After the injured person’s lawyer fights to get compensation for the client, the health insurance benefit plan to which the injured person had paid premiums swoops in and makes its demand, sometimes for all the money the injury victim had recovered.  We have had to contend with such claims in many cases arising from neck and back injuries, spinal cord injuries, brain injuries, burn injuries, leg and ankle fractures, etc.

The murkiest and most difficult area of law regarding reimbursement is under the federal ERISA (Employee Retirement & Insurance Security Act of 1974) law. Georgia and a number of other states have statutes that limit reimbursement claims unless the injured person has received full compensation for all aspects of the injury. However, such state laws are preempted by the federal ERISA law. The ERISA statute is itself totally silent about reimbursement claims. However, a “federal common law” has developed in the federal courts that allows reimbursement claims by ERISA plans, which are in theory based on the law of equity.

In the past few years, federal court decisions have increasingly favored the ERISA health plans over the injured individuals. There have even been instances of ERISA plans demanding 100% of money that was recovered to support the lifetime medical needs of a person whose injury made her a quadriplegic.

That is in part because the industry has the ability to choose which cases to litigate, settling those they might lose and litigating those they think they will win. Injury victims, on the other hand, have only one case each and lack the ability to make strategic choices to affect the body of law. While ERISA reimbursement claims are supposed to be based on equity,  often it appears that the only equitable factors that matter are those that favor ERISA plans rather than injured individuals.

The latest federal appellate decision, however, was a win for the injury victim.

The US Fifth Circuit Court of Appeals (covering Texas, Louisiana and Mississippi) on April 2, 2012, announced its decision in ACS Recovery Services, Inc. v. Griffin.  Mr. Griffin was seriously injured in an auto accident. The ERISA plan paid medical bills of $50,076.19. Mr. Griffin, the employee, settled for $294,439.82 and his attorney arranged for a structured settlement annuity through which the annuity payments would be made “in an effort to avoid any equitable lien assertion” by the ERISA Plan. Mrs. Griffin received $40,000 for loss of consortium.

The ERISA plan sued Mr. Griffin and his wife, as well as the trustee of the special needs trust and the trust designated to receive the annuity payments. The trial court dismissed the claims against all of the defendants, and the 5th Circuit affirmed that dismissal.

The court held that the dismissal as to Mr. Griffin and the trustee and the trust is appropriate because “no defendant ever had ‘possession’ of the disputed funds.” The dismissal as to Mrs. Griffin is appropriate because an ERISA Plan lacks authority to “seek reimbursement out of an award for loss of consortium or out of an award made separately to a beneficiary’s spouse… This money was compensation paid to [Mrs.] Griffin for the loss of her husband’s society and companionship, not as compensation to [Mr.] Griffin for his injury.”

While based on  narrow points and not directly applicable in the 11^th Circuit (Georgia, Alabama and Tennessee), it is a persuasive decision that may be a big help to attorneys and clients seeking to preserve funds secured in a suit for catastrophic injury.

We have utilized special needs trusts in appropriate cases for more than 20 years, funded by cash directly from an insurance company or by a stream of income from a structured settlement annuity. Usually we associate an estate and benefits planning specialist to handle the technical documentation of such plans.

This is an ongoing struggle that will continue, case by case, until enough members of Congress see the wisdom of inserting into the federal ERISA statute something reasonably similar to the “full compensation” rule that we have in Georgia insurance law.

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Ken Shigley is an Atlanta trial attorney and currently president of the State Bar of Georgia. The opinions expressed here are his alone and do not express any legislative position of the State Bar of Georgia.

The EMT, Jason Dale Strickland of Bremen was driving his Harley Davidson west on I-20 near Lee Road. According to media reports, a Honda Element driven by Francisco Ferrer of Dallas hit Strickland from behind. (See WSB-TV and AJC reports.)

Whenever I hear of a drunk driver killing someone at 5 AM, I think of the Atlanta bars that close at 4 AM or even later. Under Georgia law, a business that serves alcohol to a person who is noticeably intoxicated at the time, knowing the drunk is likely to then drive, may be held accountable to people the drunk driver harms.

This incident also brings to mind the death of my high school friend, Rex Popham, who was struck from behind on his motorcycle near the same spot the summer before our 10th grade year at Douglas County High School. Rex was an indestrucible-seeming Fonzi-type character and the first friend my age to die. Up to then, we all thought we were 10 feet tall and bulletproof.  Rex’s death was a huge wake-up call.

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Ken Shigley is an Atlanta-based trial attorney who began his career as an Assistant District Attorney in the Tallapoosa Judicial Circuit when it included Douglas, Haralson, Paulding and Polk Counties. Now he is president of the 42,000 member State Bar of Georgia.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?

Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.

• Good lawyers litigate their cases in the courts, not in the media.
• Anyone can name a big number in a lawsuit. That is NOT the same as recovering that amount for a client. Generally when I see a news story about a Georgia lawyer filing suit for millions and millions, I am confident that the lawyer is not one to whom I would refer a family member or friend.
• The American Association  for Justice (formerly Association of Trial Lawyers of America) Code of Conduct states: “No AAJ member shall personally, or through an associate attorney, file a complaint with a specific ad damnum amount unless required by local rules of court. If such amount is stated, it shall be based upon good faith evaluation of facts which the member can demonstrate.” (There is no such requirement in Georgia law except to say a medical malpractice claim is for more than $10,000.)
• Georgia Rule of Professional Conduct 3.6(a) on Trial Publicity states:  ” A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a person would reasonably believe to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Would you really want to be represented by a lawyer who cares so little about professionalism and ethics as to blatantly violate these standards of conduct to get a cheap headline?

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Ken Shigley is an Atlanta trial attorney who currently serves as president of the 42,000 member State Bar of Georgia.

A third of a century trekking between Georgia courts, first in a single rural circuit and then more or less statewide, has made me a minor connoisseur of courthouses, the most visible physical infrastructure of the judicial system. I have tried cases in a courthouse across the street from a railroad track where cross-examination was frequently interrupted by passing freight trains. In courthouses where birds flew through open windows and found perches near the high courtroom ceiling and in courthouses that would have been a great movie set for “To Kill a Mockingbird.” I have tried cases in courthouses that resembled a poorly designed 1950s motel, in a “law mall” resembling an enclosed shopping center and in an architectural gem that could be a post-modern capitol of a small state.

The centrality of courts in American life is obvious when you drive down a two-lane blacktop into the typical county seat town. On a square near the intersection of main roads stands a Neoclassical/Greek Revival/Colonial/Victorian/Romanesque/Beaux-Arts/Classical structure built in the 19th or early 20th century. A few burned and were replaced by structures for which surely no architect would claim credit, but many old courthouses have been beautifully renovated. In a number of growing counties the historic courthouse on the square has become a museum, replaced by a larger and more efficient “justice center” several blocks away. However, the centrality of the courthouse is still marked by the historic placeholder.

Before the American Revolution, when power resided with distant officials in London, the functions of local bailiffs (who sometimes acted as judges then rather than security guards), magistrates and justices of the peace – often illiterate and lacking even rudimentary legal training – were carried out in the informal settings of homes, taverns, churches or meeting halls. In the older colonies to the north small brick county courthouses began to appear in the early 18th century. In the younger colony of Georgia, where both lawyers and rum were initially prohibited, a year after the 1733 founding of Savannah a one room “Tabernacle and Court House” was included in the town plan. By the time of the Revolution a brick courthouse was built at Wright Square, while our other 11 colonial parishes apparently had no more than a crude log court building. In 1777, the first Georgia constitution created eight counties and provided for erection of a “court-house and jail” in each of them, symbolic of the transfer of political sovereignty from a distant king to the local people.

Over the next several generations of rapid growth, settlers and surveyors spread westward, filling the land they took from the native inhabitants and dividing it into a multitude of counties. In Georgia, the idea was that every farmer with a horse and wagon should be able to get to the county seat and back in a day. New counties proliferated until we hit a maximum of 161 before the merger of Fulton, Campbell and Milton in 1931, after which the constitution was amended to limit us to a mere 159 counties.

Wherever a new county was formed, construction of a courthouse was one of the first public acts, along with the basic “hard infrastructure” improvements of mule-scraped dirt roads, wooden bridges, and eventually railroads, telephones, rural electrification and paved roads. Scattered across rural Georgia today are a few century-old courthouses that stand almost alone among the fields and pastures, monuments to the aspirations of the founders of a newly formed county that was bypassed by railroads and major highways.

In the years after Alexis de Tocqueville described lawyers as America’s “natural aristocracy” that served as a conservative restraint on the excesses of temporary majorities, the increased professionalization of law and architecture led to construction across the country of hundreds of courthouses, proud structural symbols of democracy, law, aspiration, free enterprise and prosperity. Courthouses were the core of infrastructure around which were built train depots, cotton gins, factories, warehouses, schools, churches, libraries and eventually hospitals. Upon such foundations many Georgia communities were built.

Political discussions of public infrastructure usually focus on “hard infrastructure” required to support commerce and quality of modern life—highways, bridges, seaports, airports, rails, dams, reservoirs, water and sewer systems, the electric power grid, natural gas and petroleum pipelines, telecommunications, waste management systems and so forth.

However, “soft infrastructure” is just as important. The services of education, health care and financial systems are key components of the “soft infrastructure.” For example, without a world-class system of education for all our youth, our nation cannot preserve its pre-eminent role in the global economy of the 21st century. It is imperative that our state and local communities place priority on making our public schools competitive with the best in Shanghai, Singapore and Helsinki, equipping our children and grandchildren with competencies in math, science and creativity to be able to excel in the “flat world” of a global economy knit together through technology.^[4] Losing our edge in education, we are vulnerable to economic decline and all that implies. A young lawyer seeking a path for public service could do worse than to serve as a volunteer tutor, become active in PTA leadership or run for the local school board with a clear focus on making their local schools competitive with the best in the world.

A strong, independent judicial branch of government is also an essential component of “soft infrastructure.” Judicial independence is periodically attacked from both right and left, depending upon whose ox was most recently gored. Any of us may passionately disagree with and bitterly criticize particular court decisions. However, attacks on judicial independence often come from folks who place their own agendas ahead of the common good or who slept through civics class.
Economic theory generally supports the idea that high-quality courts and judicial independence facilitate economic growth. Our courts uphold both public order and the rights of citizens, enforce contracts and protect property, provide an orderly manner to obtain compensation for wrongs done, promote stability, and by doing so encourage the investment necessary for economic development.

Investments in high-quality, independent courts can promote a “virtuous cycle” where relatively modest expenditures on court improvements enhance economic growth.^[6] Judicial independence is economically important because it serves as a mechanism for the government to turn its simple promise of equal justice for all into a credible commitment. It increases predictability for businesses and individuals so they may have a broader planning horizon necessary for higher levels of investment in machinery and human capital. This empowers higher degrees of specialization, which in turn promote economic growth. Independent judiciaries, therefore, are conducive to high-income levels and growth and facilitate higher tax revenues for the state.^[7]

Some economists have suggested that countries with legal systems based on the common law have more highly developed financial markets than civil law countries because the common law provides more secure protection of property and contract rights, creditors and minority shareholders, all of which are keys to the cost of capital. The root of such a distinction may not be in substantive differences in legal rules, but because of differing assumptions about the roles of the individual and the state. The common law has been associated with fewer government restrictions on economic and other liberties. The bottom-up nature of the common law tradition, built upon human experiences in thousands of cases, as distinguished from a top-down approach in a predominantly autocratic or regulatory state, may be seen as a proxy for the intent to limit rather than strengthen the state, and to preserve rather than erode the rights of individuals. Some also suggest that the common law’s adversarial adjudication process tends to result in the survival of efficient and the demise of inefficient rules.^[8]

In countries such as ours with systems based upon the common law tradition, judges are independent officials occupying a high-status office, whereas in systems outside the common law tradition judges are often civil servants of relatively low-status without independent authority. An independent judiciary serves to fragment governmental power and thus restrain the power of the state to run roughshod over the personal, property and economic rights of individuals. That is a key distinction between the constitutional systems of the United States and other countries, such as the old Soviet Union, where constitutions may look great on paper but are not enforced to restrain the power of authoritarian political systems. It is only an independent judiciary that can assure that the powerful cannot crush the weak with impunity and that political winners do not annihilate anyone who unsuccessfully opposes them.

Judicial independence faces many challenges, but perhaps the greatest threat is the erosion of judicial pay to the extent that Chief Justice John Roberts has said approaches a “constitutional crisis.” If the courts are to maintain their position of respect, strength and independence, judgeships should be attractive to successful lawyers in the prime of life. No good lawyer should be forced to choose between accepting a judgeship and sending his or her children to college.

Chief Justice Roberts has pointed out that from 1969 to 2006, inflation-adjusted federal judicial pay declined 23.9 percent while the average U.S. worker’s wage, adjusted for inflation, rose 17.8 percent, for a net gap of 41.7 percent. This left judicial compensation below that of typical mid-level (and a few first-year) associates in many large law firms.^[9] Moreover, in 1969, a federal district judge earned 21 percent more than deans at top law schools and 43 percent more than senior professors at those schools, but by 2006 earned about half as much as top professors at such law schools. The judiciary, according to Chief Justice Roberts, will soon be restricted to “(1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase.”^[10] The comparative numbers in this analysis have surely changed during the severe recession of the past few years but the core fact of erosion of judicial pay remains true. Much the same diminution of purchasing power of judicial power has occurred in Georgia’s judicial system, though the wide variations among local supplements for superior court judges and the mix of full-time and part-time state court judges make a precise comparison quite complex.

While surprisingly few judges leave office before retirement explicitly because of the pay gap between judicial salaries and what they would expect to earn in private practice, the lagging compensation does affect both judicial morale and the talent pool from which judges are drawn. In the 1950s, two-thirds of federal judicial appointees came from the private sector. Today that is nearly reversed, with more than 60 percent coming from the public sector.^[11]

Certainly there are many superb judges whose prior careers had been primarily in the public sector. In vetoing a judicial pay raise, a former governor said he was impressed by the “quality and character of those who offer themselves for public service in the state judiciary.”^[12] However, that did not take into account the trend, especially in metropolitan areas, to draw judges primarily from public sector jobs because judicial office requires too great a financial sacrifice for lawyers in their prime who have been successful in private practice. I have heard judges comment that public service is much more palatable when one has a very highly compensated spouse or a strong base of family wealth. One wag even suggested that the solution for lagging judicial salaries is to require that judicial aspirants “marry rich.” In any event, life experience in the trenches of private law practice – taking entrepreneurial risks, representing paying clients and making payroll – is a different and valuable form of preparation for judging than a career spent primarily in the public sector.

A more subtle impact may be that, at least in the federal system in major metropolitan areas, lawyers who are willing to accept huge pay cuts from lucrative partnerships at major law firms in order to become judges may be ideologically motivated. There must be a strong motivation for an equity partner at a top law firm to take a staggering pay cut in order to become a judge.^[14] Some contend that, at least for those for whom judicial office would involve the greatest lost opportunity cost due to disparity with fairly secure private practice income in a large firm, such motivation may be, at least in part, driven by the opportunity to indoctrinate. Judges ought not be “minor league politicians” seeking to make law rather than apply the law. While this does not appear to be a major problem in Georgia today, it is a potential concern to be addressed.

Beyond the core issue of funding, there are many other issues that a 21st century judicial system must address regarding organization, structure, case flow management and court technology. Last spring I had a conversation with Hon. David Emerson in Douglas County, currently president-elect of the Council of Superior Court Judges, about electronic court filing. He commented that we ought to step back and ask what we want the court system to look like in 20 years. Following up on that suggestion when I became president of the State Bar, I appointed a Next Generation Courts Commission,^[16] chaired by Hon. Lawton Stephens of Athens. It includes judges, clerks and administrators representative of every class of courts in the state, legislators and practicing lawyers. The commission is divided into five hard working subcommittees, each of which has a meaty agenda of issues to address: business process improvement, technology, education & outreach, program improvements & expansion and funding. I expect that they will help determine the path to improve the judicial infrastructure for Georgia’s future.

A judicial branch of government that is independent, adequately funded and compensated and equipped for efficiency is essential infrastructure for both the liberty of our citizens and the growth of our economy. Money allocated to support a strong and independent judicial branch is money well invested. As Alexander Hamilton put it, “[t]he independence of the judges once destroyed, the constitution is gone, it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate.”
Kenneth L. Shigley is the president of the State Bar of Georgia and can be reached at ken@carllp.com.

Tough on Crime, Smart on Crime

By Kenneth L. Shigley

My first job after law school was as a prosecutor in a rural judicial circuit. Soon after joining the district attorney’s office, I assisted in a death penalty trial for the rape and murder of a young girl.  In such cases I looked into the heart of evil, prosecuting dangerous criminals from whom we needed to protect decent citizens.

In other cases, it also became apparent that perhaps 85 percent of those I was prosecuting would probably not have been in trouble but for alcohol, drugs and mental health issues, were not prone to violence and were generally more dangerous to themselves than anyone else. They deserved some punishment but did not need to become long-term tax burdens. That is pretty much what I hear from many judges and prosecutors today. Back then, of course, lacking the concept of drug and DUI accountability courts or coordination with addiction or mental health counseling resources, our only solutions were prosecution and incarceration.

Three decades later, upon my installation as State Bar president, Gov. Nathan Deal appointed me to the new Special Council on Criminal Justice Reform, along with experienced judges, a district attorney and several legislators. The council was formed to address the fact that Georgia has the fourth-highest incarceration rate in the country with one in 70 Georgia adults behind bars and one in 13 under some sort of correctional supervision. Georgia’s prison population has grown 35 percent over the past decade. If we do nothing, it is projected to grow 8 percent more the next five years, costing an additional $264 million. This is the cumulative result of two decades of policy decisions that have sent more people to prison and held them there longer.

Those who complete long mandatory sentences generally emerge with pocket change, a bus ticket and no marketable skills except those learned from other inmates. People caught in the vicious cycle of addiction and recidivism are unavailable for productive employment and responsible parenting of children they help bring into the world.

These goals were laid out for the Criminal Justice Reform Council: (1) address the growth of the state’s prison population, contain corrections costs and increase efficiencies and effectiveness for better offender management; (2) improve public safety by reinvesting a portion of the savings into strategies that reduce crime and recidivism; and (3) hold offenders accountable by strengthening community-based supervision.  I am convinced that Governor Deal and other state leaders are absolutely sincere about salvaging wasted lives as well as reducing the budget.

The council worked through the summer and fall and in November released our findings and recommendations. Here’s part of what we found: Supervising the nearly half a million people under correctional control in Georgia costs more than $1 billion each year, while recidivism rates remain high. We are not achieving public safety returns that justify this taxpayer burden.

As a former prosecutor, I have seen the evil that drives the most violent criminals, who need to be locked up for a long time to protect law-abiding citizens. The money that puts them behind bars is well spent.  However, two-thirds of Georgia inmates are non-violent offenders, and the percentage of sentences served has more than doubled over the past 20 years. Converting them from tax burdens in prison to taxpayers in community-based corrections would help both public safety and public budgets.

By enabling Georgia’s community corrections agencies to supervise offenders effectively, we all win, with less crime, fewer victims and reduced costs of punishment. Toward this end, the council recommended expanding drug and accountability courts, expanding treatment options for offenders with substance abuse and mental health issues and implementing programs effective at reducing recidivism and encouraging offenders to comply with the conditions of their supervision.

These challenges are pressing but not unique. Several other conservative Southern states are using innovations similar to those we have recommended and are demonstrating that it is possible to be both tough on crime and smart on crime.

The General Assembly is now working on proposals to begin implementing the council’s recommendations. There are many moving parts. It will not be easy and it will not be done all in one year. While there are differences of opinion, there is a conscientious effort by legislative leaders to get it right, enacting reforms that will improve public safety, hold offenders accountable, control corrections costs and turn tax burdens into taxpayers. We can afford no less.

Kenneth L. Shigley is president of the State Bar of Georgia.

I believe all the networking in the bar presidency will strengthen my work for clients after my term is finished.  While no one can or should expect the least bit of favoritism in the judicial system, the insights gained through the bar presidency will be absolutely invaluable.

Last month in New Orleans for the National Conference of Bar Presidents, I saw a street entertainer juggling machetes on Royal Street. Dropping a buck in his bucket, I told him his act was a metaphor more my life this year.

A lot of my work with the State Bar is behind the scenes, serving as the WD-40 in relations between groups in the bar and the three branches of government. My old tricks as a mediator in years past occasionally prove useful in dealing with players that have trouble talking productively with each other.

Excluding a tremendous amount of office work, phone conferences, writing articles, etc., here are a few of the things since January 1 that I can mention in public:

• Jan. 3 & 4. Attended several fundraisers for legislators.
• Jan. 5. Judicial Council meeting all afternoon.
• Jan. 6. 9 AM, video deposition of a doctor at Emory for a case on trial calendar; 11 AM, attend swearing in of my friend Judge Mike Boggs on Georgia Court of Appeals; 12 PM, meeting of Next Generation Courts Commission which I appointed; 4 PM, settled case that was on trial calendar the following Monday for exact amount that had been my target for a year.
• Jan. 7. Presided over State Bar Board of Governors meeting in morning. Attended Young Lawyers Division black tie party in evening at Capitol City Club.
• Jan. 10. Supreme Court hearing in morning, meeting with Governor’s executive counsel in afternoon.
• Jan. 11. Photo sessions with all lawyer legislators at state capitol in morning for cover of Georgia Bar Journal. Meeting in afternoon with Superior Court Clerks, Administrative Office of Courts staff and Supreme Court justice re: creation of electronic court filing system.
• Jan. 12. 11 AM, attend meeting of Georgia Dispute Resolution Commission by phone (hands free, just listening) en route to another meeting. Noon, speak at Sandy Springs Bar Association.
• Jan. 13. Tape legislative update webcast. Attend meeting of Local & Voluntary Bars Committee re: planning for Law Day and new Georgia Bar Leadership Institute.
• Jan. 17. State Bar Personnel Committee.
• Jan. 20. Breakfast meeting with other creative trial lawyers re: practice development strategy. Tape legislative update webcast at Bar Center. Drive to Macon. Speak to lunch meeting of Macon Bar Association at 1880s vintage Macon Armory. Drive to Columbia, SC.
• Jan. 21. Attend SC Bar midyear meeting, with joint appearance U.S. Supreme Court Justices Breyer and Scalia discussing their competing views on the U.S. Constitution and the role of the Supreme Court. Sat with my brother-in-law who is at a law firm in Columbia.
• Jan. 24. Conference call re: business law legislation.
• Jan. 25. Attend Chief Justice’s State of the Judiciary address at Capitol and law practice technology seminar at Bar Center.
• Jan. 27. Tape legislative update webcast.  Attend hearing of House Non-Civil Judiciary Committee re: constitutional amendment to secure funding for indigent defense. Host lunch for that committee at Commerce Club.
• Feb. 1. Joint press conference with Attorney General in rotunda of Capitol re: Georgia Legal Food Frenzy campaign supporting Georgia’s regional food banks.
• Feb. 2. Southern Conference of Bar Presidents in New Orleans. Dinner with leadership of GA, NC & SC state bars.
• Feb. 3-4. National Conference of Bar Presidents. Spoke Saturday morning on international trade in legal services. Attend ABA Fellows dinner at World War II Museum. Talk with Justice Scalia about having him speak at some future Georgia Bar meeting.
• Feb. 7. Depositions in Henry County re: a truck wreck case.
• Feb. 8. Spoke to Waycross Bar Association lunch meeting. Worked on cases while an aide drove there and back.
• Feb. 9. Lunch re: options for funding Georgia Legal Services Program for poor Georgians. Host dinner with House Judiciary Committee and staff.
• Feb. 10. Tape legislative update webcast.
• Feb. 10-11. Marriage renewal event at church with my bride of 29 years.
• Feb. 13. Boy Scout patrons breakfast at Alston & Bird, confer with several judges and leaders of other statewide organizations.
• Feb. 15. Depositions at office during day. Host dinner with Senate Judiciary Committee.
• Feb. 16. At lunch meeting of Columbus Bar Association, present 50 year awards to six guys who went to Columbus High School together and have practiced law in their hometown for 50 years. Preside over State Bar Executive Committee meeting.
• Feb. 17-18.  Southern Trial Lawyers Association. Speak Saturday morning on “15 Exceptions to Independent Contractor Defense.” Attend Mardi Gras party.
• Feb. 19. Due to airline snafu, spend day in New Orleans airport, miss connecting flight to Tampa.
• Feb. 20-21. Depositions in Tampa re: a truck wreck case.
• Feb. 22. State Bar Communications Committee meeting re: upcoming media campaign and revamping of website.
• Feb. 24. Tape legislative update webcast.
• Feb. 25. Bar & Media Conference all day Saturday at Bar Center.
• Feb. 26. Serve communion.
• Feb. 27. Speak at Beginning Lawyers Program.
• Feb. 28. Speak at lunch meeting of Morgan County Rotary Club, Madison. Speak at Justice Robert Benham Community Service Awards at Bar Center in evening.
• Feb. 29. Conference call with leaders of an existing bar section and a proposed new section, resolving selection of name for new section.
• March 2. Tape legislative update webcast. State Bar Finance Committee meeting.
• March 7. Meeting with Chief Justice and staff. Speak at lunch meeting of North Fulton Republican Women’s Club re: criminal justice reform and, at their request, Shariah law.
• March 8. Legislative committee hearing on criminal justice reform legislation. Lunch with committee chair and chair of corresponding bar committee.
• March 9-11. Joint meeting of State Bar Executive Committee and Supreme Court at St. Simons Island. Preside over Executive Committee business meeting on Friday. Co-preside with Chief Justice in joint session on Saturday morning. Host dinners on Friday and Saturday evenings.
• March 11. Drive from St. Simons Island to Charleston for reenlistment and promotion ceremony for my “glow in the dark” baby brother (32 years younger) who is an assistant instructor in U. S. Navy nuclear propulsion program. Then after dinner drive from Charleston to Atlanta, getting home at 2 AM.
• March 13. Speak at lunch meeting of Western Circuit Bar Association in Athens. Conference call re: State Bar legislation in last 10 days of legislative session.

The next 81 days will be a lot more of the same, with numerous meetings and speaking engagements around the state, several joint appearances with the Attorney General, at least one trip to Washington, etc.

Then on June 2nd in Savannah, I will hand the gavel to my able successor, Robin Clark, and begin my first real vacation in several years.

Sometime later in June, I will return refreshed and ready to focus 110% on pushing my clients’ cases.

In my commercial trucking accidents law practice, we often need to subpoena business and medical records from other states, especially in interstate trucking personal injury and wrongful death litigation.  In cases filed in state rather than federal courts, it has been necessary to jump through a byzantine set of hoops in order to do so. In one state, it has been necessary to retain a lawyer in that state and spend roughly a thousand dollars just to get a routine subpoena for documents issued and served. This new uniform law, when enacted in all states, will make interstate discovery for cases in state courts almost as easy as it is in federal courts.

HB 46, sponsored by Representatives Jacobs, Lindsey, Willard,  Oliver, Lane and Weldon (all friends of mine),  almost passed last year but got caught in the legislative traffic jam in the Senate at the end of the 2011 session. It was one of the first substantive bills to pass this year and go to Governor Deal for signature.

This is reciprocal, and only available to lawyers when both states have passed the same law. Next week in New Orleans at a meeting of the Southern Conference of Bar Presidents, I plan to make a pitch to my counterparts from other Southern states that have not yet enacted this law to put it on their State Bar legislative agendas.  As shown on this map, the Southern states that have passed this law include Virginia, Maryland, North Carolina, South Carolina, Kentucky, Tennessee and Mississippi. Those that have not yet done so are Alabama, Florida, Louisiana, Arkansas, Oklahoma and Texas.

Here is what the new law provides:

24-10-112.

(a) To request issuance of a subpoena under this Code section, a party shall submit a foreign subpoena to the clerk of superior court of the county in which the person receiving the subpoena resides. A request for the issuance of a subpoena under this Code section shall not constitute an appearance in the courts of this state.

(b) When a party submits a foreign subpoena to a clerk of superior court in this state, the clerk shall promptly issue and provide to the requestor a subpoena for service upon the person to which the foreign subpoena is directed.

(c) A subpoena under subsection (b) of this Code section shall:

(1) Incorporate the terms used in the foreign subpoena; and

(2) Contain or be accompanied by the names, addresses, and telephone numbers of all  counsel of record in the proceeding to which the subpoena relates and of any party not  represented by counsel.

(d) This Code section shall only apply to a subpoena to be issued in this state if the foreign  jurisdiction that issued the foreign subpoena has adopted a version of the ‘Uniform  Interstate Depositions and Discovery Act.’

(e) This Code section shall not apply to criminal proceedings.

24-10-113.

(a) For purposes of this Code section, the term ‘subpoena’ shall have only the meaning set forth in subparagraph (A) of paragraph (5) of Code Section 24-10-111.

(b) In addition to the mechanism for issuing subpoenas provided for in Code Section 24-10-112, whenever any mandate, writ, or commission is issued out of any court of record in a foreign jurisdiction, a witness may be compelled by subpoena issued by the clerk of superior court of the county in which such witness resides to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state.

24-10-114.

A subpoena issued by the clerk of superior court under Code Section 24-10-112 or

24-10-113 shall be served in compliance with Code Section 24-10-23 and shall be served within a reasonable time prior to the appearance required by such subpoena.

 24-10-115.

Part 1 of Article 2 of this chapter shall apply to subpoenas issued under Code Section 24-10-112 or 24-10-113.

 24-10-116.

An application for a protective order or to enforce, quash, or modify a subpoena issued by the clerk of superior court under Code Section 24-10-112 or 24-10-113 shall comply with the statutes and court rules of this state and shall be submitted to the superior court of the county in which the subpoena was issued.”

The new law will become effective in 2013.

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Ken Shigley is president of the State Bar of Georgia. His Atlanta-based law practice focuses on representation of plaintiffs in commercial trucking accident litigation involving serious injury or wrongful death. He is a board certified civil trial attorney of the National Board of Trial Advocacy.

My first job after law school was as an assistant district attorney in the small town where I had graduated from high school. I was 26 but in blue jeans rather than a suit could have passed for a decade younger. We covered four mostly rural counties. Abe Lincoln might have recognized the circuit-riding aspect of that life, but for the fact that I traveled by ’73 Dodge Dart instead of by horse.

The veteran DA was in his last term. Once when driving between county seats with the car windows wide open, he broke into an enthusiastic rendition of Johnny Paycheck’s then-new hit, “Take This Job and Shove It.” In the office where I was based, we had one desk; the ADA who got to the office first in the morning got to sit behind it. The two greenhorn ADA’s in our office worked almost autonomously, with little supervision other than the sheriff, secretaries who baked many cakes to flesh out my then-skinny frame, the clerk of superior court who saved me from disaster more than once and judges who would not let us mess up too much.

It was grand experience for a budding trial lawyer as we were constantly trying cases. The month after joining the office, I assisted in a death penalty trial for the rape and murder of a young girl. After years of appeals the defendant’s death sentence was reduced to life imprisonment and he remains in the prison system today, 34 years later.

A couple of weeks later, I tried my first solo jury trial on 30 minutes notice. Suspecting nothing, I was sitting with the DA on a Monday morning at the far end of the circuit in a courtroom full of folks who had been summoned for jury duty. He announced the first case for trial and the clerk called the first 12 jurors into the box. Without warning my boss handed me a file I had never seen on a case of robbery by sudden snatching. He said, “I’ll strike the jury, you talk with the witnesses outside and be ready to try the case in 30 minutes.” Thrown into the pool with no preparation, it was sink or swim. With no time to worry and obsess about it, I interviewed the purse snatching victim and her husband, figured out that the keys in her purse at trial matched the charred keys found in the wood stove at the defendant’s residence and eked out a conviction despite my lack of experience and preparation.

Other trials came in rapid succession and my confidence grew month by month. The fact that a prosecutor with discretion as to which cases to try, with a duty to prosecute the guilty and release the innocent, really ought to win way more than 90 percent of the time, so my win rate was not due to any genius on my part, escaped my notice. Confidence soon evolved into cockiness. I relished the opportunity to strut into a courtroom toting an unloaded machine gun. To a hammer everything is a nail, and I was a brand new hammer. I began to see almost any citizen accused of a crime as less than human, and went along with a local practice of forcing lawyers from out of town to sit and wait all week for their cases to be reached rather than placing them on call. Reflecting upon that experience decades later, I recognize that some of my decisions were based more upon ambition, testosterone and a desire to prove myself tough than upon mature judgment.

After about a year I began to see that perhaps 85 percent of the people I was prosecuting probably would not have been in trouble but for alcohol, drugs and ignorance. Another 15 percent or so were primarily mean. There was, of course, a good deal of overlap between those groups. But lacking the concept of drug and DUI courts and any coordination with addiction or mental health counseling resources, we had no solution but prosecution, incarceration and probation. If timing and politics had been just a little different, I might have become a career prosecutor. But in the 1978 election my desk mate lost a race to succeed our employer as district attorney, and we both left the office in the transition. Over the next three years I handled a lot of indigent criminal defense cases under the old system of random appointment. Eager for courtroom experience, I often went to trial and got lucky, but soon learned that dedicated work on appointed cases did not pay my bills. When an offer came to join an insurance defense firm in Atlanta—at a time when I was 30, broke and single in a small town—I moved on and never looked back.

Thirty years later, I was installed as State Bar president and Gov. Nathan Deal appointed me to the newly created Special Council on Criminal Justice Reform. At the bill signing ceremony at a drug court session in his son’s superior court courtroom in Gainesville, I was convinced that Gov. Deal is absolutely sincere about salvaging lives of non-violent offenders caught in the cycle of addiction, not merely saving money in the state budget. At the same time, the Bar role thrust me into dealing with issues regarding the statewide indigent defense system and the proposed Juvenile Code, attempting to quickly get up to speed on areas of law I had not touched in three decades.

Being thrown once again into the deep end of a pool, this time a pool of criminology research, I appointed a State Bar Committee on Criminal Justice Reform. It is chaired by Cobb Judicial Circuit District Attorney Pat Head and comprised of a stellar group of prosecutors, judges and defense lawyers with a wealth of “boots on the ground” experience.^[1] I hope that our blue ribbon Bar committee will play a significant role as the state moves forward with criminal justice reform over the next few years.

The Special Council on Criminal Justice Reform included Chief Justice Hunstein, trial judges with intense criminal law experience, Judicial Qualifications Commission member Linda Evans, a bipartisan group of dedicated legislators, one district attorney and me.^[2] It was formed to address the budget-busting fact that 1 in 70 adults in Georgia were behind bars at the end of 2007, compared to the national incarceration rate of 1 in 100 adults, and Georgia had the fourth highest incarceration rate in the country. Moreover, 1 in 13 Georgians are under some form of corrections supervision, the highest rate in the nation. Young African-American males today are more likely to go to prison than to college. People caught in a cycle of addiction, crime and unemployment are as a practical matter unavailable for productive employment and responsible parenting of children they help bring into the world. Those who complete long mandatory sentences emerge with pocket change, a bus ticket and no marketable skills other than those they learn from other inmates. The vicious cycle of recidivism continues.

The top leadership of state government laid out the following goals for the Council: (1) address the growth of the state’s prison population, contain corrections costs and increase efficiencies and effectiveness that result in better offender management; (2) improve public safety by reinvesting a portion of the savings into strategies that reduce crime and recidivism; and (3) hold offenders accountable by strengthening community-based supervision, sanctions and services.^[3]

This council worked through the summer and fall. We received technical assistance from a strong team of state public safety and corrections officials and from the Public Safety Performance Project of the Pew Center on the States (Pew) as part of the state’s selection to participate in the Justice Reinvestment Initiative of the U.S. Department of Justice. Pew has provided assistance to more than a dozen states by analyzing data to identify the drivers of prison growth and by developing research-based, fiscally sound policy options to protect public safety, hold offenders accountable and contain corrections costs. Pew’s team was assisted by the Crime and Justice Institute and Applied Research Services, Inc.

Council members divided into three working groups to develop specific recommendations in three areas: sentencing and prison admissions; prison length-of-stay and parole; and community supervision. In November, the Council released its findings and recommendations, with the underlying goal of protecting and improving public safety, in a report to the legislature and other state leadership.

Here’s part of what we found. Supervising the nearly half a million people under correctional control in Georgia costs state taxpayers more than $1 billion dollars per year. Despite this tremendous financial commitment, our recidivism rates remain stubbornly high. In short, we are not achieving public safety returns sufficient to justify this level of public expenditure. In these hard times, we must ensure that our resources are being used in the most effective way possible to keep our communities safe. Georgia’s prison population has grown 35 percent over the past decade. If we do nothing, it is projected to grow an additional 8 percent during the next five years, bringing the total to nearly 60,000 inmates and forcing the state to spend an additional $264 million on corrections. What accounts for this extraordinary growth? It cannot be chalked up simply to the violent crime rate, which has declined 20 percent over the past decade. Rather, it is the result of policy decisions that have sent more people to prison and held them there for longer.

Whatever else we do, we must remember prisons are important in the fight against crime. As a prosecutor long ago, I looked into the heart of darkness, the evil that drives the most hard-core of criminals. There is no doubt that serious violent offenders need to be locked up for a long time to protect law-abiding citizens, and the money we spend to put them behind bars is money well spent. However, approximately two-thirds of those admitted to prison in Georgia have been convicted of non-violent offenses and more than half have never before been to prison. The percentage of sentence served for offenders in prison has more than doubled over the past 20 years. Turning even a small percentage of non-violent offenders from tax burdens in prison to tax payers in community based corrections, and reinvestment of a portion of the cost of prison into programs that have proven effective elsewhere, could help both public safety and public budgets.

It is not just the prison population that has grown. Since 2000, Georgia’s felony probation population has grown 22 percent and the parole population has grown 9 percent. With an overwhelming majority of its corrections budget allocated to prisons, Georgia spends relatively few resources on community corrections, leaving agencies strained in their efforts to effectively supervise offenders in the community. For example, probation officers in Georgia have an average caseload of about 200, and the state spends just over $1 per day supervising each probationer. In addition, there are limited program options to address the significant substance abuse and mental health problems among this population and long lines for the ones that do exist. We need look no farther than our high recidivism rates to see that these inadequate community supervision options are not enough.

Ensuring that Georgia’s community corrections agencies have the resources and authority to supervise this growing number of offenders effectively is essential to public safety. If we adopt proven strategies to improve their success rate—by creating incentives for success and strengthening their supervision, sanctions and services—we all win, with less crime, fewer victims, more accountability and reduced costs of punishment. The council developed a number of recommendations to meet this objective: expanding drug, DUI, mental health and veterans accountability courts that have been proven to effectively improve public safety; expanding treatment options for those offenders with substance abuse and mental health issues; implementing programs and practices such as cognitive interventions that research has proven are effective at reducing recidivism; and introducing earned compliance credits to encourage offenders to comply with the conditions of their supervision and to participate in programs while under supervision. We agreed on reclassifying minor traffic offenses as administrative rather than criminal, and adjusting the felony threshold on property offenses to account for 30 years of inflation. These are just a few of the recommendations that will focus not just on saving money, but also on protecting families and communities.

While the council enjoyed broad consensus on a number of issues, including accountability courts, reclassification of some offenses and more community-based corrections, we were not able to make a unanimous recommendation on modifications of the mandatory minimum sentences that cumulatively drive a portion of the increase in Georgia prison populations. In the 1990s, Georgia was one of a number of states that reacted to a perception of softness among judges and parole boards by enacting a set of mandatory minimum sentences that sounded good politically but in application to individual cases could be unfair because they ignore the infinite variations of facts unique to each case.

One view is that more sentencing discretion should be restored to judges, possibly through a “safety valve” procedure requiring findings of fact and conclusions of law on a list of factors that would justify departure from prescribed sentence ranges. Such a “safety valve” might include the right of the district attorney to appeal from a sentencing decision. A variety of such procedures are employed to varying degrees in federal courts and some other states that have mandatory minimum sentencing laws. A second view is that mandatory minimums are important due to the perception that some judges would be reluctant to impose adequate sentences on dangerous offenders and that district attorneys who are familiar with the cases and the offenders should be able to control sentencing through exercise of discretion as to charging greater or lesser offenses. A third approach is to modify mandatory minimum sentences by attempting to carve out identifiable inequities without restoring broader sentencing discretion to judges, partly out of concern that too much discretion would be open to favoritism based in part upon factors of race, class, politics and other considerations.

The federal system led the way with mandatory minimum sentences for drug offenses and defendants with prior felony convictions. In October, after our council had essentially completed its work, the bipartisan United States Sentencing Commission concluded its study on the subject with recommendations that mandatory minimum penalties should “(1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment, . . . (3) be applied consistently,” and that Congress should consider whether a statutory ‘safety valve’ mechanism similar to the one available for certain drug trafficking offenders . . .  may be appropriately tailored for low-level, non-violent offenders convicted of other offenses.”^[4] It is above the pay grade of a State Bar president to say what the public policy of Georgia should be on this point.

Georgia’s public safety challenges are pressing but not unique. Across the nation, states are struggling with the frustrating reality of high prison costs and high recidivism. Several of our neighbors, including North Carolina, South Carolina, Arkansas, Kansas and Texas, are employing innovative strategies similar to those our council has considered, and demonstrating that it is possible to be both tough and smart on crime. Even very conservative states like Texas have found much success in their reform measures coordinated similar to those we studied, so we now have data from other states that suggests with fair confidence how evidence based practices are working to protect public safety and save money.

Georgia has an opportunity to join these and other states in passing legislation to improve public safety, hold offenders accountable, control corrections costs and turn tax burdens into tax payers. It is my hope that the hard work and leadership of the council, our governor and the legislature, with assistance from the State Bar, will lead to significant reforms here in Georgia. We can afford no less.

Kenneth L. Shigley is the president of the State Bar of Georgia and can be reached at ken@carllp.com.

Endnotes
^[1]The State Bar Committee on Criminal Justice Reform includes: Patrick H. Head, chairperson, district attorney, Cobb Judicial Circuit, Marietta; Wilmer “Buddy” Parker III, vice chairperson, M. J. “Buddy” Parker, Atlanta; Markette Baker, solicitor general, Troup County, LaGrange; Mary Margaret Brannen, Georgia Public Policy Foundation, Atlanta; Fredric D. Bright, district attorney, Ocmulgee Circuit, Milledgeville; David Lee Cannon Jr., solicitor general, Cherokee County, Canton; Robert J. Castellani, senior superior court judge, DeKalb County; Brenda S. Hill Cole, judge, State Court of Fulton County, Atlanta; J. Michael Cranford, past chair, Criminal Law Section and past president, Georgia Association of Criminal Defense Lawyers, Macon; Michael Joseph Cuccaro, Administrative Office of the Courts, Atlanta; Gregory W. Edwards, district attorney, Dougherty Judicial Circuit, Albany; Jon Vincent Forehand, Allen & Forehand, Moultrie; Brian Keith Fortner, solicitor general, Douglas County, Douglasville; William A. Foster III, senior superior court judge, Paulding Judicial Circuit, Dallas; Jason William Hammer, Carlock, Copeland & Stair, LLP, Atlanta; C. LaTain Kell, superior court judge, Cobb Judicial Circuit, Marietta; Seth D. Kirschenbaum, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta; Christine Anne Koehler, Koehler & Riddick, LLC, Lawrenceville; John Richard Martin, Martin Bros., PC, Atlanta; Steven J. Messinger, chief assistant district attorney, Paulding Judicial Circuit, Dallas; Bonnie Chessher Oliver, superior court judge, Northeastern Judicial Circuit, Gainesville; Claudia Susan Saari, chief public defender, Stone Mountain Judicial Circuit, Decatur; Dennis C. Sanders, district attorney, Toombs Judicial Circuit, Thomson; Robert Frank Schnatmeier Jr., Gentry Smith Dettmering Morgan & Schnatmeier LLP, Marietta; Carmen D. Smith, solicitor general, Fulton County, Atlanta; Hon. D. Jay Stewart, superior court judge, Atlantic Judicial Circuit, Claxton; Frank C. Winn, Winn & Winn, Douglasville; Rebecca Ashley Wright, district attorney, Augusta Judicial Circuit, Augusta. Advisors: Ronald L. Carlson, University of Georgia School of Law; Sen. Jason Carter, District 42, Decatur; Russell Dean Covey, Georgia State University School of Law; Sen. William S. Cowsert, District 46, Athens; Stan Gunter, Prosecuting Attorneys Council; Sen. William Hamrick III, District 30, Carrollton; Sen. Josh McKoon, District 29, Columbus; Rep. Wendell K. Willard, District 49, Sandy Springs; Karen Lisa Worthington, Karen Worthington Consulting.

^[2]Gubernatorial Appointees: Hon. Todd Markle (chair and designee of the governor) superior court judge, Atlanta Judicial Circuit; Linda Evans, member, Judicial Qualifications Commission; David McDade, district attorney, Douglas County ; Ken Shigley, president, State Bar of Georgia; Senate Appointees: Sen. John Crosby, District 13, Tifton; Sen. Bill Hamrick, District 30, Carrollton; Sen. Ronald Ramsey, District 43, Decatur; House Appointees: Rep. Mary Margaret Oliver, District 83, Decatur; Rep. Jay Powell, District 171, Camilla; Rep. Willie Talton, District 145, Warner Robins; Judicial Branch Appointees: Carol W. Hunstein, chief justice, Supreme Court of Georgia; Michael P. Boggs, superior court judge, Waycross Judicial Circuit; Ural Glanville, superior court judge, Atlanta Judicial Circuit.

^[3]Letter to the Department of Justice and the Pew Center on the States dated May 27, 2011, signed by Gov. Nathan Deal, Chief Justice Carol W. Hunstein, Lt. Gov. Casey Cagle and Speaker David Ralston.

^[4]United States Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (October 2011), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties/20111031_RtC_Mandatory_Minimum.cfm (last visited Nov. 14, 2011).

In our law practice we have been inspired by the indomitable spirit of clients who survived catastrophic injuries resulting in paraplegia or quadriplegia due to spinal cord injury. One young woman who became a paraplegic in an accident finished her undergraduate and graduate degrees, taught school, participated in international mission projects, moved west on her own, became Ms. Wheelchair California, and now works with a medical equipment company. A high ranking federal law enforcement executive who was rendered a quadriplegic in an accident eagerly pursued an opportunity to teach college and resume writing books.

We see quadriplegic and paraplegic clients as survivors to be equipped for productive life rather than as victims to be pitied.

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Ken Shigley is an Atlanta trial attorney who currently serves as president of the 42,000 member State Bar of Georgia.