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.

———-

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

A few more figurative ribbons arrived in recent weeks. For whatever they may be worth, if anything:

• “Super Lawyer” in Atlanta Magazine again for the 8th year in a row.
• “Who’s Who in Law” in Atlanta Business Chronicle
• Nominated for “Top 25″ tort law blogs

All that plus $1.75 will get you a cup of coffee. Back to work.

————————————————————————————-

Virtuous Lawyer is Not an Oxymoron

by Kenneth L. Shigley

President, State Bar of Georgia

James^[1] had great unrealized potential. Son of a minister in another Southern state, he won admission to an Ivy League university but washed out during his first year and went home to complete college and law school. A marvelous storyteller, his closing arguments could hold juries spellbound. But his cleverness was so unrestrained by mere facts that judges and other lawyers learned to distrust anything he said.

With appetites as unrestrained as his legal arguments, he loved food almost as much as liquor. Over time he became a tragicomic figure, bulging out of polyester leisure suits with his hair permed into a frizzy halo around his bald pate. A persistent, scandalous rumor about his “fee couch” was confirmed by a college girl whose brother he defended in a murder case. Observing his habits, I thought that if faced with a list of the traditional seven deadly sins–pride, wrath, greed, sloth, lust, envy and gluttony–he might burst into an impression of Julie Andrews in The Sound of Music, singing “these are a few of my favorite things!” Despite his jolly veneer, James swirled into a vortex of alcohol and depression, lost his law practice and his family, and died alone far from home.

When I think of James and his fate, I am reminded of a conversation I overheard at the Haralson County courthouse on an autumn morning in 1978. Two grizzled men, tobacco juice staining their gray stubble and faded bib overalls, sat on a bench outside the back door of the courtroom. As they awaited probation revocation hearings, they looked like they could have been failed moonshiners of a slightly earlier era. I overheard a fragment of conversation between these two “old men,” who at the time were probably younger than I am now.

“What you in for?” asked the first.

“My wife’s been running down my character,” moaned the second.

Mournfully, the first man replied, “I ain’t got no character to run down.”

In my arrogant hubris, I chuckled about these two pathetic old losers. Eventually, as the scar tissue of life accumulated, I came to recall their exchange in a different light, as a plaintive cry from the bottom of a deep well of existential despair by human beings who, at the end of a long road of bad habits and poor choices, had given up on life.

With our fine educations, suits, briefcases and high-tech toys, we may see ourselves as far removed from those two codgers awaiting their probation revocations. But remembering the fate of the brilliant James, we can appreciate the importance of at least aspiring to develop virtuous habits and a character worthy of being run down by people who delight in repeating those tired lawyer jokes.

Not that I am any paragon, mind you. I’m as much a work in progress, and miss the mark as much as anyone. If my vices are less blatant than those demonstrated by James, they are no less real. The leaning towers of paper on my office floor and the change in my waistline since my last marathon four years ago demonstrate that my habits do not match my aspirations.

The Rules of Professional Conduct are necessary for drawing clear lines and setting enforceable standards.^[2] Several excellent aspirational statements on professionalism and civility^[3] help to gently mold our conduct to a higher standard. But none of these are sufficient to build good character. Through the cumulative effect of what one learns from parents, grandparents, teachers, clergy, scoutmasters, mentors and professional colleagues over a lifetime, accompanied by philosophy, theology, culture and common sense, we may be habituated to virtue.^[4] Even if one lacked such early mentors, as long as we are on the green side of the grass it is not too late to begin a transformation.

Georgia’s state motto, “Wisdom, Justice and Moderation,” points toward timeless “hinge virtues” upon which scores of others depend–prudence (practical wisdom), fortitude (courage), temperance (moderation), justice, faith, hope and love.

Prudence, or practical wisdom, is the quintessential lawyerly virtue, essential to competent lawyering. It involves the pragmatic ability to see reality without delusions, to face good and bad in human nature, choose means and courses of action, soberly balance risks and possibilities and manage life, practice and finances.^[5] The prudent lawyer can recognize that the perfect is often the enemy of the good, and that the hardest choices are not between good and bad but between good and good and between bad and bad.

One is reminded of the airline instruction to place your oxygen mask over your face before placing one on your child’s face, so you can be able to help. Similarly, practical wisdom is necessary if a lawyer is to serve clients effectively over the long haul. This prudence is “a virtue of decision making that brings together thoughtfulness, experience and analytical reasoning with empathy and humanity,” necessary to maintain a balance between sympathy and commitment to the client or matter at hand and loyalty to larger social and ethical imperatives.^[6] By increasing the likelihood that choices are made with thoughtfulness, analysis and empathy, prudence reduces the likelihood of regret.^[7]

Prudence includes the analysis of all the ways that things could go horribly wrong for the client’s case or transaction, and how to deal with those negative potentialities. It may dictate careful case selection, telling people they don’t have a case that should be pursued or that a defense is without merit. It includes a duty to refer or associate when a case is outside the scope of one’s expertise. Also included are good office management practices and employing the equipment, staff, training and effective management needed for efficiency in a practice area, which are things law schools don’t teach and many of us don’t do as well as we should.

The flip side is that while prudence may make us better lawyers, if we cannot tone it down when we leave the office, it may ironically bear seeds of our destruction. An acute recognition of all the bad things that may flow from a decision may contribute to a general pessimism or “paralysis by analysis.” This may be a “chicken and egg” issue, insofar as there is a correlation between a pessimistic personality type and the prudence required to excel in law. If pessimism and anxiety leads to chronic depression, the potential adverse effects on health and relationships are predictable.^[8]

Fortitude includes courage and the firmness of mind and will required to stand resolute for a cause or client and work against all odds to see that justice is done, even at great personal, financial and occasionally even physical risk. Though years may pass in mundane routine, risking nothing more than a paper cut or normal fluctuations of income, any of us may at some point find it necessary to muster the courage to risk anger, contempt, retaliation and severe hardship for the sake of the law’s own good. There is no substitute for such fortitude.^[9]

The future doesn’t belong to the fainthearted but to the brave.^[10] We ought to love something larger than ourselves–truth, justice and the common good of the community and the nation. Fortitude moderates our fear so that we may endure in doing good, even in the face of apparently insurmountable obstacles. We cannot be whole without bravely stretching toward some cause larger than ourselves. By combining prudence and fortitude in the service of worthy purposes, we can avoid the trap of smallness of the soul.

We necessarily deal with conflict, but when our clients come to us seeking vengeance, we have an obligation to counsel peace. We may face adversaries who we dare not tempt with weakness and with whom it is necessary to deal from a position of strength. But the fortitude required of us is not the same as foolhardiness or intransigence. We must remember, in the words of President Kennedy, “that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate.”^[11] While there are times when a lawyer must courageously lay it all on the line, we should allow for the possibility that we may be wrong in our judgment. We must be wise in picking our battles.

Less dramatic, but no less important, we need fortitude in the daily grind of tedious, hard and unpleasant tasks, to do what needs to be done year after year without falling into destructive patterns of avoidance, procrastination, distraction and intemperance that ruins careers and lives.

Temperance, or moderation, does not refer to my great-grandmother’s support for the Prohibitionist Party candidates in every election from ratification of the 19th Amendment until her death. Rather, it is a reasonable, common sense, healthy moderation of habits and maintenance of a healthy balance in professional, personal and family life.
In the movie A Time to Kill, the young lawyer reminds his burned-out mentor–who is swaying across the lawn with a bottle of liquor in his hand–of his old aspiration to “save the world, one case at a time.” The subtext was that the old warrior had lost his will to fight for justice, at least in part because he fell victim to intemperate habits. Personal moderation and temperance for us as lawyers requires reasonableness, detached impartiality, common sense and resisting temptations that would lead to dead ends–including but not limited to the temptations of substance abuse and infidelity.

Justice is a concept debated by philosophers for millennia, but a precise definition is still somewhat elusive and subjective. At root, justice embodies not just legal positivism but a sense of fairness and morality, both within the individual and in relation to others–balance, harmony and what one writer referred to as “social music.”^[12] Of course, in our daily work with conflict, that music is often discordant. For the individual practicing lawyer, our role requires a commitment both to advocate for justice for clients and to sustain the operation and the fairness in the legal system.

Remember the prophet Amos who wrote, “Let justice roll on like a river, righteousness like a never-failing stream.”^[13] Though we cannot ignore economic reality, we should not be so totally focused on money that we fail to serve the cause of objective fairness. Few of us have opportunities to imitate the fictional Atticus Finch or to become a “drum major for justice” like the real life Martin Luther King Jr. But in smaller and less dramatic ways we have opportunities to promote our visions of justice. In doing so, we might keep in mind that service to others, whether organized pro bono legal work, ad hoc “low bono” labor or work with the many forms of community service, can be “billable hours for your soul.”

Faith requires a comprehensive worldview sufficient to make sense of the harsh realities we often face in the practice of law. Running ahead of pure reason, faith sees higher and farther than our own experience can. It is not mere belief rooted in intellect, or mere trust rooted in emotion. Rather, it is rooted in the heart and, dare I say it in a secular Bar Journal article, in the soul of the person in relationship with a higher power.^[14] Faith motivates us to persevere and to serve even when reason tells us all is lost.

Hope is directed to the future and is more than mere wishful thinking. It includes a view that out of the messy conflicts with which we must labor in the law, something good and worthwhile may yet somehow emerge. Without hope of something better beyond our low ceiling and limited horizon, courage turns to despair. With hope, our deepest values and ideals are not meaningless subjective blips but foretastes of an objective reality, even if we are not here long enough to see it.^[15]

Love in this context involves a commitment to treat others as you would have them treat you, and an unselfish concern on some level for the welfare of clients, witnesses, staff, colleagues, judges, court staff and even adversaries. It should become radically unselfish and gracious, beyond mere feeling, attraction, affection or compassion. Without love, justice turns to cruelty.^[16] But to manifest love for the unlovable, we need to develop both a kind of dangerous unselfishness and a capacity to exercise “tough love.”

Prudence, fortitude, temperance, justice, faith, hope and love. Cynics may claim they are but hollow words signifying nothing to us, that the idea of a virtuous lawyer is an oxymoron. Those who have done battle in courtrooms long enough to recall when bailiffs addressed all lawyers as “Colonel” can readily identify a rogue’s gallery of such lawyers who exemplify the worst public perception of the profession as callous, self-serving, devious and indifferent to justice, truth and the public good. They would try to downgrade the very concept with mockery and ridicule. But aspiring to mold our personal and professional characters in accordance with these virtues will help equip us to fulfill a high calling as the stewards of the justice system, and remind us that despite the effects of legal education and culture, we lawyers are still humans with hearts and consciences.

Habits built upon an aspiration to adhere to these virtues may strengthen us, in the words of Gen. Douglas McArthur when he spoke of “duty honor and country”:

They make you strong enough to know when you are weak, and brave enough to face yourself when you are afraid. They teach you to be proud and unbending in honest failure, but humble and gentle in success; not to substitute words for actions, not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm but to have compassion on those who fall; to master yourself before you seek to master others; to have a heart that is clean, a goal that is high; to learn to laugh, yet never forget how to weep; to reach into the future yet never neglect the past; to be serious yet never to take yourself too seriously; to be modest so that you will remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength. They give you a temper of the will, a quality of the imagination, a vigor of the emotions, a freshness of the deep springs of life, a temperamental predominance of courage over timidity, of an appetite for adventure over love of ease. They create in your heart the sense of wonder, the unfailing hope of what next, and the joy and inspiration of life.^[17]

The lawyer with a heart and soul trained through striving to develop such virtuous habits may try in some small way to emulate the fictional Atticus Finch, promoting justice, fairness and morality in one’s own daily practice. We are not shown the fictional Finch’s daily grind of law practice in mundane situations devoid of potential for heroic drama. But perhaps at some point we too might become worthy of the scene where, beaten but unbowed, Atticus leaves the courtroom as the folk in the balcony stand and the Reverend admonishes Scout, “Stand up–your father’s passing.”^[18]

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

Endnotes
^[1] “James” is a composite of many lawyers encountered over the course of my career. Any recognizable similarity to an actual person, living or dead, is coincidental.

^[2] William T. Ellis and Billie J. Ellis, Beyond The Model Rules: Aristotle, Lincoln, And The Lawyer’s Aspirational Drive To An Ethical Practice, 26 T.M. Cooley L. Rev. 591 (2009).

^[3] Lawyer’s Creed and Aspirational Statement on Professionalism, State Bar of Georgia Directory & Handbook, http://www.gabar.org/related_organizations/chief_justices_commission_on_professionalism/lawyers_creed/ (last visited Sept. 5, 2011); Macon Bar Association, Assurances of Professionalism, http://www.redi.net/maconbar/prof.pdf (last visited Sept. 5, 2011); Local Rules, Standards of Conduct, U. S. District Court, Middle District of Georgia, http://www.gamd.uscourts.gov/local%20rules/local%20rules%20amended%2012-1-09.pdf (last visited Sept. 5, 2011).

^[4] Charles P. Nemeth, Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct 62 (2001).

^[5] Id. at 65; Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93 (2009).

^[6] Jay Michaelson, In Praise Of The Pound Of Flesh: Legalism, Multiculturalism, And The Problem Of The Soul, 6 J. L. Soc’y 98, 132 (Spring 2005).

^[7] Id.

^[8] Martin E.P. Seligman, et al, Why Lawyers Are Unhappy, 23 Cardozo L. Rev. 33 (2001).

^[9] Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 145 (1993).

^[10] Ronald Reagan, Space Shuttle “Challenger” Tragedy Address, January 28, 1986.

^[11] John F. Kennedy, Inaugural Address, January 20, 1961.

^[12] Peter Kreeft, Back to Virtue: Traditional Moral Wisdom for Modern Moral Confusion (1986) (Kindle Edition, retrieved from Amazon.com).

^[13] Amos 5:24 (NIV).

^[14] Kreeft, supra.

^[15] Id.

^[16] Id.

^[17] Gen. Douglas MacArthur, Sylvanus Thayer Award Acceptance Address, “Duty, Honor, Country,” U. S. Military Academy, May 12, 1962.

^[18] Harper Lee, To Kill A Mockingbird (1960).

First, consider the lowly lab rat. The NYT article report a 2008 study in which rats forced to run wound up with significantly more new brain cells after eight weeks than those who ran when they chose, even though the latter animals ran faster.  Another experiment found that , mice that were required to exercise on treadmills subsequently performed better on cognitive tests than those given access to running wheels. (A lot of humans may feel like lab rats on treadmills in our jobs, but there are distinctions.)

That brings us to Dr. Jay L. Alberts, a brain injury rehabilitation researcher formerly at Emory but now at Cleveland Clinic.  He put Parkinson’s patient volunteers on tandem bikes where they would be forced to keep up with the furious pace set by the other rider. After eight weeks of hour-long sessions of forced riding, most of the patients in Dr. Alberts’s study showed significant lessening of their tremors and better body control, improvements that lingered for up to four weeks after they stopped riding. Functional M.R.I. scans showed that, compared to Parkinson’s patients who hadn’t ridden, the tandem cyclists’ brains were more active.The effects were significantly better than in unforced exercise where the patient set the pace.

Whether this research might lead to developments benefiting people who have had strokes,  traumatic brain injury (TBI) or even merely fuzzy brains remains an open question. But this graying geezer with undiagnosed ADHD may turn up the pace on the treadmill at the gym just in case it might do some good.

———–

Ken Shigley is president of the State Bar of Georgia, a Certified Civil Trial Advocates of the National Board of Trial Advocacy  (one of 20 in Georgia) and author of Georgia Law of Torts: Trial Preparation & Practice (West 2010). He represents individuals and families in cases involving serious physical injuries, including brain injury, neck and back injury, spinal cord injury, burn injury and wrongful death. Contact us for a free consultation.

Teresa was on the short list for appointment to the Eleventh Circuit Court of Appeals in the Clinton administration, and was frequently mentioned as a prospect for the U. S. Supreme Court and Solicitor General of the United States at the beginning of the Obama administration. In 2006, she left Atlanta’s Sutherland law firm, where she was a partner, to  become chief litigation counsel MetLife in New York City.  Before Sutherland, she was deputy assistant attorney general for the U.S. Department of Justice and clerked for U.S. Supreme Court Justice John Paul Stevens. While we may not always agree on politics, I don’t know a smarter lawyer or a nicer person.

According to an article in the Fulton County Daily Report, her predecessor as general counsel of Home Depot, Jack VanWoerkom,  57, recently retired after four years and sold $6.7 million of the company’s stock this year. I hope the company is at least that generous to Teresa!

Teresa and her husband Joseph have been my friends for a long time, and have managed a tri-coastal family life the past few years (she in NYC, he in Atlanta, and their daughter at UCLA) as well as anyone could. I look forward to seeing them together in Atlanta more often. Best wishes to them all!

_____________

Ken Shigley is president of the State Bar of Georgia, a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and author of Georgia Law of Torts: Trial Preparation & Practice (West 2010).

• Long term memory loss: “Memories that connected different parts of my life fragmented and vanished. . . . When I see my pre-accident work, I am introduced to it as if for the first time. . . . I am sometimes fed my own résumé by strangers in the street.”
• Personality change: “People who love me grieve what they claim to experience as the loss of elements of my personality that I cannot recall having been part of me. Others tell me that I seem to have become an altogether different person.”
• Irritability: “I am told that I used to be a real “people person.” Today, however, I can barely stand being around people. And I can get irritable in a nanosecond.”
• Confusion:  “More than four and a half years post brain damage, memories still do not serenely knit back together as in those nifty “How the Brain Heals” neurology cartoons. Shards of memories pierce my consciousness before fragmenting and melting into fresh half-syllables. Some memories hover in shadows. Others gouge and flee.”
• Neuroplasticity: “The clinical word for what I am describing: diaschisis, sometimes said to be Greek for “shocked throughout.” She explains that neuroplasticity lets me bypass damaged parts of my brain and forge new neuronal communication routes so I can access, or remember, sensory information that I received as a word, from another place from within my brain and in an entirely different format.”
• Physical pain: “My cognitive problems are exacerbated by chronic physical pain from the damage to my nervous system. Glass-shard-wielding fire ants shred my body’s meridians. . . . talking about my pain only makes it worse. As do hectic, high-sensory situations, mean people and the electric buzz of lights and computers.”
• Depression: “It is no wonder suicide remains a significant cause of death among people with a traumatic brain injury diagnosis.”
• Isolation: “Traumatic brain injuries destroy connections between and within people — so how are we to build a self-empowering community?”
• How to help: “If you want to connect with someone who has a traumatic brain injury, hire us, include us in conversations that regard us instead of speaking about us in the third person in front of our faces. And instead of pressing us about what we “must” remember from our past, simply be present with us. People with traumatic brain injuries are often scolded for having “no sense of time,” but the present is, for many of us, our only authentic time.”
• Shortage of brain injury rehab: “The Defense Department says that, between 2000 and 2010, more than 200,000 service members suffered traumatic brain injuries. Domestic emergency rooms report approximately 1.7 million T.B.I. diagnoses (and 52,000 T.B.I.-related deaths) annually. But very few people with brain injuries receive any sort of treatment beyond acute care.”

Ken Shigley is President of the State Bar of Georgia and a Certified Civil Trial Advocate of the National Board of Trial Advovacy. His Atlanta-based law practice includes representation of individuals and families in cases involving serious physical injuries, including brain injury, neck and back injury, spinal cord injury, burn injury and wrongful death. Contact us for a free consultation.

12. Video recording of defendant depositions.

A party may videotape any deposition upon notice that it will be so recorded. OCGA 9-11-30 (b)(4); FRCP 30 (b)(3). A deposition of a party may be used by any adverse party for any purpose, including substantive evidence, without any foundation that the party is unavailable to testify, including reading or playing video of portions in the case in chief, not merely for impeachment. OCGA § 9-11-32(a); Fed.R.Civ.P. 32(a)(2); Griffin v. Bankston, 295 Ga.App. 387, 391, 671 S.E.2d 873, 877 (2008).  See also,   State Farm Mut. Auto. Ins. Co. v. Lincow, 715 F.Supp.2d 617, (E.D.Pa.,2010); Northfield Ins. Co. v. Royal Surplus Lines Ins. Co., 2003 WL 25948971 (C.D.Cal.,2003); In re McLaren, 136 B.R. 705 (Bkrtcy.N.D.Ohio,1992); Roark v. Rydell, 174 Ohio App.3d 186, 881 N.E.2d 333 (Ohio App. 1 Dist., 2007); Devenyns v. Hartig, 983 P.2d 63 (Colo.App.,1998); State v Metz, 241 A.D.2d 192, 671 N.Y.S.2d 79 (N.Y.A.D. 1 Dept.,1998); Matter of the Adoption of N.A.P., 23 Kan.App.2d 257, 930 P.2d 609 (Kan.App.,1996).

Therefore, in any substantial case give notice of video recording of defendant depositions, and request synchronization of stenographic transcript and video in DVT format that may be easily edited on your computer. Be extremely specific in communicating to the court reporter and videographer the request for synchronized video and transcript. Not less than a month before trial, prepare video clips of adverse parties to play in the case in chief at trial.

11. Propose a stipulation that attorneys issue deposition subpoenas.

While federal law authorizes attorneys as officers of the court to issue subpoenas on standard forms, current Georgia law only allows deposition subpoenas issued and signed by counsel if there has been a stipulation of counsel pursuant to OCGA 9-11-45. Otherwise, subpoenas must be obtained from the Clerk. Propose such a stipulation early in the case in order to avoid a mad scramble to get subpoenas from the clerk for depositions or for trial.

Note that the need for such a stipulation will be eliminated on January 1, 2013, the effective date of the new Evidence Code. The new OCGA 24-13-21(d) will provide that “An attorney who is counsel of record in a proceeding may issue and sign a subpoena obtained by electronic or other means from the clerk of court as an officer of a court for any deposition, hearing, or trial held in conjunction with such proceeding.”