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.
Tuesday, November 5, 2013: Taking on Truck Drivers Who Are Distracted While Driving
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. 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,October 30, 2013: 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.
Thursday, October 17, 2013 -- 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.
Wednesday, October 2, 2013: 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, September 27, 2013 – 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, September 10, 2013 – 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.”
Monday, September 2, 2013: 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, August 9, 2013: 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.
Tuesday, July 30, 2013 -- What are Children's Advocacy Centers?
Last year, I published a book titled "The Legal Eagles Guide for Children's Advocacy Centers, Part III: Soaring for Advocacy and Justice." On this site, you can find a page related to the Legal Eagle series for CACs. These books are certainly "niche" books, 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 books 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 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 41 established centers in Georgia, and four developing centers.
Find the community-based CAC in your area, and support it. If you are from a state other than Georgia, there are CACs in your community too -- Almost 800 CACs nationwide. They need and deserve your support.
Wednesday, July 10, 2013 - 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 averagel 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 strong-arming 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. For example, 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.
Monday, June 10, 2013: ***Guest Author on Cyber Bullying!*** Dr. Patti Agatston
Editor's Note and full disclosure: Dr. Patti Agatston is my wife, and co-author of the book "Cyber Bullying: Bullying in the Digital Age. She speaks extensively on the issue of cyberbullying to parents, teachers, adminstrators, legislators, and other public policy professionals. Today, she discussing an upcoming international conference, held in nearby Nashville, TN:
I have served on the board of directors for the International Bullying Prevention Association (IBPA) for a number of years and am the conference co-chair for the 2013 conference. I am thrilled with this year's conference program and hope that you will join us November 10-12, 2013, in Nashville, Tennessee. Each year we have a pre-conference day that includes "Bullying 101" a great primer on basic information and best practices for bullying prevention. This year we have an additional track for advanced participants that will include how to incorporate media into your comprehesive bullying prevention efforts. Even if you are not attending the pre-conference you may wish to take advantage of a children's authors panel that will be free and open to all participants Sunday evening. The session will feature such noted childen's authors on bullying as Trudy Ludwig (My Secret Bully), Katherine Otoshi (Zero), Doug Wilhelm (The Revealers), Mark Goldblatt (Twerp), and Jennifer Brown (Hate), and will be moderated by Anne Collier.
Monday's opening keynote featuring Dr. Ernie Mendez will energize and inspire all of us to build emotional intelligence among youth to increase compassion in our schools. We are also very excited to be hosting a general session panel on Monday with some of the leading researchers in the field of bullying prevention including Catherine Bradshaw, Elizabeth Englander, David Finkelhor, and Susan Swearer and will be moderated by Larry Magid. Tuesday's keynote will feature investigative journalist Emily Bazelon, who writes for Slate and the New York Times Magazine discussing her work for the best-selling book "Sticks and Stones."
For more information regarding the conference as well as registration information visit the International Bullying Prevention Association's website at www.stopbullyingworld.org.
Tuesday, June 4, 2013: Why do some physicians reject patients who were involved in motor vehicle wrecks?
TMore 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 or her 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 automobile medical payments coverage, 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 in many, many instances lawyer representation is important. There no doubt are doctors who would rather avoid lawyers like the plague, and in achieving this goal, they refuse their medical care to those with valid medical needs. Thankfully, in my experience there are so many more competent and talented physicians who will treat all patients, so persistence in obtaining quality healthcare can result in the healing that all patients need.
Tuesday, May 14, 2013: 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 the billing department 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.
Friday, April 11, 2013 -- 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, March 28, 2013 -- Learn about -- and support -- the Children's Advocacy Center in your community
What happens when a child is abused in your community? Peer-reviewed studies tell us that too many times they either don't tell or delay reporting. But once a disclosure is made, have you ever wondered what the process is for that child?
Prior to 1985, which was the year of the first Children's Advocacy Center in the United States, it was often a uncoordinated and inefficient response that could cause additional trauma for the child who alleged abuse. Prior to 1985, a child would be taken to the police precinct to be interviewed by law enforcement, telling her story to the detective. After that, the same child would often be taken to the hospital for a medical exam, telling her story a second time. Then the child would be interviewed later by the department of social services, and a fourth time, perhaps, by a therapist. With each retelling to these various professionals who participated in the resposne, the child would be retraumatized.
With the advent of Children's Advocacy Centers, the child would come to the CAC and be interviewed one time, and all of these professionals just mentioned who were involved would come to the CAC and hear her single interview. Thus, each professional received the information necessary to conduct his or her professional responsibilities, and the child would tell her story just once.
Today in Georgia, there are 40 CACs, and we hope to have one CAC in each judicial circuit in the state. I have the privilege to be serving as part of a three-person Interim Management Team for the Children's Advocacy Centers of Georgia while CACGA, the state network for Georgia's CACs, seeks a new executive director. I also represent five Children's Advocacy Centers in Georgia.
CACs need your help. Child abuse in its myriab horrible forms continues to be a plague in our communities, and case loads continue to rise across Georgia and the nation. At the same time, public funding through state and federal sources continues to be hard to maintain at levels that at sufficient to meet the demands of serving these children. If you are affiliated with a Georgia business, consider requesting that your business sponsor its local, community CAC. Consider volunteering for these wonderful organizations. You'll love being associated with a CAC, and the help you provide, either with your donation or your in-kind assistance, will be so much appreciated. Thank you.
Tuesday, March 12, 2013 -- For Websites, Acceptable Use Policies Can Be Impressively Ineffective
The following is my new blog post on the parenting website, Parenting Today's Kids:
This is a hybrid case study. I’ve combined facts from a few real situations, kept other facts out, and added hypothetical facts in order to protect privacy. But assume the following: For whatever reason an individual, the “harasser,” creates a website using someone else’s real name. This “someone else” being targeted is a random citizen just like you or me rather than a branded business entity or a branded business name. It’s someone who is being targeted due to a perceived slight or for some other cyber bullying activity.
The website is not necessarily “fake” to the extent that it includes real information about the website’s namesake. But it can’t be seen as a business website that is promoting services or is engaged in interstate commerce either, because it is simply created to make the life miserable for the targeted individual.
The harasser might create the website through one of the companies that provide web services for small businesses. The web service company has “acceptable use” policies for its customers, such as the person who wants the domain name registered and creates the website. In our case study, the website that was created contains content that could objectively be considered defamatory, and could even border on violations of state laws in those states that have laws related to computer-oriented harassment crimes. Regardless, by most objective measures the content could be considered violations of the web service company’s “acceptable use” or prohibited use policy.
If you review a sampling of the web service companies’ acceptable use policies they often include prohibitions regarding content that is harmful based upon all types of activities that are also labeled as “torts” in tort law: defamation, invasion of privacy and libel, for example. Other prohibitions might include harassment, casting others in false light, trademark or copyright infringement, racial or ethnic comments, hate speech, and more. Some policies reserve the right to take down the content for any or all of these reasons, or for no reason whatsoever. That sounds like a lot of protection for individuals who might be targeted by a website operator or the person who otherwise controls the website’s content.
Let’s review an example of an “acceptable use” statement. Users may not: use the services to publish or disseminate information that (1) constitutes slander, libel or defamation, (2) publicizes the personal information or likeness of a person without that person’s consent or (3) otherwise violate the privacy rights of any person; (4) use the services to threaten persons with bodily harm (5) use the services to make harassing or abusive statements or messages, or (6) use the services to solicit the performance of acts or services that are illegal under applicable law.
Those are very good policies to have. They sound reasonable and worthwhile – and protective! And as previously stated, the web service companies will often set forth remedies that they can pursue to enforce violations of the “acceptable use” policies by one of its customers. The enforcement language can sound strong and significant. For example:
“If the company learns that there is a violation of this policy, the company may in its sole discretion, take any of the following actions, with or without notice to the customer: warn the customer and/or suspend and/or terminate the services or the offending customer; unilaterally remove any offending content; take any other action in accordance with this policy; take any other action in accordance with the applicable service agreement or applicable law; or take any other action deemed appropriate or necessary in the company’s sole discretion."
When someone is targeted by a website in this manner, there are a number of responses to take in order to try to remedy the harm. One is to contact the web service company and inform it of the harassing content. I do this not necessarily with the expectation that the web service company will enforce its acceptable use policies and take down the harmful content, although that would be nice. Rather, it is done in order to show a court, if litigation becomes necessary, that this and all other steps were taken in an attempt to resolve this unpleasant experience before having to file a lawsuit.
You might question why I don’t have the expectation that a web service company will enforce its own acceptable use policies and take down the harmful content. After all, some social media sites can be quite receptive to these requests. My belief is that some web service companies are inundated with complaints regarding website content, which far too often results in the web service company providing you with a very unsatisfactory – and legally unrealistic – response.
One response might be: “If you are alleging defamation, we will require a signed Court Order or other directive related to your claims in order to effectuate any change to the account and or hosting information.”
What just happened? The acceptable use policy had all of that impressive language about enforcement for violations of slander, defamation, harassment, violations of privacy, and more. The acceptable use policy said it would remove content unilaterally, not be a paper tiger!
And this response is legally unrealistic. Requiring that you provide the web service company with a “signed court order” regarding a defamation claim will require the following: (1) a lawsuit is filed; (2) it is served on the defendant by the deputy sheriff 5-10 days later; (3) an answer to the complaint is filed 30 days after service of the complaint; (4) the parties engage in civil discovery for the required 6-month discovery period (Georgia example); (5) after the 6-month discovery period expires, a pre-trial hearing is held approximately 2 months later; (6) and then some 2 to 6 months after the pre-trial hearing (depending upon how many cases were on the trial court’s docket), a trial occurs. If the Plaintiff wins, there’s the “signed court order.”
But as all targets of website harassment understand, the harm is occurring now. The goal is to stop the harm now. Many times, litigation does not stop the harm now, but later, if at all. On the other hand, every time, litigation is expensive and time-consuming. Clearly, a response from a web service company stating that it needs a “court order” to take down the offending conduct adds insult to injury. We would much prefer that the web service company simply enforce its own stated policies and remove the website content.
So what else to do? We’ll describe a phased approach next time.
Thursday, February 21, 2013 -- Letter to a Legislator Regarding Computer and Cyber Harassment
For those who have been harassed online, turning to the laws and hoping for legal assistance can be disappointing. I have said time and again on this blog that our legislators are woefully behind the social media revolution. The result: when someone is the target of abusive cyber bullying, there are times when the laws are impotent.
Recently, I wrote to one of Georgia's legislators regarding such lack of legal protections in Georgia law. Portions of the letter are excerpted below:
I am an attorney in Marietta, and I am writing to you about a legal matter I am working on, related to website cybertorts, and the lack of legal protections afforded to Georgia citizens due to the limitations of our long-arm statute.
I have sent this individual a cease and desist letter, and he has responded that he will not take down the site. In Georgia, there is no ability for her to obtain a civil stalking protective order, as shown in the recent case, Huggins v. Boyd, 304 Ga. App. 563, 697 S.E.2d 253 (2010). In that case, Judge Blackburn explained that although a stalking offense is deemed to occur at the place where the communication is received [citing O.C.G.A. § 16-5-90(a)(1)], the conduct occurs at the maker's locale. In Huggins v. Boyd, the conduct originated out-of-state, and the Court of Appeals was bound by the Georgia rule as it relates to personal jurisdiction pursuant to the Long Arm statute, as announced in Gust v. Flint, 257 Ga. 129 (1987): "The rule that controls is our statute, which requires that an out-of-court defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction. Where, as here, it is shown that no such acts were committed, there is no jurisdiction." (Emphasis mine.)
Judge Barnes, concurring specially, explained how this result harms Georgians. She quoted from a law review that in Georgia, "residents are . . . not fully protected in their ability to obtain long-arm jurisdiction over non residents in cases arising in the context of Internet activity. . . The literal reading of subsection (2) by the Georgia state courts, which requires the tortious act to be committed within the state, severely limits the ability of injured residents to obtain personal jurisdiction over nonresidents who commit 'cybertorts.'" (Citing "Extraterritorial Personal Jurisdiction for the Twenty-First Century," Van Dett and Kapoor, 3 Seton Hall Circuit Rev. 339, 381 )
Likewise, for the same reasons my client is unable to sue her perpetrator in Georgia because of lack of personal jurisdiction. In Florida, however, the Supreme Court in Internet Solutions Corporation v. Marshall, 39 So.3d 1201 (2010) held that a nonresident defendant commits a tortious act of defamation in the state for purposes of the Florida long-arm statute when his alleged defamatory statements about a Florida resident are posted on a website provided the website posts containing the statements are (1) accessible in Florida and (2) accessed in Florida. This upholds the state's interest in actually redressing injuries that occur within the state. Further, when an individual intentionally targets a specific individual with specific activities, then he should not surprised that he must answer for those activities in the state where the harm occurred. The Ohio Supreme Court, which has also allowed such lawsuits in Kaufman Racing Equipment, LLC v. Roberts, 126 Ohio St.3d 81 (2010), stated, "We decline to allow a nonresident defendant to take advantage of the conveniences that modern technology affords and simultaneously be shielded from the consequences of his intentionally tortious conduct."
However, the positive news is that there are many ways to fight back against these cyber bullies -- and many people, including those in law enforcement, can be joined in these issues.
Tuesday, January 22, 2013 -- **New Announcement** -- More Legal Help for Cyber Bullying
This law firm for years has attempted to assist those who are the unfortunate targets of cyber bullying and other forms of online harassment. In past (Semi) Daily Blog posts, I've outlined many of the legal issues -- and legal hurdles -- that make combating cyber bullying through the legal process difficult, time consuming, and expensive.
Today, the law firm of Andrew H. Agatston is pleased to announce that the law firm has established a working partnership with an expert consultant in the child protection and national security field to assist and consult with issues related to online harassment when it reaches levels that are not controllable by those who are targeted. The range of services will be exclusively based upon a case-by-case analysis. For example, one case may be able to be resolved through a single or series of formal contacts with the individual causing the harm. Another case my tier to a second level that requires a thorough investigation of harm being caused and its source or sources in order to facilitate the best manner to resolve the matter short of litigation. And a third case may require a combination of the first two and a lawsuit.
Based upon several years of looking into the legal issues and hurdles caused by these unfortunate circumstances, it appears that an orderly, integrated approach to addressing the issue from a legal perspective is the correct approach.
Tuesday, January 1, 2013 -- Happy New Year!
The Law Offices of Andrew H. Agatston sincerely wishes everyone and Happy New Year, with the hope that your family's year is filled with love, happiness, and good health. When we help others we help ourselves and our communities. I look forward in 2013 to (semi) blogging on topics that I hope help you!
Thursday, December 13, 2012 -- On the property damage home stretch!
I've been driving around in a rental car for four days now, while my car is being repaired at the collision shop. A common occurrence happened in my case. The initial damage appraisal had to be supplemented once the body shop was able to fully inspect underneath the car and after it removed the rear bumper. This is a simple process of the body shop contacting the property damage adjuster, telling him or her that the car has additional damage, taking pictures of the damage, and the property damage adjuster approving the work.
The small snag is that the supplemental property damage check hasn't arrived at the body shop just yet, so my hunch is that my car is fully repaired, but being held there until the check arrives! So it's another day, maybe two, in my rental vehicle -- again, paid for by the at-fault carrier.
One thing that is important for people to realize, and sometimes overlooked. If your vehicle is damaged, then the value of it, even after being repaired by a first-rate body shop, has lost value. This is called "diminished value," and it is important that you ensure that the at-fault carrier is paying the extra amount to you for the diminished value of your vehicle. In my case, since my property damage was in the range of $1,300.00, the diminished value that is approved in Georgia law is small. Still, as with all claims and cases, the important aspect of damages is to place the person harmed in the position he or she was in before the incident occurred.
Unless anything unique comes up, this is my final "dispatch" from the my property damage case study.
Monday, December 3, 2012 -- The property damage case study
My last post started the MVA case study -- mine! Since I was not injured, the only thing I have to handle is the property damage. Here's a quick primer of what I did.
First, I contacted the adjuster for the at-fault driver. She and I agreed that I would take my car to the repair facility of my choice and get a damage estimate. The facility I took the car to was affiliated with my car dealership. I drove right in, and within 5 minutes the appraiser was looking at my car. Within 10 minutes she had an estimate printed out for me.
The next step was to fax the estimate to the at-fault driver's adjuster. She reviewed it, and then authorized a rental car through Hertz for me. However, she also scheduled her company's appraiser to appraise the damage. He came to my office several days later. His estimate actually was more than the first appraisal. He also issued a check on the spot, made payable to me.
I then called the repair facility and told my contact that I had the insurance company's appraisal to fax to her, as well as a check I would sign over to the repair facility. I scheduled the repair to begin next Monday, December 10, 2012. Finally, I called Hertz and let the rep know I would be at the repair facility on December 10th, and arranged for them to have a rental vehicle waiting for me.
So far so good. I hope the next post will describe the successful repair of my car!
Friday, November 16, 2012 -- A motor vehicle collision case study -- mine!
Long day yesterday. I had the pleasure of presenting a legal workshop in Taccoa, Georgia to a group of dedicated therapists in the morning, and then to the professional who work at the Power House for Kids Children's Advocacy Center in the afternoon. On my way back to metro Atlanta, I made my way onto South Marietta Parkway, just off of I-75.
Bam! Then bam! Then bam again. Then the last bam was me. A four-car collision, with me in the front, stopped at a red light. The man in the pickup behind me was also stopped, as was the woman behind him. The woman in the fourth car slammed into the third car, starting the chain reaction.
Unfortunately, the woman in the third vehicle was hurt at the scene, and was taken by ambulance to the hospital. My prayers are with her and her family.
A witness, a man who works for Delta Airlines, was kind enough to stop and remain at the scene to help, and stayed until he was able to inform the investigating officer what he witnessed. The investigating officer was super. She was a sergeant with the Marietta Police Department, and told me that she was retiring at the end of the month. A professional career very well done!
The woman in the fourth car, who started the chain collision, was cited for following too close. Her car was destroyed -- this was no doubt a high velocity impact. The vehicle she hit was extensively damaged, too, and will be a total loss. The man's pickup truck, as did the vehicle behind him, sustained two impacts -- first from behind, and then a second into the back of my car. Chances are his truck is repairable. Mine definitely is repairable. My car took the lightest impact, and I was not injured in the slightest.
So as you can see, every auto collision has numerous stories. I'm definitely concerned about the woman in second vehicle, the one who was taken by ambulance.
I'm going to blog about my experiences with my property damage claim as it unfolds. I am simply going to follow the lead of the at-fault insurance carrier, to get a bird's eye view of how consumers are treated in these situations.
As of now, the insurance claims process has not started. I won't get the police report until next week. However, as everybody should do in the event they are in a collision, I contacted my own insurance company and notified it that I was involved in a collision, and that it was not my fault. Under my auto policy, I carry optional uninsured motorist coverage (in the event an individual who hits me either lacks insurance or does not have enough insurance to cover my damages), as well as collision coverage in the event I have to make a claim to my own carrier to fix my vehicle. This would occur if, for example, an at-fault driver lacks insurance, or if the driver claims she did not cause the collision and her insurance carrier sides with her (thus refusing to pay for my property damage), or if there is not enough property damage coverage on the at-fault driver's policy. After all, there were three vehicles damaged: one that was totaled, another that was damaged more than mine, and mine.
So stay tuned and follow my property damage journey -- and anything else that might come up!
Monday, November 12, 2012 -- Thank you, Veterans
I'm looking forward to my evening phone call to my father this evening. My 89-year-old dad is a World War II veteran, and like always I'll quiz him about his thoughts and experiences of serving our country. People across the country are reflecting today about the sacrifice that our veterans -- and their families -- have made. I'm also always interested in listening to my wonderful clients who are veterans of military service, if they decide they want to share their insight into their experiences.
I encourage people to Google Veterans Day articles and essays. It is so motivational to read about, particularly those written by veterans themselves. I ran across an article about a Marine in Wyoming who wrote an essay about what it means to be a Marine. He said, "Our job is not safe, but necessary. What it means to be a Marine is to be that necessity for the American people. It is to be that unwavering warrior who is ever willing to be ready to be dedicated, to show fearlessness, to form brotherhoods, and form a 237-year tradition of being the best fighting force that the earth has ever seen. It’s because of those of us in this room, and those who have dedicated it all, that the eagle, globe and anchor means what it means today.”
Thank you to all who serve, and who have served in our military, in whatever capacity.
Wednesday, October 24, 2012 -- John Franklin Stevens: A Special Olympian and Someone I Only Wish I Could Be Compared To
Words have consequences. They mean something. This blog post was written by John Franklin Stevens, who has Down syndrome, in response to one of the many people on the airwaves with an opinion. I read it, and re-read it. I hope you'll read it, too.
Sunday, October 21, 2012 -- The Sunday papers report on BSA "perversion files" -- is this BSA spokesperson understanding?
The headline in the Atlanta Journal-Constitution on Sunday, October 21, 2012 was "Ga. Scouts didn't tell police."
The spokesman for the Boy Scouts' Atlanta Area Council, after looking at "some" of the files, was quoted as follows: "As far as I can tell, these files show that the safety of children was paramount."
The Boy Scouts are in need of informed spokespeople, not ministers of propaganda. I'm all for opposing views, but on the topic of child abuse the stakes are too high for uninformed views that ignore the unforgivable failure of BSA leaders to perform the critical task they were either by law -- but certainly by ethics and morals -- required to do: protect the children and put their interests first.
This same Atlanta-area BSA spokesman has made comments in the press before on this subject. I highlighted them in yesterday's post. Two weeks ago, before the perversion files were released, he told the public that as far as the Atlanta council knew, there were no Atlanta-area individuals named in the perversion files. In fact, today's AJC article details Atlanta-area men whose abuse was recognized and not reported to the authorities. The same Atlanta-area BSA spokesman made comments to the public that boys in Boy Scouts are just as safe as boys in churches.
This tone-deaf statement is, in itself, evidence of the problem of some who are affiliated with youth-serving organizations. But let's first praise youth-serving organizations. We know that the BSA or church youth groups or sports leagues or YMCAs or Boy and Girls clubs have dedicated members serving youth, community, society, and yes, God. We know that and we are extremely grateful that these organizations are giving youth opportunities.
But it is beyond dispute that children are harmed, all across our country and right here in metro Atlanta, in all of these organizational structures that serve youth. We know that. When spokespeople for youth-serving organizations fail to publicly, on behalf of their organizations, recognize this and continue to dig in their heals and state, "As far as I can tell, these files show that the safety of children was paramount," it perpetuates the dangerous denial that child abuse can, does and will again occur within their youth-serving organizations.
This is 2012, almost 2013 in fact. It is already decades past the time to recognize this cruel fact, and a waste of time, energy and resources. The time, energy and resources must be on the protection of children. No more ministers of misinformation please.
Saturday, October 20, 2012 -- Boy Scouts of America "Perversion Files" -- A Secret No More
I have had the pleasure of meeting Oregon attorney Paul Mones, who, along with his colleague and fellow Oregon attorney Kelly Clark, released to the public on Wednesday, October 17, 2012 Boy Scouts of America documents known as its "perversion files."
As Kelly said, child abuse thrives in secret, and now the secret is out.
The files named more than 4,000 alleged pedophiles who were involved in Scouting across the country. Reports by media organizations such as the LA Times stated that the Scouts did not only fail to report hundreds of instances of child molestation and child abusers, but hid the abuse from parents and law enforcement. Paul and Kelly obtained the files during a 2010 lawsuit, in which an Oregon jury awarded their clients $18.5 million in damages, including punitive damages. Following the trial, Oregon media sued for the records to be released, and an Oregon court agreed, leading to the release this week.
I watched, and continue to watch, the media reports regarding these files. Locally, I read two weeks ago as a spokesman for the Atlanta Area Council of the Boy Scouts of America told the Atlanta Constitution that as far as his Council knew, there were no Atlanta-area individuals named in the file.
Yesterday, the AJC reported that in fact more than 97 Georgians were named, including numerous Atlanta-area individuals. The same spokesman was interviewed again. This time he said -- and I have to quote this one -- the following:
"We have a culture of safety. Being in Boy Scouts, your son is as safe as being in church."
OK then. Tell that to children who have been abused in churches, or day cares, or all types of child service organizations.
There is so much more that needs to be done, and can be done, to protect the children. I'm confident there will be much to talk about in the weeks that follow the release of the BSA's "perversion files."
Thursday, October 4, 2012 -- New Blog Post on Parenting Today's Kids Website
The following post has just been published on the excellent parenting website, Parenting Today's Kids. Check out the site for interesting, engaging and responsible parenting ideas, from a range of experts.
This is the third in a series of posts regarding public school responsibility for bullying and cyber bullying behavior that occurs off-campus, but which creates a substantial on-campus disturbance. The previous post introduced the important October 26, 2010 “Dear Colleague” letter written by the U.S. Department of Education’s Office for Civil Rights. The “Dear Colleague” letter defined the public school’s role in addressing the type of student-on-student discriminatory conduct that is enforced by the U.S. Department of Education’s Office for Civil Rights.
It specifically included a hypothetical example of harassment initiated and directed toward a student by means of an individual’s improper use of social networking sites. This hypothetical example in the “Dear Colleague” letter can easily be interpreted as off-campus cyber bullying that was directed toward the student, and which had the tendency to create a substantial disruption on-campus.
As we have examined in previous posts, however, this cyber bullying behavior that originates off-campus is the critical bright line that seems to drive everyone – including our legislators and judges -- into the legal ditch.
Parents understandably seek the public schools response in stopping the cyber bullying of their children regardless of whether the cyber bullying occurs off-campus. After all, when a cyber bullier pushes his “send” button in the comfort of his own home at 11:30 p.m., it will be waiting in the smartphone inboxes of scores of students when they arrive on campus at 8 a.m. the next day.
The public schools, on the other hand, are understandably perplexed. After all, the legal decisions regarding whether a public school system may punish a student for cyber bullying activity that originated off campus are ambiguous at best. And even the U.S. Supreme Court, given the opportunity to lay down clear guidelines earlier this year, decided (at least as of January 2012) not to review the legal issues. (See the Previous Post on this site: “Can Public Schools Regulate Off Campus Internet Speech Rights? Yes. No. Maybe. . .”)
And so in response to the “Dear Colleague” letter, the National School Boards Association (NSBA) replied by letter to the U.S. Department of Education. The NSBA’s letter raised certain concerns relating to the “Dear Colleague” letter’s placement of certain responsibilities on public schools that could, among other things, “invite misguided litigation that needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission.” (December 7, 2010 letter from NSBA General Counsel Fransisco M. Negrón, Jr. to the U.S. Department of Education.)
For purposes of our topic – off-campus cyber bullying speech that tends to create a substantial disruption on-campus – there was an exchange between the NSBA and the U.S. Department of Education that may not provide public schools with the concrete ability to do what a parent wants them to do – stop the discriminatory and harassing cyber bullying of their child in this one particular off-campus cyber bullying situation right now.
At this point, I need to make an important distinction in this context between a lawsuit for money damages and what the U.S. Department of Education’s Office for Civil Rights enforces. We know that a lawsuit filed by a plaintiff in state or federal court seeks monetary relief for alleged harms caused by an individual or by an entity. But the U.S. Department of Education’s Office for Civil Rights undertakes administrative enforcement of certain federal antidiscrimination laws, rather than being an avenue for a private lawsuit seeking monetary damages. An attorney in your jurisdiction may be able to fully explain the distinctions with respect to particular situations.
In any event, the NSBA attorney, Mr. Negrón, raised the issue of public schools disciplining students for speech that occurs off-campus. He wrote: “Bullying and harassment that takes place over the internet or through other electronic communication often occurs entirely off-campus. The Dear Colleague Letter, however, fails to discuss the fact that disciplining students for speech is even more difficult when the speech occurs off-campus. None of the Supreme Court cases discussing disciplining students for speech contemplate whether school districts can discipline students for off-campus speech.”
Yet according the to NSBA, the “Dear Colleague” letter seemed to indicate that there were a number of instances where a public school could consider such off-campus speech when disciplining students, which Mr. Negrón asserted could run afoul of the Supreme Court’s First Amendment decisions. In response to Mr. Negrón’s December 7, 2010 letter, the U.S. Department of Education’s Office for Civil Rights replied to him by letter dated March 25, 2011.
It stated in part: “[T]here are many remedial measures that schools can employ to respond to harassment that cannot be resolved by discipline or otherwise prevent. In some cases, a school may be able to effective remedy a hostile environment by, for example, making available counseling services and resources, and educating the school community on civil rights laws and expectations of tolerance – all of which do not implicate the First Amendment.”
The import of this response by the U.S. Department of Education, in the context where cyber bullying runs afoul of federal antidiscrimination laws (race, color, national origin, sex, disability), is that the public schools cannot necessarily discipline the specific student whose cyber bullying originates off-campus, but instead can provide such things as counseling services to both the bullied and the bullier, and also generally educate the school community on such activities.
So there again, we are left with a lack of legal authority that concretely indicates that a public school system can proactively discipline a student for cyber bullying behavior that originates off-campus. Instead, the authorities who have reviewed the problem as defined in the “Dear Colleague” letter seem to suggest that the route to take is to create an environment of tolerance through active education and reinforcement projects such as classroom lessons and discussions that teach the appropriate use of social media.
In these last few posts, we’ve laid the legal groundwork – to the extent it exists – related to the public school’s response to off-campus cyber bullying. So what are the legal tools available? We’ll start digging into this topic next time. Best regards.
Friday, September 28, 2012 -- Case study: Apple and its map app
Two days I ago, I blogged about the NFL and how it dug in its heels regarding its replacement ref fiasco. Since that time, the tone-deaf (on this issue, not generally) NFL woke up and the regular referees are back in action.
But also since last Wednesday, there is news that the company the rules the roost, Apple, and its CEO has issued an apology regarding its map app that it launched on its newest operating system. The map app, as many Apple followers know, is, um, not up to par. For example, the Brooklyn Bridge is seen collapsing into the river it is supposed to span. Etc.
Today, the CEO of Apple issued a full throated and full page apology for the state of the map app, right on the Apple home page. Included is the following: "We are extremely sorry for the frustration this has caused our customers and we are doing everything we can to make Maps better."
An apology! That is refreshing. I have written many times on this blog about the value of an apology as it relates to legal cases. Where appropriate, whether a person is asserting a claim or defending a claim, it can be the key difference between a quick and amicable resolution to a claim that both sides can live with and respect, and a protracted case that could have been resolved only if one side or the other had the backbone to take responsibility.
There will be Apple detractors who will jump on this apology for their own agenda. But I think Apple at least as it relates to this apology has sent a positive message to its customers that it respects them, that for all its success they don't always get it right, and that are willing to take responsibility for all of their actions, positive and negative.
Wednesday, September 26, 2012 -- Case study in digging in for sake of digging in: NFL
Much has been written about the replacement referees and NFL games. The real refs are locked out in a labor dispute with NFL owners and the NFL itself. In the meantime, watching these games can only be classified as "painful." Referees, like judges in courtroom, have a duty to control the proceedings. These replacement refs cannot, and America's sport is suffering.
The NFL and its commissioner's office has lost, no matter what. The public perception is overwhelming -- the true lack of control of the situation rests with the NFL commissioner, Roger Goddell, and he has failed to maintain the integrity of the sport. It is telling how the debate has changed in regard to real refs and these replacements. Before, with real refs, the lament would be, "I hope that the referee's one call doesn't decide the game." With these replacement refs, there are literally dozens of calls each NFL weekend that have in one shape or another decided the games. Of course, last Monday night's Packers-Seahawks game took the cake.
The NFL has lost in the courtroom of public opinion. There is no way that the NFL will turn it around and convince the public that it has acted in the appropriate manner (whether it has or not). Despite this overwhelming loss, the NFL is digging in, at least as of today. When that happens in trial work, when parties take positions that the public -- and the jurors -- believe are overwhelmingly unreasonable and create danger for others, then those parties understandably and reasonably lose. The public, of which you and I are members, are good students of proper and improper behavior. When a person, party or organization takes a position that is clearly wrong, but which can be corrected, the proper course is to correct it.
Many times litigation has commenced because a party that was wrong refused to take responsibility and failed to say three simple words: I am sorry.
The NFL still has a chance to step up to the plate and say, I am sorry. America is a land of compassion and understanding. And don't you know that America loves its football. The NFL, like an unreasonable party to litigation, always has the power to make things right. Eventually, this brouhaha in the NFL will pass, but with each passing day the NFL looks that much more unreasonable in the public eye. If this case was before a jury of its peers, the jury would render a clear verdict -- against the NFL.
Saturday, September 8, 2012 -- Case Study: Ignoring the law's requirement to report child abuse
An newspaper article that appeared in today's New York Times is as depressing as it is maddening. It chronicles another instance of those with a legal responsible to report suspicions or child abuse to the authorities, but failing to do so. It chronicles yet another instance where there were numerous opportunities over an extended period of time to make the report, but a failure to do so.
As part of my legal practice, I also consult in the legal areas related to child abuse and neglect. I speak at workshop, seminars and conferences, attended by professionals in law enforcement, law, the medical field, the counseling and social work fields, and those who work in or with children's advocacy centers. All of these professionals play such an important role in the overall mission and goal of trying to completely -- and I mean completely -- eradicate child abuse in all of its sinister forms.
But they need help. They need help from everyone in the community. And importantly they need help from those individuals who are defined as "mandated reporters," those designated professionals -- and now certain volunteers in the state of Georgia -- who are legally required to make an immediate report of their suspicions that an instance of child abuse, neglect or exploitation has occurred.
The newspaper article in our case study today was an example of failing to report such reasonable suspicions. In that case, it was found that the Catholic priest who should have been reported had hundreds of images of child pornography on his computer. Each of those individual images is an abused child. Each time those images were shared, the child was revictimized. And we know how far and how fast these images can be shared across the world. Each of these children could have been revictimized thousands of times.
Yet, we learned that the report of this priest was not made in order to protect his priesthood. We learned that the report was made because those who should have believed that the priest simply had "boundary issues."
Mandated reporters must understand that it is not their job to rationalize why or why not these suspected activities are occurring. It is not a mandated reporters job to gauge "motivation." It is not the mandated reporters job to weigh making their report of suspected abuse -- if in fact the mandated reporter has a reasonable suspicion that child abuse has occurred -- against the potential that the alleged perpetrator's reputation will suffer.
It is the mandated reporters job to report his or her reasonable suspicion that child abuse has occurred to the proper authorities -- DFACS or law enforcement in Georgia (or the district attorney) -- and let the proper authorities do what they do.
Once all mandated reporters understand this, more children will be spared abuse and revictimization.
Monday, August 20, 2012 -- Insurance Company's Behaving Badly (Con't)
I met with an very nice woman who unfortunately was involved in an automobile collision about a month ago. She was injured at the scene, and was taken by ambulance to the emergency room for treatment. She continues to receive treatment today.
I met her in my office to discuss her case, and asked her to bring all paperwork that she had received from the at-fault driver's insurance carrier. When she arrived -- again this is less than one month after her collision -- she brought a check from the at-fault insurance company for "full and complete settlement of all bodily injury claims," along with a letter from the at-fault insurance carrier's adjuster confirming a settlement he said that the company had reached with the woman. She also brought a copy of the settlement release that the insurance company sent her to sign.
I won't discuss what she and I talked about, but I wanted to set the table with those facts to again emphasize the extremely unfortunate strategy of insurance company's trying to quickly settle with unrepresented consumers even before they are fully healed from their injuries caused by these insurance company's negligent drivers.
If they wouldn't do it to their own mamas, why do these adjusters do it to everyone else, including everyone else's mama?
It is plain and simply wrong that insurance companies try to reach a fast settlement in these instances. They are taking advantage of people who are juggling a number of balls -- all caused by these insurance company's drivers: injury, lost wages, medical bills, damaged car, interference with life, etc. There is unequal bargaining power, and the insurance industry knows this. But there is a additional component here -- unequal bargaining power combined with a person in distress. Those are the people these adjusters are getting to sign away their future legal rights within one month of a collision. Who can possibly be proud of this behavior?
And look at what they do: They agree to settle the case for pennies on what the claim should settle for, because at the time of these egregious settlements no one knows what the claim is worth. That is, the injured person is still seeking treatment and even her physicians don't know the extent of her injuries. What happens in the event that, after these settlements on the cheap, she needs to get physical therapy? Injections? Epidurals? Surgery? What happens if she doesn't have the medical insurance or means to do so?
Yes, these insurance practices are carried out by adjusters who wouldn't do this to their own mamas. Yours, unfortunately, are fair game.
Wednesday, August 15, 2012 -- Guest Blogger Day: Cyber Bully Expert Dr. Patti Agatston
My wife, Patti Agatston Ph.D., is an expert in the area of cyber bullying. She, along with Robin Kowalski, Ph.D. and Susan Limber, Ph.D., is co-author of the book, Cyber Bullying: Bullying in the Digital Age, now in its second edition, as well as co-author of Cyber Bullying Prevention Curriculum for Grades 6 – 12 and the Cyber Bullying Prevention Curriculum for Grades 3 – 5. More information is on her website, www.cyberbullyhelp.org.
Luckily, I'm married to her, so she's agree to allow me to reprint some important information regarding back-to-school tips as it relates to social media:
As a new school year approaches it's a good time for parents to discuss the use of social media with their children. Parents of tweens and young teens may also be struggling with the issue of whether to allow their kids to have profiles on social media sites. While parents often ask me what age is appropriate for a child to have a Facebook account, I always respond that (outside of the minimum age requirements of the site) age is less important than their son’s or daughter’s maturity and willingness to follow some agreed-upon guidelines. I also suggest to parents that if they are not willing to take the time to have some important conversations with their children and to do some monitoring of their use, than the parents are not ready for their children to use social media!
So what are important topics to discuss with your son or daughter regarding the use of social media? Privacy is one of the most important. Explain to your children the importance of making use of privacy settings on a social networking site so that everyone does not have access to their personal information. Facebook in particular now allows you to share posts and photos with smaller groups of individuals so that we can truly separate our friends, family members, and acquaintances. Walking through the privacy and account settings with your son or daughter can greatly help them understand all of the choices they have regarding sharing. And it may be a great learning experience for you as a parent as well.
In addition to privacy settings, parents should discuss with their children what is appropriate to share. Many parents are worried that kids will share information that will place them at risk for contact by an internet predator. However the research shows that just sharing personal information does not increase their risk. They are more likely to get into trouble if they meet multiple people online, engage in sexually oriented chats/photo sharing, and then agree to meet these individuals offline. So setting guidelines about appropriate sites to visit, and what constitutes an appropriate friend request and conversation can help prevent such a rare but frightening event.
Talking with children about how they treat their peers online and offline is a critical conversation. Your children have likely heard a great deal about bullying in the media. Talk about the importance of treating others with respect and not joining in if they witness cruel behavior in the classroom or on social media. Discuss actions they can take as a witness to bullying behavior (support a peer, report to an adult, intervene if appropriate) and let them know that you will help them if they are ever targeted by bullying or cyberbullying.
Parents spend a great deal of time worrying about stranger danger, but research demonstrates that youth are far more likely to experience victimization at the hands of their peers. And youth who embarrass and harass others online increase their own risk of victimization! So take time to teach your children to treat others with respect, both online and offline. It’s protective – and it’s the right thing to do!
Thursday, August 9, 2012 -- Love the Summer Olympics: "Faith, Focus, Finish."
I've noticed that my semi-daily blogging has taken a vacation for the past 1 1/2 weeks. Must be . . . The Summer Olympics! My favorite sporting event, by far. So many incredible athletes, so many countries, so many sports. It's not all football, baseball and basketball. In fact, of those three, it's only basketball, and basketball isn't even the marquee sport -- by far.
Today, I am amazed by U.S. 4 x 400 meter athlete Manteo Mitchell, who ran the last 200 meters of his leg of the race on a broken leg! What a story. And there are so many stories, of people from all over the world, that can easily motivate you until . . . the next Summer Olympics.
By the way, Manteo Mitchell didn't think twice about running the last half of his leg of the race with a broken femur. "It's what almost almost any person would've done in that situation," he said. After all, he had his three teammates and his country counting on him.
And I love his answer to how he was able to do it. "Faith, focus, finish."
Faith, focus, finish. Words of wisdom.
Saturday, August 4, 2012 -- Check out the Parenting Today's Kids website
I am delighted to have been invited to be one of the contributing authors for the new website, Parenting Today's Kids. This website recently launched, and its goal, as it states, is to help parents understand how technology impacts their children, and how to parent effectively as their children "embrace, consume and socialize using technology."
I am just one of numerous authors on the website, covering legal topics relating to social media. There is so much to write about, as many of the articles on this "Semi-Daily Blog" site show. Law and technology changes sometimes weekly, and certainly monthly, as the law is in constant "catch up" mode with technology.
But the Parenting Today's Kids website offers so much more: experts who write about children's privacy; teen mentoring; college admissions concerns; safety concerns; current events related to social media and as I said -- much, much more. In short, this site is loaded.
Friday, July 27, 2012 -- The New "Legal Eagles of Children's Advocacy Centers" Book is Published!
The third edition book for professionals who work in and with Children's Advocacy Centers has now been published. This third book, The Legal Eagles Guide for Children's Advocacy Centers Part III: Soaring for Advocacy and Justice, provides updated legal case information, as well as updates related to laws and rules affecting legal cases involving allegations of child sexual abuse or child physical abuse and neglect.
As with the previous two editions, I wrote this book to assist those individuals who dedicate their professional lives to making children in need safe in their communities. Now, more than ever, it is important that all of us in our communities support these organizations that do so much for our children. Go online and Google "Children's Advocacy Centers" in or near your hometown to see what they do, and how you can help.
Thursday, July 12, 2012 -- Weep for the Children: Report from Independent Investigation of Penn State Released
Read it an weep, for the children who were not protected. The 267-page report from the independent investigation of the child abuse fiasco at Penn State -- that stretched more than a decade -- was released today. We must weep, yes, but we -- everyone -- must learn. All of us have a stake in ridding our communities of child abuse in any form.
Yet, we read and hear over and over again comments similar to one of the report's main conclusions, as stated by Louis Freeh, the former federal judge and former FBI director, who led the investigation, in the New York Times: “Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky’s child victims."
Wednesday, July 11, 2012 -- Georgia Supreme Court decision revictimizes crime victims
It took seven years, but on July 9, 2012, in a case that harms every crime victim who suffers intentional injury on a business property such as an apartment complex with horrible security, the Georgia Supreme Court has spoken to rape victims and victims of other violence.
The case is Couch v. Red Roof Inns, Inc. There, the plaintiff was violently attacked by unknown assailants at a Red Roof Inn. The lawsuit that followed included, among other claims, asserted claims against the property owner for negligent security of the premises. I have not read the complaint, but I imagine the argument was that the attack was both foreseeable and, with proper security, preventable.
These are the kinds of cases -- negligence in failing to keep a safe property -- that have been litigated for more than a hundred years in Georgia. It triggers a legal principle known as "joint and several liability," where a plaintiff, if he or she proves the damages, may collect the damages from any of the named defendants, regardless of their percentage of fault. That principle, according to a brief filed in the Couch case, can be traced back to a century before the founding of our nation!
Along comes 2005. Georgia's General Assembly is frothing at the mouth in its tort reform movement. Passes a boat load of tort reform laws. I wrote way back then that I had a bad, bad feeling for crime victims. Georgia's legislators wrote much of their legislation to protect doctors and the medical community. You remember the fear -- doctors were leaving Georgia in droves. You could see them lining up at Hartsfield-Jackson in their white doctor coats, catching any available plane to Texas. We were going to be left with high school science students to deliver our Georgia babies.
One of the statutes amended related to joint and several liability, particularly that hereafter 2005 the jurors could determine the exact percentage of fault between wrongdoers -- even if a wrongdoer like a convicted rapist sitting in a Georgia prison was not named as a defendant. That is, even where the sole defendant was a property owner who, for example, despite scores of prior similar crimes, failed to adequately secure the apartment community to the detriment of a young woman raped there.
Before 2005, the woman could recover her full damages against any wrongdoer. Now, with the aforementioned Couch case which interpreted the 2005 General Assembly tort reform amendment at issue, the respective percentages of fault are examined. Should a jury place 95 percent of fault on the rapist in prison and 5 percent on the apartment community, the victim's civil justice is grossly insufficient.
Before 2005 when our legislators began their own assault on crime victims, our Courts were cognizant of injuries and harm suffered by crime victims, writing opinions with words such as: "It is not beyond the power of the legislature to attempt to preserve human life by making [negligence] expensive. It may impose . . . liability . . . not only upon those at fault, but upon those who, although not directly culpable, are able to nevertheless in the management of their affairs to guard substantially against the evil to be prevented."
A brilliant lawyer, Charles Cook, authored the Amici Curiae brief in the Couch v. Red Roof Inns case. It was the brief on behalf of the Crime Victims Council, the Georgia Network to End Sexual Assault, and the DeKalb Rape Crisis Center. He wrote: "Society requires that when persons promise safety to individuals (children, patients, clients, tenants, customers, etc.), they exercise ordinary care to provide for the safety of those individuals, not 1% of their safety, or 10% of their safety, or 50% of their safety, but 100% of their safety. That policy is undermined when owners are only liable for 1% of their customer's safety."
I am saddened, but unbowed, by this Georgia Supreme Court decision. Crime victims always have had it hard, and always will. Advocates for crime victims push for legislation and court decisions that create policies, standards, and rules that speak loudly for crime victims: We believe you! We believe in you! We support you! I've read Couch v. Red Roof Inns, Inc. a number of times now. I don't see that anywhere in it.
We advocates have to push harder now . . . again.
Thursday, June 28, 2012 -- Well, I didn't see that coming
Today, in a 5-4 decision, with Chief Justice Roberts writing the majority opinion, the U.S. Supreme Court upheld the Affordable Care Act and its individual mandated. I am not a pundit, nor a politician, so I'll keep punditry and politics out of this. However, I was very surprised that the Chief Justice was the deciding justice in upholding the constitutionality of this Act.
As a personal injury attorney working on behalf of those injured through the negligent and intentional acts of others, I have, over 18 years of practice, worked for scores of wonderful individuals who lacked health insurance. This meant that after their injuries, which included ambulance service to an emergency room, they either (1) had to forego further treatment and suffer with no medical care; (2) go into debt, and sometimes bankruptcy, in order to get treatment; (3) rely on free clinics and other free treatment services; (4) hope that a doctor would treat them and await the conclusion of their case for payment.
Of course, the insurance companies adjusting their personal injury claims always penalized them for failure to get treatment. After all, insurance adjusters like to say, if they aren't getting treatment, they must not be hurt. Taking advantage of the uninsured comes in many nefarious forms.
Now, or at least on January 1, 2014, more than 32 million uninsured, including those who are injured, will have access to health care. I wish them, and you, good health.
Monday, June 25, 2012 -- U.S. Supreme Court re-affirms Citizens United decision
I do not know the current money tally, but two months go the Brennan Center for Justice at the New York University School of Law calculated that Super PACs, in the wake of the U.S. Supreme Court's Citizens United v. FEC decision, had raised about $160 million and spent about $90 million this election cycle. Contributions by donors who gave more than $100,000.00 accounted for more than 85 percent of all Super PAC donations.
As the Brennan Center reported, "In Citizens United v. FEC, the Court held that corporations and unions have a First Amendment right to spend unlimited funds on campaign advertisements, provided that these communications are not formally 'coordinated' with any candidate. In so holding, it found that the political speech rights of American voters and corporate entities are indistinguishable."
This law firm is incorporated. So according to the U.S. Supreme Court, my law firm's corporate structure and I, individually, have the same political speech rights. If that is so, we are both in agreement that the Citizens United opinion is not a First Amendment victory. It is a victory for corporations and unions to spend as much as their hearts desire on campaign ads so long as they are not "coordinated" with a candidate.
The Montana Supreme Court challenged the decision, upholding a century old Montana law that prevented such corporate expenditures in Montana because in Montana's experience it led to corruption or the appearance of corruption.
Today, the U.S. Supreme Court reversed the Montana Supreme Court. It's open season in Montana, and all Western states, and all Midwestern states, and all Southern states and all Northeastern states.
Of course, my corporate law firm is not a person with political speech rights. It is a piece of paper filed with the Georgia Secretary of State. And it will continue to be a piece of paper until I decide to retire or otherwise fold up shop around here.
In the meantime, five months until the general election, let's all watch how close the $160 million April figure gets to $1,000,000,000 by November. That's a 1 with 9 zeroes.
Saturday, June 23, 2012 -- Sandusky lesson: With child abuse, we see what we want to see
Guilty on 45 of 48 counts. Criminal acts against children that occurred over a more than one decade time period. Chances to stop these despicable acts missed -- missed by people known as "mandated reporters" who are required by law to report their reasonable suspicions of child sexual abuse. Children suffering, sometimes in silence, sometimes right in front of those who were required to report.
And now, more than 10 years later, we have a conviction.
I have been speaking at workshops and conferences over the last year and this trial invariably comes up in the discussion. I am asked: How can this have happened? And: Why didn't anyone stop it?
The answer is both extremely complicated and uncomfortably simple. Today, we'll examine the uncomfortably simple part. In another blog post, we'll dive into the complexities.
The simple answer is: With child abuse, we see what we want to see. And since we don't want to see child abuse occurring in our communities, we see nothing. And children suffer. Children suffer not just in our own community, but in every corner of every community all over our country, and in fact the world.
We see what we want to see. Sandusky's wife of 46 years testified at trial. The defense would have us believe that she saw nothing, knew nothing, that this was an earth-shattering shock when her husband was arrested. The defense introduced her to the jury as "Sarge," the woman who ran the household. "Sarge," like a military officer who misses nothing in her day-to-day -- even minute-to-minute -- control and dominion over the household. "Sarge" saw nothing, her husband must be innocent, the jurors were told.
We see what we want to see. And the defense lawyer in this case probably understood that. He was quoted after the closing arguments and before the jury returned its guilty verdict that he would "have a heart attack" if his client was acquitted. This spoke volumes to me.
It spoke volumes to me because during his closing argument he pulled out every stereotyped defense one can pull out. You must believe Sandusky and Sarge. You must believe them because it "does not make sense" that this man, this pillar of Penn State, would be so public with these children. That just does not make sense. Instead, the defense told the jurors, it makes sense that the investigators and the prosecutors were overzealous. The victims were coached. The victims had civil attorneys who were seeking a big payoff for them after the end of the criminal trial. And those accusers, the defense told the jurors, those accusers brought down a good, humble man, brought down a great university, made the last months of a famous football coach's life hell, and even if Sandusky is found innocent, his life will be forever ruined -- by those accusers.
Stereotyped defense -- blame everyone else, but especially the victims.
And we wonder why children suffer in silence. We wonder why parents whose children have been abused are afraid to report it, afraid to go through the "system" with all of its landmines waiting to blow their children up.
The defense in this Sandusky case both infuriates me and motivates me. The motivation part will easily prevail. Good people in our communities, if they did not want to recognize it before, can surely recognize it now. Child abuse is real, it is around us. But the good news is child abuse can be targeted. Child abuse can be attacked. When we all get past the "seeing what we want to see" syndrome, we will stop letting the children who need us most down.
Finally, years later, these "children" who were abused, mistreated, exploited and more -- and who are now adults -- have some justice.
Sunday, June 17, 2012 -- Happy Father's Day!
I called my father this morning, bright and early. He's in the Father Hall of Fame. Eight-nine years old, almost 60 as a dad to me and my three older siblings. How about that?
I've been a father for 19 years now. As I reflect on what it means, I realize it means everything. The day you become a father is the day that your life, as you once knew it, changes forever. I have a little tradition on Father's Day. I look back at photos from when my boys were babies so that I can remember the joy of those days. I look at those pictures, and I'm holding an infant son with one arm. One of those infant sons is now college-aged, living out of the house, texting me on Father's Day with "Happy Father's Day, old man!" Of course, I have to smile.
Yes, looking back at that photo, it seems like yesterday but of course it is not. But the feeling of being a father never changes. Happy Father's Day to all of you fathers out there.
Thursday, June 14, 2012 -- Hello? Is anyone home in insurance claims land?
I'm not a big fan of offering war stories on web pages, but this one was a true head-scratcher for me. It involves an extremely nice, young, quiet client, who did not want to go to a trial in her automobile collision case. She just wanted to have her medical bills paid, and a reasonable amount of compensation for having been diagnosed with a permanent soft tissue injury as a direct result of the collision. Her offer to the insurance company was, well, overly reasonable by anyone's definition.
Except this certain insurance company which will go unnamed. The insurance company balked, but balk would be an understatement. The insurance company low-balled, but again low-ball would be an understatement. The trial judge in the case ordered the case to mediation. The case did not settle at mediation. I am not at liberty to discuss the confidential nature of the mediation process in this case, but I can say that I was not surprised it did not settle.
My client could have just closed it down there, cut her losses there, and take what the insurance company offered. This, unfortunately, happens every day and I am certain that this unnamed insurance company has success in closing claims on the cheap. But my nice young client decided to reject the "offer" and go to trial. She did not want to go to trial.
And this is where I can tell her, and others who have been in her shoes, about how proud I am of people who, against their comfort-zone instincts, decide to stand up to others who choose not to follow established rules of fair play. Her character came through at trial. The facts of her case that should have led toward justice did lead toward justice. The result was that this insurance company will now pay 240% more than what it could have paid to settle the case -- and additionally will have to pay its attorney for trying the case.
Negotiating cases is pretty simple. Each side should try to move toward reasonableness, which means whatever is a just result for that particular case based on that particular case's facts. I understand that each side may have a different idea of what justice is, and the case cannot be settled. We try those kind of cases here.
Thursday, May 31, 2012 -- Sender of text message not liable for traffic death
We know the dangers of drivers who send and read texts while driving. In New Jersey, in a closely watched case, a trial judge was asked to rule on whether the sender of a text message could be liable for causing a traffic death. The answer from this New Jersey state court judge: No. (Remember, every state will have its own rules as it reviews its own state laws and its own appellate court opinions.) The New Jersey judge was concerned that if he extended liability to the sendoff a text message, it would open the floodgates to include any type of distraction caused by someone other than the driver himself. In the case, two motorcyclists were struck by a vehicle driven by a driver, who admitted he had been texting and driving. Just before the impact with the motorcycle, the driver had been responding to a text sent by his friend. Both motorcyclists were severely injured in the wreck, each losing a leg. Originally, the driver was sued, but the lawyer amended the complaint adding the texter, who the lawyer said "aided and abetted" the driver, and knew or should have known the driver would be driving and responding to her texts. In an original theory, the attorney said she was "electronically present." In the end, the judge wrote: "I find it is unreasonable to impose a duty upon the defendant in this case under these facts. Were I to extend this duty, in my judgment any form of distraction could potentially serve as basis of a liability case." The judge concluded: "We expect more of our drivers. We expect more of the people who are given the license and privilege to operate vehicles on our highways." Texting while driving, reading texts while driving, and, yes, sending texts to someone who a person knows is operating a vehicle is dangerous. Yes, instant communication is sometimes handy and efficient. But the better course is to wait a few minutes until the commute is done before reading and responding. Best regards.
Friday, April 27, 2012 -- Fighting Cyber Bullying Fire With Litigation Fire -- Is This the Right Strategy?
There are laws specifically designed to redress wrongs. Indeed, we are a law-abiding society where rules help govern behavior and establish social norms. When someone intrudes upon our privacy in an objectively measurable way, or purposefully causes us measurable harm and injury, then it is not unreasonable to determine whether laws and the legal system can effectively, efficiently and justly respond. You would think that the laws on our books would be efficient in redressing the wrongs of intentionally harmful cyber bullying behavior. After all, just look at the impacts: derogatory and defamatory comments about a child; fake and phony social media sites, which sometimes impersonate others; inappropriate postings of photographs that are disseminated without permission across the Internet. When cyber bullying strikes home, it is not uncommon for parents of children who have been cyber bullied to have already done some introductory online legal research of their own, and armed with the requirements of a defamation lawsuit, seem ready to move forward in the litigation process against their child’s cyber bully: The defamatory statements were made and published to a third person. The false and harmful statements identified my child. My child’s reputation suffered as a result of the published defamatory statement. We want to sue the child and the parents of the child who set up the phony site. It should be noted at this point that today’s post addresses civil remedies, as opposed to addressing criminal laws that prosecutors may consult in the event the cyber bullying reaches criminal behavior. It should also be noted that this post addresses civil remedies against the cyber bullying child herself, as opposed to a public school district, which is a topic for a future post. Additionally, cyber bullying and criminal laws will be the topic of a future post. A typical answer in cyber bullying situations where the civil remedy target is only the cyber bullying child himself is often, “Let’s try to effectively solve the problem another way.” Many of the laws that are found in our states, passed in response to such tragic cases as Megan Meier and Phoebe Prince, are criminal statutes that target criminal behavior, such as criminal stalking and criminal harassment, for example. In many states, as can be further explored by consulting a lawyer in your jurisdiction, the general rule is that a criminal statute cannot be used independently as a basis to bring a civil cause of action. The result, if a specific case merits, is that the existing civil causes of action against a specific cyber bully, including statutes other than criminal statutes, must be analyzed in light of the specific factual context that occurred in order to determine whether a civil claim should be considered. For example, traditional claims of defamation, invasion of privacy, intentional infliction of emotional distress, and threatening language that is outside of the protections of the First Amendment come to mind. And within these legal frameworks, including the Constitutional aspect framed by the First Amendment, the lawyer must have a serious discussion with any parent considering civil litigation against a specific cyber bully. The discussion must cover not just the legal issues as above described, but also the long-road effort and expense involved, including the very important and very apparent “mental effort” necessary to pursue such litigations. (As an important aside, any litigation requires “mental effort,” which is an expected byproduct for standing up for what is right.) It is important to state, however, that there are definitely cases and causes against a specific cyber bully and her parent or caregiver when litigation is not just an option, but also an important tool to achieve justice and establish positive precedents in these matters. These instances can be thoroughly covered and discussed with a competent and qualified lawyer of your choosing. Some examples of topics to assess, other than the law and factors discussed above, include the extent and lasting nature of the harm done to the individual who is bullied; the extreme nature of the bad faith that can be proven; the duration and permanence of the extreme conduct, which includes an analysis of the extent of the public nature of the cyber bullying behavior; the opportunities to cease the behavior that were rebuffed by the cyber bully and her parents or caregivers; the conduct that was not just wrongfully ignored by a parent or caregiver, but condoned and even encouraged; and whether there are multiple wrongdoers involved.
Wednesday, April 11, 2012 -- It happened again! An auto insurance company's cat-quick offer to settle!
Another day, another call from a person injured in an automobile accident who was offered $800.00 less than one week after her automobile collision to settle her bodily injury claim with the at-fault driver's automobile insurance carrier. Can we all agree that this is, at best, very poor practice? An $800.00 offer, one week after a wreck, sight unseen, medical records unseen, lost wages unseen, human element unseen? Is this fair? More, is this the way the system has degenerated in its operation by some insurance companies? For the record, the woman who called me was not initially going to seek legal representation. She wanted to know whether this was the way the auto insurance claims normally works. I told her, no, at least it shouldn't operate this way. But there are ways to address these tactics, starting with the injured person focusing on healing, and allowing the lawyer to focus on the unprofessionalism of such tactics. There is a two-year statute of limitations for adults involved in personal injury matters in Georgia. There is no rush to resolve any valid personal injury insurance claim. The key, as I've said countless times before and I'll say to the offending insurance company once more, is for the person who was injured through no fault of her own to get back to 100 percent physical health, or as close as she will get based upon a doctor's opinion, before any bodily injury claim is adjusted. For an insurance company to attempt to jam a settlement through, one week after the car crash for goodness sakes, says much about what that company's interests are. For a person involved in a car crash, the person's interest should be getting her health back. That is the primary importance. Once that occurs, then the next step is to resolve the bodily injury claim responsibly, and respectfully, which unfortunately is not a high priority for some carriers. A fair rule of thumb is that if you feel you are being disrespected by the tactics of an insurance company, your instincts are probably accurate. Best regards.
Friday, March 29, 2012 -- Funding for Children's Advocacy Centers in Danger: Action Needed!
I just returned from the National Children's Advocacy Center 28th Annual Symposium on the Prevention of Child Abuse in Huntsville, Alabama last week, where I presented on legal topics related to Children's Advocacy Center. It is amazing to participate in a conference where there are so many people who have dedicated their professional lives to assisting children who have alleged sexual abuse or severe physical abuse. In the conference materials was a letter written by NCAC Executive Director Chris Newlin, which alerted participants and the public that of a funding crisis at the federal level. I am reprinting with permission Chris's letter. For those who can help, we need help -- in the form of contacting our elected representatives and urging them not to cut funding to ZERO! Here is the letter: Our children are at risk! Help today to restore funding. FY2013 Victims of Child Abuse Act Funding is ZERO The Victims of Child Abuse Act was initially passed in 1990 to help develop and support Children's Advocacy Centers throughout the United States. For the past two years, Congress has provided $18 million each year, and it has been included in every President's Budget since 1994, but the FY2013 Budget eliminates this funding! During the past twenty years we have seen these programs develop throughout the United States and internationally, and the use of these programs has become the standard of care for children who have experienced sexual abuse. At this time there are more than 800 Children's Advocacy Centers which provided services to more than 270,000 children last year alone and more than two million children since 1991. The Department of Justice has invested in evaluation research on the impact of this CAC model, and the findings have been consistent – improved services for children while eliminating unnecessary duplication of services. This public-private partnership is working, and child abuse rates are actually declining since the advent of these programs. The Victims of Child Abuse Act monies appropriated by Congress are administered by the US Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (OJJDP), where they are awarded through a competitive grants process and supports:
- Training and Technical Assistance for Child Abuse Professionals and Prosecutors throughout the United States so they can intervene effectively in these cases (Regional Children's Advocacy Centers, National Children's Advocacy Center, National Center for the Prosecution of Child Abuse);
- A national membership organization to assure a standard of care is provided within all CACs (National Children's Alliance);
- Limited financial support for the CACs throughout the United States.
These programs are helping our children recover from abuse, reducing the prevalence of abuse, and through their coordinated multidisciplinary services reducing the cost of intervention by approximately $1,000 per case. Given the number of cases seen last year alone, that is a savings of approximately $270,000,000! What can you do? What should you do? Please write letters to your Representative and Senators expressing your support for the Victims of Child Abuse Act, and ask that the funding be restored. Please encourage family, friends, and co-workers to do the same. It is easy to locate your elected representatives. Won't you please contact him or her today? Best regards.
Lunes, 12 de marzo 2012 - Aún Aprender español para servir a aquellos que hablan español
Estoy muy emocionado de haber aumentado mi representación legal de clientes que hablan español. En los últimos años, he tratado de mejorar mis propias habilidades de habla española, no sólo porque quiero trabajar para clientes que hablan español, peroa causa de mi amor por el lenguaje, América Latina, América del Sur, y la cultura española, y para mi propio crecimiento personal. Me gustaría hacer un último comentario. Los abogados deben seguir apoyando ala diversidad cultural, y tratar de asegurarse de que todas las personas están protegidos por las leyes. Es fácil comprender que tengo un largo camino por recorrer. Pero voy a seguir mejorando, con su ayuda. Saludos cordiales.
Wednesday, March 7, 2012 -- U.S. Supreme Court Won't Decide Cyber Bullying Issues Any Time Soon
Earlier this year, on January 17, 2012, the U.S. Supreme Court decided not to review two lower court decisions related to student speech, social media, and the First Amendment. The student speech that might have been reviewed, but wasn't, related to cyber bullying, directed toward school principals and students. In two of the opinions, the Court of Appeals in the 3rd Circuit upheld the student's speech rights. In another opinion in the 4th Circuit Court of Appeals, the Court of Appeals ruled against the student's speech rights. It is hoped that where there's a conflict, in a matter of this importance, the U.S. Supreme Court will resolve the inconsistent lower court opinions. It did not in this case, and therefore we are still in an area of uncertainty. On the one hand, what are the First Amendment free speech rights for students when they push social media too far with language intended to harm? What are the rights of the public schools to discipline students for this type of speech that finds its way onto campus and causes what the law terms a "substantial disruption" on campus? In the posts ahead, I'll try to address some of the issues that the U.S. Supreme Court's current silence on the matter are left unresolved. With no clear legal direction, at least at the highest level, it seems clear that inconsistency and uncertainty will govern the responses in our schools to social media behavior that seeks to intentionally harm others, and which creates a substantial disruption on campus.
February, 24, 2012 -- The "Corporate Buying of Elections" Debate Continues
In January 2012, the Montana Supreme Court issued an opinion that directly confronted the landmark U.S. Supreme Court decision, Citizens United v. Federal Elections Commission decision, issued in 2010. Recall that the Citizens United case decided that the Constitution's First Amendment restricted the government from limiting political campaign expenditures by corporations. Corporations, the U.S. Supreme Court decided, are deserving of the same First Amendment protections as people. The result in increased spending in campaigns this year has been ferocious. An article in the New York Times recently detailed one man who donated $10 million to various "Super PACs." Another, quoted in a Forbes article, said he might donate from $10 million to $100 million to a presidential contender's campaign effort. In January 2012, the Supreme Court of Montana got it right. It upheld a Montana statute that limits such expenditures. And almost certainly, it is going to be reversed by the U.S. Supreme Court at some point in the future if the U.S. Supreme Court follows its own precedent set in the Citizens United case. This is not a political blog post. The danger is from either party, or from an independent party. I almost laughed out loud when I recently mailed $100 to a political candidate's campaign recently. I am dealing in Model Ts when the political car of choice is at least a Lamborghini. I read the Montana Supreme Court opinion. Below, I am providing selected excerpts from the dissenting opinion in the Montana case. This Montana Supreme Court justice disagreed with the majority opinion, because he believed that the State of Montana was legally bound by the Citizens United decision to strike down Montana's law. I am setting forth excerpts of the dissenting opinion to show how badly this dissenting Montana justice felt about his dissent, because he viscerally disagreed with the United States Supreme Court's Citizen United opinion. I fear this dissenting Montana justice is probably going to be correct. The Montana opinion will be reversed by the U.S. Supreme Court sometime in the future. In the meantime, this dissenting Montana justice's lucid points, made in support and recognition of the Citizens United precedent is truly telling.
"While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court's decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. . . Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. . . " "Furthermore, it defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate. In spending ability, bigger really is better; and with campaign advertising and attack ads, quantity counts. In the end, candidates and the public will become mere bystanders in elections. . ." "Lastly, I am compelled to say something about corporate ' personhood.' While I recognize that this doctrine is firmly entrenched in the law . . . I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons." Best regards.
February 21, 2012 -- Auto Insurance Company Blanket Advice: "Do Not Admit Fault!" My Question: Why Not?
My assistant has auto insurance coverage through an insurance company that is, and I say this with all the warmth in my heart, my nemesis. She and I were talking the other day about the value of an apologize when given by individuals who negligently cause harm to others. I suggested to her that an apologize from a negligent person in a case where there is absolutely no dispute can go a long way with an injured person. How do I know this? Injured people who I have represented over the years have told me. And also injured people who I have represented over the years, who have not received such an apologize, have also told me what it would have meant to have such an apology. My assistant told me that her insurance company advises her never to admit fault. How does she know this? It's on the back of her insurance card. Sure enough, her insurance card reads, at #3, "Do not admit fault. Do not discuss the accident with anyone except (Agatston's nemesis insurance company) or Police." What is that? A driver, texting on the phone, eating a hamburger, playing Metallica on volume level 10, and running a stop sign should not admit fault? Or, in the more likely case, a driver who knows he failed to yield while turning left, knowing that his mistake clearly and unequivocally caused the collision, should not admit fault at the scene? Is that what the case is going to be about? Who caused the wreck? Or is the case in such an event going to be how extensive were the other driver's injuries, like it should be? Is the case about finding out the truth, as far as the truth can be found? Or is the case about how many ways an insurance company can minimize the claim, throwing any kind of silly defense it can into the mix in order to block full justice for someone who has been negligently or intentionally harmed by another? Certainly, in cases where it is unclear who was responsible, a party does not have to admit fault because it is unclear at the time, at the scene. But what in the world is the value of an insurance company advising its insureds in a blanket statement way: "DO NOT ADMIT FAULT," if it is clear to everyone at the scene? How about insurance companies advising its insureds, "If you're at fault and you know it is the truth, then just tell the truth." Best regards.
February 17, 2012 -- And Justice for All
One of the very important things for any lawyer representing an injured client is to have supportive family members and friends coming forward in support. This includes family members and friends who can testify at trial, in the event the case cannot be settled with an insurance company and the injured client decides to put her case in front of a jury of her peers in order to obtain justice. Supportive witnesses can be workout buddies, fellow church or synagogue members, co-workers and neighbors. But, of course, it is important to have a spouse or significant other come to court to testify about how an injury has affected his or her loved one. Concrete examples of how an injury caused an adverse impacts are important for jurors to hear. For example, I read of a case where the husband of a woman who was allegedly harmed by her doctor testified in her trial that she had "trouble walking, bending and lifting." He even testified that she "suffered humiliation from weight gain associated with her injury." The husband was a politician, and the report of his testimony further clarified the impact of the woman's injury: his wife, prior to her injury, would go door to door with him, meeting potential voters. However, such activities were difficult for her after her injury due to her physical limitations. The man who testified is now running for president. Rick Santorum. He is a big believer in tort reform, the theory that the civil justice system must be reformed, and that tort litigation and damages need to be reduced. He has supported a non-economic cap award that a plaintiff could seek, of $250,000.00. The report indicated that the jury awarded his wife $350,000.00, which it said was later reduced to $175,000.00. I do not know if his wife was employed outside of the home at the time, but the article did say that her medical expenses were approximately $18,000.00. If she had no lost wages, then the jury's original award would have included $332,000.00 in non-economic damages, or $82,000.00 more than Senator Santorum's proposed cap. The jury heard the evidence, including the Senator's testimony, and was in the best position to make an informed decision. The article reported that when asked about his wife's case, in light of his campaign to reduce justice for others, the Senator stated: "The court proceedings are a personal family matter. I will not be offering any further public comments, other than that I am not a party to the suit. But I am fully supportive of my wife." Also, "Of course I'm going to support my wife in her endeavors. That doesn't necessarily mean that I agree with everything that she does." I agree with the Senator as far as this. Litigation is indeed a personal family matter. It is a matter that many people who are injured through the negligent and intentional acts of others have to look inward to decide whether to proceed into litigation, when their opponents will not just be the parties and lawyers on the other side, but political leaders who, without knowing them or the facts of their case, decide that justice should be something less than what a jury of their peers would decide. I know a lot of tort lawyers. All of the ones I know work for justice for all. Best regards.
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=6Child 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.
Octubre 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]students 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 allparents 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 articleabout 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 Conferencein 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:
- Parents need to document the incidents: who, what, when, where of the incidents.
- If a teacher cannot address the bullying, request a meeting with school administration, and bring the documentation with you.
- For the meeting, request that the counselor attend as well.
- 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.
- Be prepared to offer suggestions as well.
- Examples: Would it be helpful to have the child escorted to classes, or have a supportive friend seated next to the child.
- 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 hereto 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.
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.
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.
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
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.
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.