The (Semi) Daily Legal Blog

The (Semi) Daily Legal Blog is designed to provide practical suggestions, in general terms, regarding Andrew Agatston's legal areas of practice. It is a hybrid blog, and so it will occasionally be opinionated. These semi-daily doses of legal information are designed for general information only, and not intended to be formal legal advice nor the formation of a lawyer/client relationship.

Best regards.

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Friday, February 3, 2012 -- Heartbreaking...

You may have heard about the horrible crash that occurred on Interstate 75 near Gainesville, Florida last Sunday. Today, I read with deep sadness an article in our local Cobb County, Georgia newspaper, informing that four of five family members from Cobb County died in the horrible incident.

The Jose and Adriana Carmo family were returning from a weekend church conference in Orlando. Jose and Adriana served as pastors at the church Igreja da Restauracao in Cobb County. Pastor Carmo's daughter, Leticia, and his brother, Edson Carmo, died in the crash, along with his brother's friend, Rosie Fagundes, according to the news article. Only the youngest daughter survived the crash.

The photograph of this family that appeared along side the story in the newspaper makes your heart break. A father, a mother, and their two beautiful daughters, arms wrapped around each other, with such wonderful smiles. It is very apparent from the news article that this family leaves behind so many loved ones, who will carry on their memories. They are all in our prayers.

Best regards.

Thursday, January 26, 2012 -- Parents Common Response to Cyber Bullying Behavior: What Were They Thinking?

Thunderstruck. That might be the description of how parents feel when they first fully understand the inappropriate online commentary trail left either by their children or for their children.

I am a trial lawyer by trade, but believe that, generally, litigation is not the answer to cyber bullying incidents. There are some exceptions, but the better approach is to wear the counselor hat in a problem-solving role. To do so, I encourage the parents to help me view the entire landscape of the situation, as a parachutist does when looking down below.

"What was he thinking"? I'm often rhetorically asked, right out of the box. And then the parent answers for me: "He knows better than that!"

Well, that's as good of a place to start as any – maybe the best place -- when you want to see the landscape of inappropriate and harmful online commentary below.

I like to have parents think back to when they were 15 or 16. Maybe they were the ones who got to get behind the wheel of a souped-up muscle car, or know someone who did. Invincible. Indestructible.

Today, those parents would not think twice about preaching to their teen the perils concerning cars, speed and destruction. And not just once. Probably, at least in the early going of a teen's driving career, every time the child reaches for the keys. It takes repetition of the message to convey, and enforce, the house rules of teen driving.

Yet, how many of us have house social media rules? How many of us convey the importance of "netiquette" consistently, uniformly, and backed by consequences for failure to comply with the house social media rules?

So when I hear the question, "What was he thinking?" My answer is, "I don't know. Let's look at that. Start by telling me the house social media rules you've laid down."

Was he thinking about the house rules about online activities? Oh, there are no house rules?

Did he understand that this is not an internet highway, because highways end? Instead was he thinking about the global reach of his activities?

Was he thinking about the footprints he’s left behind, for all to see, like the college admissions officer or the human resources manager?

Answering the question, "What was he thinking?" right now is an important starting point for your child's safe, enjoyable and productive experience online.

Best regards.

Lunes, 9 de enero 2012 -- Deseando un feliz año nuevo a todos

Feliz Año Nuevo a mis amigos que hablan español! Deseo todo lo mejoren el 2012, y mi esperanza es que habrá un énfasis renovado entre nuestros líderes y los políticos sobre la equidad jurídica para todos.

El comienzo de un nuevo año siempre trae la emoción, ya que las señales de un nuevo capítulo. Estoy deseando tener un capítulo que incluye el respeto a todos los que viven en Georgia y los Estados Unidos.

Este será un año interesante en Georgia y otros estados que aprobaron leyes de inmigración. La reacción de las leyes es clara, no sólo perjudica a gente inocente como los niños nacidos en los Estados Unidos, pero causa problemas a las industrias que apoyan a las familias y las comunidades.

¿Somos todos hijos de Dios? Sí, lo somos!

Saludos cordiales. (Y como siempre, me disculpo por mi español imperfecto!)

Sunday, January 1, 2012 -- Happy New Year! Here's to health, love, and safety.

Wow, what a year, 2011, huh? Very loud. Could even be termed "adversarial." And as we head into a general election, including a Presidential Election, I think we all know what is coming.

It doesn't have to be that way, though. Even adversaries, at least most of them, can agree on a core set of principles.

We all care about safety, no matter what age we are. And we especially care about the safety of children. It is this latter thought that I will spend some time on during this Happy New Year 2012 post.

Caring for children, and their safety, should be unconditional. We often see legislators, leaders, child-centered organizations, child protective service organizations, and mandated reporters speak eloquently and persuasively about their unconditional support for child-safety principles. In my line of work as an attorney and a child advocate, I often encounter folks who are part of this very important collection of disciplines.

What I hope for -- for them and the children -- is that they strive to understand that unconditional support for child safety means just that -- it's unconditional. When there are cracks in their organizations, including shortcomings caused by their employees and volunteers, and a child's health and well being suffers, I hope that they will side with the child, and focus on the child's needs. When our legislative leaders and constitutional officers determine that a child has been harmed due to an employee in their state-run child protective service field, I hope that these leaders will make sure that the child's needs for health and well being are recognized as important the cure, even if it means having to take responsibility.

I am blessed to be celebrating my 10th year in my law firm, and 18th year in legal practice overall. I am both young enough and experienced enough to believe that even adversaries can find in themselves the goodness -- and the will -- to unconditionally support the safety of children. My hope for 2012 is safety for all children, and all people.

Friday, November 11, 2011 -- When Allegations of Child Sexual Abuse Are Ignored

You cannot miss the news out of Penn State University. The underlying facts of the horrifying allegations of child sexual abuse by a former football coach, who continued to have access to Penn State facilities, alleging nine years after he was seen by an eyewitness sexually abusing a child, continue to come out. This critically important matter will continue to be in the news for some time, and will continue to rightly shine a light -- and they will be flood lights -- on a huge problem that persists in our society.

First, our hearts go out to all of the children, and their families, friends and loved ones, who have been affected by any child sexual abuse episode at any time. Our unconditional support should always, always, always be on the children who are victimized.

With that, let me write a few words about the huge problem that I referenced. It involves mandated reporting. In Georgia, and most certainly in states across the U.S., there are certain individuals who are required by law to report their own suspicions of child sexual abuse to the proper authorities. In Georgia, those proper authorities are the Department of Family and Children Services in the county in which the alleged sexual abuse occurred, or law enforcement. This is a statutory duty, that is, a duty required by a law passed by our General Assembly many, many years ago.

However, even today, in 2011, there are those who come under the "mandated reporting" statute who still do not report. In fact, there are those who fall under the mandated reporting statute who do not realize (1) their mandated reporting duty and (2) that they are even classified as "mandated reporters."

In Georgia, the mandated reporting statute has a simple, yet critical, policy implication: protect children. Err on the side of caution to protect children. The mandated reporting statute includes a "reasonable cause to believe" standard, that is, the mandated reporter reports his or her suspicion of child sexual abuse if that mandated reporter has a "reasonable cause to believe" that child sexual abuse has occurred. Further, and also critically important, the "reasonable cause to believe" standard is a subjective standard, NOT an objective standard. That means that if a person subjectively believes, that is, believes in his own mind, that child sexual abuse has occurred, he reports! Georgia courts interpret that to mean that even if his subjective opinion that abuse occurred might be seen by the everyday, objective person as unreasonable, he reports! The policy implication of this in Georgia's law is undeniable -- it means that we protect children, even if it might be subjectively unreasonable to report, we report in order to protect children.

Finally, in Georgia the law is clear that a mandated reporter cannot be sued if he reports his suspicions of child abuse, even if his report is subjectively unreasonable. Again, the policy implication of this is undeniable -- we protect children, and we will protect mandated reporters from lawsuits if they report their suspicions of child sexual abuse.

I am going to supply a link to the grand jury report in the Penn State case. I am providing all readers with a warning. The information in this report is graphic, horrible, troubling and extremely upsetting. It is up to you whether you want to review the report. It has been linked in numerous articles in media websites across the country, and the world. Here is the link: http://www.nytimes.com/interactive/2011/11/06/sports/ncaafootball/20111106-pennstate-document.html?scp=6

Child sexual abuse happens. It happens in every corner in every state in our country. When good people see evil and do nothing, children suffer.

Wednesday, November 2, 2011 -- Bullying v. Harassment, Part I: How the Law Defines "Bullying"

I had the pleasure recently of participating at a local Georgia public school district on the topic of bullying and cyber bullying. My sessions covered some of the legal issues of each of these realities of today's school environment.

A good place to start, regarding legal issues, is terminology. And when beginning the topic, it is important that the law may define bullying and harassment differently than our social sciences. Another words, a therapist, or counselor, or psychologist may view behavior as bullying or harassment. But in the law, it is important to see how bullying and harassment are defined in the statutes and the case law.

In this week's post, I will discuss the definition of "bullying." In a future post, I will discuss the definition of "harassment."

In Georgia, our General Assembly has defined the term as to place and meaning. As to the place, it is an act "which occurs on school property, on school vehicles, at designated bus stops, or at school related functions or activities, or by use of date or software that is accessed through a computer, computer system, computer network, or electronic technology of a local school system."

Importantly, the latter part of the definition addresses cyber bullying, with a notable limitation. The cyber bullying, to be defined bullying in Georgia, must initiate within a local school system's computer network. We know, however, that most cyber bullying occurs off campus on private networks. In Georgia, at least in the statute passed by Georgia's General Assembly, off-campus cyber bullying is not covered.

Special note: I am not convinced that off-campus cyber bullying is not covered, even with current definition. In another post, I will discuss a the legal doctrine known as "substantial disruption," which, generally, involves speech that public schools can limit if it tends to create a substantial disruption on campus.

The meaning part of bullying is also found in the statute. It generally addresses physical injury, threats of physical injury, and force. There are a number of parts:

• Any willful attempt or threat to inflict injury on another person, when accompanied by an apparent present ability to do so.
• Any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm.
• Any intentional written, verbal, or physical act which a reasonable person would perceive as being intended to threaten, harass or intimidate that (a) causes another person substantial physical harm or visible bodily harm; (b) has the effect of substantially interfering with a student's education; (c) is so severe, persistent, or pervasive that it creates an intimidating or threatening educational environment, or (d) has the effect or substantially disrupting the orderly operation of the school.

In sum, this is the legal bullying framework in Georgia. This is the state law template that used by educators to investigate allegations of bullying.

If must be noted that there is a set of federal laws, in addition to this state bullying law, that protects students. These federal laws are based upon harassment for prohibited reasons: race, sex, and disability, for example. That topic will be covered next.

Best regards.

Friday, October 21, 2011 -- Agatston Bullying Keynote Presentation

The impact of school bullying has taken on such a profound importance during the last year that it almost makes your head spin trying to keep up with the changes.

Yesterday and today, I had the pleasure of speaking to educators at the Bartow County School District, along with my wife Dr. Patti Agatston and Dr. Michael Carpenter, both of whom are experts in the field of bullying and cyber bullying.

I am attaching slides from my Keynote bullying presentation. On this website, I plan to use it as a template over the next several weeks to create blog posts on the numerous and important bullying initiatives that have been discussed at the state and federal levels to address bullying.

October 12, 2011 -- Los Abogados Deben Estar Aqui Para Ayudar

Yo estoy aquí para ayudar. Ayuda con preguntas sobre la ley y cómo le afecta, mi amigo de habla española.

Me habló en una conferencia en Chicago el mes pasado. Fue una conferencia para los profesionales que ayudan a los niños que son abusados sexualmente. Antes de hablar, me dijeron que la conferenciaestaba siendo traducido al español, porque había gente en la asistencia de América Latina y los países de América del Sur.

Mis primeras palabras fueron en español. Les dio la bienvenida a Illinois.Les dije que estaba contento de que estaban en la conferencia.

Las personas que viven en países distintos de los EE.UU. tienendiferencias culturales. Sin embargo, compartimos mucho más en común.Que parece haberse perdido en las personas, incluyendo a nuestros legisladores, que una legislación como duras por lo que es tan difícil paraalgunos de los hijos de Dios a vivir en nuestras comunidades.

Como ya he dicho, estoy aquí para ayudar, y orgullosos de poder ayudar.

Saludos cordiales

Friday, September 30, 2011 -- If you're an Atlanta Braves fan: Oh, well, that's baseball

The night of September 28, 2011 was probably the most exciting night in baseball history. The Atlanta Braves, St. Louis Cardinals, Tampa Bay Rays and Boston Red Sox were all playing for their playoff lives. We know how it turned out for our beloved Braves and the historically hard luck Red Sox. They're both out. The Braves lost in the 13th inning. The Red Sox lost in the bottom of the 9th. (And those crazy Rays won on a walk-off home run in the bottom of the 12th.

In metro Atlanta, where I live and practice, it was brutal. The Braves (like the Sox) had a huge lead in their Wild Card playoff quest, but September was a cruel month. And then they lost Game 162, the last game of the season. St. Louis won. St. Louis moved on. The Braves went home.

And then, inevitably, the local sports columnists weighed in. Finger pointing. Complaining. Accusing. Scolding. Oh my. Talking about piling on!

Can I get agreement with true baseball aficionados? Isn't that baseball? The season is long, and every good team experiences highs and lows. For the Braves, for much of the season, they had the 3rd or 4th or 5th best record in all of baseball that includes 30 teams in both leagues. They had a rookie closer who set a record for saves. They had a rookie first baseman who should win the Rookie of the Year award. They have the gray-beard -- Chipper Jones -- who has played as a Brave since 1995, and hit in the .270s while being the team leader. They had a first year Braves manager who took over from the legendary manager Bobby Cox, and who was on the cusp of the playoffs in his first season here.

The new manager didn't make it. Hey Braves fans -- do you ever remember Bobby Cox's teams failing at one point or another? Hmmmm. As I said, that's baseball, the greatest game ever invented. Every year a new chapter in heartbreak is written. It just so happens that the 2011 chapter will include our Atlanta Braves.

So instead of finger-pointing and complaining, baseball fans, why don't we congratulate the teams that made it to the playoffs, particularly the Rays and the Cards, after Wednesday, September 28, 2011, the most exciting night in baseball history.

Best regards.

Friday, September 23, 2011 -- Insurance Companies' Quick Settlement Attempts

I have received a few phone calls recently from people who have been involved in automobile collisions, who were injured, who were receiving medical treatment, and had been contacted by the at-fault driver's insurance company which tried to settle their bodily injury claims!

How can this be possible? These callers told the insurance representatives that they were hurt and were treating, yet these insurance representatives still wanted to settle the bodily injury claims.

Don't do that! How can anyone responsibly decide the value of a bodily injury claim, almost immediately after the collision, when the injured party is still treating? The answer: it can't be done. This is an egregious practice that cannot be tolerated.

Here is some information to consider. Following a collision if you are hurt, get treatment. You get treatment to get back to your earlier physical health, and that's the only reason. You get treatment aside and apart from any potential injury claim. Remember -- any injury claim will be completed within a relatively short period of time -- relative to the rest of your life! The focus should be on healing, not on insurance representatives who tell you to settle with their company within two weeks of the wreck. Their only interest is to close your claim, and not pay. Their interest is not your health and healing.

Being involved in an automobile wreck is hard enough. A person might have to juggle work, family, recreation, injuries, and responsibilities. Imagine the shock that people have if, months after the insurance company induces an early bodily injury settlement, their injuries remain and future treatment is needed. The insurance company will consider that case closed. And then, you really are on your own.

Best regards.

Friday, September 10, 2011 -- The "Balance Bill" Debacle

There was an excellent newspaper article in the Atlanta Journal Constitution this week regarding the practice of medical treatment providers "balance billing" its insureds, and making them pay the difference between the patient's health insurance company paid and what the actual bill was.

So, for example, in the article, a Georgia Senator unfortunately was injured, and had to be taken to the ER via air ambulance. The bill for the air ambulance was $27,000.00. The Senator's health plan paid $8,000.00. The air ambulance company wanted the Senator to pay the $19,000.00 difference.

Cut to the end. The Senator was able to get the air ambulance company to waive the $19,000.00 balance, and accept the $8,000.00 payment as payment in full.

Unfortunately, what happens to most folks is that sometimes, even with health insurance, they are forced to pay the balance of their bills -- which can be extremely significant -- or else be faced with collections. And many times, when those bills are audited and reviewed, the line item charges are ridiculously high. The article gave a few examples: $18.00 for a gauge paid; $40 for Pepcid AC. The doctors and treatment providers counter by saying that they have to charge these expenses, because many patients have health insurance companies that negotiate rates with the doctors, and that do not allow balance billing. Thus, the doctors and other healthcare providers are forced to eat the balances. In other cases, patients have Medicare and its set of negotiated rates, which results in the same dilemma.

It is critical that health care consumers understand the rules in their health care plans. What are the "balance bill" rules? What are the "out of network" rules? What are the rules related to specialists such as radiologists and anesthesiologists, who might be called in to assist the in-network treating doctors, but who are out of network? Understanding these charges, as best as possible, up front can lead to a better pathway for both insurance coverage and superior medical treatment.

Friday, August 26, 2011 -- A Word or Two About Damage Awards in Personal Injury Cases

I was reading an online newspaper article about two mothers whose children were stillborn due to the alleged negligence of their respective doctors and hospitals. The article compared the two cases, and analyzed how the legal system tried to determine the damages for the mother's loss in each case.

The particular item of damage was called "emotional suffering" of the mother, as part of their claim that medical negligence caused the stillbirth. This is a New York law, and the article described the two New York cases.

Whenever I read articles about injury cases in newspapers, I am particularly interested in reading the reader comment posts to the article, because I'm always interested in what people think about the civil justice system.

Comments regarding damages for types of "pain and suffering," as you can imagine, can run the range of views.

On the one end were comments such as these: "These women went from being victims to being parasites when they sued for emotional distress." And, "I never could comprehend how pots of cash in these suits can help a parent overcome their grief. Perhaps a hefty fine by the incompetents is in order. It sounds like pure greed to me on the part of the attorneys and litigants."

On the other end, were comments such as these: "I wonder how you'd feel if your child was killed by a doctor's negligence. I suspect that your inevitable suffering would suddenly have a value. I can only hope that none of you will ever have to suffer like these mothers in this story obviously did." And, "As to those who would limit or eliminate damages, would you walk in those shoes? What if it was your body, your child, your inability to return to work and support your family?"

You have to have the utmost respect for jurors, because in injury cases, there are going to be very spirited and very difficult debates regarding pain and suffering-type damages in very legitimate injury cases. There is not a great deal of guidance for them, sometimes. For example, they are instructed by the judge that whether to award pain and suffering is entirely up to the jury, and that their decision is based upon the "enlightened conscience of a fair and impartial jury."

In representing people with significant injuries due to auto collisions or other negligence cases, or people who have been a victim of a crime or another intentional act, it's important to respectfully point out a few things to jurors, which hopefully might aid them in their important decision. The legitimacy of recognizing the impact of pain is everywhere around us.

I have asked jurors in my civil personal injury cases to reflect on the criminal law. The criminal law can impose the ultimate verdict against someone, a death sentence. However, under the laws of our land, the death sentence can only be imposed if it can be imposed without pain. I have, in closing arguments, asked jurors to reflect on whether they have heard anyone make the statement that they were glad that a loved one had passed away after a long and debilitating illness: "At least she's with the Lord, and out of all of her pain." There are other examples I give, but those two, I think, help make the point. A person who seeks damages for pain and suffering -- legitimate pain and suffering -- is not "digging for gold." That person is the last person who wants to be in such a position.

Tuesday, August 16, 2011 -- The Judicial System's Split Personality on the Topic of Bullying

In April of this year, a federal judge in New York wrote an excellent opinion regarding a bullying lawsuit that originated in that state. The case, L.K. v. New York City Department of Education, involved a student who was repeatedly targeted and bullied in the school.

The judge was called on to determine whether the school district could obtain what is known as "summary judgment," a legal procedure that can be used by a Defendant (the school district here) to ask the judge to end the case in the Defendant's favor without having it go to a jury trial.

The judge denied the school district's summary judgment motion. In the opinion, he wrote a number of excellent statements regarding the impact of bullying:

Citing a researcher, the judge wrote, "Were bullying characterized as a disease affecting America's youth, a team from the Center for Disease Control charged with investigating epidemics would have been called in to study it." He wrote, "[S]tudents who are bullied may suffer lasting scars in the form of an inferior education, emotional damage and decreased self-confidence; the bullies are left to continue on a party that may lead to future violence."

That was April. On August 10th, the same judge dismissed the lawsuit, because the child suffered no constitutional damage against the New York City school system.

Classmates of the child had twice cut off the braids of her hair; had torn beads out of her hair; had stolen her lunches; had elbowed her; had shoved her; and the list goes on and on.

But in the federal law system, there is an enormously high standard in cases such as bullying, where the behavior involved must "shock the conscience" in order to obtain damages in a constitutional substantive due process claim. Believe me when I say that I have read cases of harm caused to students that are off the charts -- absolutely off the charts -- in despicable behavior, and federal courts have held that it did not satisfy the conscience-shocking test. Imagine a standard that is near-impossible to satisfy, multiply it by 10, and you have the conscience-shocking standard.

In the law, targets of bullying have two legal recourses -- federal court, with its conscience-shocking standard, or state courts, which have immunity hurdles. It is a wonder that with the legal protections afforded to the schools that every single school in the country doesn't take an enormously strong stance against bullying and harassment in schools. Instead, It seems that states and school districts are more concerned with avoiding legal liability, causing them to tread and move slowly in enacting laws and policies to stamp out this ridiculous obstacle to a child's education. Instead, since in the majority of cases legal liability against schools is a stretch at best, the focus on policies and laws should not be avoiding legal liability -- that is already built into the system! The focus on policies and laws should be that bullying is a plague, it is wrong, it is against the rules, it is contrary to a proper and appropriate education, it harms the victims, it is even bad for the perpetrator at some level.

In the end, when it comes to bullying, our states and schools should help set the standards and values, and that means ensuring the wrongs of bullying should fall to the rights of students.

Friday, August 12, 2011-- Turning A Page to a New School Year, As Life Marches On

We welcome a new school year. I hope it is a year of learning and enrichment for all of the children. I hope the students feel safe and comfortable inside their school. I hope the students will amaze themselves with their knowledge!

On a personal note, I have one child leaving the Georgia public secondary schools, and entering one of the Georgia higher education schools -- the ramblin' wreck of Georgia Tech! Like many parents before me, I watch him leave with trepidation, sadness, love, respect, and hope for his future. I'll miss his ridiculously messy room, and pray for his roommate's patience as they live together in a dorm room the size of a large closet. A page has turned, he has done his job through high school, and now he gets to face challenges he's never seen, felt, nor heard. He'll be fine.

I also have a freshman now, again. Oh boy. I've been there once before, so I guess it will be ok this time, too. Back to the words of wisdom for freshman boys -- I hope he will be respectful, kind, pause before deciding, listen in class, work hard, and try to recognize that what he's doing now as a freshman can have an impact where he'll be in four years. I wish myself good luck with that.

My hope for educators is that they continue their impossibly valiant work. I hope that they will be supported by parents, administrators and the community as they do some of the most important work our society asks -- teaching our kids. I hope our legislators will listen to their ideas. I hope our educators have the strength to not only teach, but stand up for those students who are being treated poorly in any form, whether it is bullying, or harassment, or any kind illegal behavior.

Thursday, July 14, 2011 -- Follow Up On "Hot Coffee" Case Study

In my July 1, 2011 blog post, I detailed the documentary, "Hot Coffee," which focused on the tort reform movement. One of the case studies in the "Hot Coffee" documentary was about Jamie Leigh Jones, the Texas woman who claimed she was gang raped and suffered numerous other harms by contractors of the giant contracting company, Halliburton. She fought for years to have her case heard in the civil justice system, after being blocked by a mandatory arbitration provision in her employment contract which compelled her to resolve all claims in a closed arbitration hearing rather than before a jury of the community's peers.

Finally, however, she was able to bring her case to trial in a federal court in Houston. And this month, the jury returned a defense verdict against her. They rejected her claims that she was drugged and raped by several contractors while working in Iraq in 2005.

This no doubt was a devastating loss for Ms. Jones. And equally clear it was an complete defense win for the contracting company. In fact, the defense lawyer was quoted in the Houston Chronicle newspaper as saying, "We have known the truth, and KBR has known the truth for a long time now. We're very relieved and gratified to get that out to the public."

This is the civil justice system. Evidence placed in front of an objective and impartial jury. Both sides fighting to the end for their cause. And then the citizen jury deciding the case. A cornerstone of our democracy. The courthouse doors were opened, and the jury made its choice.

Friday, July 8, 2011 -- Announcing the "Serving Those Who Serve Others" Initiative

I read in a local newspaper that Cobb County, which has more than 650,000 residents, saved more than $2 million in 2010 because thousands of its citizens contributed their time, money and energy to volunteer. This made a big difference for the Cobb County library system, where people contributed more than 15,000 hours of time. Senior services volunteers donated 29,000 hours of time. And the Keep Cobb Beautiful program had 17,000 volunteers (including the Andrew H. Agatston, P.C. law firm!) that took care of the Adopt-A-Mile roadways and other road cleanups. These 17,000 volunteers contributed in-kind hours that amounted to a $1.1 million value!

That is an amazing show of goodwill, and it is being replayed in communities throughout Georgia and the U.S. Unfortunately, we often don't learn of these initiatives, nor do we hear about how easy it is to lend a helping hand. (Just call your county's volunteer coordinator!)

People who serve others are all around us. Organizations that serve others are all around us, too. They are organizations that help children in need; that help elderly in need; that help the homeless and the hungry. This law firm is fortunate to work for and with many such organizations.

And now, the Law Offices of Andrew H. Agatston has established its "Serving Those Who Serve Others" initiative, where the firm's personal injury legal services are offered at special rates for the employees, friends and families of these special organizations. If you are part of an organization that serves others, this law firm is dedicated to serving you through its "Serving Those Who Serves Others" program.

Friday, July 1, 2011 -- "Hot Coffee" Documentary Uses Evidence, Not Hype, to Describe the Civil Justice System

I watched the documentary "Hot Coffee" on HBO this week. It is a documentary that describes aspects of the civil justice system, using four case studies: The McDonald's "hot coffee" case; a Nebraska medical malpractice case that was subject to damage "caps," the case of a Mississippi Supreme Court Justice who was targeted by moneyed business and political interests; and the case of a young woman who was gang-raped by Halliburtun employees in Iraq, but who could not bring them to justice in civil court because of a "mandatory arbitration" clause in her employment contract with the massive contracting company.

I recommend that you watch if if you get a chance. I did my best to watch it objectively, knowing that there are two sides of the coin. I think I was able to do so, and I came away with both a depressing view of where we are in the civil justice system, as well as a renewed hope that the best system in the world to resolve disputes can continue to meet our Founders' hopes despite the constant and aggressive attacks on it.

I loved the end of the documentary, where a person interviewed talked about people who file lawsuits. He said people -- individual, every day people -- who file lawsuits to hold wrongdoers accountable can be seen as "heroic." That might be difficult for some to stomach. For me, it's not. I represent the injured, and many times lawsuits need to be filed in order to enforce their rights in the civil justice system and under our state and federal constitutions. I tell them it is a long road. I tell them they are going to be scrutinized, attacked, questioned, blamed, and otherwise tried to make feel guilty for pursuing their rights in our courtrooms.

On the other hand, I tell them that they need to be strong and look within themselves, and they will soon realize that fighting to hold wrongdoers accountable and responsible for their actions is a bedrock of our democracy. It of course may result in justice for them individually, but society as a whole benefits when disputes are resolved peacefully while at the same time bringing wrongdoers to account.

I practice in the civil justice system. I have faith in it, and in the trial judges who work diligently to ensure fairness for all. I still believe it is the place in our system of government where the Davids can complete with the Goliaths. My hope is that this feeling continues the rest of my career, and of course beyond for all who follow.

Friday, June 17, 2011 -- This Time, A Motor Vehicle Collision From the Family Perspective

Yes, it happened to one of my sons. One of probably dozens of motor vehicle collisions that occurred in Metro Atlanta this week. For more than 17 years now, I have been on the side of representing individuals injured in car crashes. I come aboard well after the wreck, and after the medical treatment has occurred. I am often called when a person's injuries don't heal, and after that person has had several contacts with the at-fault driver's insurance representatives. So I come onto the scene when people need to have the headaches of worrying about the legal aspects of a wreck, and want to just concentrate on healing.

This week, I was actually at the scene of a wreck -- a wreck involving my oldest son. He was the third car behind a car that was turning left into a subdivision. My son stopped, and the car behind him did not. The impact was severe. I received a call from my son not long after the wreck, before the police had arrived. When I arrived, it was as you would expect: a line of cars traveling slowly in both directions. My son and the other young man who was in the wreck were shaken, but uninjured. That was the big relief for everyone.

But I also came away from this experience with these observations: People, in time of need, do great things. When I first arrived, I was approached by an off-duty first responder, who was on his way home. He saw the wreck, got out of his pickup to check on my son and the other driver, and when he determined they were OK, began directing traffic. I was also approached by a woman, who saw the wreck with her two young children, and who stopped to talk to me and provide me with her card. I did not tell her I was a personal injury lawyer who routinely handles auto wreck cases, and instead listened to her as she described how she assisted in the situation, and told my son to make sure he laid low when he got home and make sure he felt well the next day. She gave better on-scene advice than any lawyer could, just matter-of-fact, common sense information.

This scene of helpfulness repeated itself when the police officer arrived, and as other people came and went. It is most comforting to see people doing good deeds during tense times. That's the way lawyers should practice when they represent people involved in car wrecks. Sure, it is critical to make sure that the case is presented to the insurance company or a jury in a manner that comprehensively reflects the injuries and impact that the wreck has caused the client. But more than that, the lawyer should provide comfort, counseling, and support, to show the clients that better days are ahead, for the injured clients, and for everyone who loves them.

Friday, June 3, 2011 -- Harassment in Public Schools and the "Dear Colleague" Letter

This is the final (for now) in a series of blog posts related to school bullying, and today we focus on the United States Department of Education's Office of Civil Rights, and their periodic "Dear Colleague" letters to educators.

Last October, on October 26, 2010, a Dear Colleague letter was issued on the topic of student harassment in school, when that harassment is due to bullying students on account of such prohibited reasons as race, sex, national origin etc. Specifically, the Dear Colleague letter began:

"In recent years, many state departments of education and local school districts have taken steps to reduce bullying in schools. The U.S. Department of Education (Department) fully supports these efforts. Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential. The movement to adopt anti-bullying policies reflects schools' appreciation of their important responsibility to maintain a safe learning environment for all students. I am writing to remind you, however, that some student misconduct that falls under a school's anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department's Office for Civil Rights (OCR)."

The Dear Colleague letter can easily be found, by simply Googling "Dear Colleague" in your search bar.

I highly recommend parents have access to this letter to understand not just the rights of their children/students, but also understand the responsibilities of the public school districts with regard to this conduct.

In fact, I highly recommend to all parents or caregivers I speak with to be sufficiently familiar with all sources of rights and responsibilities, including the school district's policy on bullying, the Georgia Department of Education's model policy on bullying, and the state law (a/k/a state statute) on bullying. This will provide a reasoned, rational discussion with school administrators, if necessary to advance a recommendation to them that your child's bullying in their school needs to be addressed.

From the "Dear Colleague" letter, we can easily find the various federal laws that address student harassment, including harassment on account of a student's disability. It plainly sets forth several hypothetical cases of harassment, and then describes why these hypothetical cases trigger the federal laws protecting children from such harassment, before instructing the public school districts about how to respond and address the harassment. The response also includes preventing retaliation against the student for bringing the harassing behavior to the attention of the particular school, which is a very important consideration and concern in the eyes of a student who has been targeted.

The best approach, I have found, is to be armed with reliable information, and the Dear Colleague letter is one of the important tools.

In the meantime, I wish all of your students a happy and safe summer, and a positive environment for learning next fall.

Best regards.

Friday, May 27, 2011 -- Seeing Bullying Through The Student's Eyes: The Impact of School Bullying on our Children

If you read the studies, you'll find that bullying is the most common type of violence in the schools.  When you think about bullying, it is important to try to look at bullying through a child's eyes, whether that child is elementary school aged, in middle school, or moving toward young adulthood in high school.

If you're reading this at home, it is hoped you are reading this with no fear of being harmed.  If you are reading it at work, I hope the same for you.  Most adults go to live, work, and play without fear of intimidation, harm, retaliation.  We go to work and don't fear that someone is just a moment's notice away from trying to harm us.   For us, it is difficult to see bullying through a student's eyes.

But think about the ramifications if, in fact, going to work each day meant that you were going to face a person who was hostile to you, either physically, or emotionally, or was going to attempt to purposefully isolate you from your colleagues in an adverse manner.  Even the most efficient and professional among us, sooner or later, would be impacted.  And that impact would result in poorer work performance, a poorer emotional well-being, poorer mental health, and other effects.

Now turn to a student who is bullied in school.  First, think about the concept.  We are bombarded with messages and information that education is the key to our future.  Education can level the playing field, and education can help students achieve and go to where they want to go in life.  To do this, we are told, students must focus on their studies, focus on their school work.  Yet, a student who is bullied has other focuses, and the literature is clear that this substantially detracts from their opportunities to learn.  Thus, their educational opportunities are actually taken from them on account of the bullying.

So when you hear an adult, a teacher, an administrator, a school board member say that this behavior is a "rite of passage," or an instance of "boys being boys" or "girls being girls," stand up and be heard:  It is not!  It is bullying, and it is damaging the ability of a student to reach peak school performance.

It is important to know that most educators are, and will continue, working hard and sometimes tirelessly to solve school bullying.  The ones who are not can fairly be characterized as dinosaurs.

In my next post, I will introduce you to something called the "Dear Colleague" letter, sent by the U.S. Department of Education's Office of Civil Rights.  It's a letter that I suggest to my parent callers that they read and understand.

Best regards.

Thursday, May 21, 2011 -- Georgia's Bullying Statute, and its New Provisions Beginning August 1, 2011

This is the second blog post in a series of posts related to public school bullying, and Georgia's legislative response. Georgia first enacted a bullying statute in 1999. The original statute defined bullying, required each public school district to adopt policies prohibiting bullying (in grades 6-12), and set forth the requirement that the student code of conduct would include a statement that bullying was prohibited in the schools.

I've said and written in the past over the years that Georgia's bullying statute (and many across the country) put the anti-bullying onus on the shoulders of students. There was nothing to be seen in the Georgia statute setting forth any requirements among teachers or administrators to prevent bullying from occurring. In 2010, in Georgia, our Georgia legislature amended the statute in a number of positive ways. Is it a perfect statute? No. Is it better than before? Yes.

First, the definition of bullying was expanded to include cyber bullying, or bullying by use of a computer, computer system, computer network or electric technology of a local school system. I put that last phrase in bold-italics because it does not include cyber bullying that occurs privately off campus, for example, at a home, even if the cyber bullying has a substantial disruption on campus. Also, the amended statute requires schools to adopt polices for all grades, not just for grades 6-12 as before.

By August 1, 2011, local public school districts have a deadline to implement a number of policies to combat bullying in their schools. First, the local board of education must adopt an anti-bullying policy regarding student-on-student bullying. This policy must be included in the student code of conduct for all of the schools in the school system. Second, each local board policy must require that a student in grades 6 through 12 who has been found to have committed a bullying offense three times in one school year is assigned to an alternative school. Third, each local school board must establish and publish in its policy how it will notify both the bullying student and the bullied student if it is found that a student has either committed a bullying offense or has been a target of such bullying. Finally, each board must ensure that students and parents are notified that bullying is prohibited; that there are penalties for bullying, listing them; and posting the information at each school, as well as publishing the information in student and parent handbooks.

This is a view of the law in Georgia, as it stands now, and as it will stand on August 1, 2011. Next post: what is the impact of bullying in the schools, from the respected studies and literature on the topic.

Friday, May 6, 2011 -- A Series of Posts Regarding Bullying in Public Schools

It is an fact of school life. Right now, a few weeks before the end of school in Georgia, there are countless students anxiously counting down the days to the end of the school year.

The Norman Rockwell version of this is that the students can't wait until the end of school so that the fun of summer will begin. And, of course, for thousands and thousands of students, this is absolutely true.

ut there is a significant subset of students who are counting down the days for another reason. They just want the bullying to be over with. An educated guess could be that for some, the bullying just started, and they see the light at the end of the tunnel -- for this year. For others, the bullying has gone on for most or all of the school year. And still others have experienced bullying over the course of more than one school year.

WFor the next several blog posts, I'm going to discuss aspects of bullying in our public schools. It's a topic that continues to get attention, and there was even a presidential summit this year, in March 2011, addressing it. Our own president talked about the bullying he experienced when he was in school.

I'll be discussing the state of the law in Georgia, including new provisions to Georgia's laws that address school bullying, which will go into effect in August 2011, just in time for the next school year. I'll also discuss whether the provisions will meaningfully address the toxic problem of bullying, or if more can be done.

I'll discuss other laws, including federal laws, that are available for students who are bullied. And, again, I'll discuss the negatives related to these laws as well, particularly the length of time it takes to go through a litigation process, as well as other difficulties.

The theme on this topic should be this: every single student in our public schools, also known as every one of God's children, should have the ability to obtain an appropriate education, without fear of harassment or violence directed toward them.

The next post will address the new provisions in Georgia's laws, going into effect August 1, 2011.

Wednesday, March 30, 2011 -- Facing Defenses that are "Institutional" in Nature

As you can read from this web site, one of the areas of practice that I am deeply dedicated to is representing victims of crime.  It is often said, by me and other lawyers who practice in this area, that there are two systems of justice, and both are critically important.  Of course, when people hear about crime victims, they understandably think of the criminal justice system.

But there is also the civil justice system, which focuses on the impact that the crime had on the victim.  The criminal justice system does not turn a blind eye in this regard, but it is more interested in holding the alleged wrongdoer accountable.  The civil justice system does not just hold the wrongdoer accountable, but it also is interested in assisting the victim for her past, present and future needs that she might have.

I've been working on behalf of crime victims in one capacity or another for many years.  In my pro bono service, where litigation and damages are not at issue, I always encounter good-hearted people who share the same feeling I do that helping those affected by crime is so very important.

When litigation and damages are at issue, it can be another story, and this is very important for people affected by crime to know when they consider bringing a civil claim for damages arising out a crime that happened to them.

In fact, I am convinced after representing crime victims through the years that aggressively defending these civil cases is not only the rule, but it is institutional.  There is no getting around it.  And it is just as institutional for insurance companies when they hire lawyers and law firms to defend these crime victim cases as it is for the State of Georgia and other states when they do the same. You can expect defenses that blame the victim, blame their families, point anywhere but at the defendant.  You can expect defenses that attempt to intimidate, bully and blame.

But I'm always thankful to be on this side of the case.  Crime victims and their families are some of the strongest people I've ever had the pleasure of knowing.  In the end, we are all held accountable.  Helping others, others folks in need, is the choice we can all make.

Monday, February 28, 2011 -- Spending some quality time with my 87-year-old dad

Just in case you ever have to have your deposition taken in an injury case, anticipate that the opposing lawyer will ask whether you went on any vacations since the date you were injured. It's inevitable. I guess it's to show that you must not be injured if you went on a vacation of all things after your injury.

Here's my suggestion to the folks who I work for who've been injured. Go on vacation! Go to the show! Go to the concert! Get out as much as you can bear and enjoy life! Your injury doesn't define your life, it's your life experiences that you share with those you love and care about that matter.

I'm about to have a big experience in my life, and I can't wait. I'm not injured, but the man I'm going to be meeting for a week in Big Bend out in West Texas isn't feeling 100 percent. He tells me he's about 80 percent, and for an 87-year-old man -- my father -- that's pretty darn good. We're going to have a good old time, just me and him. He's a retired geologist, so I'm anticipating that I'll be seeing my fair share of rock formations and listening to Dr. Rock lecture me about the significance of such formations out in the geologically fertile land of West Texas. If it's like it was when I was 10, we'll be bringing our fair share of the rock samples back home with us.

About 10 years ago, my father came to Georgia and helped me work on a case. Without going into case details, one of the issues was whether certain sub-surface soil had even been disturbed. My then 77-year-old dad started working the case, the cheapest expert I've ever hired, and came back with some very conclusive findings. Ever since then, he's doesn't ever mind giving me instructions about how to try a case -- even when dirt and rocks aren't involved!

These personal experiences have personal meanings, and create lasting memories. We are all the same in this regard. Life is the richer when we're able to do these things, take these trips, go on these vacations. I would do anything I could to go on this trip even if, gosh forbid, I got injured tomorrow. So when a defense lawyer asks, have you gone on any vacations since you were injured, I enjoy it when I hear my folks say, yes, nothing was going to stop me from going, not even your client.

Best regards.

Saturday, January 15, 2011 - Reflecting on the Tragedy in Tucson

It was one week ago when we heard about a killer's rampage in Tucson, at a "Congress On Your Corner" gathering at a local Safeway grocery store. In one week, I've heard two leaders, our President and our leader of our U.S. House of Representatives make comments that made a great impact on me, and I hope all Americans, to strive to do good.

There are many important topics that have gained a foothold since this tragedy occurred, all of them important in the marketplace of ideas, but today I choose one over some of the others. It's the impact that our words have on our fellow neighbors. I am in the camp that believes that words can have consequences, intended and otherwise. This in no way reflects any belief of mine on why the shooter did what he did. I don't know, and it has been said time and again this week by others that maybe none of us will ever know.

But words, written and spoken, impact us every day. Beginning on Sunday, I hope that God's word will constantly and continually shape the way I live, and how others live. When we tell our children we love them, it gives them comfort, and peace, and a feeling of being safe in their world. This is a direct consequence of telling them we love them, not some indirect or "mystical" consequence that is too hard for us to comprehend. Three words "I - love - you" go a long, long way.

We say and writes things all the time with a goal of causing an effect on others. I see in many of my abuse cases that, yes, the physical abuse is evident, but there is also an emotional abuse caused by inopportune and unconscionable words directed toward the victim. When victims of emotional abuse are asked why they felt so alone in the world, many say, "Because they told me."

Words helped to build our nation. Words in a cherished document written more than 220 years ago laid down the blueprint for the United Sates. Words helped to end slavery. Words rallied us during World War II, and after 9/11. On a far less grand scale, words cause us to buy things, sell things. Words cause us to enter into relationships, or leave them behind.

There is no serious debate that words directed toward good people cause good people to continue to do good things.

And when the prominent talkers of our time, whoever they are and whatever they do, tell us that their words only impact people when the people who listen to them do the right thing, it is within our rights to conclude that they don't get it, or choose not to accept it, or maybe aren't as credible as they seem after all. It is possible, it is at the very least possible, that there is a negative side to their words. After all, it was one of the more famous radio hosts in American history, Paul Harvey, who used to say: "And now, the rest of the story."

Best regards.

Wednesday, January 5, 2011

As the calendar turned, I realized that I've been practicing law for 18 years now, and I'm beginning my 10th year of having my own law practice. Where does the time go?

I also realize that I continue to enjoy working for people as a lawyer. As part of that, I'm humbled that people would place their trust in me, initially a stranger to them in their time of need. I always hope that I can honor that trust.

While I enjoy practicing law, as I watch my kids grow and as another year has passed, I realize that I love being a father. And a husband, of course, but we're talking about kids. My New Year's Reflection for 2011 is that I remember New Year's 1995 and New Year's 1998, when I could hold my children in one arm. Now, one is taller than me, and the other will be in about five minutes.

I think that you can get better at being a father as the years pass. At least that's my hope. Soon, the day-to-day or week-to-week or month-to-month lessons given to my kids will be given far less often, as one soon goes out on his own, and the other follows shortly. My New Year's Reflection is that it's bittersweet, but I can't wait to see what that stage of fatherhood holds.

Best regards, and all the best in 2011.

Monday, November 22, 2010: Follow Up: International Bullying Prevention Association 7th Annual Conference

I'm back from wet, overcast, but wonderful Seattle, where I participated in one of the pre-conference panel discussions at the IBPA 7th Annual Conference. The pre-conference panels focused on Youth Risk Online: Issues and Solutions. I was part of the panel discussing investigations and interventions of cyber bullying. My discussions was from the perspective of an attorney who represents people who have been targeted by cyber bullying.

Experts were all over the place at the conference. I met Larry Magid, a technology journalist and internet safety advocate who, among other things, writes commentary and columns for CNET News, CBSNews.com, the Huffington Post and the San Jose Mercury News. I met Anne Collier, who is editor of NetFamilyNews.org, and co-director of ConnectSafely.org. Together, they just published "A Parent's Guide to facebook," which you can learn about on the ConnectSafely website under "Great Resources." I just finished reading it, and I can tell you I learned far more than what I already knew. Amazing.

And it continues to change. Their guide, published this fall, has a disclaimer that reminds us: "Facebook adds new features and updates old ones on a regular basis."

Sounds like the online world. While I listened to the latest news and research in Seattle, I found myself thinking about the Georgia General Assembly, which this year passed a law that includes cyber bullying behavior in the definition of "bullying." I'm sure the General Assembly believed it was doing the right thing, and it should be commended for tackling the topic.

But in my next blog post, I'll discuss the issue that what the Georgia General Assembly did -- and what other state legislatures are doing -- was create a 20th century law for a 21st century issue.

 

Anyway, for more information about IBPA and the conference, click here.

Saturday, November 13, 2010 – More on 7th Annual Conference of the International Bullying Association

I was contacted by a journalist with the Juvenile Justice Information Exchange interested in writing an article about the 7th Annual Conference of the International Bullying Prevention Association, being held in Seattle November 15-17, 2010.

She wrote an excellent article about the conference, and my (small) involvement, and my wife Dr. Patti Agatston's (big) involvement.

It is greatly appreciated when journalists report on these events that can literally affect anyone -- and everyone -- and does so professionally, objectively, and thoroughly.

Cyber bullying, if it trends like bullying, is here to stay. But all is not lost. There are positive and productive things we all can do to ensure that our online lives are conducted responsibility, without purposely harming our fellow man, woman, girl and boy.

Friday, November 12, 2010: International Bullying Prevention Association Annual Conference

I am honored to be participating as a speaker in one of the break-out sessions at the 7th Annual International Bullying Prevention Association Annual Conference in Seattle, being held November 15-17.

My part is small in this enormously important conference, which will, among other things, present the latest research in bullying and cyber bullying prevention by nationally recognized leaders and experts in the field.

I continue to get frequent calls from parents and caregivers who are distraught because their child has been subjected to bullying and harassment. The calls range from "traditional" bullying to cyber bullying. My participation in the conference will discuss what I've tried to do as one humble lawyer in Marietta, Georgia. The laws "protecting" bullying and cyber bullying victims are not necessarily the most helpful in resolving the main goal of these parents who contact me: Just make it stop!

I hope to discuss on my panel more creative approaches that may (or may not) work, and have (and have not) worked in the past in my practice. I also plan on learning a ton from the speakers who will be present.

Thursday, October 28, 2010 -- The School's Responsibility for Bullying and Harassment

The U.S. Department of Education, on October 26, 2010, sent a "Dear Colleague" letter to the public schools of America to address bullying in schools, and particularly the school's legal responsibility in addressing the situation.

The "Dear Colleague" letter can be found on the U.S. Department of Education website. In sum, the U.S. Department of Education reminds the schools that "A school is responsible for addressing harassment incidents about which it knows or reasonably should have known." Further, as it relates to notice of the harassment, "A school has notice of harassment if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment."

Many school work hard to address this epidemic. Many don't. And for some of those that don't, the administrators in charge of schools themselves create the culture of harassment by condoning its occurrence, or mislabeling it as "normal rite of passage" behavior. Some schools see this as a "tradition" in the school, where upperclassmen are able to flex their muscles at the expense of lowerclassmen.

But the "Dear Colleague" letter doesn't deal with such niceties. Instead, it sets forth the federal statutes that are triggered due to bullying episodes: Title VI: Race, Color, or National Origin Harassment; Title IX: Sexual Harassment; Title IX: Gender-Based Harassment; Section 504 and Title II: Disability Harassment.

The "Dear Colleague" letter is, of course, required reading for schools. But it is also a good place to start for parents and caregivers whose children are targeted by bullies in the school.

Mi español de habla actualización

Saludos a mis amigos que hablan español. Mi aprendizaje del español ha recibido una gran ayuda de mi asistente legal, quien habla español con fluidez.

Como siempre, pido disculpas de antemano por mi mala gramática.

Estoy aprendiendo español para un par de razones. En primer lugar, para el crecimiento personal. En segundo lugar, quiero ofrecer mis servicios legales para hablantes de español. Yo apoyo el derecho de todas las personas que necesitan servicios jurídicos. En el entorno actual, en particular en Georgia, parece que los que hablan español están siendo blanco de muchas personas y tratado injustamente.

Es necesario comprender que hay más personas que te apoyan y ver que como amigos. Desafortunadamente, muchos de nuestros "líderes" y otros que descriminate son los que la máscara de las buenas intenciones de la mayoría de la gente.

Voy a seguir actualizando mis amigos que hablan español en mi progreso. Mientras tanto, los mejores deseos.

Thursday, September 30, 2010 -- What about juror privacy?

The process of selecting a jury is called "voir dire." It's really deselecting a jury, because each side has a certain number of jury strikes to excuse those jurors thought to be best left off the particular case at hand.

A lot of law firms like to pant and preen about hiring the best "jury consultants" who sit with them during the process and assist in the strikes. Jury consultants will do a number of things for lawyers, such as reviewing the jury panel in advance and researching the prospective jurors.

Today, jury consultants are now scouring MySpace, Facebook, and other social networking cites of prospective jurors in order to advise lawyers who they should strike.

I see this as an unfair imbalance. People think they know all about courtrooms and trials, but until they step foot in one, they really don't. Jurors are summoned to court and invariably told by the judge that they are there to perform their civic duty. Judges tell jurors how important it is for them to be part of the jury process, because without them, our justice system would grind to a halt.

And then the internet is mined for their information, without their knowledge. In fact, some jury consultants specifically warn their lawyer clients not to tip jurors off.

Is that what we lawyers want? Do we really want to gain advantage at all costs? Part of my practice is in cyberlaw, so I'm no prude when it comes to the internet. It's an amazing, important place that can do so much good in this world. But let's not cloak and dagger jurors, who in the end really are the most important people in the courtroom because they make the decision. If lawyers want to scour the backgrounds of jurors, then have the guts and the honor to tell them during voir dire that their preparation for the case also included researching the jury panel, both in the jury information forms that the jurors themselves completed, and by other methods such as internet research.

Best regards.

Thursday, September 9, 2010: Crime Victims in Georgia Are Further Victimized by Georgia General Assembly

I read an article about a jury trial in DeKalb County, Georgia with a mix of emotions, ranging from sadness for individuals who are victimized by crime in Georgia to disgust for the dismissive manner in which the majority of Georgia legislators have turned crime victims rights on its head..

After a wrenching trial, the mother of a man murdered on an apartment complex that by news accounts was crime-infested will realistically only collect about $9,200.00 for her son's murder. The jury was instructed, due to Georgia law, to determine the percentage of fault between the two murderers and the apartment property.

Of course, it all began in 2005, when the General Assembly in Georgia passed its package of tort reform legislation. I'm sure if you were living in Georgia at that time and passed through Atlanta Hartsfield-Jackson airport, you saw thousands upon thousands of medical doctors waiting to board aircraft brought in specially for doctors who had to flee the state in mass because they were subjected to scores of frivolous lawsuits. I'm sure you read all the stories in the newspaper that there were only about six doctors left in all of Georgia.

You probably saw your own personal doctor as he waved goodbye to you and left the state because he was unable to make a living in such a climate of medical malpractice lawyers who were filing unwarranted suits against him his brothers and sisters of the medical profession.

You never saw that? I didn't either. Upon reflection, that was one of the manufactured arguments for passing tort reform.

But Georgia's tort reform package passed. And when it did in 2005, I remember blogging that it would have both intended and unintended consequences for Georgia consumers and everyday people harmed by the negligent and intentionally wrongful acts of others. Unfortunately, I was correct.

I don't practice in the area of medical malpractice, having made a professional decision not to do so. My best friend, who is also my brother in Texas, is a doctor. While I understand that medical mistakes are made which lead to dire consequences, I also know that, for me, this is a (needed) area of practice better left to others.

I do represent crime victims, however, in civil cases against wrongdoers and others who could have reasonably prevented the crime. As it relates to obtaining civil justice for victim-survivors of crime, our Georgia legislators have created a public policy that says only one thing: Georgia does not care about a crime victim's right to seek legitimate civil justice.

I will follow up this post with others to explain the reasons, and provide some straight forward case scenarios where our Georgia legislators have thoroughly trampled on the concept of crime victims rights.

It is such a shame, and harmful to justice, and it makes my heart ache.

Best regards.

FRIDAY, September 3, 2010: My Language Learning Update For My Spanish-Speaking Amigos

Quiero ofrecer a mis amigos que hablan español una actualización de mi progreso en relación con el aprendizaje del español.

En primer lugar, por favor, perdóname con mi español escrito. Espero que no está tan mal.

Escribo esto después de leer un artículo de prensa en la policía del condado de Cobb County, Georgia detuvo a un au pair brasileña por pasarse una luz roja y no tener una licencia de conducir adecuada. En el asiento de atrás estaban los tres hijos que ella estaba cuidando. Ella fue detenido, esposada y llevada a la cárcel. Ella tenia 19 años. Según su abogado, ella tenía una licencia de conducir válida.

Nosé cómo hemos llegado hasta aquí. Esposar a una persona extranjera y colocándola en un coche de policía, con tres niños pequeños llorando en el asiento trasero de su coche - ¿qué es eso?

Por lo tanto, siguen tratando de aprender español. Es mi meta para ayudar a todos aquellos que buscan mi ayuda, independientemente de dónde podrían provenir. Esa es la manera americana.

Un cordial saludo.

TUESDAY, AUGUST 24, 2010: What I've Learned From Representing People

I used to be a journalist before becoming a lawyer, so reading newspapers and magazines, and now blogs and news websites, is second nature for me. Yet I sometimes find it painful to pick up a newspaper these days. Everyone is at everyone else's throat. I understand. This sounds like nonsense coming from a personal injury lawyer who, when cases don't settle, must put cases into civil litigation. But it's not contradictory at all. And it's the way I feel these days.

Today, we read and listen to people on each end of the spectrum and everywhere in between tear down people of different nationalities, or different religions, or a different political party, or a different philosophical perspective. Our lack of tolerance is not just a cause for alarm because of the ease with which adults are doing it, but also because it is also teaching a new generation of Americans that this is an acceptable and even an routine form of expression.

I have a different perspective, and submit that working for people in this field of law has taught me some things. Thankfully, over 16 or 17 years, I've worked for people who come from varied backgrounds, races, religions, philosophical viewpoints, political viewpoints, and also apolitical viewpoints. And one thing is plain: as individual and different and unique as we are, we are in the end very much the same. At least in my 16 or 17 year sample, I have found that we all have core values, and core concerns. When it's all boiled down, we all care for one another, and hope for the best for others. We all try to bring out our best, and we want to bring out the best in others. We all believe in fairness, for ourselves and others. These are not qualities that have to be forced upon us. They are frankly natural. They are taught to our children, at a very early age. These qualities are reinforced in places of worship, and in schools.

So when I pick up a newspaper on any given day, and see the group of the day or person of the day who is being bombarded with vitriolic comments, I feel for them. Because I believe "they" are just like "me" or "you" or "us" or "them."

For me, that's what I've learned from representing people.

FRIDAY, AUGUST 13, 2010: Head-To-Toe Inventory After Collisions

Here is my "speech" to clients when they come to me following an automobile collision.

First, the personal injury claim related to this collision is extremely important, and I will never minimize it.

However, your physical health is far more important. The personal injury claim itself will be concluded within a relatively short period of time, but your physical health goes on for your lifetime. I put everyone on the 100-year longevity scale, so if you come to me when you're 32, you have 68 more years of living -- take care of your health, first and foremost!

So in the days and weeks after the collision, continue making a "head-to-toe" inventory of how your body is feeling. If there is anything out of the ordinary, tell your doctor so you can be treated. There is no reason not to get treatment and get healed for any injury you have, because the goal for you is to get your physical health back to the position it was the day before this collision. Insurance companies will want to resolve the claim quickly. I cannot tell you how many times people have come to me after trying to deal with the insurance companies on their insurance claims, and insurance adjusters have offered to settle their bodily injury cases within weeks of the significant collision. How can such an adjuster properly evaluate the claim if the claimant has not recovered from the injuries and is still in the early stages of treatment?

In serious injury cases, healing takes time. Many times, it does not fully occur at all. The best plan is for the injured person to focus his or her injuries on getting as healed as possible, and let the lawyer communicate and provide the necessary information to the insurance adjuster in order to achieve the best result. Once a person injured in a wreck is back to 100 percent, or their doctors tells them that this is the most healing that will occur, then the claim can be presented to the insurance company for settlement, or file suit if it doesn't treat you reasonably.

TUESDAY, July 20, 2010: Bullying and the School's Response

I've been getting quite a few calls from parents whose children are being bullied at school, but have said that the school's response has not been sufficient. The frustration level is clear, and it seems to them that the schools are blowing off all responsibility of dealing with their children's problem.

Traditionally, it seems like the parents have not known what to do when their child discloses a bullying problem to them. And the problem is compounded because, again, traditionally the schools have not known what to do about the bullying. As I've written in the past, Georgia has a bullying statute (a/k/a law), but it places much of the burden not to bully on bully! It has no enforcement mechanism to hold those who are in power -- the teachers and administrators -- responsible for bullying in the schools.

Here are some tips from an expert (who I happen to be married to), Dr. Patricia Agatston, co-author of Cyber Bullying -- Bullying in the Digital Age:

1. Parents need to document the incidents: who, what, when, where of the incidents.
2. If a teacher cannot address the bullying, request a meeting with school administration, and bring the documentation with you.
3. For the meeting, request that the counselor attend as well.
4. At the meeting, the emphasis should be on creating a safety plan and asking the school what steps the school can take to keep the child safe.
5. Be prepared to offer suggestions as well.
6. Examples: Would it be helpful to have the child escorted to classes, or have a supportive friend seated next to the child.
7. Identify a trusted adult who the child can go to if the bullying continues.

Request that administration contact the parents of all of the students involved in the bullying behavior, even if they are not the ringleader. Make clear to the administration that administration needs to make clear to the bullyers that there will be no retaliation.

Request that administration not disclose to the bullyers where they received the information. For example, "We are aware from a number of sources that you are targeting John," rather than, "John has told us that you have been targeting him."

Ask for reassurance from the school that they will do everything in their power to stop the bullying.

Wednesday, June 30, 2010: Doctors who withhold treatment for auto wreck patients.

Why do some physicians offices reject patients who were involved in motor vehicle collisions?

Here’s an uncomfortable answer: money, and the fear of not getting paid.

A client with valid health insurance -- an HMO plan -- went to her doctor because she needed treatment for injuries caused by a car wreck. She had no “medpay” or “medical payments coverage” on her auto insurance policy, so her health insurance was primary. Recall from an earlier post that medpay is an optional insurance coverage on auto policies that pay collision-related medical expenses. Many people do not have medpay, because they carry health insurance. If a driver has both medpay and health insurance, then if a wreck occurs and medical expenses are incurred, the auto medpay pays the bills first – or is the “primary” coverage. The health insurance is “secondary,” and does not pay until the medpay coverage amount has been exhausted.

The doctor she went to was the one whose name was on the face of her health insurance card. He was not only her "gatekeeper" for any referrals he might deem necessary, but he had been her doctor for years.

She arrived at the scheduled appointment on time, and was told by his office staff that she would not been seen unless she paid 100 percent of the doctor's bill. The reason: she was involved in an auto wreck, and the doctor didn't trust the health insurance company to pay his bill.

She called me from the doctor's office. I called her health insurance company. I got a representative on the phone and explained the situation, and we both agreed that the health insurance company was primary and would process the bill. I got the health insurance rep to call the doctor's office while my client was still there. The health insurance company representative told the doctor's office staff to send the bills through health insurance, that they were primary.

So it sounds like my client was seen, right?

Wrong.

The doctor's office told the health insurance rep that they would not do so, and that the doctor's policy was that he would only see his patients who were involved in a motor vehicle collision if the patients paid all of his bill. No attempts would be made to send his bill through health insurance. Even long-time patients like this client who had valid health insurance. The doctor's concern was that he had been burned in the past with auto wreck cases by health insurance companies who either wouldn't pay the bill at all, or the health insurance company would pay it, then a month or so later audit the bill and require that the payment be sent back by the doctor.

This is so wrong and misguided. We'll repeat the basics for all who care to understand. If an injured auto wreck patient has medpay on his auto policy, it pays the bills. If an injured auto wreck patient does not, his health insurance pays. Health insurance companies have subrogation departments for this latter situation, which attempt to recoup the amounts paid out on the injured insured's behalf if the injured insured receives a settlement or judgment in the auto wreck claim.

Best regards.

 

Friday, June 18, 2010 -- Georgia Appellate Courts Come Through For Georgia Citizens

In the previous blog post, I highlighted the "sticker shock" caused by our Georgia legislators, who managed in the recently completed legislative session to increase the cost for transferring every page of the court record for an appeal by a whopping 567%! The cost per page, after the 2010 General Assembly session, went from $1.50 per page to $10.00 per page. For crying out loud, what were they thinking?

I heard back from a number of people, including a lawyer from Kansas City, Missouri who was assisting a Georgia resident on an appeal, when he was told by a county clerk of court that the cost of his client's appeal would be more than $3,000.00!

The Georgia Supreme Court and now the Georgia Court of Appeals responded, appropriately. Knowing that this priced most people out of appeals, and therefore that it thwarted a citizen's chance to seek justice, both Georgia appellate courts enacted rules solving the issue, for now.

Now, opposing lawyers in the appeal will be able to cooperate in compiling the record, instead of the party who lost at trial being required to pay the new, higher, ridiculous fee. If there is disagreement between the lawyers about what should be transmitted for the appeal, the trial judge where the initial case was tried will intervene and resolve the disputes.

Problem solving in a responsible manner is a big part of the legal business. Georgia's appellate courts have responsibly solved the General Assembly's mistake, which is a great thing for Georgians.

 

Friday, May 28, 2010: Sticker Shock for Cost of Georgia Appeals Will Close the Doors to Justice

The off-the-cliff Georgia economy has affected so many of its citizens, but it also has countless other state governmental systems, including its legal system. Georgia's legislators have mainly failed to adequately address the problems, and in certain dubious acts of defiance, have even decided to further erode these institutions by cutting their services while simultaneously cutting taxes in some sectors.

With backs up against the wall, the Georgia General Assembly, with the governor approving, has now passed a piece of incoherent legislation that raises the PER PAGE cost of documents transmitted to appeals courts by 567%. To repeat, that's Five Hundred Sixty-Seven Percent.

Now, when a party wants to appeal a trial court decision or verdict, he or she must pay $10.00 for every piece of paper submitted to the appeals court as part of the court record, instead of the prior $1.50 per page. For those unfamiliar with appeals, the "record" consists of various documents like pleadings, trial transcripts, and other evidence, which can be voluminous. The general rule is: If you fail to submit the trial court record to the appeals court, then the appeals court has nothing to review. If the appeals court has nothing to review, then your appeal will fail. So the record sent up on appeal is, shall we say, critical.

Now, after our Georgia General Assembly has spoken, the cost of sending a standard 1,000 page record to the appeals court is $10,000.00, rather than the prior $1,500.00.

Who can afford that? The legislator sponsoring the law was quoted in a newspaper article as saying that this was not a number "that was pulled out of the air."

Agreed. It is a number that is so high in the air that regular citizens cannot afford it. It is a number that power corporations can afford. It is a number that will completely shut off any path for justice, or at least a reasoned ruling one way or the other, in the appeals court for most people. Why is it that there are certain legislators who are so openly and defiantly hostile to the civil and criminal justice systems? What does this tell us about their views of United States democracy?

We lawyers play by the rules. With this legislation, lawyers are going to play by the rules and battle its constitutionality in the Courts, and I am confident that we will prevail. But I also hope that lawyers realize that we have a responsibility to help those in legal need who not only cannot afford competent legal help, but who also are blockaded from justice by unprincipled and spectacularly misguided legislation.

Friday, May 14, 2010 – News Flash! No One Responsible for Gulf Oil Spill

If you've read any of my prior blog entries, you'll find that taking responsibility for one's actions is high on my list of characteristics people should have in life.  When we bring claims against those who negligently or intentionally harm others, for example in civil claims for victim-survivors of crime, it is always one goal of the litigation or claims process to ensure that the wrongdoer takes responsibility for the harms caused.

You may have heard about this oil spill that occurred in the Gulf of Mexico a couple of weeks ago.  The one being described as a "catastrophic" event that will affect areas of the coasts of Louisiana, Mississippi and Florida for years to come.  The one where the company involved, BP, explained early on that only a relatively minimal amount of oil was being spilled into the waters.  The one where the company involved, BP, was sending residents and businesses of coastal areas offers to resolve all of their claims for $5,000.00.

That was weeks ago.  Today we know that the harm caused by the spill cannot currently be estimated.  It gets worse by the hour.  And today, we have the three companies involved in the oil venture at issue testify in front of the Senate Energy and Natural Resource Committee.  And we now know that each of the companies say that none of them are responsible.  Representatives of these companies apparently said this with a straight face.

After all, BP said the spill was caused by the company that made the faulty safety device.  The company making the device said BP was in charge, and also that a third company caused a malfunction in the well.  The third company said it wasn't at fault, because it followed BP's instructions.

There you go.  We can all go home now.  No one is responsible, according to the three players involved in the spill.  Stuff happens.

Or, if the three players won't cooperate and agree to be held responsible, we can rely on the investigators and the other legal professionals to untangle the mess, at a huge cost to American taxpayers by the way.  It is sincerely hoped that those countless people directly affected by this disaster will be made whole.  As far as the environmental impact on wildlife, coastlines, marshes and wetlands, who knows how that can be remedied due to the ecological disaster of this spill.

Maybe, just maybe, these companies will step up and take their share of responsibility.  They have been blessed with the good fortune to work in the United States of America, and prospered under the laws and regulations that directly have helped them with their business ventures.  You take the good with the bad, and that’s what taking responsibility for your actions is all about.

Monday, April 5, 2010 -- National Crime Victim Bar Association:  What we do

My introduction to this legal organization, which advocates for victim-survivors of crime be bringing civil claims and civil lawsuits on their behalf, came approximately 8 years ago.  The current executive director of the National Center for Victims of Crime, Jeffrey Dion, took part in a presentation of his organization at Kennesaw State University, which is a large university in Cobb County, Georgia, where I practice law.

Mr. Dion, who is a tireless advocate on behalf of victim-survivors, has a truly horrible story to tell.  His beloved sister was murdered when Jeff was 14 years old, and her murder went unsolved for years.  Jeff began a lifelong journey working to advance the opportunity for civil justice for crime survivors, as well as for family members of crime victims who do not survive.  He is energetic.  He is knowledgeable.  He is someone you want on your side.

As a member of the National Crime Victim Bar Association, I know of many other attorneys who share Jeff's values.  Here in Georgia, we know that our laws are not entirely adequate to serve the needs of crime victims who need civil justice.  For example, we need to do what other states, such as Massachusetts, has attempted to do in completely eliminating all statutes of limitations on sexual crimes against children.  Why wouldn't we here in Georgia?

There are many reasons, and toward that end, here's a question for you:  What is the statute of limitations on the suffering that a child sexual abuse victim will face?  More than that, in many cases, children who have been sexually abused do not tell of their abuse, sometimes for years and even decades.  By that time, the statute of limitations is long gone.  In Georgia, a child who suffers childhood sexual abuse must bring her civil claim within five years of the date the child attains the age of majority (18 years old).  In the Catholic church cases in Massachusetts, there were reports that dozens of the victims did not tell of their childhood abuse for more than 30 years, on average.

So does Georgia's current statute of limitations for childhood sexual abuse victims protect children or predators?  The answer is clear.  Georgia needs to set a public policy, through the abolition of the statute of limitations for childhood sexual abuse victims, that says child sexual abuse victim-survivors will be helped through the civil justice system as much as possible.

 

Tuesday, March 23, 2010 -- Critics of Bullying and Cyber Bullying Initiatives Who Talk Just to Hear Themselves Speak

I've written in the past, and have some information on this website, about cyber bullying and the significant and sometimes tragic effects it can have on people's lives. More often, I've written about what a person can do when faced with online bullying that affects their personal lives, or schools lives or professional lives.

My wife and her two co-authors have written a book, Cyber Bullying -- Bullying in the Digital Age on the subject, and the research and media coverage of the topic makes clear that it is a significant problem that is very worthy of being responsibly addressed. Yet, just like traditional bullying, there are loud and proud dissenters who minimize cyber bullying. Cyber bully dissenters cannot wait to tell us how tough they are, and that the only thing that the rest of us in society needs is a touch of their ample toughness. Speaking from ignorance is easy; it's taking on and tackling new issues as societal advances occur that is difficult.

I love the internet. At least monthly it seems that I am introduced to additional internet insights that I can immediately apply to my professional life. My philosophy in trying to help those who have been bullied online is that they have a right to the wonderful uses of the internet unhindered by those who for unacceptable reasons want to inflict harm on them. In the most extreme examples, internet bullying can lead to the most tragedy. In the above Cyber Bullying book, John Halligan, the father of Ryan Halligan, wrote a "Foreward" to the book recounting Ryan's tragic story. You may want to read about it on the website Mr. Halligan dedicated to his son, Ryan Halligan. And importantly, you may want to read on the same website about how Mr. Halligan has dedicated his life to educating the public about this subject.

 

Wednesday, March 10, 2010 -- The Legal Eagles Guide for Children's Advocacy Centers, Part II:  Soaring Confidently in the Courtroom

I am pleased to announce that my second book, written for the tireless professionals who work in or are affiliated with Children’s Advocacy Centers, has been published.   The name of the book is, "The Legal Eagles Guide for Children’s Advocacy Centers, Part II: Soaring Confidently in the Courtroom."

You can view my website page on the 2009 book, "The Legal Eagles of Children’s Advocacy Centers:  A Lawyer’s Guide to Soaring in the Courtroom," to learn not only about the book, but also about the vital role that Children’s Advocacy Centers play in our communities.  CACs were established to provide services and support for children who alleged sexual abuse or severe physical abuse.

Both the 2009 book and the new 2010 book is available on the Xlibris Publishing website.  The 2009 book is also available on www.amazon.com, www.borders.com, and www.barnesnoble.com, and the 2010 will also be available on those sites soon.

I urge you to become familiar with Children’s Advocacy Centers, and support the centers that are in your communities and that are working tirelessly for children and their non-offending parents or caregivers.

Wednesday, March 3, 2010 -- Big Brother in the Insurance Industry

They're watching you, or at least want to.  Insurance companies like to hire people with cameras -- they call them "investigators" -- to conduct video surveillance on people who claim to be injured.  They may even try to interview some of your neighbors to ask whether they have seen you walking around the neighborhood.

This is especially popular involving employees who claim that they are too injured to work.  That's an interesting way to show trust toward their employees.  But some employers hire these sleuths to trail the employees in the hope of finding them doing such things as mowing the grass, playing with their children or carrying grocery bags from the store to their cars.  Imagine that!

First off, fake claimants are despicable.  They are bad for society, and worst for people who have legitimate claims who then suffer from the bad public disdain for these frauds who fake claims.  A lawyer who participates in a fake claim is unethical and needs to be reported to the state bar.  However, for the vast majority of other claimants who legitimately have injuries, which vary in severity level, surveillance is an overplayed tactic by a perpetually pessimistic insurance industry.

Is there a requirement that an injured person be dead?  Or bedridden?  Does an injured person need to neglect family responsibilities?  Should an injured person not try to enjoy life to the extent she can?  These activities that are caught on tape are taken out of context, and expose no more a superficial investigator trying to deny someone justice.

In the end, there is a potential (more so in larger cases) that an insurance company's investigator will videotape an injured person, but that doesn't mean the injured person has to be paranoid and fear doing activities that a doctor advises.  One part of healing is getting back to normalcy, even if it sometimes hurts.  Most of the times, jurors will see these tactics for what they are -- invasions of privacy designed to deflect responsibility from the wrongdoer in an attempt to blame the injured person whose only role was that he or she was in the wrong place at the wrong time.

Thursday, February 25, 2010 -- The Crime Victim Compensation Fund

When a child is sexually or physically abused, the main and direct concern has got to be the health and well-being of the child. I’ll talk about obtaining much needed assistance for children in these circumstances in posts in the near future.

However, I want to briefly address potential assistance for the non-offending caregiver, such as the natural parents or guardians. Often, a parent must take off for work for long stretches to care for her child and lose income. Sometimes, due to the work absences, the parent is terminated from employment.

In Georgia and other states, the Crime Victim Compensation Program, upon a proper application with proper documentation, will pay for lost wages for the parent in these circumstances. Georgia information on the Crime Victim Compensation Program can be found on the Georgia Criminal Justice Coordinating Council website, where you can download an application for compensation through the program. The application sets forth the requirements for obtaining compensation. The current application time in Georgia is 90 days. Click here to review the website.

Please understand the difference between this limited compensation program, and the civil justice for crime survivors that is available through our civil justice system, and which I highlight on this website, at the "Civil Claims for Crime Survivors" page.

Thursday, February 18, 2010: "Pigs get fed, hogs get slaughtered."

Here's a suggestion for those who have health insurance and who try to use it to treat with doctors for injuries as a result of an automobile accident.  If the doctor or her staff asks you whether you want to hold off on filing with health insurance until the end of your personal injury claim related to the auto accident, and then pay the doctor, politely decline.

When I was a younger lawyer, I remember trying to negotiate a case with a lawyer with 40-plus years of experience.  I kept trying to get him to put more money on the case, until he finally said, "Andy" -- he called me Andy -- "Pigs get fed, hogs get slaughtered.  You're being a hog when you should settle for being a pig."

So these doctors who want to wait until the end of your claim are being hogs.  They've made a contractual agreement with the health insurance plan to be a providing doctor, which of course means they will have to accept what the health insurance company pays of their bill, sometimes 40 or 50 cents on the dollar.  By attempting to bypass the health insurance company and waiting on the end of the claim, they hope to recover 100 percent of their bill.  Hogs get slaughtered.

There are so many reasons why this is unfortunate, uncalled for, and unfair to the injured patient.  First and foremost, a patient who is injured in a car wreck should be treated as a patient, not an insurance claim.  I tell all of my clients that I believe their case is extremely important and I will never minimize it.  But their physical health is even more important, by far.  I tell them that I will always stay out of their medical care -- that is a matter between them and their doctors --  because I want their doctor to treat them as a patient, unhindered by any outside concerns such as insurance claims or lawyers.

Yet, these doctors who immediately inquire about whether their prospective patient has hired a lawyer, or is going to hire a lawyer, or who are intimately interested in a potential insurance claim do these patients a disservice.  Importantly, there are no guarantees on any personal injury claim.  The claim may settle for a very reasonable amount, and enough to pay all outstanding medical expenses.  Or a claim may not.  Or a claim may go into litigation, which means a jury will decide the amount to award.  If it is not enough to cover medical expenses, then it will also be far too late to submit the medical bills to the health insurance carrier for payment.  Who's stuck in that instance?  The injured person, who could have had these bills paid through the normal channels, had the doctor's office simply submitted the medical bills to the health insurance carrier properly.

But thankfully we live in America.  A person who is injured in an auto accident usually has a personal choice of where to be treated.  If one of the first things a doctor's office asks about is whether you are going to bring a personal injury claim, and whether you want to wait until the end of a claim to pay them, it might be a good idea to look elsewhere for medical care.  Find a doctor who is interested in treating you as a patient first, and interested in healing you regardless of how you got hurt.

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Tuesday, February 9, 2010:  The slow wheels of the criminal justice system

I recently read yet another article in the newspaper about a woman -- a mom -- who is exasperated by the slowly moving criminal case against the defendant who was charged with beating, raping and strangling her daughter.  The crime occurred more than 1 1/2 years ago, and the case reportedly is not anywhere close to going to trial.

This painfully said story is repeated across the country, in large cities and small, as criminal cases languish for a variety of reasons.  It is of little solace to the victims' loved ones, whose anger at the legal system increases as the time passes between the crime and the legal conclusion.

The "Civil Claims for Crime Survivors" page on this website lists reasons why victim/survivors and victim family members file civil suits in these instances.  Please take a look at the page for the information.  A huge one is simple:  justice.  Civil lawsuits can be filed during the pendency of the criminal justice process.  In Georgia, the defendant is served with the summons and complaint -- in jail if need be -- and he is forced to answer the complaint within a 30-day period.  After that, by Georgia civil procedure, there is a six-month discovery period, which in very general terms is designed to allow the sides to prepare for trial.  After the 6-month period, so long as there are no outstanding legal issues that need to be resolved, the case can be stipulated to a trial calendar, and the case is tried.

Cases that seek civil justice for victim/survivors are some of the most worthy cases that are filed in our justice system.   Our legal system has two systems of justice -- criminal and civil.  Both are critically important, and both can result in justice for the victim/survivors or the surviving family members of victims of crime.

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Tuesday, February 2, 2010:  Taking on Truck Drivers Who Are Distracted While Driving

Last week, the federal government banned the use of handheld devices while driving for commercial drivers and bus drivers.

The restrictions take place immediately, and apply to interstate truckers as well as drivers of vehicles that carry at least 8 passengers.  The federal government, which for often takes a beating for about everything it does, stands tall here.  It understands the dangers of distracted driving to the driving public.

The head of the Federal Motor Carrier Safety Administration calls texting while driving a "high risk behavior."  Its data show that people who text while driving take their eyes of the road an average of 4.6 seconds.  Think about that!  At highway speeds, you can do the math and realize that before you know it, a football field or two or three has passed since the last time a texting driver looks up.  The thought of what a driver can miss in 200 yards at 70 mph is staggering.

Distracted driving by use of technology is without a doubt the new menace of the roadways.  In fact, it is this area of automobile accidents that I have most focused on in the past several years.

There are monetary penalties for found violations.  Additionally, should a trucker who is subject to the ban be found to have been texting while driving, and it leads to a wreck, I assure you that the trucker will be subject to punitive damages, as will his company or employer, along with all of the other damages caused by his actions.

This is equally true for a distracted driver of a passenger vehicle.

The statistics and data are clear of the hazards caused by drivers distracted by technology.  A handful of states have an outright ban on handheld devices while driving.  I have a personal injury practice in Georgia.  Georgia isn't one of them.

Nineteen other states have enacted laws banning texting while driving.  Again, Georgia isn't one of them.

There are even states (six of them) that prohibit local jurisdictions from placing texting restrictions on drivers.  Thankfully, Georgia isn't on that list.

"I wasn't paying attention" is the growing reason for causing wrecks, by far.  It is safe to say that a 20-year veteran driver who texts while he drives is far more dangerous at that moment than a 16-year-old driver with one week's worth of experience behind the wheel.

Wednesday, January 27, 2010 - The Auto Insurance Company's Early Offers of Settlement:   Just Say No.

It's always interesting hearing from clients about their initial communications with at-fault insurance company representatives.  These are the contacts that occur prior to when the client becomes represented by an attorney.  In the run of the mill auto case that involves small properly damage and modest injuries, it's not particularly an issue.  Many small matters can be resolved efficiently with insurance companies without resort to legal counsel.

However, when an insurance representative attempts to take advantage of a severely injured party who is unrepresented by counsel, by exacting an early settlement from the injured party, it can cross the line from good faith adjusting to unethical behavior.

A prime example is the person who is severely injured, hospitalized, then released from the hospital, but who is still facing further significant medical treatment.  The injured person has enormous burdens -- health, job, family, properly damage, and others.  The adjuster from the at-fault insurance company contacts the injured person and starts discussing settlement of the bodily injury claim.  The adjuster makes and offer, and pressures the injured person to make a decision.

This is not just wrong, it's unethical.  Tell me how the adjuster knows what the injury claim is worth?  After all, the injured party has not even started medical treatment.  The injured party is still out of work, and will suffer further lost wages.  The injured party does not have a certain medical diagnosis, and might be facing a range of medical specialists in order to heal.  Yet, the adjuster pretends that he knows what the case is worth, and stresses that this is a claim that can be settled without the need of an attorney.

Remember, once a claim is settled, there's no turning back.  If six months later a doctor provides a more severe diagnosis that includes surgery, the insurance adjuster will not care.  So remember, if you're injured in an incident and the at-fault insurance company contacts you, you have no duty to discuss the situation with him or her.  Instead, focus on your physical health, seek competent and quality medical care so that you can reach your goal of full recovery.  And if you have any questions regarding a potential injury claim, contact a competent and qualified attorney.

Wednesday, January 20, 2010: Back to basics – auto accident insurance claims

Let’s tackle some issues that come up after an automobile accident, and when the auto insurance company’s “rapid response unit” for the at-fault driver makes contact with the driver who didn’t cause the collision, but who was injured.

This scenario often occurs when a client comes to me well after a collision occurs, and well after the at-fault driver’s insurance company adjuster has contacted them. The public often hears about “ambulance-chasing” lawyers, as depicted by Paul Newman in one of the early movie scenes in “The Verdict.” I don't know what it's called when an insurance adjuster takes a recorded statement of the car accident victim the day after the wreck, when the injured person is on medication, and dizzy, and hurt, and upset.

I don’t know what to call it; I just know that it happens. A lot.

General Rule: Don’t provide a recorded statement to the at-fault adjuster. Not on Day 1, Day 2 or Day 222. Let the adjuster talk to his own insured who caused the wreck. Let the adjuster wait three or four days for the motor vehicle accident report to be made public, and get a copy of it through his insured or through his company. Most of the time, the police report is going have everything the adjuster needs to make an informed liability decision.

Think about it -- the professionally trained police officer who has investigated hundreds of wrecks in her career, and who is objective in the matter unlike the insurance adjuster, will put the relevant information about fault in her report. Most of the time, the police report will cite a traffic statute violation that the at-fault driver received, and after that there is little or no need to debate the liability portion of the claim.

So then, why is an injured driver getting the pleasure of this phone call from an insurance adjuster that seeks a recorded statement? C’mon, you know that! The adjuster is surfing for information to minimize the claim. There is absolutely no fairness to the proposition that an insurance company seeks to record a statement the day or two of the wreck. I’ve later read these transcribed statement so many times that I could spit -- the injured person obviously trying to be helpful with the information as the insurance adjuster asks slanted and one-sided questions in his insurance company's favor.

It’s a simple rule: Unless you don’t plan to bring an insurance claim for your serious injuries at all, or unless you don’t care if any insurance claim you plan to bring for your serious injuries will end with a reasonable result, don’t give a recorded statement to the at-fault insurance adjuster.

One more thing: what if the insurance adjuster says that he can’t offer to settle the claim without taking a recorded statement? Why not tell him you’ll make sure you’ll inform the insurance commissioner of this policy? I have settled hundreds of auto insurance claims over the years. I can count on one hand how many times a recorded statement was taken prior to those settlements -- and those involved cases where the client gave the recorded statement before hiring me. When I prepare a settlement brochure for an insurance adjuster, I will give the adjuster everything he needs to make an informed decision as to how much he will offer to settle. I have never sent a settlement brochure to an adjuster, who then calls back and says, “Thanks for all of this information you put in the notebook. All I need now is to take your client’s recorded statement.”

Doesn't happen. Don't fall for it.

Friday, January 15, 2010 – Tolling of statute of limitations for torts arising from crime

A "tort" is a wrong, like a person who negligently causes a car crash, or the bully who successfully targets his victim.  When people think of “torts,”they think of the legal area of personal injury.  A completed tort gives rise to a civil claim, where we ask jurors to hold the wrongdoer accountable and responsible for his actions, and then award damages to compensate for the damages that the wrongdoer has caused.

Generally speaking, in Georgia the statute of limitations for a tort is two years.  That is, generally speaking in Georgia a person must either settle her claim or file a lawsuit (and have it properly served) within two years, or her claim is forever barred.

But Georgia's General Assembly, as part of addressing rights for victims of crime, enacted O.C.G.A. Section 9-3-99, which tolls (or suspends) for a period of time the statute of limitations period for torts that arise out of a crime.  The statute reads:

"The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years."

This is a little known but extremely important and beneficial law in Georgia.  For many crime survivors, the criminal process moves very slowly due to many reasons, and it is very common that the conclusion of the criminal case occurs more than two years after the crime.  Remember, a crime such as rape, molestation, battery, and other crimes are deemed "torts" in the civil side of the law.  But under O.C.G.A. Section 9-3-99, those torts can be pursued as civil claims more than two years after their occurrence, so long as the underlying crime is still being prosecuted and has not become final.  However, as the "proviso" states, the claim can be brought "provided that such time does not exceed six years" so there is an ultimate time element that survivors must understand.

As I've written before, the pursuit of civil claims for survivors of crime can be procedurally difficult, and land mines lurk  for the uninitiated, whether the uninitiated are lay people or lawyers who do not routinely represent survivors of crime in civil claims or civil lawsuits.  Any questions should be addressed to a lawyer competent in this important area.

Tuesday, January 11, 2010 – Driven to Distraction – Now Auto Companies Add “Infotainment Systems”

Buckle your seatbelts – it’s going to get more dangerous out there. Fresh on the heals of studies showing that texting while driving is far more dangerous than drinking and driving – which is a huge danger that kills -- the car makers are adding more toys of distraction for the driving public’s convenience.

They call them “infotainment systems,” and they allow drivers to access content such as movie and restaurant reviews, or use and update maps with an SD card. They come with USB ports. They play high-definition videos and 3-D maps and web pages.

I’ve been watching the distracted driving phenomena very closely lately, as study after study warns us about the dangers caused by driving while distracted. Several years ago, the distracted driving danger highlighted in the press was talking on a cell phone while driving. I’ve seen reports that this can be six times more dangerous than driving while not on the phone. A 2003 Harvard study reported that motorists using cell phones caused 2,600 fatal accidents, and caused 570,000 automobile accidents involving personal injuries each year.

Now the reports and studies are on a full-court press to warn against driving while using the technologies that have made our lives very efficient – texting; using GPS devices; and now using very equipped smart phones and computers with wireless capabilities.

A recent Car and Driver magazine article highlighted the danger. An editor drove a car at 70 miles per hour in a deserted testing area. It took him .54 seconds to brake while unimpaired; an additional four feet while legally drunk; an additional 36 feet while reading an e-mail; and an additional 54 feet while texting. It is widely reported that the longer a driver looks away from the road, the risk of an automobile collision goes up exponentially – huge leaps upward, not just gentle angles.

It’s a serious concern, yet the car makers are literally racing each other to provide the driving public with these “conveniences.” Car makers are not blind to the dangers – the reports are literally screaming in their ears. The U.S. Transportation Secretary Ray LaHood has launched a website, www.distraction.gov, that is as eye-opening as it is important. In the bad old days, some car makers would turn a blind eye regarding their products, knowing that some of their cars were dangerous but ignoring the serious implications (see the Chevy Corvair, the car Ralph Nader said was “unsafe at any speed.” I wonder what their view is now, regarding these “infotainment systems.”

But ready or not, here come those infotainment systems, because the driving public thinks they are too cool not to have. A new generation of cars, with many generations of drivers who will be distracted. Until we get a handle on this, it is for drivers to use common sense and reasonable behavior. Drivers need to make sure they plan their car trips in advance. If they get sidetracked, before using these devices, pull off the road before looking at that screen. Drivers need to understand that they will be held responsibility for understanding the dangers of driving while distracted by these smart phones, these GPS devices, and now these “infotainment systems.”

Friday, January 8, 2010 — Providing signed medical authorizations to an Insurance Company:  good idea, or horrendous?

I’m going to come down on the side of horrendous.  This go–to strategy of the insurance claims industry occurs when people who are injured in car collisions trust the insurance company to fairly resolve the claim.  The at–fault driver’s insurance representative makes quick contact with the injured person, tells them how sorry they are that the wreck happened, and tells them that their job is to make sure they pay for all reasonable medical bills.  The insurance adjuster then says that in order to do all this, he’ll need a signed medical authorization that will be used to obtain all of the medical records and bills from the injured person’s doctors.

Please stop right there.  First off, the auto accident just happened.  There’s no reason to discuss your physical condition with any adverse insurance carrier — and that’s what it is — adverse.  If the auto collision just happened, you don’t even know the extent of your injuries, and your doctor doesn’t either.

I’ve written this before, and I’ll write it again.  When I work for an injured client, I never request medical records from her doctor’s office until the doctor has released her from care (so long as there is not a statute of limitations looming).  I want the medical treatment to occur unhindered by outside concerns, like lawyers and insurance claims.  I want the doctor to treat the patient only like a patient, so all decisions are medical decisions, the way it should be.

So what does an insurance company do with its signed medical authorization.  It shoots the authorization over to the doctor at the beginning of the medical treatment, as if to say, wink, wink, "Hey, doc — this is one of those auto wreck patients.  Here’s my contact information, I want you to keep me posted if you don’t mind, just so we can keep this under control."  If you don’t think that an insurance company’s correspondence with a doctor has any bearing on how you’re treated as a patient, then I’d like to ask you to think again.

In the end, think long and hard about giving an insurance adjuster for an at–fault carrier your signed medical authorization that allows them to get any and all treatment, of whatever type and for whatever reason.  Your physical health is the most important consideration, by far.  I would consider telling the insurance adjuster, either politely or assertively, to stay out of your medical treatment.

Better yet, when the at–fault insurance adjuster calls, many times within 24 to 48 hours of the incident, consider contacting a qualified attorney who knows the auto claims process and will work for you, and be able to navigate the traps set by the insurance industry.

Friday, January 1, 2010 -- New Year, New Hope, New Beginnings

Happy New Year!  I sit here thinking about so many people who had a difficult year in 2009, due to a harsh combination of local, state, national and international problems and concerns.  Sometimes it's difficult to comprehend how so many good people had difficult and trying years, but as the new year dawns, like all new years, I hold out hope for a good and positive year for everyone.

I was sitting around with my two sons the other day.  We were not only talking about the new year, but the new decade.  We talked about how many interesting, exciting and life-changing things that will happen to them in their lives over the next decade.  Think about the last decade, and all that has passed. For many of us, we will be welcoming our children this decade into the community of adults who make decisions and choices that can impact others.

For many, the next decade seems so unsettled, and if there anticipation, it is nervous anticipation.  In some ways, I share that nervous anticipation based upon the difficulties that have faced our great country during the past decade.  But I also begin each year with a feeling of hope.  I am always hopeful that all of my clients (and all who have been injured through no fault of their own) heal wonderfully and get back to the quality of life that they once enjoyed.  I'm hopeful that our public servant legislators put the good of their states and their nation ahead of their political ambitions and pass legislation that is individual and family friendly.  I am hopeful that our heroic military men and women will return safely.

I am hopeful that we can create an atmosphere in our communities of responsibility - responsibility for the choices we make, and a shared responsibility to make our communities better by serving those who have the least and who need the most support.

I am excited about the new year, and the new decade.  And I wish everyone the best, and the happiest, and the safest of New Years.

Monday, December 28, 2009: Georgia’s Statute of Limitation for Child Sexual Abuse

Some of the most gut-wrenching cases I've worked on have involved survivors of childhood sexual abuse. I've represented survivors of child sexual abuse who were still children, and survivors of childhood sexual abuse who are now adults. A given is that the abuse as a child will last a lifetime. How these amazingly strong people respond depends on too many factors to name, although a strong, consistent, dependable support structure is huge.

As with many survivors of all types of crimes, childhood sexual abuse survivors are unaware of their civil litigation options. (See my "Crime Victims" page.) Particularly, most people are unaware that in Georgia there is a state statute that extends the time period within which a civil claim can be timely brought.

O.C.G.A. Section 9-3-33.1 provides that "any civil action for recovery of damages suffered as a result of childhood sexual abuse shall be commenced within five years of the date the plaintiff attains the age of majority."

The statute also defines "childhood sexual abuse" as any act committed by the defendant against a person under the age of 18, and which is classified under Georgia law as rape, sodomy and aggravated sodomy, statutory rape, child molestation and aggravated child molestation, enticing a child for indecent purposes, pandering, pandering by compulsion, solicitation of sodomy, incest, sexual battery and aggravated sexual battery.

Thus, in such cases, the statute of limitations for these very important claims in Georgia does not run until the survivor reaches the age of 23. For a child in Georgia who is abused at age 13, for example, the statute of limitations does not run for 10 years. For someone in Georgia who is 17 and thinks the statute of limitations is two years, it's not -- it's six more years in that 17-year-old's case.

Friday, December 18, 2009: Cyber Bullying Test

I had a conversation with a lawyer friend of mine about the topic of cyber bullying. My wife has co-authored a book with two Clemson University professors on the topic, and there's been a number of cyber bullying cases chronicled in the national media of late. I could tell that my friend, who has a teenager daughter and an elementary school-aged son, was not up on the topic.

For a detailed understanding of cyber bullying, see my wife's site at cyberbullyhelp.org. Our children are technologically wired, and many are far more savvy than their parents. It's important to teach them appropriate netiquette, and that we parent both in the real world and the virtual world. Signs of cyber bullies can be:

• Signing on with someone else's screen name to gather information
• Impersonating someone online
• Teasing, frightening or threatening someone on line
• Posting pictures or information about another person without the person's consent
• Using an instant message or an e-mail address or a web profile to look like someone else's, or create a fake web profile of another person
• Insulted someone in an interactive game room

This would be a good time for interested adults to become familiar with cyber bullying, and its effects on others

Wednesday, December 16, 2009: Your Legal Rights On-Line

I've had a number of people contact me regarding varieties of internet harassment that they have been subjected to on-line. The ultimate question is: What are my legal rights on-line?

Here, with a fairly broad brush, is what I believe. People on-line have a legal right not to be harassed and invaded by on-line conduct that is criminal, bullying or even boorish.

But where are the laws, you ask? Specific laws are not on the books: the law tends to move slowly even in the best of circumstances. Throw in the massive potential for legal harms in cyber space, and the response of the traditionally slow-moving law is even more exaggerated.

I've followed this same legal conundrum in the area of civil claims for crime victims. Our law traditionally relies on the criminal justice system to address criminal activity, which does almost nothing to care for the victim/survivors who have suffered untold harms and losses. So lawyers who bring civil claims on behalf of crime victims know that we have to be creative to fashion legal solutions that will be effective for the victim/survivors in the civil justice system.

Similarly, those who are victims of cyber crimes, cyber bullying and other cyber foolishness need to know that they often can make the perpetrator face responsibility for the harms and losses in the civil justice system.

For example, what happens if a cyber bully posts someone else's private information on line, which causes that person to be concerned that their identity will be stolen, or worse, their personal safety will be placed at risk? If the victim incurs costs that are directly attributable to this cyber foolishness, then who should absorb the cost -- the victim or the perpetrator? Many times, the cyber perpetrator has left footprints; other times the cyber perpetrator is brazen enough to make his identify readily known. In appropriate cases, this firm will pursue legal activity against the cyber perpetrator, whether it means reporting the cyber bully perp to the ISPs, sending a "cease and desist" letter, or even filing suit in the event of extreme damage. More information is on my "Bullying and Cyber Bullying" page.

FRIDAY, December 11, 2009: Gaps in medical treatment after an automobile accident

I often tell clients that some insurance adjusters who place values on personal injury cases, such as automobile collision cases, don't necessarily live in the real world. What I mean by that is they have a rigid appreciation, and even a blind deference, to their company's system -- computerized or otherwise -- of placing dollar values on the harms and losses of an injured person.

So if a person doesn't want to travel to the hospital emergency room by ambulance from an auto wreck scene, the injury must not have been too severe to these adjusters. Or if the person doesn't go to the emergency room at all, and instead follows up with her family doctor a few days after the incident, the claim gets put in a lower claim category altogether. (By the way, if the person decides to go to a chiropractor, then some insurance adjusters will go positively apoplectic.) In the real world where the rest of us live, there are a number of reasons why the active, formal medical treatment will start days after an incident. This is such a truism that no further explanation, at least in the real world, is needed.

Gaps in medical treatment are a key case in point. Suppose a single working mother is injured in an auto wreck. She goes to the ER, then follows up with her primary doctor. Her two children attend public school, and leave on the bus at 6:55 a.m. and 7:25 a.m. respectively. In return for her employer allowing her to leave work at her new job at 3:30 in order to pick up her younger child at the afterschool program at 4 p.m., she takes a 20 minute lunch and arrives for work at 8 a.m.

She's injured, in her neck and back regions. She's been prescribed physical therapy, but her work and family responsibilities limit her to evenings and weekends, and it's difficult to schedule a therapist during those hours. She's managed to go to a few sessions. She also has radiating pain into her legs, and she'll likely need to work in an MRI or other diagnostic test at some point. Get the picture?

Many, many adjusters don't, because they don't consider real world concerns. "If she's injured, she'll find a way to get to a doctor, or a therapist, or to an imaging center for an MRI." Oh, really? Call it crazy, but for many adults who are physically hurt at the same time their children were counting on them, they put their kids first. In any event, gaps in treatment are served up by insurance companies as one reason to minimize claims values.

Next blog entry: How to handle the "gap in treatment" insurance adjuster attack.

MONDAY, December 7, 2009: Why do some physicians reject patients who were involved in motor vehicle wrecks?

More than a few times, I hear from people who tell me that when they called or even went to a doctor's office to get treated for injuries suffered in a motor vehicle collision, the office representatives told them that their office does not treat such patients. Putting aside the medical ethics involved, I have tried to provide an adequate explanation of why I thought a doctor's office would have such a policy.

First, I would suggest that when faced with such a statement, a patient has every right to ask a doctor who is in the profession of healing people why he would have such a policy. If the reasons are really bald excuses to ignore a patient's needs so that the perceived inconveniences of treating auto wreck patients can be avoided, then it's probably best to find a physician who has a better handle on his professional obligations.

Perhaps it has to do with the perceived difficulty of filing the proper insurance for the patient, although this is not difficult at all. Actually, it's pretty simple. File with the patient's auto medpay first, and when auto medpay exhausts, file with the patient's health insurance company. In fact, it is actually better for the doctor's office (at least for billing purposes) to have a patient who has auto medpay, because that coverage will usually pay 100% of a doctor's charges. As all doctors know, the insurance executives who run the HMOs and the other health insurance models make sure that the doctor will be paid only a portion of her total bill.

Perhaps it has to do with the perceived difficulties of dealing with auto insurance claims, and the lawyers who represent the patients. More people are injured in auto wrecks than any other event, often with significant loss, so lawyer representation is inevitable. There no doubt are doctors who would rather avoid lawyers than the plague, and in achieving this goal, they refuse their medical care to those with valid medical needs. Thankfully, there are so many more competent and talented doctors who will treat all patients, so persistence in obtaining quality healthcare can result in the healing that all patients need.

THURSDAY, December 3, 2009: At–fault insurance carriers don’t pay bills as they become due.

I previously blogged about one problem that arises when the emergency room’s billing department does not obtain the proper benefit provider information to pay the emergency bill related to a patient who is injured by the negligence or intentional acts of another.

Today, I want to address a misconception among many people who believe that the at–fault insurance company will automatically pay the medicals bills of the non–negligent injury victim as those bills become due. As an example, assume a non–negligent driver is injured by a negligent driver who is insured by Auto Insurance Company “A.” Non–negligent driver, who is insured by Auto Insurance Company “B,” is also insured by Health Insurance Company “C.”

Non–negligent driver has the reasonable belief that at–fault Insurance Company “A” should take responsibility and pay for his bills. When he’s at the hospital he tells the billing representative that he was in a motor vehicle collision caused by someone else. He tells billing the name of the at–fault insurance company (if he learned the name at the scene), or else tells billing that he will provide the at–fault insurance company’s name when he finds out. The mistake has now been made.

At this point, what will often happen is that the ER bill will arrive in a few weeks marked “insurance pending” or “auto insurance pending.” Perhaps the billing department will call Insurance Company “A” and learn that Insurance Company “A,” while the at–fault carrier, will not pay the bills as they become due, but only as part of a global settlement to resolve all claims. The next bill the injured patient will receive may be one that states that insurance will not pay, and the total amount is the patient’s responsibility. This could occur at a time when it is too late for the injured patient’s health insurance company to process the bill.

As written in the below blog post, always give hospital billing information related to YOUR insurance companies. If you have optional medical payments coverage on your auto policy, give hospital billing the information because it is the primary payor of bills until its limits are exhausted. Additionally, give hospital billing your health insurance information because it is secondary, and will pay portions of the bills once auto medpay is exhausted. Of course, if you don’t have auto medpay, then your health insurance is the primary payor.

Once you have retained a qualified attorney to represent you on your serious injury claim, he or she will explain that the at–fault insurance company will negotiate the case and attempt to resolve all claims at once, not one bill at a time. The proper time to present your claim will also be discussed with your qualified attorney. Because of this, and many other pitfalls, it is critically important that those who have suffered serious injuries due to the negligence or intentional acts of another consult and retain a qualified attorney for the most effective representation.

MONDAY, NOVEMBER 23, 2009: After the auto accident –– who pays the hospital bills?

This scenario is unfortunately too common. A person is injured in an automobile accident, and is treated for injuries at the emergency room. The billing person at the hospital learns that the patient is there due to an automobile collision, and assumes that the patient’s auto insurance medical payments coverage will pay the bill. The billing person marks "auto insurance" on the bill, and fails to bill the patient’s health insurance company.

A few weeks later, the patient receives the ER bill, which states that the total amount is outstanding. The patient may think that the health insurance will eventually pay –– not realizing that it hasn’t been billed –– and so he lets the bill sit for a while. The patient then receives a second bill, then a third, then a nasty collections letter. At that point, the patient might try to straighten it out and have the bill sent to his health insurance company. Some health insurers may take the position, however, that it’s too late to submit the bill and therefore the patient is fully responsible. The patient then calls the emergency room billing department, who blames the patient for not informing them about the patient’s health insurance.

This is totally unnecessary mistake. First, "medpay," or "medical payments coverage," is an optional coverage on auto policies, and many people who have health insurance choose not to pay the extra auto insurance premium for medpay. Hospital billing professionals should know this, and also know that they should obtain all sources of potential insurance payors. I have had clients who have had four or more sources of insurance coverage for automobile wreck–related injuries. If there is auto insurance medpay, it is primary and health insurance is secondary until such time as the medpay funds exhaust. That is, some medpay policies pay $1,000.00 in accident–related injuries; others pay $5,000.00 or $10,000.00 or even $50,000.00. However, once the amount has been paid, the health insurance then becomes the primary payor. And of course if there is no medpay coverage, then health insurance is primary.

Additionally, however, the injured patient or his family members need to be aware of this potential pit. If you have been treated and released from the ER, then the next day you or a family member should call the billing department and make sure that the proper insurer is being billed. If the billing person tells you not to worry, that auto insurance will pay, kindly tell that person that you do not have auto medpay (if you do not) and to bill your health insurer immediately. If the billing person tells you not to worry, that the other driver’s insurance company will pay because the other driver was at fault, kindly tell that person to bill your health insurer immediately . Follow it up with a letter. Call the supervisor. Whatever it takes to get them to submit properly.

THURSDAY, NOVEMBER 5, 2009 -- Texting While Driving (TWD)

I read a recent article that ran in the newspaper about Great Britain's view of distracted driving and distracted drivers, the kind who text while they drive, for example.

In Great Britain, according the the article, the rule is that using a hand-held phone when causing a death will always make the driving offense more serious. Punishment increases, prison time occurs. Texting while driving, particularly, drives up the punishment. It is viewed as seriously as driving while drunk or driving while on drugs, or racing against another driver.

In the article that I read, the 22 year old who was sentenced to 21 months in a high-security prison after her car plowed into another car, killing its 21 year old driver, was not even texting at the time. However, in the one-hour period prior to the crash, she had exchanged more than 20 messages with five people according to the article, and one message was received by her phone just before the crash.

Britain's guidelines are that a person can be sentenced harshly for "reading or composing text messages over a period of time" as a "gross avoidable distraction," the article said.

Texting while driving can be a deadly decision, or a decision that can lead to signficant harm to other unsuspecting drivers on the road. While Georgia's laws are not nearly as severe as Britain's, there is plenty that can be done for a person who has been seriously injured due to a distracted driver, and the avenues to take in civil automobile accident claims are numerous.

TUESDAY, OCTOBER 27, 2009 -- Before Children's Advocacy Centers

Child molestation is an unspeakable crime -- literally. It is said that when it comes to child molestation, there is a conspiracy of silence. The reasons are many and far-ranging; however, for purposes of this post, I want to cover one of the reasons that it was once so difficult for a child to disclose her molestation, prior to the days of Children's Advocacy Centers.

Pre-CAC, it was often the case that a child would disclose abuse, and then be interviewed by a police detective. The interview would occur at the police precinct, in an adult-sized room, with adult-sized tables, and adult-sized chairs. The child would tell the detective about the abuse the second time, the first time being when she disclosed, for example, to a trusted adult.

After the interview, the child might have been taken to the hospital for a medical exam. The third time the child tells her story.

After the medical exam, the child might have been sent to social services. A fourth time the child tells her story.

With each retelling of the molestation, the child is revictimized. So as you can see, many times it was easier for a child simply not to tell.

CACs were established, in part, to coordinate a "team approach" to assisting children who disclosed abuse. Instead of a child being shuttled from place to place to tell her story, the professionals who want to hear her story come to the Advocacy Center. The child is met with a professional trained staff, and during the course of a single interview, the child tells her story once while the other professionals watch the interview in an adjacent room. The child tells her story in a child-friendly room, with tables and chairs her size.

The public needs to know that there are Children's Advocacy Centers in or near their communities who provide state-of-the-art services for victims of child abuse and their non-offending family members.

The public also needs to know that many of these CACs are private, non-profit facilities that need the public's support in the form of generous donations and in-kind contributions, such as coloring books, tissues, cleaning supplies, and other materials that make up a child friendly facility.

In Georgia, as I wrote in the last post, there are 34 established centers and four developing centers. I can say with clarity and certainty having served six years as a board member on the Children's Advocacy Centers of Georgia, and now serving on its advisory board, that Georgia is one of the leading states in the nation when it comes to CACs and the services they provide. Each of us should be proud, and each of us can show our support by supporting CACs.

There is a conspiracy of silence when it comes to child abuse. It is time for each of us to get loud, to get on board, and to do our part to end the abuse.

WEDNESDAY, OCTOBER 14, 2009 -- What are Children's Advocacy Centers?

Earlier this year, I published a book titled "The Legal Eagles of Children's Advocacy Centers: A Lawyer's Guide to Soaring in the Courtroom." On this site, you can find a page related to the book.

The book is certainly a "niche" book, directed toward the women and men who work daily on behalf of children who have alleged sexual or physical abuse. The purpose for writing the book was to provide some guidance to these dedicated professionals as they face the rigors of the courtroom setting.

While it is a "niche" book, it is very important that people in the general public understand that there is likely a Children's Advocacy Center in or near the communities in which they live.

A Children's Advocacy Center provides a child-friendly facility where children who have disclosed sexual and extreme physical abuse can come for investigation and therapy. One goal of a CAC is to reduce the trauma to the child who discloses abuse. At the same time, the process (as will be explained later) helps enchance the investigative process related to the alleged abuse.

In Georgia, the goal of the Children's Advocacy Centers of Georgia, the umbrella state-wide organization that supports the local CACs, is to have a Children's Advocacy Center in each judicial district in Georgia. Currently there are 34 established centers in Georgia, and four developing centers.

Over the next several (Semi) Daily Legal Blog posts, I'm going to introduce you to CACs, what they do, how they developed, why their existence is critical in our society, and why good-minded people like you should actively support them.

MONDAY, OCTOBER 5, 2009 -- Distracted Multi-Tasking Drivers

Last week, the Department of Transportation Secretary called distracted driving a "deadly epidemic."

Distracted driving in 2009 is not like the old days. In the old days, distracted driving could involve reading a map on a trip, for example. Today, it's looking at the iPhone's map app up close to a driver's face. It's texting on a phone. It's e-mailing a business partner on a laptop computer. It's any number of things that drivers do in order to be more "productive."

Unfortunately, what it can and does produce is carnage on the road. I recently wrote about the ills of texting while driving, and that the danger of texting while driving is more dangerous by 10- and even 20-fold to drinking and driving, which as we know is horribly dangerous.

I have spoken to and represented more and more people who have been involved in serious collisions caused by distracted drivers. The negligence is plain, but in my opinion it also reaches the reckless and wanton range that triggers punitive damages. And when a distracted driver causes a collision while on the job, it triggers liability exposure for the company he or she works for, and which condones and even urges these "productivity" moments.

Drivers in society are on notice, me included. Multi-tasking while driving is a risk too severe to take, and the harm that it can cause on people driving lawfully continues to have serious and even deadly consequences.

People injured due to distracted drivers have legal recourse, and then some.

THURSDAY, SEPTEMBER 24, 2009 -- Tough times in Georgia

It's wet. Very wet. Many parts of Georgia received at least 18 inches of rain over a day or two this week, and countless Georgians faced flooding disasters in their homes.

At last report, more than 80 percent of Georgians don't have flood insurance, and therefore face the prospect of trying to pay the entire cost of their damages in uncertain economic times. The State estimates that there is at least $250 million in losses, most of which are not insureable. The State of Georgia itself is broke, and is not in a position to assist financially.

Can we take a moment or two from the constant yelling and sniping we've seen on the national stage of late and help each other? There are a number of charitable organizations that are assisting flooded Georgians in their time of need that can be contacted. I know personally that many, many individuals are coming from out of state to assist, which makes us so grateful. Patience, resilience, compassion.