By Richard Ziernicki, Ph.D., P.E.

How would you explain a crash at night, where the semi driver failed to react and plowed at full speed into a passenger vehicle, killing a small child in a child seat?  What if the accident took place in a properly signed one mile construction site, with overhead lights and a flagger trying to slow down the trucker?

The authors are currently working on a case where a Freightliner tractor-trailer travelling on cruise control at a high rate of speed ran into the back of a Nissan travelling 55 mph at 4:30 am.  The impact forced the Nissan down an embankment, causing it to roll several times, killing one passenger and catastrophically injuring three others.  The DDEC download from the Freightliner tractor showed that the trucker did not brake until after impact and even then his foot slipped off the brake and onto the accelerator.  The driver told the trooper he never saw the Nissan!  Clearly he was asleep and no wonder!  His nightly route left Atlanta at 6:00 pm, took him to Jacksonville and then back to Atlanta on an all night drive.  Who wouldn’t be prone to falling asleep from 3:00 am to 6:00 am when the body’s circadian rhythms demand sleep.

There are only a few possible explanations: the mechanical system such as the brakes or gas linkage failed, the driver intended to cause the crash, the driver experienced a catastrophic health problem, the driver was under the influence of drugs or alcohol, or the most likely cause, he was fatigued.  Of course, most of the above factors can be investigated since they leave direct tangible evidence.  Fatigue, however, does not always leave direct tangible evidence, but can be proven by eliminating the others as plausible causes.

Fatigue and Reaction:

Fatigue is a condition which causes the driver to be impaired, resulting in limits to his or her capability as a driver.  Perception and reaction time, as well as judgment, are all impaired.  Research shows that a fatigued driver is just as dangerous as a drunk driver or a driver under the influence of drugs.

What causes fatigue?  The main reason for driver fatigue is lack of sleep, but drugs, alcohol and some medical conditions can also cause driver fatigue.  Sleep apnea, which commonly affects overweight drivers, can so erode the quality of sleep that even eight hours of sleep is not enough!

A fatigued driver will have poor judgment of speed, road conditions, road configuration, road signage and presence of traffic.  A fatigued driver will tend to speed, follow too closely, fail to observe roadway conditions and signage, and finally fall asleep, suffering episodes of microsleep and then falling completely asleep.  Fatigue will severely affect all aspects of a driver’s reaction, including detection, recognition and the decision making process.  It also degrades the driver’s attention level, focus, concentration and ability to properly judge environmental factors such as traffic, visibility, speed and more.

Let’s look closely at how the driver reacts and how that reaction is fundamental for safety.  An alert driver constantly scans, monitors and analyzes the roadway and the environment around the vehicle.  If something is out of order, an alert driver will detect it, will recognize what has been detected, and will make a decision regarding how to deal with it.  Finally, the driver will respond by braking, steering or a combination of both.  This whole process is called “driver reaction time” and will take anywhere from 1.5 seconds up to 3 or more seconds, depending on the visibility condition (night, fog, black and small objects).

Let’s analyze a driver who is fatigued and look at the detection, recognition, decision making and response time.  Imagine that all four phases of the reaction are extended only by one-quarter of a second.  It will require an additional second for the semi to respond compared to a non-fatigued driver.  This means that a semi, at 65 mph, will travel an additional 96 feet without any response from the driver.  This one-second delay will mean the difference between stopping just short of an upcoming stopped vehicle or impacting that vehicle at 38 mph.  Imagine if the driver’s reaction is delayed by two seconds!  The same semi, with initial speed of 65 mph, will travel an additional 192 feet before responding and will rear-end the upcoming stopped vehicle at a speed of 54 mph instead of stopping and avoiding the collision, had he reacted two seconds sooner.  What if the driver is going faster than 65 mph…?  Delayed reaction time may also erase the time necessary to take evasive action, such as changing lanes to avoid a slower moving vehicle.

This is why a fatigued driver might fail to recognize a problem ahead, react too late, brake at the last second, swerve, or simply drift off the road or cross the center line of the roadway, causing a crash.

Now we can understand why a fatigued driver will say “I did not see this vehicle in time to avoid this collision” or “I did not see him at all”.

Speed Reduction and Stopping Distance

Before a crash takes place, vehicles are traveling on the roadway and each vehicle possesses a kinetic energy which is proportional to the vehicle’s weight and proportional to the square of a vehicle’s speed.  During a collision, this energy is dissipated and causes crush damage to the vehicles and potentially injury to the vehicle’s occupants.  It also “moves” the vehicles from the point of impact to the point of rest.  When the dust settles, this energy has been reduced to zero.

When a fully loaded semi (80,000 pounds) is traveling on the highway, it has twenty times more energy than a typical passenger vehicle, traveling at the same speed.  This energy is the reason why a semi causes so much more damage and injury in motor vehicle accidents.

Catastrophic injuries such as brain damage are much more common when tractor trailers are involved.  The Federal Motor Carrier Safety Regulations (FMCSR) require truck drivers to reduce their speed by one-third in rainy conditions and by one-half in winter driving conditions.  This means the driver should slow down from 65 mph to 43 mph in rainy conditions and to 32.5 mph in winter driving conditions.  These speed reductions mean the energy of the semi is reduced to 44% and 25%, respectively, of the initial energy of the semi traveling at 65 mph.  Reducing the semi speed by half results in a reduction of this deadly energy by a factor of four.  It also has dramatic consequences on a semi’s stopping distance.  For example, a fully loaded semi will stop from 65 mph in approximately 280 feet.  The same semi will need only 124 feet of stopping distance when its speed is reduced by one-third and only 71 feet of stopping distance if the semi’s speed is reduced by one-half (assuming the same roadway frictional properties).  A fully loaded semi on a snow-covered road traveling at 65 mph will need approximately 700 feet to stop!  So driving a tractor trailer in adverse visibility or weather conditions without proper speed reduction is not legal under the FMCSR.

Now, after discussing a fatigued driver’s reaction time and semi stopping capabilities, it becomes clear why FMCSR requires speed reduction in adverse driving conditions and posts strict regulations regarding drivers’ driving hours.

Furthermore, we can see why fatigued drivers “cannot avoid” collisions and cause many catastrophic accidents affecting the lives of many people.

Fatigue, Driving Hours and Federal Law

FMCSR specifically prohibits “fatigued operator” under Section 392.3.  Furthermore, Section 395 limits driving hours and mandates the documentation of driving time.  Unfortunately, many drivers disobey those regulations.  Why do they do that?  Many simply want to make more money by making quick turnarounds of the loads.  The more they drive, the more money they make.  The drivers and their masters, the trucking companies, routinely put profits before people.  Some drivers have done this for years and never get caught, so they continue this practice.  In order to drive more hours, they falsify drivers’ logbooks (graph grid), or keep a second or third logbook.  “Run for the buck” financially benefits both the driver and the employer.  Many employers tolerate and quietly support these practices because they benefit from them too.

Speeding, driving too many hours, falsifying logbooks, not reducing speed when required by FMCSR, falsifying employee applications, lying about prior employment, and having unauthorized passengers or second drivers, are all violations of federal law and show a gross and conscious disregard for public safety on the part of the driver.  Conscious disregard for safety is the predicate for punitive damages in most states.

Some of the violations of the federal law by the driver can be exposed by studying and analyzing logbooks, GPS data, mapping the semi trip (time-space), Qualcomm and DDEC data, phone records, dispatcher records, credit card records, toll records, evaluating employer records and comprehensive depositions of the driver and trucking company representatives.

Company Misconduct:

Employers, motor carriers, shippers and leasers are obligated by FMVSS to verify driver qualifications, safety records and employment applications.  They should maintain logbooks for a minimum of six months; preserve evidence such as the vehicle, all data recording equipment, and electronic data without alterations and modifications as well as all documents regarding maintenance of the tractor and trailer involved in the accident.  It is of critical importance for the plaintiff’s attorney to send out “spoliation” letters to all entities involved by certified return receipt mail.

Quite often, they don’t.  They spoil the evidence by disassembling or selling vehicles and data recording devices (!) for parts.  They adjust and falsify logbooks.  They also tolerate drivers driving long hours and they do not enforce company policy regarding safety regulations.  They tolerate “bad” driver behavior and fail to terminate the employment when justified.  Sometimes they do not have any safety policies.  They hire “bad” drivers, without proper employment verifications, including drivers with drug and alcohol abuse, speeding, and accident records.  They also push drivers for “efficient” round trips, requiring excessive hours by drivers.  All of the above practices are in violation of federal law and have serious safety consequences.  Such conduct shows a gross and conscious disregard for public safety on the part of the employer, motor carrier, shipper or leaser.

Punitive Damages:

The plaintiff’s lawyer should plead punitive damages, alleging that entire want of care evidences a conscious disregard for the safety of the motoring public including the injured or deceased parties.

Extensive discovery should be conducted to obtain documents which may show negligent hiring and retention, failure to train in safety, failure to administer a policy requiring accurate logbooks and driving within maximum hours parameters.  Bills of lading, cell phone records, toll records, Qualcomm records and electronic control module data such as from DDEC (Detroit Diesel Electronic Control) data should be obtained.  Maintenance records, driver’s daily logs and payroll records should all be obtained.

Don’t allow the trucking company to persuade you to forego discovery in return for an admission of liability.  All too often the trucking company has something to hide – a dirty driver, falsified logs, a damning DDEC download or records of unperformed maintenance.  These factors can all lead to enhanced damage rewards, not only for punitive damages but such evidence has a multiplier effect on general and special damages as well.

Conclusion:

Plaintiffs’ lawyers and accident reconstruction engineers play a valuable role in society.  Together they promote safer highways for the motoring public by not only obtaining fair and just compensation for injured families but also by promoting and pushing for tougher and more effective safety regulations in the trucking industry.  In addition, the quest to obtain punitive damages in appropriate circumstances holds the trucking companies and truckers to higher standards of safety and accountability.

The Authors can be reached at:

rziernicki@knottlab.com

marc@dzkl.com

JURY SELECTION/VOIR DIRE

E. Marcus Davis

DAVIS, ZIPPERMAN, KIRSCHENBAUM & LOTITO

918 Ponce De Leon Ave.

Atlanta, GA 30306

(404) 688-2000

marc@dzkl.com

emarcusdavis.com

I.          INTRODUCTION

Voir Dire is an extremely important component of the case. Either a beginning, or an experienced, trial lawyer must devote intensive thought, imagination, preparation and practice to the voir dire of the case. Practice asking your questions to your staff, family, or an informal focus group (friends) within a few days prior to trial. Just as in painting a house, preparation of the surface, is absolutely required if the paint is to stick. Without adequate preparation the jury will reject your client’s case.

Many attorneys place such little emphasis on the importance of voir dire preparation that they make the  mistake of putting voir dire preparation off until the last minute, thinking they will get around to it when all their other trial preparation is complete.  This usually means little or no effort is put into developing a voir dire specific to your case.

The principal skill of the trial lawyer is honest, effective communication. Be yourself. Your approach to voir dire sets the whole tone of the case and defines you and how your message will be received by the jury from the outset. Are you real and authentic or are you trying to be someone you are not?

Running through the entire fabric of our Georgia decisions is a thread which plainly

indicates that the broad general principle intended to be applied in every case is that

each juror shall be so free from either prejudice or bias as to guarantee the inviolability

of an impartial trial…In the interest of fair trial, if error is to be committed, let it be in

favor of the absolute impartiality and purity of the jurors.^[1]

II.        HOW TO APPROACH THE SUBJECT

It is important to ask yourself certain fundamental questions before planning and preparing the voir dire:

1.         What is my case about?

2.         What about my case scares me? Am I willing to discuss those issues honestly with the jury? What are the problems with my case that I hope to overcome?

3.         What do I think the jury will be troubled by and how will they react to me, my case, my client?

4.         What type of juror do I want?

5.         What type of juror scares me?

6.         What kind of juror do I want to try to challenge for cause, or failing that, use a peremptory strike to exclude? How will I approach that process so as to not come across as meanspirited, arrogant, hostile or judgmental?

7.         How do I convince the judge that what I am trying to do in voir dire is legitimate? Do I feel empowered or am I approaching this process feeling hemmed in, afraid of the judge and jury and defeated before I ever start?

8.         Am I willing to just be myself and not mimic someone else or try to be “lawyer man” or “lawyer woman?” Am I willing to communicate honestly and not come across as patronizing or fake out of fear and my desire to control and manipulate? Am I willing to believe that I am actually good enough and adequate for the job at hand, even though I wasn’t first in my law school class, didn’t win the moot court competition, and have really hidden the fact for most of my career that I feel like an imposter and hope I won’t be exposed and found out.

9.         How can I use voir dire to condition the jury as to the important issues of the case, help the leaders on the jury to shine and begin to set up alliances with me and other jurors?

10.       How can I help the jurors who are sometimes excluded and rejected as outsiders feel valued and included as part of the winning team?

11.       How do I find the jurors who are prejudiced against my case, since I will never, ever take their prejudices away by arguing with them, educating them, or belittling them in front of other jurors? How can I enlist the aid of the prejudiced juror to educate the others by having others on the jury disagree with them and express other points of view for me without doing it directly?

12.       How do I discover who the common enemy of the jury is?

13.       Am I willing to practice my voir dire with friends, family, or paid shadow jury so that I will be relaxed and spontaneous when the voir dire actually starts?

14.       How can I avoid being ambushed by the silent juror who doesn’t answer questions but harbors opinions detrimental to my case and whose goal in getting on the jury is to sabotage the Plaintiff’s case?

“Many potential jurors mistakenly believe the civil justice system is out of control with runaway verdicts and a congested court docket brought about by a ‘sue happy society’.  Such jurors must be identified and removed from the panel.”^[2]

III.       FEAR IN THE COURTROOM – FEAR IN YOUR HEART

The courtroom is one scary place. It is a place where people lose their children in a custody battle, lose their freedom and go to prison, lose their money and security, and sometimes even lose their life. Judges have a reputation of “biting the heads off” of lawyers. There are armed people with guns and handcuffs standing by. Let’s face it, is there anything not to be afraid of in the courtroom? No wonder we have a hard time just being ourselves and not being stiff and scared and paralyzed with fear at the start of the trial……And the poor jurors are more scared than we are! They wonder: “What will they ask me? Will they embarrass me? Am I smart enough to understand this case? Am I up to the job of the responsibility of this case? Will I look like a fool?  Will these other people listen to me or like me? ^[3]

Out of that fear comes great opportunity. You can break the ice and be the authentic “real” person in the room and help everyone to feel safe and comfortable enough to be authentic. The reward is, you get to find out how they really feel and think, if, but only if, you reveal how you really feel and think. As Gerri Spence says, “It’s like the children’s game: “I’ll show you mine, if you show me yours!”

Start out with telling them: “I want to tell you that I am scared about my case. I am afraid you will not like my client, he/she is not attractive, has a criminal record, and that you won’t be able to put that out of our mind in figuring out if he was harmed and damaged by malpractice. Maybe I shouldn’t have even taken this case – What do you think? I am afraid I may not be adequate for this job and my client will be hurt because of it and won’t get a fair shake because of it. What do you think?” Well guess what, the juror is now thinking you are just as afraid as she or he is and the beginning of an honest relationship is starting. The jurors are afraid and they are glad to hear you are too! Be vulnerable.

IV.       HOW TO REALLY LISTEN TO THE JUROR

Let’s face it, when you start asking those questions of the jury panel and the individual jurors, it’s a scary time. You are afraid a juror may “poison” the whole panel and make you lose the trial with one horrific answer. You bristle and become angry at their rant about “jackpot justice,” the “McDonald’s coffee case,” “greedy trial lawyers,” the “loopholes” that let defendants go free. Your fear and anger shows in your body language, and your condemning, argumentative, or judgmental tone of voice.

V.        WHY NOT TRY A NEW APPROACH

Why not curiously listen then, instead of defensively correct, advise, argue or explain?

When we try to talk a juror out of a bias or prejudice, it will never,  work. All we do is harden their intransigent position and make ourselves look bad. Remember, the goal is to deselect the jurors with prejudice against your case through challenges for cause or with peremptory challenges. If you want honest answers from the juror you are currently questioning, as well as the others waiting their turn, you must tread gently.

Here’s a suggested way to do it:

1.         Keep your heart and your good intentions turned toward them, even when their heart is turned from you by doing the following:

a. Set aside your critical judgments and/or conclusions about their intentions,

behaviors and feelings;

b. Set aside your personal agenda and your attachment to outcome;

c. Acknowledge and set aside your emotional reaction, e.g. fear, anger, judgment,      condemnation to their opinion and ask genuinely curious and compassionate

questions about their opinions and why they feel as they do.

The method and types of questions are subject to the discretion of the trial court.  Hypothetical questions are usually not allowed if the purpose is to have the jurors indicate what their decisions will be under a certain set of circumstances, evidence or facts.  But hypothetical questions which attempt to determine that the juror’s mind is free of preconceived convictions are proper and allowed.^[4]

2.         First and foremost ask open ended questions. You must forget how angry you are about tort reform and the erosion of our civil liberties and “listen.” Be genuinely interested in finding out why the juror feels as he does. Using their words and repeating some back to them (the psychological technique of mirroring), ask them  to help you understand what they mean and why they feel that way. Be genuinely curious, like you are a news reporter in another country or even from another planet. Ask them how they see it or feel it specifically. Be truly curious about how they arrived at their opinions. Remember, that their opinion and feelings are as valid as your own and in your case, even more so, because they have the power to decide the case.

3.         Let them talk a lot. They are not used to having someone listen to them without defending, correcting, solutioning, or “me-tooing” them.  They may get more “worked up” before they wind down, but after a while they will begin to hear themselves and a little self-assessment and wisdom may creep in, when they don’t have to spend so much energy defending their position to you.

4.         Listen for the integrity of their point of view and what you can learn about them to make you more compassionate for their situation and why they hold their opinions and prejudices (our characterization).

5.         Be present and make the juror feel as though they have been fully heard. There is an incredible amount of respect and loyalty that may develop from that type of listening. How rare it is for human beings to feel that from another. ^[5]

Try building a partnership with the jurors by having an expansive conversation. The goal is to curiously inquire for more information. Add to what you “see” with what the other person “sees” and seek to give them additional information which could build a framework for a shared goal represented by a favorable verdict. Work together towards some shared higher purpose. Be curious about what you don’t know and don’t assume you know the other person’s intent. You have to be genuine and demonstrate the energy of genuine curiosity. Use their words, repeated back to them, in follow up questions, so that they will know you are interested and listening. Try to shift your orientation from certainty to curiosity, from simplicity to complexity and, most importantly, from “either or” to “both.” Try to develop an interest in “how it is” for another and how their information and opinion could give you a wider view. The goal is to build partnership by ending the arrogance of superior/inferior. Shared understanding is about appreciating and legitimizing another’s view vs. agreeing or disagreeing with them. You can then draw out their honest opinions with your sincere and respectful curiosity, so that you can decide whether or not you want them on your team or whether you need to exclude them. Many jurors treated in this fashion will not fight you on the questions obviously setting them up for a challenge for cause (you know it and they know it), because of the respectful listening that you have given them. People want to be heard and connect and to be valued and acknowledged. Be genuinely curious, understanding that you don’t know their world. Demonstrate you want to understand what they think and feel by asking open-ended questions.

VI.       STEREOTYPES DON’T WORK

After practicing law for thirty-five years and having been convinced, now more than ever, of how much I don’t know about being a trial lawyer, I have come to the conclusion that (drum roll please) “people are people” – brilliant huh? What I mean is that ethnic and other stereotypes are so diluted and watered down by peoples’ life experience, the number the years since certain ethnic types immigrated to the United States, etc. that the best thing to do is just make no prejudgments and ask your questions. It is so difficult to find enough good jurors, with tort reform rhetoric and fear of terrorism making people so afraid that they are willing to throw away their rights, that you can’t afford to waste strikes on the basis of stereotypes. Simply find out who people are and what drives and motivates them. To do so, you must give them a sense of who you are as well. Get a feel for whether you like them and can work with them for a common goal. The most important principal is to ask the questions designed to find out, “Who are the people prejudiced against my case? Why?” We will never be able to take their prejudices away. Hence, we must make them feel safe to tell us their true beliefs and opinions without fear of scorn or judgment from us or anyone else in the courtroom. We have to draw them out being very vulnerable.  Speaking one’s humanity and fears is the best way to go about it. Don’t assume silence means agreement. Make an effort to get the silent ones to talk.

The best way to accomplish this goal is to make it safe for jurors to express their honest opinions and to gently lead them into the concession that it really would be better for all concerned for a person with such valid and well thought out and reasonable and wise, (but nonetheless such a “fixed and formed” opinion that it would never change no matter what the evidence shows), to be excused from jury service. Besides, most folks with these really hard-core “fixed and formed” opinions in our society are just too darned important to be tied up in the business of sitting on a jury. Many of them will leap at the chance to be excused for cause, if you only will treat them with respect. Don’t make them feel attacked and put down by your cause challenge. These are proud, accomplished people. You don’t want them to feel that if they are challenged for cause they are foolish or you have dominated them and that you win and they lose. If you make them feel this way, they will figure out a way not to be challenged for cause and later vote against your client in deliberations.

Ask a question like this: “Mr. Jones, you have told us that you feel we would have to prove the doctor was negligent by proof beyond a reasonable doubt and that proof by a preponderance of the evidence, or more likely than not, just makes it too easy on us and hard on the doctor. In fairness, wouldn’t you agree that your opinion on that is so fixed and formed that it is unlikely to change no matter what happens in the case.”^[6] Usually, the busy business person, tort reformer will spot an “escape” in those stilted words “fixed” and “formed” and seize upon it as his or her ticket out of the courtroom and back to the high paying, important job. Crucial to this outcome is establishing a communication dynamic and atmosphere where it is not a contest of wills between you and a prospective juror, but instead a respectful, low key, genuinely interested exchange of ideas. If you get the jurors “back up” odds are he or she is staying on that jury no matter what. The judge’s rehabilitative question, “You will follow the law, won’t you?” is just too easy a “save” for your opponent, once the juror is riled up and wants to spite you by getting on the jury and sabotaging your case.

VII.     CHALLENGES FOR CAUSE

Challenges for cause are extremely important. You will almost never have enough peremptory challenges left to deselect the problem jurors. The only way to enhance your odds of success is to become adept at striking jurors for cause. The number of peremptory challenges is limited, but the number of challenges for cause is not.^[7] Generally there are two categories for challenging the juror for cause, principal/per se challenges and challenges for favor.

A.  Principal/Per Se Challenges:

These challenges are well-founded in law and statute.  Per se challenges include:

1. O.C.G.A. §15-12-134.  Challenge of juror in civil case for desire or expression of opinion as to which party should prevail…

In all civil cases it shall be good cause of challenge that a juror has expressed

an opinion as to which party ought to prevail or that he has a wish or desire as

to which shall succeed. Upon challenge made by either party upon either of

these grounds, it shall be the duty of the court to hear the competent evidence

respecting the challenge as shall be submitted by either party, the juror being

a competent witness.  The court shall determine the challenge according to the

opinion it entertains of the evidence adduced thereon.

To be successful at challenging for cause under this statute the evidence must demonstrate that the juror’s opinions are fixed, and the juror is incapable of objectively weighing the evidence.

2.  O.C.G.A.§15-12-135.  Disqualification for relationship to interested party.

(a) All trial jurors in the courts of this state shall be disqualified to act or serve in

any case or matter when such jurors are related by consanguinity or affinity to

any party interested in the result of the case or matter within the sixth degree as

computed according to the civil law. Relationship more remote shall not be a

disqualification…

This statute is not limited to just kinship, but also jurors who have a relationship with a party or are related to a person having a close connection with a party or the outcome of the case.  Additionally, a party is considered related by marriage to blood relatives of his spouse but not to people his spouse is related to only by marriage.  For example, the wife of the spouse’s uncle would not be disqualified under this code section.^[7] Challenges for favor include other relationships not delineated in O.C.G.A.§15-12-135.

B.  Challenges for Favor

Challenges for favor include all jurors who have given counsel reasonable basis for apprehension of partiality or bias.  Challenges for favor are rarely reversed because the appellate courts give great deference to the Trial Court’s discretion and will only be reversed upon a finding of “manifest abuse” of that discretion.^[8] To preserve an appeal for failure to strike the best practice is to exhaust all peremptory challenges and make your objections to the panel before the jury is sworn or they may be waived.

O.C.G.A.§15-12-133 states:

In all civil cases the parties thereto shall have the right to an individual

examination of the panel of jurors from which the jury is to be selected,

without interposing any challenge…In the examination, the counsel for

either party shall have the right to inquire of the individual jurors

examined touching any matter or thing which would illustrate any

interest of the juror in the case, including any opinion as to which

party ought to prevail, the relationship or acquaintance of the

juror with the parties or counsel therefor, any fact or circumstance

indicating any inclination, leaning, or bias which the juror might

have respecting the subject matter of the action or the counsel or

parties thereto, and the religious, social, and fraternal connections

of the juror.

This statute forms the basis for most challenges for favor/bias.^[9] Almost any relationship or bias may be grounds for disqualification if it raises a reasonable apprehension of partiality or pre-judgment.  Some examples of challenges for favor are:

a.  Racial prejudice;^[10]

b.  Leaning or bias for or against one party;^[11]

c.  Size of the verdict (counsel may inquire in general terms as to a jurors feelings or bias

toward “large verdicts” but may not ask the juror to commit to a specific amount or

range);^[12]

d.  Stockholders and relatives of corporate party or insurance company with financial

exposure;^[13]

e.  Employees of a party;^[14]

f.  Relationship to any insurance company with potential exposure in the case;^[15]

g. Fixed opinions as to any material fact as to the parties, the subject matter of the case          or credibility of witnesses;

h. Inability to set aside impressions or opinions based upon pre-trial publicity.^[16]

Additionally, the Supreme Court decision in Kim v. Walls, 275 Ga. 177 (2002) changed the trend of “rehabilitating” jurors who were brave enough to be honest about potential biases only to be subjected to a “browbeating” by counsel or the trial court.  The Court in Kim held that when “a prospective juror has a relationship with a party to the case that is either close or subordinate, or one that suggests bias, the tiral court must do more than ‘rehabilitate’ the juror through the use of any talismanic question.”^[17] The Court further admonished trial courts to err on the side of dismissing a juror rather than trying to rehabilitate biased jurors.  Id.

VIII. PEREMPTORY CHALLENGES

The scope of voir dire is not limited to the subjects which constitute grounds for sustaining a challenge for cause.  Voir dire may also inquire into subjects which reveal bias or prejudice towards a party or issue to be tried.^[18]

The number of peremptory strikes depends on the number of jurors being seated for trial.  All civil matters pending before the State Courts of Georgia are tried to a jury panel of six members, unless there is a minimum claim for damages in excess of $25,000, and then the case may be heard by twelve jurors by request of either party.  Civil cases before the Superior Courts of Georgia are heard by a panel of twelve jurors.  In cases heard by a six-member jury each side has three peremptory strikes.  In cases heard by a twelve-member jury each side has six strikes.  The parties alternate strikes, with the Plaintiff striking first.^[19] If alternate jurors are being selected, each party has one additional peremptory challenge to be used only in the selection of the alternates.^[20]

You should be aware of Batson issues when using peremptory challenges.  Batson v. Kentucky holds that deliberate exclusion of members of a particular political group, economic group, race, sex,  religious faith, etc. violates due process and equal protection.  The burden is on the person who feels they have been unfairly excluded to establish the Batsonissue, and then the burden shifts to the striking party to establish a neutral basis for the strike.^[21]

IX.       PERSUADING THE JUDGE THAT YOUR METHODS AND PURPOSE ARE LEGITIMATE

When you think about the questions you really need to ask in voir dire, you might think, “Well a judge wouldn’t really let me ask those in a trial.” If you approach the task with that attitude, it will probably become a self-fulfilling prophecy. If you think you can’t do it, you probably won’t try, or your effort will be half-hearted. Your energy will telegraph tentativeness and that you are not sure of yourself and don’t believe in what you are doing. Consider approaching it head-on with the judge before you start the voir dire: “Judge, we have a tough row to hoe in this political climate. You know 30 of the last 30 medical malpractice cases have been lost by plaintiffs in this State. There have been only three plaintiff’s medical malpractice verdicts in the last three years in the State. It is extremely difficult for a plaintiff to get a fair shake in a legitimate case. The reason is the jury pool has been brain washed and conditioned by the relentless drum beat of corporate advertising, political mailings and pronouncements by everyone from the President of the United States, to the Governor, to the Speaker of the House to talk show hosts and others about “frivolous lawsuits,” “jackpot justice,” “running doctors out of business,” “greedy plaintiff’s lawyers,” “malpractice cases causing everyone’s health insurance premiums to go up,” and the like. We need some latitude in inquiring into those matters to get a fair trial. We won’t waste your time and the juror’s time with silly questions. We respectfully ask your discretion to allow us to go into those matters and of course, if you don’t feel our purpose is legitimate, rein us in. We want to explore those matters and inquire into those matters. We want a fair trial and, in this climate, it is exceedingly difficult to get one.^[22] Demonstrate impeccable intent in this regard. Use this approach to also advocate for the use of a jury questionnaire.

X.        THE USE OF NOTES

Notes are an impediment to communication, When you look at them and think of the next written question, rather than listening to the answer and framing the next question by incorporating words from the last answer, you tend to miss the whole world of nonverbal communication: the scowl, the tight body position, the harsh tone of voice, the tight insincere smile, all of which speaks volumes of information that you don’t want to miss.  Use a lawyer or staff person in your office to take with you.

XI.       ESTABLISH RAPPORT WITH THE JURY

It is important to carry on your voir dire as you would any conversation by establishing a few common interests or life experiences between you and the juror as they answer your questions. Let them know you are one of them and that you are down to earth, approachable and sincere. Don’t go too far with this or the judge will call you down. Tell them a little bit about you,  your background, your work, and your family. Share some of your weaknesses and vulnerabilities so that it won’t appear that you are not one of them. Do the same for your client. Usually your opponent will want to do the same thing, so he or she won’t object. Dress appropriately, but not too flashy or expensively. Forget the jewelry. Leave the Mercedes at home. Remember you want to be one of them, not to be perceived as above them, or play into some awful lawyer stereotype. Use “plain speaking” language. Using legalese or an overly formal speech pattern or “speechifying” will only serve to distance you from the jury.

XII.     ESTABLISHING THE THEMES OF YOUR CASE

Smart lawyers have said that you should win your case by the end of voir dire and opening statement. One of the ways to effectively work toward that goal is to establish coherent themes of your case which you will carry through from voir dire, to opening, to direct, to cross, to closing. A coherent theory of your side of the case should be woven into the voir dire questions, headnotes or bullet points, to alert the jury to the themes and concepts of the case.

XIII.    DISCUSSING THE “PINK ELEPHANT” IN THE LIVING ROOM

Ask questions about the issues which are of most concern to you. Devote considerable time to thinking about what the jury will be concerned about with your case and  how you can effectively bring those issues out for open discussion. Those issues are in the jurors minds anyway, so do not be too afraid to talk about the “pink elephant” in the living room. Not talking about “the pink elephant” is not going to make him go away. Don’t worry about poisoning the whole jury. You should try to get a commitment from the jury to not consider the prejudicial elements of your case before they come back to haunt you in deliberation. The ignored “pink elephant” will most definitely be a topic of conversation in the jury room.

Example A:

“You know it worries me that Akeem is the product of a mixed race marriage. I am afraid you might disapprove of it and it might hurt Akeem’s case, even though the fact that he is of mixed race has nothing to do with how he became quadriplegic? How do you feel about that?”

Example B:

“You know my client has a criminal record. That doesn’t have anything to do with how he got malpracticed upon, but I am worried that he won’t get a fair shake. How do you feel about that?”

Example C:

“My client had a gambling addiction in years past and I am worried that you will reject his case because of that. How do you feel about that?

Example D:

“Are any of you worried that a large verdict in this case will cost you money personally, since it is against the county hospital?

Example E:

My father thinks we shouldn’t award money for pain and suffering. Some people feel we should. Where do you stand on that, like my Dad or some other folks?

Example F:

“Well the doctor is a good person. You know he does volunteer work for Doctors Without Borders. That worries me. Would you be inclined to give him a pass even if he committed malpractice because of his good deeds? Or would you hold him accountable even if he is usually a good doctor, but was not in this instance?”

XIV.    CONCLUSION

We all want to select a jury in which everyone has the exact frame of mind that you do, agrees with you on everything, and sees it just like you see it. Unfortunately, that person doesn’t exist. There is only one you, and we are all different. About the best we can do is to reveal the jurors who are leaning one way or another. Find the ones that are leaning so hard that nothing will cause them to lean in a different direction. These jurors hopefully will be stricken for cause, or if not, use a peremptory challenge and your client will be more likely to receive justice.

Good luck with your next voir dire and I hope some of these tips and suggestions will be useful!

^[2] Thomas Malone, Voir Dire and Summation, The Law and the Practice, §6:1 (2d Ed.), The Harrison Company.

^[3] Gerri Spence – Voir Dire Videotape.

[4] U.R.S.C. Rule 10.1. Voir dire.  The court may propound, or cause to be propounded by counsel such questions of the jurors as provided in O.C.G.A. §15-12-133; however, the form, time required and number of such questions is within the discretion of the court. The court may require that questions be asked once only to the full array of the jurors, rather than to every juror, one at a time, provided that the question be framed and the response given in a manner that will provide the propounder with an individual response prior to the interposition of challenge. Hypothetical questions are discouraged, but may be allowed in the discretion of the court.  It is improper to ask how a juror would act in certain contingencies or on a certain hypothetical state of facts.  No question shall be framed so as to require a response from a juror which might amount to a prejudgment of the action. Questions calling for an opinion by a juror on matters of law are improper. The court will exclude questions which have been answered in substance previously by the same juror.  It is discretionary with the court to permit examination of each juror without the presence of the remainder of the panel. Objections to the mode and conduct of voir dire must be raised promptly or they will be regarded as waived.

^[5] Jan Smith, Communications Consultant, Center for Authentic Leadership, Atlanta, Georgia.

^[6] David Ball, Damages.

[7] Georgia Trial Handbook 6:16, citing Alexander v. State, 260 Ga. 870 (1991).

[8] Kim v. Walls, 275 Ga. 177, 178 (2002) (Internal Citations omitted.)

[9] See Generally Voir Dire and Summation §4-1 et seq.; and Trial Handbook for Georgia Lawyers §16.1 et seq.

[10] Menefee v. State, 270 Ga. 540 (1999); See Generally, Voir Dire and Summation §4-1 et seq.; and Trial Handbook for Georgia Lawyers §16:1 et seq.

[11] Perry v. State, 264 Ga. 524 (1994).

[12] Atlanta Joint Terminal; see also Davenport v. Kutner, 186 Ga. App. 152 (1988).

[13] Lewis v. Emory University, 235 Ga. App. 811 (1998).

[14] Voir Dire and Summation §4-23.

[15] Weatherbee v. Hutcheson, 114 Ga. App. 761 (1966).

[16] Morrill v. Stte, 216 Ga. App. 468 (1995).

[17] Kim v. Walls, 275 Ga. 177, 178 (2002) (Internal Citations omitted). See also Guoth v. Hamilton, et al, 273 Ga. App. 435 (2005); Kier v. State, 263 Ga. App. 347 (2003); and Remillard v. Longstreet Clinic, P.C., 267 Ga. App. 230 (2004).

[18] Atlanta Joint Terminals v. Knight, 98 Ga. Ap. 482 (1958).

[19].O.C.G.A.§15-12-122 and 15-12-123. (Civil cases before the federal courts of Georgia shall be heard by a panel of six jurors, unless both parties request in writing prior to trial the case be heard before a jury of twelve).

[20] O.C.G.A. §9-11-47

[21] Batson v. Kentucky, 476 US 79. See also Edmonson v. Leesville Concrete Co., 500 U.S. 614 (Batson, aplies to civil matters).

^[22] Geri Spence: Voir Dire Videotape

It is a surprise to the vast majority of personal injury claimants that
when they make a recovery they are usually required to reimburse their health insurance
carrier. Normally clients do not read their health insurance policies, nor the summary plan
description of the insurance policy, if they are provided with one by their employer. Thus
it comes as a surprise to learn that buried somewhere in these documents are several
paragraphs providing that if an insured party makes a recovery in a personal injury case,
he or she is required to reimburse the insurance company.

Most personal injury plaintiffs are outraged to find out about these provisions. He
or she may feel that she paid a substantial premium for years for the coverage and that he
or she, to the contrary, is entitled to be compensated for medical bills incurred as a result
of injuries sustained in a car wreck, medical malpractice matter, or the like. They feel that
they should not be required to reimburse the health insurance company to whom they paid
monthly premiums. The insurance company bases it’s premiums on actual science and
subrogation recoveries constitute a windfall for the greedy insurance companies!

Another surprise is that if a person has had their medical bills paid for by Medicare
or Medicaid he or she is probably going to be required to reimburse these entities as well.

Federal case law is well settled on the principle that an ERISA health plan is entitled
to reimbursement of benefits paid from personal injury settlement proceeds that are clearly
identified as such. A recent decision by a U.S. District Court in Georgia in favor of the
insurance plans right to reimbursement through subrogation indicates how modern federal
courts dispose of those arguments. The case is Brown and Williamson Tobacco Corporation

v. Collier, 2010 WL 1487772 (M.D. Ga, April 13,2010 ) In that case the district court rejected
the Georgia “Make Whole” Doctrine.
Georgia has a liberal anti-subrogation statute which is designed to protect personal
injury victims from over- reaching by a health insurance company. The Georgia Statute
OCGA § 33-24-56.1 provides that “insurance companies may not subrogate to obtain
money from a personal injury settlement or verdict unless the injured party has been “made
whole” for all economic and non economic damages.” This is a high burden for the
insurance company to overcome.

Most insurance policies contain language to the effect that the insurance company
is entitled to make a claim against or sue a personal injury plaintiff to recover
reimbursement from the personal injury plaintiff for funds he or she received in settlement
of a personal injury case. The argument of the insurance company is that since the
plaintiff is reimbursed for medical expenses incurred, even though insurance paid for
these medical expenses, then it is fair for the plaintiff to reimburse the insurance
company. In Georgia the Collateral Source Doctrine provides that when a plaintiff goes
to trial, the jury is not entitled to know about his or her health insurance which paid

medical bills. Part of the public policy reason for courts and legislatures allowing
subrogation is to prevent a double recovery

An ERISA insurance carrier can sue the client for subrogation. An ERISA carrier can
also cancel your health insurance or refuse to pay claims you submit for medical care for
failing to agree to pay subrogation or to sign a subrogation form letter.

To the extent that you as a personal injury plaintiff have not been “made whole,”
you can argue that the insurance plan’s subrogation and or reimbursement rights are
limited to those available in equity and are limited by the equitable doctrines of the “Make
Whole Rule” and the “common fund doctrine”. Great-West Life and Annuity v. Knudson,
534 U.S. 201, 112 S. Ct. 708, 151 L. Ed. 2nd (2002) If a plan is an ERISA plan, however,
state law will not govern the enforceability of the subrogation agreement and will not
protect the insured from the insurance company. Furthermore, state law requiring that
the insured be fully compensated before the medical carrier can enforce any of the
subrogation rights will not apply. Blue Cross and Blue Shield Mutual of Ohio v. Hrenko
(1995), 72 Ohio St. 3rd 120, 647 N.E. 2nd 1358 Federal law will govern the enforceability of
the subrogation agreement. There is case authority for the proposition that the ERISA
administrator can recover subrogation, even though the insured has not been fully
compensated. Electro-Mechanical Corp v. Ogan (C.A. 6, 1993) 9 F. 3rd 445. Under most
plans the administrator also has the ability to withhold coverage until the insured signs a
reimbursement agreement. Le High Valley Hospital v. Rallis #9403082, 95-3511, 1996 U.S.
Dist. LEXIS 4974, (E.D.Pa. Apr. 11, 1996) Some cases have even held that the insurance
company doesn’t even have to pay a pro rata share of the attorneys fees which were
incurred to recover the funds.

To qualify as an ERISA plan, the plan must be (A) A plan, fund, or program, (B)
Established or maintained by an employer or employee organization, or both, (C) For the
purpose of providing, medical, surgical, hospital care, sickness, accident, disability, or other
encumbered benefits stated in ERISA, and (D) To participants or beneficiaries.

In order to get the preferential tax treatment afforded by ERISA, employers must
meet a number of requirements: 1. Administrators of the plan are required to provide each
participant and each beneficiary of the plan with a summary description of the plan drafted
in language understandable by the average plan participant Section 1022 (a) 1, Title 29, U.S.
Code 2. The employer must also make available to the plan participants and plan
beneficiaries a copy of the plans annual report as filed with the Secretary of Labor. Section
1023 (a) 1, A Title 29 3. The actual plan, the summary description of the plan, and the
annual report must be filed with the Secretary of Labor in order to come within the gambit
of ERISA regulation.

What is not an ERISA plan: It is important to remember that ERISA does not apply
to plans that are not maintained by the employer, 26 U.S. Code Section 1002 (1) Medical
coverage that an individual purchases for himself outside of the employment context is not
subject to ERISA. Sole proprietors and their spouses are exempt. A plan whose sole
beneficiaries are the company’s owners can not qualify as a plan under ERISA. In order
to establish an ERISA employee benefit plan, the plan must provide benefits for at least one
employee, not including an employee who is also the owner of the business in question.
Also, ERISA does not apply to church, government, or foreign plans Section 1002, Title
20 U.S. Code, et seq. or self pay insurance contracts i.e. where the employer purchases
group health insurance but does not administer or control any of the benefits. If you work

for a church, the state, county, township, or some other political sub division you do not
have an ERISA plan.

If the plan is an ERISA plan it’s terms pre-empt state law meaning the antisubrogation
“make whole” will not protect the injured party The United States Supreme
Court has held that the terms of an ERISA plan pre-empt any state laws which relate to
a self insured or a self funded ERISA plan including the “make whole” doctrine. As a
practical matter most health plans today are ERISA plans. In dealing with the preemption
issue the attorney should always ask: who’s paying the bill? If the employer
is and it retains control, then there’s a federal pre-emption; if not, state law will apply.
If the plan is not any more than a group policy, marketed by the insurance company,
and funded exclusively by the employee, ERISA does not pre-empt state law. See FMC
Corp. v. Holliday (1990), 498 U.S. 52, 111 S.C. 403, 112 L.Ed.2nd 356. It is thought that
approximately sixty percent of employee benefit plans are self funded.

It is interesting to know that if a plan does pre-empt state law, the ERISA claim
may also reach those monies that the client used to pay the attorney! In short, the
greedy ERISA carrier may not only be able to grab the clients portion of the
recovery but also the attorneys fees! However some courts have forced ERISA plans
to pay their proportionate share of attorneys fees under the common fund doctrine
Scholtens v. Schneider (Ill. 1996), 671 N.E. 2nd 657.

You can obtain copies of the most current plan documents by calling the
Department of Labor, Public Disclosure and Affairs Office at 1-202-219-8771

There are lawyers and law firms who do nothing but handle ERISA, Medicare,
Medicaid, FEHBA, and Tricare subrogation matters. The law in this area is constantly

changing and evolving. It is challenging for personal injury lawyers to stay current
regarding the latest developments in ERISA law.

We believe that a plaintiff, at his peril, refuses to reimburse an insurance company
which claims ERISA subrogation rights. A decision to not reimburse the ERISA
insurance company may be based on law which changes to the client’s determent
the next week after the decision is made.

We believe the best policy is to engage the entity claiming subrogation rights, be it
ERISA empowered insurance companies, Medicaid, or Medicare, FEHBA Federal
Employee Health Benefit Act or some other entity, from the inception of the case. Plaintiffs
have not been able to successfully defeat ERISA subrogated claims by settling for pain and
suffering only, simply because the plan language usually does not limit reimbursement
rights to only what the insured has recovered for his or her medical bills!

To re-cap, there are two types of ERISA health plans, insured and self funded.
An insured plan is a health plan where the employer has purchased a group insurance
policy for it’s employees from a health insurance carrier. A self funded ERISA plan
is one in which the employer completely funds the plan and pays for employee
health care with it’s own assets. These two types of plans and their liens are treated
differently under ERISA, due to rules as to when federal law pre-empts state insurance
law and when it works in conjunction with state law.

The general rule is that ERISA pre-empts state law in the governance of employee
health plans however, one exception is the ERISA savings clause which saves state laws
regulating insurance from the realm of federal pre-emption . This clause greatly narrows
the scope of ERISA pre-emption where health insurance carriers are involved. .

On the other hand, the “deemer clause”, which immediately follows the savings
clause, provides that a self funded employee benefit plan is not to be deemed an insurance
company. Thus, self funded ERISA plans are not subject to state law but health insurance
carriers and insured ERISA plans are. Self funded ERISA plans are exempt from state
regulation because self funding plans are not connected to an insurance company. They
benefit from ERISA pre-emption. State laws that directly regulate insurance may not
govern self funded employee benefit plans because the plans may not be deemed to be
insurance companies, other insurers, or engaged in the business of insurance for purposes
of such state laws.

On the other hand, insured ERISA plans are subject to state law regulation.
When an insured plan asserts a lien against a personal injury settlement it is the
insurer -not the plan, that is attempting to re-coup its expenses.

Thus some liens are governed by state law with its anti-subrogation protections
while other liens are covered by federal law through the pre-emption doctrine. A lien preempts
state law if the health plan is promulgated under ERISA and the plan fully self
funds all medical expenses incurred by its plan participants. Self funded plans have a
right to be reimbursed out of the proceeds of the third party action even though the
state may have a “Make Whole” Doctrine contained in its statutory scheme. FMC V.
Holliday, 498 U.S. 52 (1990)

The “Make Whole” Doctrine invokes the notion that the injured person should
first be fully compensated for his or her injuries before subrogation or reimbursement
for medical expenses will be permitted. The 11th Circuit has held while the “make whole”
doctrine is the default rule for ERISA reimbursement claims, a benefits plan need only

state in the plan document that the “ make whole” doctrine does not apply to overcome
that default. Therefore OCGA § 33- 24-56.1 which contains the Georgia “Make Whole”
Doctrine has no applicability to a plan governed by ERISA and the Federal Pre-emption
Doctrine trumps the “Make Whole” Doctrine in Georgia. The plaintiff must therefore
reimburse the plan.

Because there is so much uncertainty in the law regarding subrogation for insurance
companies, the companies are usually willing to negotiate these claims regarding
subrogation liens downward.

We have found that it is prudent to cooperate regarding subrogation with the
insurance companies or other entities such as Medicaid, Medicare, FEHBA, or Tricare
claiming subrogation rights throughout the pendency of the case. It is then easier to
negotiate the subrogation claim after the case is settled. Usually because of the uncertainty
and the arguments that can be made to defeat subrogation rights the companies will reduce
the amount of subrogation that it claims against the medical bills it has paid on your behalf
which were later rolled into a personal injury recovery or at least give you credit for the
attorney’s fees you have incurred.

The best course of action for a plaintiff is to explore with his or her attorney at the
beginning of the attorney client relationship the issue of subrogation. The attorney and the
client can collaborate on a plan to negotiate subrogation matters with the insurance
company starting at the inception of the representation of the client in the personal injury
case.

Improper Loading And Securement Of Loads:
Another Road To Liability Success In Trucking Cases
E. Marcus Davis
DAVIS, ZIPPERMAN, KIRSCHENBAUM & LOTITO
918 Ponce De Leon Ave.
Atlanta, GA 30306
(404) 688-2000
marc@dzkl.com
emarcusdavis.com

I. Introduction
The number of injuries and deaths involving trucking related accidents is staggering. Over
400,000 accidents occur each year involving tractor trailer trucks or other commercial vehicles. A
person is injured or killed every 16 minutes in a tractor trailer truck accident1. These unfortunate
statistics are frequently the result of improper loading and securement of loads of tractor trailers.
When a truck driver loses control of a tractor trailer and a wreck occurs, a thorough
investigation may reveal that factors, other than negligent driving, caused the wreck. It is possible
that the cause of the wreck was due to the tractor trailer being over loaded, improperly loaded, or the
load being improperly secured. The load must be properly balanced on or in the trailer so that it will
not shift while in transit. Crashes occur because the truck is thrown off balance when heavy loads
shift within trailers, or on top of flatbeds, or lowboys. These tragic accidents can be avoided by
ensuring that the freight is properly loaded and secured.
The most effective way to avoid trucking accidents is to properly train the drivers to properly
load and secure the cargo. It is the driver’s responsibility to inspect the truck for safety. Further, the
driver should examine the cargo placement and securement because he or she, along with the
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employer, are responsible for the safe loading of the cargo, regardless of who loaded it, unless the
cargo is in a locked trailer for which he has no access. This means that the driver is responsible for
knowing the weight of the load, safe placement of the load, and safe securement of the load.
Federal Motor Carriers Safety Regulations clearly outline the carrier’s responsibility for proper
loading of a truck. Commercial vehicles must be loaded in such a manner as to prevent its cargo from
leaking, spilling, blowing, or falling from the vehicle. The cargo must be immobilized or secured to
prevent shifting to the extent that the vehicles stability or maneuverability is affected. The Federal
Motor Carrier Safety Regulations mandate the following standards of care regarding loading:
§ 392.9 Inspection of cargo, cargo securement devices and systems.
(a) General. A driver may not operate a commercial motor vehicle and a motor carrier may
not require or permit a driver to operate a commercial vehicle unless -
(1) The commercial vehicle’s cargo is properly distributed and adequately secured as
specified in §§ 393.100 through 393.136 of this subchapter.
(2) The commercial motor vehicle’s tailgate, tailboard, doors, tarpaulins, spare tire and other
equipment used in its operation, and the means of fastening the commercial motor vehicle’s cargo,
are secured; and
(3) The commercial motor vehicle’s cargo or any other object does not obscure the driver’s
view ahead or to the right or left sides (except the drivers of self-steer dollies), interfere with the free
movement of his/her arms or legs, prevent his/her free and ready access to accessories required for
emergencies, or prevent the free and ready exit of any person form the commercial motor vehicle’s
cab or driver’s compartment.
(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section,
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the driver of a truck or truck tractor must -
(1) Assure himself/herself that the provisions of paragraph (a) of this section have been
complied with before he/she drives that commercial motor vehicle;
(2) Inspect the cargo and the devices used to secure the cargo within the first 50 miles after
beginning a trip and cause any adjustments to be made to the cargo or load securement devices as
necessary, including adding more securement devices, to ensure that cargo cannot shift on or within,
or fall form the commercial motor vehicle; and
(3) Reexamine the commercial motor vehicle’s cargo and its load securement devices during
the course of transportation and make any necessary adjustment to the cargo or load securement
devices, including adding more securement devices, to ensure that cargo cannot shift on or within,
or fall from the commercial carrier vehicle. Reexamination and any necessary adjustments muist be
made whenever -
(i) The driver makes a change of his/her duty status; or
(ii) The commercial motor vehicle has been driven for 3 hours; or
(iii) The commercial motor vehicle has been driven 150 miles, whichever occurs first.
(4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor
vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor
vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.
[36 FR18863, Sept. 23, 1971, as amended at 37 FR 12642, June 27, 1972; 38 FR 23522, Aug.
31, 1973; 60 Fr 38746, July 28, 2995; 63 FR 33278, June 18, 1998; 67 FR 31224, Sept. 27, 2002; 72
FR 55703, Oct. 1, 2007]
There are also specific regulations that deal with specific types of cargo such as logs, boulders,
2 49 CFR § 392.9 (a)
3 Safety Bulliten, Triodyne, Inc. Volume 6, No. 1, October 1997.
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concrete pipes, metal coils, etc. contained in the FMCSR’s. The driver of the commercial vehicle is
charged with the responsibility of making sure that the truck is loaded in compliance with federal law.
A driver cannot operate a commercial vehicle unless the load is properly distributed and adequately
secured, the means of fastening cargo is secured, and the cargo does not obscure the drivers view or
interfere with the movement of his arms or legs2.
II. Physics of A Rollover
The ability of a heavy truck to successfully negotiate curves depends upon the vehicles speed,
load stability, and geometry of the curve. When a rollover occurs, evaluation of factors related to the
driver, the vehicle, the load placement, the load weight and securement, and the roadway are
required. When a truck travels in a curved path, it leans to the outside of the curve. This leaning is
caused by the centrifugal force acting through the truck’s center of gravity. The truck will rollover
away from the center of the curve if the centrifugal force is large enough. The centrifugal force
increases with speed and curvature of the road.
Physicists state that the measure of a truck’s ability to resist rollover is given by it’s “rollover
threshold.” The rollover threshold is the lowest value of centrifugal acceleration which causes the
truck to tip over when driven steadily in a curved path. A representative survey of test data found the
rollover threshold of heavy trucks is in the .25 to .5 g range. Trucks with lower payloads (lower
centers of gravity) and more firm suspensions have higher rollover thresholds and are more difficult
to flip over in a curve3. Until the rollover threshold becomes sufficiently large, the vehicle will have
a tendency to slide out of a curve rather than rollover. For example, Indianapolis race cars rarely flip
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over in a curve but frequently slide or spin out while negotiating a curve at high speed. To the
contrary, top heavy trucks will flip over rather than spinning out, sometimes causing injuries and
damages to adjacent drivers.
Truck rollovers typically occur at exit and entrance ramps of expressways or interstates. The
driver may be unfamiliar with the sharpness of a ramp curve and enter it at an excessive speed.
Besides unfamiliarity with the terrain, darkness, bad weather, poor visibility, travel fatigue, or
impairment by substances may contribute to the driver’s misjudgment which results in the rollover.
Improper loading and securement of loads may constitute a causative factor leading to the rollover.
Often times drivers of trucks who have survived rollover incidents state that they did not realize they
were rolling until they looked in the side view mirror and saw the trailer wheels on the inside of the
curve lift off the ground, followed by the tractor suddenly tipping over. The delayed rolling of the
tractor is due to the higher center of gravity of the trailer and the flexibility of the trailer structure.
Frequently, the trailer will begin to twist and begin rolling while the tractor wheels briefly stay in
contact with the road. Forces will be transmitted to the fifth wheel coupling of the tractor and
eventually flip the tractor over. Sometimes truck drivers feel that the main load shifted and caused
their truck to suddenly flip over. This is frequently true, however, it is more common for the load to
shift due to the extreme tilting of the trailer that occurs during the rollover. Thus load shifting during
a rollover is frequently a result, not the cause of the wreck.
When a rollover event occurs, a number of factors must be investigated by the plaintiff’s
lawyer or investigator (such as the highway patrol or accident reconstructionist). Possible
contributing driving factors include:
1. Entering of a curve at excessive speed;
2. Failing to anticipate or be familiar with sharpness of curve;
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3. Steering onto a soft shoulder;
4. Leaving the roadway and abrupt overcorrection;
5. Accelerating too fast through a curve;
6. Center of gravity too high – inexperience;
7. Abrupt steering maneuver during avoidance;
8. Driver impairment by fatigue, drowsiness, alcohol, drugs, impaired visibility due to
weather conditions or diminished eye sight;
9 . Human factors such as uncontrolled emotions; and
10. Lack of familiarity with handling capabilities of a tractor trailer.
Vehicle factors to consider include:
1. High center of gravity/top heavy load;
2. Overloaded/collapsed suspension;
3. Under inflated tires;
4. Shifting of load;
5. Improper cargo distribution;
6. Deficiency in brake performance before entering curve due to brake defect or improper
loading distribution;
7. Improper load securement; and
8. Impaired steering due to improper load placement.
Highway factors to consider include:
1. Speed limitations for the curve;
2. Elevation/banking;
3. Shoulder condition;
4. Transition curvature.
III. Height Limits
The height of the vehicle’s center of gravity is important for safe handling. Thus, trucks are
subject to height limits. The height limit for travel on interstates is usually 13 and 1/2 feet, measured
from the surface the vehicle stands upon. Too much cargo weight at the top of the truck can have a
dramatic destabilizing effect because it is at the end of a 13 ½ foot lever, which can trip over the
truck. For stability, professional truck drivers must keep the center of gravity low. If the center of
gravity is higher, the truck is more likely to tip. The heaviest pieces of cargo must be loaded on the
bottom.
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IV. Weight Distribution
It is the responsibility of the driver to ensure that the tractor trailer rig has the proper weight
distribution. Gross Weight is the total weight of the tractor and trailer in addition to the load. Gross
Combination Weight is the total weight of the trailer or trailers in addition to the cargo, along with
the power unit. The GVW or GCW limits are set by each state. On national interstates and defense
highways the Gross Combination Weight maximum allowed is 80,000 pounds. Moreover the axle
weight must not be exceeded. Axle weight is the weight of any axles (or combination of axles)
transmitted to the ground. Examples of common axle weight limits for states are: tandem axle 34,000
pounds, single axle 20,000 pounds, and steering axle 12,000 pounds.
Another consideration is weight rating assigned by manufactures. Gross Vehicle Weight
Rating, or GVWR, assigned by the manufacturer is defined as the weight of a single vehicle plus
cargo. A Gross Combination Weight Rating, or GCWR, is assigned to a tractor with it’s trailer or
trailers and the load. These ratings state how much weight the vehicle can support safely. Tire
suspensions and coupling devices also have weight ratings. Exceeding the weight rating is illegal,
negligent, and dangerous because it can cause braking, handling, and steering instability.
V. Weight and Balance
Poor weight distribution can make vehicle handling unsafe. The driver, load master, or
materials handler must preplan how to load the trailer. Factors such as weight of boxes, or pallets,
and the order in which deliveries are being made all must be considered. Thus, in loading tractor
trailers the higher the center of mass, the less stable the load. Therefore, the cargo must be loaded
with the heavy pieces on the bottom and the lighter pieces on top. Vehicle handling, especially in
4 Truck & Trucking Handbook: A Primer, Ruhl & Associates Forensic, Inc. Copyright Champaign, IL
2000 p. 138
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curves or in quick maneuvers is improved with a lower center of mass4.
Shifting cargo can pose a safety hazard. Professional truck drivers are required to be familiar
with the regulations contained in Subpart 1 § 393.100 Which types of commercial motor vehicles are
subject to cargo securement standards of this subpart, and what general requirements apply?
(a) Applicability. The rules in this subpart are applicable to trucks, truck tractors, semitrailers,
full trailers, and pole trailers.
(b) Prevention against loss of load. Each commercial motor vehicle must, when transporting
cargo on public roads, be loaded and equipped, and the cargo secured, in accordance with this subpart
to prevent the cargo from leaking, spilling, blowing or falling from the motor vehicle.
(c) Prevention against sifting of load. Cargo must be contained, immobilized or secured in
accordance with this subpart to prevent shifting upon or within the vehicle to such an extent that the
vehicle’s stability or maneurverability is adversely afftected.
[67 FR 61226, Sept. 27, 2002].
The Federal Motor Carrier Safety Regulations contain a whole series of regulations concerning
protection against shifting and falling cargo. Specific requirements for each type of tie down are
found in the Commercial Vehicle Safety Alliance Cargo Securement Tie Down Guidelines and the
Federal Motor Carriers Safety Regulations Cargo securement is required under Part 393, Subpart I
of the FMCSR:
• § 393. 102 provides specific minium criteria for cargo securement devices and
systems, including performance and breaking strength criteria, working load limits,
performance criteria to prevent vertical movement of loads, and the minimum number
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of tie downs, etc.
• § 393.116 provides rules for securing logs.
• § 393.104 provides for standards cargo, driver and system must meet.
• § Section 393.118 provides rules for securing dressed lumber or similar building
products.
• § 393.120 provides rules for securing metal coils.
• § 393.122 provides rules for securing paper rolls.
• § 393.124 provides rules for securing concrete pipe.
• § 393.126 provides rules for securing intermodal containers.
• § 393.128 provides rules for securing automobiles.
These rules set out a written standard of care for drivers, and shippers and loaders.
VI. Case Law Regarding Loading
Whenever a member of the public is injured because of a negligent load of cargo, both the
shipper, its employees who loaded the cargo, the common carrier, and the driver may be held liable
for the injury. Burke vs. JF Allen Company, 182 F. 3rd 907 (West. Va. 1999); Skeie vs. Mercer
Trucking Co., Inc. 61 P. 3rd 1207 (2003). A shipper who assumes responsibility for loading the
vehicle can be held liable, along with the driver, for improperly securing the load, under a common
law theory of negligence. Federal regulations, the FMCSR, provides detailed guidelines and
methodology for securing loads, and provides evidence of the proper standard of care to be used by
the shipper in loading the vehicle. Reed vs. Ace Doran Hauling & Rigging Company., 1997 WL
177849 ( N. D. Ill. 1997); Symington vs. Great Western Trucking Company, Inc., 668 F. Supp. 1278
( S. D. Iowa 1987); Locicero vs. Interpace Corp., 266 N. W. 2nd 423 (Wis. 1978).
5 Byrnes, Mike, & Associates, Bumper to Bumper: The Complete Guide to Tractor Trailer Operations, 4th
ed., 2006, p. 371; FMCSR § 393.9 (h)(2)(3).
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If the trailer is sealed before it is picked up by the motor carrier, it is presumed that the
shipper participated in the loading process. Miller vs. Rowlands Leasing Corp 1999 WL 739539
(Ohio 1999). Thus, even though the driver is excused from inspecting the load by the FMCSR, if the
cargo is sealed and the driver has no access to the load, 392.9 (b)(4) the shipper who loaded and
sealed the trailer may be liable. Burke, Supra.
VII. Inspecting and Securing Loads
All cargo including tarp loads must be inspected for security by the driver in transit according
to FMCSR part 392.9. Once the driver is on the road he must check the load often. Drivers should
look closely at all wood bracing and supports to make sure that none of the nails are pulling away.
Also each chain should be tested. If there is slack, the driver should open the binder and tighten. The
first load inspection should be completed within the first 50 miles, then reexamined after 3 hours, or
after driving 150 miles, or at a change of duty status whichever occurs first5.
The only exception to FMCSR part 392.9 is in the instance of sealed cargo. When the tractor
is sealed and the driver has no access to it, such as a key or a padlock, FMCSR § 392.9 (b)(4) states
that “the driver has no responsibility for the proper loading and securement.” That responsibility lies
with whoever actually loaded and secured the load.
Load Securement Methods
The most common methods used to secure loads on platform trailers are cables and wenches,
webbing straps and wenches, chains and load binders. Regulations require that the working load limit
of all tie downs must be at least ½ times the weight of the cargo being tied down. Examine the
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guidelines in Federal Motor Carriers Safety Regulation part 393.110 to determine the minimum
number of tie downs needed, as well as the other requirements regarding the securement devices.
Boxes, Sacks and Load Locks
Some cargo loads consist of boxes or sacks. If the boxes stacked across the van do not cover
the distance from wall to wall, then tiered stacking can be used where the first row touches the left
hand side of the van and the second row touches the right hand side of the van, alternating up to the
roof. This stacking method minimizes load shifting. Securing loads inside of a trailer of the van type
is less challenging than securing loads on platforms, lowboys, and open trailers. The body of the van
provides some stability for the load. Also, these vans contain a device called a “load lock” that can
be used to provide extra stability. Load locks are long poles that cover the width of the trailer. The
ends of these devises can be adjusted with a jack like mechanism to hold them in place.
Loading Liquid Tank Trucks
Loading liquid tankers can pose special problems for the driver. First of all, the driver needs
to ascertain where the baffles are located. In some tanker trucks there are baffles to prevent the liquid
load from shifting from front to back and vise versa but not from side to side. Thus, taking a turn too
rapidly can result in liquid shifting from one side of the tank to the other causing the trailer to tip
over. Some tanks must be filled to a greater degree because a tanker truck not filled sufficiently can
cause more sloshing around of the cargo, which can cause the trailer to tip over. On the other hand,
some liquids expand with heat, therefore, room to expand when the liquids become warm must be
provided.
VIII. Chains and Binders
Some steel pipe, heavy steel beams, heavy machinery, rubber tired vehicles, and construction
6 JJ Keller Tractor Trailer Driving Manuel Neenah, Wisconsin Copyright 2008 pg 352 – 356
7 Id ibid 352
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equipment are best secured by chains. The purpose of using chains is to hold the load down and
prevent it from moving sideways, forward, or backward. “Binder levers” are used to tighten up the
chain, blocks, and braces. In addition to chains and binders, drivers or material handlers may need
to use blocks of wood to keep machinery mounted on wheels from moving. Again, the Code of
Federal Regulations specify a 4×4 inch wood as a minimum size, which must be nailed to the wood
floor. Tarps must be used to protect platform loads. This is to protect people from spillable cargo.
IX. Driver Training
Many drivers study JJ Keller’s Tractor Trailer Driver Training Manual 2nd Edition 2008.
According to the Keller Manual, the cargo must be firmly immobilized or secured. There are several
methods and devices that can be used for cargo securement, such as blocking, bracing, dunnage, load
locking bars, tie down assemblies, and tarps.6 Professional drivers can be cross examined using the
Keller Manual as a tool. The Keller Manual stresses safe loading responsibilities that state, “you are
responsible for making sure your vehicle is loaded safely and legally. It must meet all cargo
securement and weight distribution requirements7.” Overloading can adversely affect the vehicle’s
steering, braking, and speed control. An overloaded truck moves slowly on upgrades and can gain
too much speed on down grades. Stopping distance increases and brakes can fail if worked to hard.
Drivers must be trained in and exercise these concepts in safe loading.
X. Summary
In summary, the plaintiff’s lawyer who handles trucking cases should sue all entities and
persons who may have been involved in the loading and securing of the load which destabilized the
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truck or shifted the load, resulting in injuries and damages. Moreover, all documents and materials
pertaining to those entities or persons who loaded or drove the tractor trailer should be obtained
through discovery. Every person involved in loading and securement of the cargo should be deposed.
Negligence regarding cargo loading and securement may become a fruitful liability avenue for the
trucking lawyer to pursue. Written standards of care can make proof of negligence in this area
trucking liability cases less challenging.

There are several means by which personal injury cases are resolved. Sometimes the cases are resolved before a lawsuit is filed, simply by negotiations between either the injured party or the injured party’s lawyer and the insurance claims adjuster.

Claims adjusters go to school and learn how to negotiate. They have huge data bases available to determine the average value of cases. The data bases reveal that personal injury cases settle for less money, if claimants are not represented by lawyers. Sometimes insurance companies will request a mediation when the injured party is represented by a lawyer and liability is clear. Such mediations can be requested even before a lawsuit is filed. Sometimes after a lawsuit is filed, and the process of taking depositions and obtaining written discovery has moved the case forward, the insurance adjuster or defense lawyer will request a mediation. Sometimes the plaintiff’s lawyer will request a mediation if he or she feels that if would be in his or her client’s best interest.

In the 1970’s and 1980’s mediations were virtually unheard of. Since that time, Alternative Dispute Resolution or ADR has become a common means by which cases are resolved. Alternative dispute resolutions can consist of either mediation or arbitration. In a mediation, the parties negotiate with the help of a trained and certified mediator and the case is resolved if all parties agree on a settlement amount. If either party is dissatisfied with the position of the other, they can simply call the mediation to a halt and go home.

In an arbitration, the arbitrator serves the function of a judge in a non-jury trial. Each side will present his or her case in an abbreviated fashion, as compared to the type of presentation which would be made in a full blown trial. The arbitrator will then make a binding decision. Arbitration awards are extremely difficult to overturn on appeal, unless fraud or some other serious misconduct can be shown.

Mediations can be advantageous for both the injured party and the insurance company or uninsured defendant, the reason being that litigation is extremely expensive. While most plaintiff’s lawyers are paid on a percentage basis, defense lawyers are paid by the hour, unless the defense lawyer is employed by a “captive” firm and is paid a salary by an insurance company. Deposition costs are expensive. Doctors charge to give depositions. An average hourly cost for depositions is approximately $1000.00 per hour plus a fee for preparation time including reviewing the medical records. Some doctors in particular specialties such as neurosurgery may charge as much as $1500.00 or $2000.00 per hour for the deposition. With a two hour minimum, most medical depositions last from 2 to 4 hours. These fees are then subtracted from the plaintiff’s recovery at the end of the case. If the defense lawyer is taking the deposition, the insurance company must pay these fees, which increases the over-all cost of the settlement of resolving the case for the defense. Discovery depositions of non expert witnesses such as policeman, eye witnesses, the plaintiff, and the defendant are expensive also. Court reporters charge by the page and it is not uncommon for a 2 hour deposition to cost $400.00 and more in court reporting fees, if the deposition is video taped. If depositions are video taped the litigants must pay not only the stenographic court reporter but also the videographer.

The net result of all these litigation costs is that the net recovery to the plaintiff can be diminished, unless the process of litigation adds more value to the settlement amount than the cost. A skilled and experienced personal injury advocate can determine whether or not it would be advantageous for the plaintiff to pursue litigation up to mediation, or even through trial. If the insurance company is making unreasonable offers, litigation and ultimately a jury trial is the only choice available. However, if the insurance company makes reasonable offers, sometimes mediation is a good course of action which can achieve the best net financial result. It is a judgment call for the experienced personal injury lawyer as to whether the mediation would be advantageous before litigation, or during or after discovery is completed and trial is eminent.

In catastrophic injury cases, typically top dollar will be achieved for the case when the discovery is completed and the case is waiting for trial or has even been scheduled for trial. In less serious cases earlier mediation can advantageous.

Mediators are certified “neutrals”. They are registered and subject to background checks and continuing education requirements. Plaintiff’s lawyers and defense lawyers as well as insurance companies are familiar with the various mediators who practice in the area. Good mediators have good reputations. Most mediators make efforts to remain natural and to avoid any conduct which would cause lawyers to think that they might lean towards one side or the other. Future referrals for mediation would be curtailed if a mediator creates a reputation as leaning towards the plaintiff or the defense. An experienced personal injury advocate would know who many good mediators are and who are not particularly good mediators. The bad ones will be avoided.

In litigation there are few “black and white” answers to questions which will arise during the handling of a case. Most decisions are judgment calls. It is of critical importance for injured parties to pick seasoned experienced and skilled personal injury advocates so that these important “judgment calls” can be made to the best advantage of the injured party. For this reason it is imperative that injured plaintiffs who want the best result be exceedingly careful in selecting his or her personal injury lawyer. The seasoned personal injury lawyer will do his or her best to deliver informed consent to the injured party as to whether or not litigation would assist in achieving the best possible outcome for the case.

The best advice is to pick a skilled and experienced personal injury attorney. Don’t be afraid to ask questions of the attorney and make a collaborative decision with your attorney as to whether or not and when to utilize mediation to resolve your case.

E. Marcus Davis
Davis, Zipperman, Kirschenbaum & Lotito, L.L.P.
918 Ponce De Leon Ave., N.E.
Atlanta, Georgia 30306
Phone: (404) 688-2000
Facsimile: (404) 872-1622
marc@dzkl.com
www.emarcusdavis.com

A substantial personal injury settlement amount can range from six to seven figures. Settlements of this nature are intended not only to provide a dollar figure for the pain suffering endured, but also to alleviate future financial hardship caused by the incurred injury. When clients receive such a settlement, I always counsel them to consider structuring their settlement in a settlement annuity. A structured settlement annuity provides settlement money to clients over a period of time rather than in a single lump sum. There is great wisdom in structuring large settlements in this manner as studies have shown that lottery winners who receive millions of dollars deplete all of the assets they receive within a couple of years. Unfortunately, people who receive large amount of money from a personal injury settlement frequently deplete their money as well.
I have been an attorney for the past 34 years and, unfortunately, I have many sad stories to tell from my clients who did not take my advice on purchasing structured settlement and, instead, chose to immediately take the lump sum settlement. One such sad story involves a woman who received a 5 million dollar divorce settlement. She had lived well with her husband who was wealthy and after receiving the divorce settlement she decided to continue living the extravagant lifestyle, even though she was, after the settlement, cut off from the huge cash flow of her husband’s business. She hired a financial planner and two stockbrokers. (My father, born at the start of the Great Depression used to say, “Stockbrokers. The stockbrokers job is to make you broker and them richer.”) These two stockbrokers got my client involved in a series of bad investments which cost her millions of dollars. She then married a “near-do-well” man who was a nice man and good step-father to her children, but who had absolutely no business sense. He continued to borrow money from her, which he promptly lost in the construction business. She bought new Mercedes, new BMW’s (extravagant go-carts for her children). She bought $3,000.00 blue jean outfits, huge diamonds and extravagant furniture. She sold her house that was paid for, which she received in the divorce settlement, so that her new husband could build her a mansion on the 40 acres she received in a subdivision that was supposed to be sold off in lots to produce more money for her estate. Instead, she had a big mansion in the middle of the 40 acres along with all of the expenses that went with that poor decision.
Another client structured some of the settlement proceeds with an annuity and with the rest bought a new Hummer, a new Navigator, a big fancy house full of expensive but poor quality furniture, new electronics, four-wheelers, horses, and home gyms. As you can imagine, it didn’t take long until all of the money that was not structured was gone. This couple burned through almost a million dollars within a year.
A client who had been blinded in a medical malpractice event received seven million dollars. As is my custom, I advised him to buy a structured settlement annuity. He refused. With his settlement proceeds, he bought a new Jaguar for himself to be driven around in and Navigators and Hummers as well as condominiums for all of his children. He gave his brother, the preacher, a half a million dollars to build a church. He loaned all of his relatives money. He bailed all of his relatives out of legal trouble. He married his next door neighbor who persuaded him to buy a mansion and another luxury car in their joint names. The proceeds of his case were fully expended within four years of the settlement.
In another case, a very bright man whom I admire and respect, structured at my insistence, a fourth of his settlement. The rest of the money he invested in the stock market and real estate ventures. He became a day trader. For a couple of years he was furious that he listened to me and structured part of his settlement. At the end of the two years, he had lost all the money he took to invest and the only amount of money he was receiving was from annuity and his disability payments from the VA and the Post Office.
Fortunately, some of my clients use their settlement proceeds in a prudent manner. Some clients buy a structured settlement annuity; some pay cash for a home; others pay their tuition for a college education and/or invest in real and tangible assets.
I think we all believe we are smarter than we really are when it comes to money, myself included. I admit to making my fair share of imprudent investments over my life time. It has been a steep uphill learning curve to handle money.
Let me tell you this, if I had a severe injury and could not work any more and had one shot at financial security in the form of a personal injury settlement, I would invest it in a structured settlement annuity. Therefore, I advise my clients to do the same.

With the advent of lawyer advertising, the criteria by which clients pick personal injury lawyers can have little or nothing to do with the skill, knowledge, or expertise of the lawyer they choose. A lawyer who has never seen the inside of a courtroom can promote himself or herself as an expert in the field of personal injury through the clever use of marketing. For example in the Atlanta area, an attorney, who seems to have leased most of the billboards on the interstates in the city, claims that he has one 28,000 cases in 28 years. To the injured client who has never had a personal injury claim, such an assertion seems to mean that the lawyer is vastly experienced and has won thousands of cases. Looking at the assertion on its face, however, consider that there are 250 working days in the year. If the lawyer has been practicing law for 28 years then he has won 1,000 personal injury cases per year for 28 years. If there are 250 working days in a year, this means that he has “won” 4 cases a day. How much work do you think it takes to adequately, much less expertly and professionally, prepare and try a personal injury case? Medical records must be ordered, received, reviewed and organized. Exhibits must be created illustrating the injuries. Depositions must be taken of the police officer, fact witnesses and doctors for use at trial. Negotiations must occur between plaintiffs lawyer and the insurance adjuster or the plaintiffs lawyer and the defense counsel. Mediations usually occur. In addition, trials are extremely complex events, which require skilled, seasoned attorneys who have trial experience. Such experience takes years of study, practice and actually trying cases to hone ones skills to perfection. What the advertiser is actually telegraphing to the public is that he is running a high volume, high turnover personal injury factory. His money is made by turning the cases quickly. The insurance companies are smart enough to know that in dealing with such a law firm they can settle cases for a fraction of what the case would be settled for with a serious trial lawyer.
An alternative approach for the client in the day of lawyer advertising, is to conduct some simple research. Research the lawyer on the internet. By using the internet, you can access the lawyers Martindale-Hubbell rating. Excellent lawyers and law firms may have a “preeminent” rating with Martindale-Hubbell. The highest attorney rating is an AV. The majority of lawyers are rated AV and if the lawyer doesn’t have such a rating, this should be a red flag. Go somewhere else. You can also conduct research for a personal injury attorney on www.avvo.com. On the AVVO website, you can read about the lawyers one to ten rating scale as well as comments and ratings by former clients and colleagues.
Once you have narrowed your search and decided on a few select individuals, you should take the time to conduct further research on their websites. The attorney’s educational background will be present for you to determine if the lawyer has a solid academic background, any additional certifications or board certifications or belongs to any other professional organizations or specialty organizations. Such certifications and memberships indicate an ongoing interest in continuing to keep their legal skills current, and specialty memberships indicate special knowledge and expertise in the field that the organization represents. You should also be able to determine if the lawyer has published any papers in the field of law having to do with personal injury. You may also be able to find out if the lawyer has performed any teaching. Frequently, law schools and continuing legal education organizations will invite skilled advocates to teach other lawyers how to handle or try cases. Also, lawyers who are well respected within the legal community are usually asked to speak at legal seminars or chair legal seminars. If the lawyer is one who has participated in or chaired such seminars, it is a pretty safe bet that he or she is skilled and experienced in the field in which they are presenting. Another good idea is to check with the State Bar Association to determine if the lawyer you are wishing to hire has ever been sanctioned. If so, this can be a red flag.
The attorney’s website may also demonstrate that he or she has served on boards of organizations which focus on certain types of injuries or disabilities. This not only indicates a willingness to assist fellow members of the community, but it also is indicative of a level of expertise. Along those same lines, you may wish to find out if the lawyer engages in any charitable activities. While giving to charity is a personal choice, it is also a characteristic of someone who is caring and compassionate. Such an individual may also demonstrate this same level of caring and compassion toward you.
After you are satisfied with your level of research, contact your chosen lawyer and ask further questions. Be blunt. Ask him or her, “how many cases have you actually tried to a jury? Tell me some of the highlights of your career in terms of your trials? What is your case load? Will I be one of a thousand cases, or will I be one of 15 cases?” Decide for yourself how much time the lawyer will have to spend with you and your case. Another good indication of the attentiveness of a lawyer is if he or she is willing return your phone calls in a prompt manner, or if you will always be speaking to only the paralegal or secretary. It is important to be able to speak with your lawyer directly. In addition, determine if the lawyer will copy you on all of the correspondence and pleadings automatically. Also, ask questions about possible settlement in terms of under what circumstances the lawyer will attempt to settle the case before filing suit, or if the lawyer thinks it is appropriate to file suit from the very beginning. Determine for yourself if the explanation makes any sense. Some cases can be settled pre-suit, while others require litigation to fully appraise the strength and weaknesses of the case to obtain the optimal result.
Another suggestion in order to find a competent attorney, is to ask your friends and relatives for a referral. Even if your friends and relatives only know of an attorney in a different field of law other than the one you are seeking, call their referral. Frequently, lawyers who specialize in a different area of the law are familiar with the successful and skilled personal injury advocates in the Atlanta Metro area or the state.
Finally, be wary of any lawyer that tries to hook you with some silly jingle or catchy phrase. Use common sense. Is this how a professional markets their skills and abilities, if they are really good at what they do? There are many skilled trial lawyers in Georgia. Be sure you hire a real trial lawyer and not just a great marketer who is presenting you with an image and no substance. Your case is important. It may be your only experience with the legal system. If you have been catastrophically injured and are disabled you will only have one chance at obtaining the best results.
I hope that his advice will be helpful to you and good luck in your search for the best personal injury attorney.