

The Disruptive Lawyer was talking to his IT technician about how to recall a dozen "Falcons are the Champs and Patriots Stink" emails, when he was interrupted by the telephone. It was one of his favorite clients. She explained that she was doing lawyer E/O work, had inherited a file that had been litigated for over a year, and it was heading to mediation. The panel counsel lawyer on the case submitted a pre-mediation report seeking about $350,000 in authority. The client felt the number was a bit high and wanted a second opinion, so she called the Disruptive Lawyer…

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The Disruptive Lawyer Series: Sometimes, It’s About Knowing Your Audience

February 8, 2017

The Disruptive Lawyer was enjoying his morning cup of coffee on a crisp fall Friday when he received a call from a claims adjuster with a long-time insurance client. The adjuster told the Disruptive Lawyer that she was hoping he may be able to help her insured get out of a messy claim in San Diego. The young adjuster seemed anxious, and shared that she had retained a reputable (and expensive) firm which specialized in aviation law and airplane accidents because the underlying claim involved a downed Cessna P210 airplane, in which the pilot died and the resulting wild fire…

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The Disruptive Lawyer Series: The Bizarro World of Litigation Management

January 26, 2017

Preface Much like the iPhone was dubbed "disruptive technology" because it changed the thinking of an industry, the Disruptive Lawyer embodies the right skills to disrupt - in a positive way - your expectations of legal results. And as we are in the "evidence" business, rather than telling you we are Disruptive Lawyers, we're sharing stories of real cases that demonstrate Disruptive Lawyer results. Here's the next. We welcome your thoughts at disruptivelawyer@cmlawfirm.com. Read more Disruptive Lawyer stories here. The Disruptive Lawyer's Bizarro World of Litigation Management The Disruptive Lawyer had recently hired a new associate from a very reputable…

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The Disruptive Lawyer Series: How Abraham Lincoln Settled a Case in 2015

January 17, 2017

Preface Much like the iPhone was dubbed "disruptive technology" because it changed the thinking of an industry, the Disruptive Lawyer embodies the right skills to disrupt - in a positive way - your expectations of legal results. And as we are in the "evidence" business, rather than telling you we are Disruptive Lawyers, we're sharing stories of real cases that demonstrate Disruptive Lawyer results. Here's the next. We welcome your thoughts at disruptivelawyer@cmlawfirm.com. Read more Disruptive Lawyer stories here. How Abraham Lincoln Settled a Case in 2015 The Disruptive Lawyer, while eating lunch at his desk, was perusing the ESPN…

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The Disruptive Lawyer Series: Sometimes It’s About the Math

January 13, 2017

Preface Much like the iPhone was dubbed "disruptive technology" because it changed the thinking of an industry, and Michigan coach Jim Harbaugh is a "disruptive coach" given he takes "fired" coaches' unsuccessful teams and immediately makes them successful, the Disruptive Lawyer embodies the right skills to disrupt - in a positive way - your expectations of legal results. In our book, The Disruptive Lawyer's Little Black Book of Litigation Management*, we discuss a truth that is not always recognized: All lawyers are not created equal. All lawyers do not have the same skill set. To achieve effective litigation management, we…

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When Disruptive is Good: Jim Harbaugh, Smart Phones & Lawyers

January 11, 2017

Jim Harbaugh came to the University of Michigan in 2015 to turn around a very prideful Maize and Blue football program that had hit hard times for several years. Harbaugh was very successful everywhere he had been, from the University of San Diego (taking the team from losing seasons to 11-1 within two years) to Stanford (again, from losers to 11-1) to the San Francisco 49ers (which made a Super Bowl appearance in his first year). Rumors swirled that Harbaugh was leaving the 49ers to come to the University of Michigan, and as a Michigan State alum, my heart sank.…

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Federal Audit Says a Whopping 80% of Chiropractic Bills are Medically Unnecessary – by J. Robb Cruser

January 3, 2017

A federal audit found that more than 80% of the money Medicare paid to chiropractors in 2013 went to medically unnecessary procedures, according to a Wall Street Journal article. Yes, you read that right - 80%. But there’s more. A review by the Department of Health and Human Services Office of Inspector General (OIG) found that all chiropractic care after the first 30 days was unnecessary. The OIG has called for tighter control on payments to chiropractors, including determining whether there should be a cutoff in visits. While every case is different, these findings are sobering, particularly for practitioners that…

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Job Applicants Cannot Sue Employers under Age Discrimination in Employment Act – by Alexa Morris

October 17, 2016

A recent ruling by the U.S. Court of Appeals for the Eleventh Circuit held that that job applicants cannot sue employers for disparate impact under the Age Discrimination in Employment Act. The Court held the disparate impact provision of the federal age discrimination law applies only to a company's employees, not to job applicants. The decision, which effectively overturns the statutory interpretation followed by the EEOC for the past 50 years, came as a shock to many. The majority opinion, written by Judge William Pryor, is based on a literal reading of the statute's provision that makes it "unlawful for…

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Speak Up Early if You are Concerned about Your FINRA Arbitrator – by Joseph Kreoll

May 10, 2016

Frequent participants in FINRA arbitrations are familiar with the lists of arbitrators that are circulated to the opposing sides, with brief biographies and lists of cases in which the arbitrators have been involved. Many attorneys reviewing these lists appear focused on whether the background of each arbitrator will result in a favorable result for an attorney’s client, and not necessarily on the fitness of the arbitrator. This approach was not unreasonable, since the impartiality or the corruption of an arbitrator fits within the narrow band of reasons for which an award can be challenged, and bona fide appeal challenges to…

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No-Fault Carriers Not Responsible for OBS Facility Fees – by David Groeger

April 2, 2016

On March 31, 2016, The Court of Appeals of New York handed down a very important decision which held that no-fault carriers are not responsible for OBS facility fees under the no-fault law. Appellant, Avanguard Medical Group, PLLC, is accredited under New York's Public Health Law as a facility for the provision of office-based surgery ("OBS"- defined as "any surgical and other invasive procedure, requiring general anesthesia, moderate sedation, or deep sedation performed in a location other than a hospital"). According to Avanguard, the OBS facility fees were charges for the use of the physical location and equipment and also…

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New Jersey Supreme Court Limits Use of Mode-of-Operation Rule – by Joseph Kreoll

February 19, 2016

Recently, the New Jersey Supreme Court issued a decision in Prioleu v. Kentucky Fried Chicken, Inc. (074040) in which it addressed the mode-of-operation rule and its application to a fall in a fast food restaurant. Significantly, the Court clarified that mode-of-operation applies only to situations where the customer foreseeably serves himself, or otherwise directly engages with products or services unsupervised by an employee. The plaintiff had entered a Kentucky Fried Chicken restaurant in Cherry Hill, New Jersey with her adult children, while on their way home to Delaware. Upon entering the restaurant, the plaintiff immediately went to the counter with…

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It’s a Bird…It’s a Drone…It’s a Bird and a Drone? – by Sally Shadwick

February 2, 2016

According to a recent CNN report, Dutch police are utilizing eagles to snatch drones out of the sky. Although the United States has not yet employed birds as drone predators, with the recent influx of drones into public skies, cities across America are taking an aggressive legislative approach to regulating unmanned aircraft systems. For example, in recent weeks, West Hollywood, California, has implemented new ordinances, in conjunction with FAA drone regulations, which tightly restrict the permitted uses and flight paths of drones in its city. After a series of West Hollywood drone miscues—including a drone which flew into power lines,…

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Drones and First Amendment Implications: Restrictions on the Use of Drones Should Not Affect the Freedom of Speech and Freedom of the Press Guaranteed by the Constitution – by Magda DeMoya Coyle

February 1, 2016

The Federal Aviation Administration has promulgated ad hoc rules and regulations which may face Constitutional scrutiny due to the possible restriction on the First Amendment freedom of speech and freedom of the press. Formal regulations were due last year but have not yet been released. The FAA justifies its restrictions on the use of unmanned aerial systems (aka drones) by journalists in their news gathering by arguing drones cannot be used for business purposes. However, as stated in the News Media Brief Amici filed with the National Transportation Safety Board, "News gathering is not a ‘business purpose’; it is a…

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Attack of the Drones: America’s New Favorite Hobby Launches Potential Products Liability Questions

January 19, 2016

The drones are coming. In many ways, they’re already here. And both manufacturers and distributors should be prepared to defend against the products liability lawsuits they’re bringing with them. Whether you refer to them as unmanned aerial vehicles (UAVs), remotely piloted aircraft (RPAs), or unmanned aircraft systems (UASs), we affectionately know them as "drones," and they are rapidly expanding beyond the settings in which we’ve grown accustomed to seeing them. What at first were military weapons were eventually adapted for the delivery of products right to our doorstep. And now, drones have become accessible for the average American consumer for…

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Philadelphia Expands its “Ban the Box” Ordinance

December 17, 2015

On Tuesday, December 15, 2015, Philadelphia’s Mayor, Michael Nutter, signed an amendment expanding Philadelphia’s 2011 Fair Criminal Standards Ordinance, also known as the “Ban the Box” legislation. This amendment further restricts the ability of employers from inquiring about an applicant’s criminal background, if any. The original law prohibited employers (whether operating in the public or private sector) from including criminal record history questions on an employment application, and from making personnel decisions based on records of an arrest not resulting in a conviction. The amended law now prohibits any inquiries concerning an applicant’s criminal history until after the employer has…

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Apportionment Clarification Favors the Defense in Tort Actions

November 20, 2015

Earlier this week, the Georgia Supreme Court in Walker v. Tensor Machine, Ltd. [No.S151222, 2015 WL 7135149 (Ga. Sup. Nov. 16, 2015)] further clarified Georgia’s apportionment statute, a ruling that is favorable to the defense of personal injury actions. In 2005, Georgia’s legislature enacted the apportionment statute, O.C.G.A. § 51-12-33, which, on its face, purported to allow the defense to place non-parties on the verdict form and have the jury apportion fault against them, thereby reducing the plaintiff’s recovery by that assigned percentage. The relevant statutory language directs the jury to "consider the fault of all persons or entities who…

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Avoiding a Directed Verdict in Personal Injury Cases: The Hidden Risk of Admitting Injuries – by Robert Friedman

November 18, 2015

If a plaintiff suffers minor injuries in a car accident, but is claiming damages for more serious unrelated injuries, it may appear harmless to admit the minor injuries were caused by the accident. To do otherwise could potentially result in an unnecessary discovery dispute. That said, defense counsel in Georgia should be aware that such an admission may have significant implications at trial. Increasingly, plaintiff’s attorneys in Georgia are relying on a relatively unknown Georgia Court of Appeals case to allege any admission of injury entitles a plaintiff to a directed verdict. In Potts v. Roller, 232 Ga. App. 696,…

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Think You Can Ignore “Late” RFAs? Think Again! – by Ashley A. MacNamara

October 21, 2015

In the recent case of Monolith Companies LLC v Hunter Douglas Hospitality Inc., September 24, 2015, A15A1096, the Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to Hunter Douglas based on Monolith’s failure to respond to requests for admission (RFAs) which were sent after the discovery deadline. When Monolith failed to respond to Hunter Douglas’ RFAs, including a request that Monolith admit that it was indebted to Hunter Douglas in the sum $23,860, Hunter Douglas filed a motion for summary judgment. The trial court granted the motion and Monolith appealed, arguing that because the RFAs were…

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Who Needs Fraud? A Negligent Misrepresentation that a Product’s Design Met ANSI Standards Fuels $5M Punitive Damages Award

October 12, 2015

In a case of first impression, the Third Circuit Court of Appeals upheld a $5 million award of punitive damages in the context of a negligent misrepresentation and found possible future harm to the public to be an appropriate factor in deciding whether punitive damages should be awarded. In Brand Mktg. Grp. LLC v. Intertek Testing Servs., N.A., Inc., No. 14-3010, 2015 WL 5255078 (3d Cir. Sept. 10, 2015), David Brand requested that Intertek inspect Mr. Brand’s Thermablaster, a gas heater that required no outdoor ventilation. Since the heaters were being manufactured overseas, Intertek inspected the product at the manufacturer’s…

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Effectively Employing the “Assumption of the Risk” Doctrine in Product Liability Cases: Proving Plaintiff’s Appreciation of All Potential Pitfalls

October 6, 2015

If an experienced user attempts to repair a three-decade-old machine that he historically operates on a daily basis – and knows the myriad of dangers that comes along with such an endeavor – does it take a jury of his peers to decide whether he assumed the risk of injury resulting from those repairs? If a plaintiff does not admit in deposition testimony that he understood and appreciated the specific type of danger associated with that repair, then the answer is yes – at least, according to the Middle District of Pennsylvania. In Scheib v. Haines Equipment, Inc., September 21,…

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Downstream Distributor in Product Liability Action Entitled to Indemnification from Manufacturer, Even Absent a Finding of Defect

September 25, 2015

More often than not, tender and indemnity issues amongst defendants in product liability matters are abandoned once the case resolves. A jury verdict finding of a defect is typically thought to be a necessary event to a valid and successful indemnity claim. That, coupled with the legal fees/costs associated with a prolonged battle over indemnity and the relevant business relationships at play, a distributor’s continued pursuit of fees once the plaintiff’s case settles typically becomes more problematic. In Geraczynski v. National Railroad Passenger Corp. (September 21, 2015, Chesler, S.), the United States District Court for the District of New Jersey…

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Tom Brady, Deflategate & Litigation Management – by Bill Mitchell

September 8, 2015

Last week's ruling by USDC Judge Richard M. Berman in "Deflategate" was a great lesson in litigation management. How? I'll explain. As you know, Tom Brady and the NFL Players' Association filed an appeal of the NFL's suspension of Brady for four games due to allegations of tampering with footballs by the New England Patriots in the AFC Championship Game in January, 2015. Virtually every legal scholar and commentator who weighed in on the matter believed the NFL had sound "legal" grounds for the discipline. These scholars/commentators commented that the only real potential open question was whether the judge might…

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NLRB Rewrites Definition of Joint Employer – by Sean Keenan

August 31, 2015

The National Labor Relations Board (NLRB), in its quest to significantly expand the definition of "employer," handed down a recent decision striking down three decades of legal precedent. For 30 years, the NLRB has taken the position that a joint employer must "share or co-determine those matters governing essential terms and conditions of employment." In other words, under the old rule, the contracting employer had to engage in the actual control or supervision of a temporary employee, and such control must have been "direct, immediate and not limited and routine." As a practical matter, this meant that where employees were…

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Expert File Fertile Ground for Cross Examination – by Scott Gurtman

August 31, 2015

When cross examining any expert at trial, the first question any trial lawyer should ask is "Can I see your file?" – and then request a recess to thoroughly review the file. Failure to monitor what went into the expert’s file is an issue that blew up in the plaintiff’s face at several recent trials conducted by our firm. In a personal injury case tried in Manhattan, a plaintiff put his expert doctor on the stand to testify as to the plaintiff’s injuries, symptoms and the permanence of her condition. Before beginning cross examination, we requested the expert’s file and…

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Ally McBeal May Have Been on to Something: Recent EEOC Conference Suggests Unisex Bathrooms May Be on the Way – by Robyn Oliver Webb

August 26, 2015

Remember those unisex bathrooms in Ally McBeal? Well, get ready – you may soon be sharing a bathroom with a fellow employee of the opposite sex – at least biologically. This was my takeaway from a recent seminar presented by the Atlanta Office of the EEOC. The newest wave of LGBT litigation arises out of the "T" in LGBT – transgender employees. While there are many conceivable issues that may arise involving these employees, the one that inspired the most discussion at the EEOC conference was the bathroom. In other words, if an employee presents as Jimmy on Friday but…

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When Does the Clock Start on an EEOC Charge Involving Constructive Discharge? SCOTUS to Answer

August 6, 2015

After several attempts to resolve issues with an employee, you offer her the option to take on a new position. After trying out the new job for 40 days, the employee resigns and claims she was forced to quit. The former employee then files an EEOC charge alleging discrimination that caused her to resign, i.e. constructive discharge, but does so more than 180 days after she resigns (no state proceedings state). Pursuant to 42 U.S.C. § 2000e-5(e)(1) "[a] charge . . . shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred," or, if…

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Georgia’s Medical Malpractice Expert Qualification Rule Takes a Hit

July 24, 2015

In 2005, the Georgia legislature amended the evidence code to heighten the qualification requirements for expert witnesses testifying in medical malpractice actions. This amendment was part of a broad sweeping tort reform package advanced by the defense bar. The expert statute amendment was primarily geared at raising the bar for plaintiffs seeking to sue Georgia healthcare providers like doctors and nurses and prevent them from identifying experts who lacked the requisite skill to criticize healthcare professionals. The intent behind the amendment was to add additional requirements that experts have certain "real world" or teaching experiences relevant to their testimony and…

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EEOC Rules that Discrimination Based on Sexual Orientation is Illegal

July 22, 2015

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex. The Equal Employment Opportunity Commission ("EEOC") recently ruled in a federal sector case that Title VII also bars workplace discrimination based on sexual orientation. This decision follows a previous ruling from the EEOC that discrimination based on gender identity is sex discrimination. The new ruling, however, is at odds with the decisions of several circuit courts, which have held, among other things, that "sexual orientation" is not included as a protected ground under Title VII. The EEOC’s decision reflects a broad interpretation…

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If you Contemplate, Don’t Spoliate

July 13, 2015

The Georgia Supreme Court has raised the bar on when a party must preserve evidence. It is clear that the duty to preserve relevant evidence arises when litigation is reasonably foreseeable to the party in control of evidence. Actual notice from a potential plaintiff clearly makes litigation foreseeable. However, constructive notice may also result in litigation being reasonably foreseeable and create the duty to preserve. When determining constructive notice, the Georgia Supreme Court in Phillips v. Harmon, decided June 29, 2015, held that the duty to preserve evidence must be viewed from the perspective of the party with control of the…

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The Taxman Cometh: The Growing Trend of Employers Facing Tax Liability for Failing to Withhold Payroll Taxes From Employment Dispute Settlements

July 9, 2015

How to avoid tax penalties. No, this is not a tax lesson, but it is advice on avoiding IRS penalties. When settling employment cases, the question of who will pay the taxes frequently arises. Most often, the parties agree that the employee will be responsible for paying all applicable taxes. And while the Eleventh Circuit Court of Appeals has not directly addressed the issue of whether employers are required to withhold taxes from settlements and judgments paid as a result of employment litigation, the growing trend across the nation shows that the IRS and federal courts are interpreting the Internal…

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Permitting Insurance Coverage Limits into Evidence: Probative Versus Prejudicial Value – by Sally R. Hubbard

July 9, 2015

Jerry Earl was an active man who co-owned a construction business, played on a men’s basketball team, and was an avid fisherman and hunter. Tragically, in September of 2008, while he was riding his motorcycle in Scottsburg, Indiana, a tractor-trailer entered Earl’s lane and forced him to swerve into the median, where he was thrown from his motorcycle at 65 miles per hour. The tractor-trailer driver did not stop and was never identified, and Earl sustained serious injuries and long-term rehabilitation before dying of an unrelated illness. Earl’s policy with State Farm provided underinsured motorist coverage up to $250,000 per…

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Georgia Supreme Court Hands Down another Victory for the “Apportionment Statute” Favoring Defendants – by J. Robb Cruser

July 8, 2015

This week, the Georgia Supreme Court continued its broad interpretation of the "apportionment statute," which favors defendants in that it permits juries to "...consider the fault of all persons or entities who contributed to the alleged injury or damages." O.C.G.A. § 51-12-33(c). Zaldivar v. Prickett, GA S.Ct. No. S14G1778 (decided July 6, 2015). In Zaldivar, the Georgia Supreme Court set out the following facts: Daniel Prickett sued Imelda Zaldivar to recover money damages for injuries that he allegedly sustained in an October 2009 vehicular collision. Prickett and Zaldivar each blames the other for the collision, and Zaldivar also points a…

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Department of Labor Rule Could Expand Overtime Eligibility for Millions – by Sean Keenan

June 30, 2015

The Department of Labor announced a proposed rule today that would drastically expand the number of people eligible for overtime pay. Currently, executive, administrative, professional, outside sales, and computer (also known as "white collar") employees are exempt from overtime if they make more than $455 a week, or $23,660 per year. The rule would more than double the threshold at which employers can avoid paying overtime to $970 per week. This means that white collar employees earning less than $50,440 a year will be eligible for overtime pay. The Department of Labor estimates that the proposal would raise wages for…

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SCOTUS Heightens the Legal Standard in Use of Force Case involving Pre-Trial Detainees from Officer’s Subjective Belief to what is “Objectively Reasonable” – by Sean Keenan

June 23, 2015

Summary This week, the Supreme Court in Kingsley v. Hedrickson made it easier for inmates who are accused of crimes - but not yet convicted - to defeat summary judgment in excessive force claims against jail officials, ruling that officers will be held to an objective standard about whether the use of force was reasonable rather than the old subjective standard. This case arises out of an incident in a Wisconsin jail. Petitioner Kingsley was waiting for trial when he got into a dispute with jail officers, who handcuffed him, forcibly removed him from his cell, and later tased him. Kingsley…

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Cross-Examining Experts: Preparation is Key

June 18, 2015

Cross-examining experts is an art. Your success depends largely on your preparation. If you are prepared, there is no expert that you cannot dominate. I have had the opportunity during my career to depose and cross-examine numerous liability experts, particularly in products liability cases, and damages experts, including physicians from different sub-disciplines, economists, vocational rehabilitation experts, life-care planners and the like. With limited exceptions, few experts are easy to cross-examine. Most are well-educated and well-credentialed and, perhaps most importantly, they know litigation. There are very few gotcha moments. So the question is: how do you best them at trial? The…

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Are the Days of Plaintiffs Black-Boarding Incurred Rather than Paid Medical Bills Numbered? – by J. Robb Cruser

June 16, 2015

Georgia Supreme Court Permits Discovery of Billing Information as "Relevant to Reasonableness" of Hospital Charges In a hospital lien dispute between a patient and the hospital where she was treated after an automobile accident, the hospital filed suit seeking payment of its $21,409.59 lien. The patient filed an answer and counterclaim asserting, in part, "…her bill of $21,409.59 was grossly excessive and did not reflect the reasonable value in the community of her treatment…" (See Bowden v. The Medical Center, Inc. 2015 WL 3658819 June 15, 2015). To support this defense, the patient sought to discover what the hospital charged…

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Georgia Supreme Court Partially Upholds Ruling Affecting Georgia “Impact Rule” – by Rusty Grant

May 20, 2015

The Supreme Court of Georgia has partially affirmed, and partially vacated, a decision of the Georgia Court of Appeals related to the long-standing Georgia “impact rule.” The court held that there was an issue of fact as to whether a passenger’s emotional distress claim was related to his own injuries or to having witnessed the death of his friend during an automobile accident. Because it was “not possible to determine, as a question of fact, whether any portion of [his] emotional distress arises solely from witnessing the injuries to his friend,” summary judgment at the trial court level would not…

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Defending Product Liability Cases: The Best Defense Remains a Good Offense

May 15, 2015

Plaintiff’s deposition is complete, and testing confirms that the plaintiff’s theory of the case is more fiction than fact. Success looms in the air and your early case assessment advising the client that there is no exposure remains steadfast. Now that the plaintiff’s theory has been debunked, the remainder of the case is a slam dunk. Not so fast. Does your defense include an alternative explanation for how the alleged incident could have occurred? If not, it probably should. At least that was the United States District Court for the Middle District of Pennsylvania’s opinion in Ouelette v. Sally Hansen…

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Supreme Court Rules on Review of EEOC Conciliation

April 29, 2015

On April 29, 2015 the US Supreme Court ruled that whether the EEOC failed to conciliate in good faith is reviewable by District Courts. In Mach Mining, LLC v. EEOC, the employer asserted that the EEOC’s two letters – declaring the conciliation process started and concluded – were not sufficient to establish good faith. The District Court agreed, but the 7th Circuit reversed holding that the EEOC's conciliation obligations were not reviewable. In vacating the 7th Circuit’s holding, the Supreme Court concluded that where the EEOC makes a "reasonable cause" determination, it must then endeavor to eliminate the alleged unlawful…

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Seeking to Introduce into Evidence Testimony from an Expert Witness? Be Prepared to Have them Testify in Court – by Michael Williams

April 14, 2015

In a recent, significant decision, the New Jersey Appellate Division has clarified the standard for admitting evidence from a non-testifying expert. In James v. Ruiz, the Appellate Division upheld the trial court’s decision to bar a statement made in the report of a non-testifying expert as inadmissible hearsay. At trial, the parties in that case presented diverging expert testimony as to whether the plaintiff suffered a lumbar disc bulge and accordingly suffered a “permanent injury” that would survive New Jersey’s limitation on lawsuit threshold, a.k.a. the verbal threshold. Seeking to use it as a “tiebreaker,” the plaintiff emphasized the report…

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Security Company Hit with $40 million in Punitive Damages as a Result of the Inaction of its Unarmed Guards

April 2, 2015

On March 30, 2015, a Philadelphia jury awarded $38.5 million in punitive damages to the families of two women that were shot and killed in a shooting at a Kraft Foods Plant against the unarmed security provider whose employees were hired to guard the plant. In February 2015, a jury awarded $8 million to the same families in compensatory damages, $2 million of which was attributed to the negligent conduct of the security provider. This wrongful death and negligence action was filed in the Court of Common Pleas, Philadelphia County, as a result of the September 9, 2010 shooting deaths…

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Fulton County Courthouse Shooting 10 Years Later: The Confluence of Unfortunate Events which You May Not Have Known About – by William T. Mitchell

March 12, 2015

This week marks the 10-year anniversary of the infamous Fulton County courthouse shooting. The incident involved criminal defendant Brian Nichols who, while being escorted into the courthouse for his trial, savagely assaulted a deputy and took her gun. He walked into the courtroom of Judge Rowland Barnes, who was presiding over Nichols’ rape trial, and killed the judge and his court reporter, Julie Brandeau. He also assaulted the judge’s secretary and law clerk. As Nichols escaped from the courthouse, he also shot and killed Fulton County Deputy Hoyt Teasley. He later entered a random house under construction in Buckhead and…

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Recent Study Helps Defense Contest Arthroscopic Knee Surgeries – by Robb Cruser

February 24, 2015

A recent study gives ammunition to the defense to contest common arthroscopic knee surgeries (and related medical bills) as not being "reasonably necessary" and, therefore, not a legitimate item of damages. Arthroscopic knee surgery (meniscectomy) is the most common orthopedic surgery in the United States, totaling over 700,000 surgeries per year at a cost of $4 Billion.(1) But do such surgeries actually work, providing a measurable, provable benefit to patients? A recent study suggests they do not. As published in The New England Journal of Medicine, ". . . arthroscopic partial medial meniscectomy provides no significant benefit over sham surgery in patients…

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Pennsylvania’s New Product Liability Law Applied Retroactively

February 20, 2015

On February 17, 2015, the United States District Court for the Middle District of Pennsylvania issued a Memorandum Opinion applying Pennsylvania’s new product liability law retroactively. In November 2014, the Pennsylvania Supreme Court, in Tincher v. Omega Flex, Inc., effectively overruled forty years of product liability case law and set forth a new legal schematic in determining whether a product was defectively designed. The Supreme Court set forth two new standards - the risk utility standard and the consumer expectation standard - and further found that whether a product was defectively designed and unreasonably dangerous was a question of fact for…

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Corporate Representative Testimony: When Corporations Speak – by Ana Francolin Dolney

February 20, 2015

Because a corporation cannot speak for itself, a party wishing to depose such an entity must derive the testimony from one or more corporate representative(s).  Rule 1.310(b)(6), Florida Rules of Civil Procedure, addressing corporate representative deposition testimony, has been in existence since 1972, and despite its usefulness, the pressures and demands of litigation coupled with litigation strategies, often lead to its misapplication. Unlike a deposition where the focus is on a deponent and his or her personal knowledge, the deposition of a corporation presents unique circumstances. Inquiring into a corporation’s knowledge can be tricky because the corporation is comprised of…

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Will U.S. Supreme Court Hold Prosecutors Accountable? – by Michael Hoffer

February 18, 2015

Earl Truvia and Greg Bright each served 27 years in Angola State Prison in Louisiana for a 1975 New Orleans murder they did not commit. The state’s only evidence against them was the story of a single eyewitness who—unbeknownst to Truvia and Bright or their lawyers—was a schizophrenic drug addict who had testified under a false name. In what has become an all too common occurrence, the prosecution violated Truvia’s and Bright’s Constitutional rights, as set forth in Brady v. Maryland, when they withheld this and other material exculpatory and impeachment evidence. Innocence Project New Orleans successfully overturned the murder…

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Who Will be Liable for the Car that Drives Itself? – by Magda DeMoya Coyle

February 9, 2015

With the advent of the self-driving or autonomous car in the very near future, courts will likely be faced with many liability cases of first impression. Obviously, the question of ultimate liability will be at the forefront of any case. Presently, only high-end car makers such as Mercedes Benz, BMW, Jaguar, Volvo, and Audi are manufacturing these vehicles. Recently, BMW exhibited its self-driving vehicle prototype. Interestingly, within these cars, the seats swivel so that people, including the driver, can converse face to face while the car navigates on its’ own utilizing "recognition" software. Automakers estimate these self-driving cars will become…

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Supreme Court Rules on Arkansas “No Beard” Policy

January 23, 2015

The Supreme Court has determined that Arkansas’ no beard policy was an overly-broad security measure. (Holt v. Ray Hobb, Director, Arkansas Department of Corrections, Decided January 20, 2015) Gregory Holt a/k/a Abdul Maalik Muhammad successfully challenged Arkansas Department of Corrections’ (DOC) grooming policy, which prohibited facial hair except for medical reasons. Holt challenged the policy under the Federal Religious Land Use and Institutionalized Persons Act (RLUIPA) as a substantial burden on his religious beliefs. RLUIPA allows prisoners to seek religious accommodations. The DOC maintained that beards compromised prison safety, i.e. a prisoner could hide contraband in his beard. RLUIPA requires…

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Preparing Litigation Budgets in the New Product Liability/Tincher Era

January 21, 2015

If you are like most defense counsel, submitting a budget within 45 days of a file assignment is commonplace. Adjusters and risk managers want to know, from the outset of lawsuit, how much in fees and costs it will take to defend the case through trial. Budgets aid in setting reserves and in moving toward a clear and concise litigation plan/exit strategy. Seminal to proper budgeting is reasonably forecasting the key cost points, including the volume of written discovery, the number of depositions to be conducted, the types of experts needed and the viability of motion practice. Having a firm…

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“But We’re Only the Cleaning Crew!” New Georgia Decision Upholds Independent Contractor’s Defense that Plaintiff May Not Recover as Third-Party Beneficiary of Services Contract – by Michael Hoffer

January 13, 2015

Davidson v. Meticulously Clean Sweepers LLC is a premises liability case where the plaintiff fell on black ice on a ramp outside a Macon, Georgia shopping center and sued the cleaning services company and shopping center owner. The cleaning company had a contract with the shopping center to provide sweeping and de-icing services. The contract expressly provided that no third party would have a right to benefit from, or seek to enforce, any provision of the contract. The evidence showed that the cleaning company had spread some de-icing mixture in the area where the plaintiff fell on the night before…

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Limiting Employee Causes of Action in Employment Applications – by Joseph P. Kreoll

January 9, 2015

On December 5, 2014, the New Jersey Supreme Court granted certification in Rodriquez v. Raymours Furniture Company, Inc., Docket No. A-4329-12T3. The issue presented is whether an employer can enforce a contractual provision in an employment application in which the employee waived the two-year statute of limitations applicable to claims against the employer, and shortened the period for such claims to six months. Regardless of how the Court decides this issue of first impression, the Court’s decision will have a significant impact on employers, employees, and employment law practitioners in New Jersey. In Rodriguez, plaintiff applied to a retail furniture…

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No Product Liability Expert? No Problem

January 6, 2015

Could the recent Pennsylvania Supreme Court decision in Tincher result in an increase in pre-litigation, arbitration level and/or municipal court product liability claims? Quite possibly, and here’s why: for some cases, plaintiffs will no longer need to incur the expense of an expert. In the Tincher opinion, the Pennsylvania Supreme Court set forth two “new” standards for plaintiffs to prove a design defect, one of which is the “consumer expectation test.” This new test allows a plaintiff to argue that the product was defective because the danger it posed was “unknowable and unacceptable” to the average consumer; simply put, the…

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What Fitbit Data Could Mean to Your Personal Injury Case – by Gary Dvoskin

January 5, 2015

Opposing Counsel: "What type of phone do you have?" Mr. Mitchell: "Objection. Type of phone?" This line of questioning at depositions soon may become common, along with questions about whether plaintiff wears a wristband fitness tracker, such as a Fitbit. My Galaxy S5, currently the most popular phone on the market, has tracked my daily steps and other fitness information since my purchase of the phone over a year ago, and the information remains recorded on my fitness app. Such equipment is saturating the consumer market, and, as a result, may soon become a crucial part in defending and prosecuting…

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Ignorance of Law Is Not an Excuse, Unless You are a Police Officer – by Bill Mitchell

December 16, 2014

It is axiomatic that ignorance of the law is not an excuse. The US Supreme Court ruled Monday there is an exception to this rule: police officers. Stated in context, the exception applies to police officers in the case of a traffic stop based on the officer’s erroneous understanding of the law. In Heien v. North Carolina, a police officer conducted a traffic stop on the basis that the subject car’s taillight was inoperable. However, the officer was wrong in his belief that the faulty taillight violated North Carolina’s Rules of the Road. During the traffic stop, the officer found…

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Indiana Court of Appeals Clarifies Discovery Rule against Local or State Governmental Agencies or Entities – by Sally R. Hubbard

December 3, 2014

In a recent Indiana case concerning the Indiana Tort Claims Act ("ITCA") and Indiana’s discovery rule regarding claims against local or state governmental agencies or entities, Plaintiffs Michael and Denita Lyons appealed the trial court’s grant of summary judgment in favor of Defendants Richmond Community School Corporation. Lyons v. Richmond Community School Board Corp., 990 N.E.2d 470 (Ind. Ct. App. 2013). The Indiana Court of Appeals reversed in part, holding that summary judgment on the issue of the discovery rule was not appropriate. The Lyonses’ daughter, Megan, was a severely mentally disabled high school student who relied upon her aide…

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Happy Holidays: You’ve Been Served!

December 2, 2014

With the holiday season approaching, many companies are planning their company-sponsored holiday party. While the holiday party is a great way to reward employees for their hard work during the preceding year, these type of events can also lead to unwanted human resource complaints and lawsuits. Now is the time to assess your company’s upcoming holiday party and avoid potential legal issues that may arise, such as sexual harassment complaints, discrimination complaints, drunk-driving accidents and inappropriate pictures and/or videos uploaded to Facebook, Twitter, Instagram or YouTube. Despite the party atmosphere, holiday parties are still a work-sponsored event, which means that…

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Reduced UM Policy Entitled to Set-Off Regardless of Priority of Payment Rules – by Ashley A. MacNamara

November 20, 2014

Donovan v. State Farm Mutual Automobile Insurance Company, A14A1248, involved three separate UM carriers, two providing coverage in excess of any available liability insurance, and one, State Farm, providing difference-in-limits or traditional “reduced” coverage. The liability carrier paid its limits of $25,000, and State Farm, claiming that it was entitled to the $25,000 set-off, sought summary judgment. The trial court agreed and granted summary judgment for State Farm. Donovan appealed, listing as her sole enumeration of error “that the trial court erred in holding that State Farm is entitled to a set-off for the $25,000 in liability coverage she received…

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Georgia Appeals Court Reconciles Renewal Statute with Law Requiring Court Order for Dismissal of Less than All Defendants – by Rusty Grant

November 20, 2014

The Georgia Court of Appeals has clarified the deadline for renewing a lawsuit when a dismissal without prejudice involves less than all defendants. (Read the court's opinion.) Norris Gresham filed a lawsuit against Clifford Harris and other defendants on November 8, 2010. On July 11, 2012, Gresham dismissed all but one defendant without prejudice. Because a dismissal of less than all defendants requires court approval under OCGA 9-11-21, the trial court treated the dismissal as a motion, and it granted that motion on August 12, 2012. Gresham re-filed the lawsuit against Harris and the other remaining defendants on February 11, 2013.…

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Before You Pre-Judge the Ferguson Grand Jury, Understand the Legal Standard – by Bill Mitchell

November 19, 2014

Notwithstanding all of the opinions floating out there on the tragic Michael Brown shooting, virtually all the pundits and experts are ignoring the actual legal standard which the Grand Jury must follow in determining if the shooting was potentially illegal. While the focus of all reports has been on "the unarmed Michael Brown" at the time of the shooting, this really is not the focus of the legal inquiry. Rather, the legal standard set by the United States Supreme Court provides as follows: A police officer can use deadly physical force when the officer reasonably believes such force is necessary to…

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Georgia Court of Appeals Clarifies Calculation of 5 Day Grace Period for Service after the Statute of Limitations – by Ashley MacNamara

November 11, 2014

The Georgia Court of Appeals has overruled a line of decisions "unintentionally changing the meaning of the general rule with regard to how the grace period should be calculated." Giles v. State Farm Mutual Insurance Company, A14A1276 (Nov. 5, 2014). The Court of Appeals explained that these decisions "incorrectly stated that the plaintiff must serve the defendant within five days of the filing of the complaint rather than receipt of the summons and complaint by the person making service." O.C.G.A. § 9-11-4(c) – "Person Making Such Service" The miscalculation is based on an improper understanding of "the person making service."…

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Pre-Suit Spoliation in Medical Malpractice Clarified

November 11, 2014

Spoliation is a concept in litigation that you never want asserted against your client. It can turn a seemingly defensible case into one where, as a defense attorney, you need to tell your client to resolve the case. When juries hear evidence about a party allegedly destroying relevant evidence, it creates doubt in the minds of jurors that your client is telling the truth. It is, quite frankly, an uphill battle to try a case when the other side gets to argue that your client nefariously spoliated evidence. The case of Phillips, IV v. Harmon, 760 S.E.2d 235 (2014) is…

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So the Off-Duty City Cop You Hired to Patrol and Protect Your Business Shot Someone, and You have been Sued for Millions. Now What? – by J. Robb Cruser

November 4, 2014

The Georgia Supreme Court favors plaintiffs, ruling that it is a jury question whether a business owner is liable for a police officer’s actions. In a ruling favorable to the plaintiff’s bar, in determining who may be responsible for the actions of an off-duty cop while doing side or “extra work,” the Georgia Supreme Court explained that “the proper focus of analysis is to determine in what capacity the officer was acting at the time the tort arose” and let the case go to a jury. Ambling Management Co., LLC et al. v. Miller, Nos. S13G1843, S13G1852 Decided October 6,…

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Medical Bills Incurred by a Minor: Right to Recover Belongs to the Parent, and So Does the Two Year Statute of Limitations – by Ashley A. MacNamara

November 4, 2014

Damage to Property Rights – The Old View Previously, the Georgia Court of Appeals held that the “[m]edical expenses, incurred for treatment of a minor child’s injuries, and the loss of the child’s services, when caused by the tortious act of another, are elements of damage to the father’s property rights, and give rise to a cause of action in the father.” Krasner v. O’Dell, 89 Ga App. 718, 80 S.E.2d 852, 854 (1954) These cases were based on former Code section 53-510. Because these cases viewed the medical expenses as damage to the parent’s property, the four year statute…

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Georgia Court of Appeals Finds Potential Liability on Disabled Vehicle – by Rusty Grant

October 30, 2014

The Georgia Court of Appeals has reversed an award of summary judgment in favor of a motorist whose tractor ran out of gas. Eric Skrine was operating a tractor for MST Transportation on Moreland Avenue in Atlanta when he ran out of gas. At the time, he was in the far right of three travel lanes in his direction. Skrine activated his hazard lights and put out three reflective warning triangles as required by the Federal Motor Carrier Safety Administration Regulations. Before Skrine could refuel and move the tractor, Melanie Granger and her ten-month-old son were traveling in the left…

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Service by Social Media

October 21, 2014

Recently, a New York City family court recently ruled that serving a defendant via Facebook was a valid form of service of process. The judge ruled that because the plaintiff tried all available means available to serve the defendant, the plaintiff could send a digital copy of the summons and complaint to the defendant’s Facebook account. With the growth and pervasiveness of social media, service by social media could one day become a codified and established form of service when personal service fails. In fact, Texas is currently looking to codify substitute service by social media allowing such service if…

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Georgia Supreme Court Ruling Makes It Tougher For Plaintiffs to Recover Attorney Fee Awards – by J. Robb Cruser

October 7, 2014

In a ruling favorable for the defense bar, the Georgia Supreme Court ruled that a contingency fee contract alone is insufficient to support an award of attorney fees under OCGA § 9-11-68. Georgia Dept of Corrections v Couch, 295 Ga. 469, 759 S.E.2d 804 (2014). The Georgia Supreme Court explained: A contingency fee agreement is a contract between the lawyer and the client regarding what the client agrees to pay, and what the lawyer agrees to be paid, for the work that the lawyer will do in the matter. Entering such a contract is a gamble for both the lawyer and…

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Georgia Court of Appeals Provides Loophole to “Impact Rule” – by Rusty Grant

September 11, 2014

The Georgia Court of Appeals recently ruled that a passenger could recover for emotional injuries after witnessing the death of his friend in an automobile collision. This ruling creates a new theory of recovery for a plaintiff under the “pecuniary loss rule” by introducing evidence of medical expenses related to mental health treatment. Previous Precedent: Impact Rule v. Pecuniary Loss Under the “impact rule,” a claimant cannot recover damages for emotional distress unless: (1) there is a physical impact; (2) the physical impact causes physical injury; and (3) the physical injury causes the alleged mental suffering or distress. Historically, the…

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