Balance the Scales

Executive Summary of Legal Reform Legislation

1. Civil Practice Act Reforms

Adjust the rules which govern the conduct of attorneys during the litigation process in a case, and in many cases these changes are consistent with the federal rules which are universally considered more balanced and consistent than state rules.

2. Holt demands

Place reasonable parameters and limits around insurance policy limit settlement demands. Currently, personal injury lawyers make settlement demands so complex and confusing that when an insurance company asks for clarification, it is seen as a rejection of the settlement offer and the insurance company is said to be acting in “bad faith.” Bad faith allows a personal injury attorney to sue an insurer for more than the policy limits once insurers demonstrate “bad faith.”

3. Electronic transmission of the record

Currently, when a case moves up for appeal, the clerk of court has to hand certify the record and transmit it via hard copy which substantially delays the process. If the record may be electronically transmitted, it would significantly speed the process.

4. Jury Selection

During jury selection, insurance companies will not be mentioned in ear shot of other jurors. Instead, potential jurors will complete a questionnaire to determine whether any relationship exists with an insurance company who has a stake in the outcome of the litigation.

5. Witness interrogation

If a party calls a witness to the stand, the opposing party has an opportunity to conduct a rebuttal examination using the same scope and parameters as the party who called the witness.

6. Direct action against insurers in trucking cases

Currently, plaintiffs may directly name a motor trucking insurance carrier as a party in a trucking case. The provision prohibits personal injury lawyers from suing motor trucking insurance carriers prior to the adjudication of a case against the trucking company. Georgia is in a minority of states with its current law.

7. Presumption of qualification with valid Commercial Driver’s License

A person should be presumed to possess the qualifications necessary to be hired and entrusted to drive a commercial motor vehicle if the person has a commercial driver license issued by a state in accordance with the minimum federal standards for the issuance of commercial motor vehicle driver licenses, if the person's license is not suspended, revoked, or cancelled and if the person is not disqualified from driving a commercial motor vehicle.

8. Seat belt nonuse evidence

Under Georgia law, evidence that someone failed to wear a seat belt in a motor vehicle accident is concealed from the jury even though the jury must determine the cause of the injury and the fault of those involved. The law expressly forbids its introduction despite the overwhelming probative value of the evidence and this intrudes upon the jury’s role. It is a matter of fundamental fairness to provide all relevant evidence to juries so they will be capable of making an informed decision. Currently, a motorcycle helmet, which is also a safety device used to mitigate injury, is permitted to be introduced as evidence.

9. Medical funding

Require disclosure of all funding documents to juries and insurers when medical services are funded by third parties in any case.

10. Statute of repose in failure to warn cases

A statute of repose is a period of time in which a plaintiff may file a lawsuit. The legislature enacted a 10 year statute of repose in product liability cases and made no exceptions. But the courts created a “failure to warn” exception not authorized by the legislature. The judicially imposed exception in failure to warn cases – “constructive notice” – effectively renders the 10 year statute of repose against manufacturers meaningless. Georgia should revive the actual notice standard and limit claims to 10 years as the statute was originally intended by the legislature.

11. Landowner liability protection

Landowners are currently being sued as a result of third party criminal activity occurring on their property when the landowner neither permitted nor had any knowledge of the criminal conduct, and in many cases had taken steps to prevent it by implementing security mechanisms. Runaway verdicts against innocent landowners have been the result, which we believe have caused businesses to abandon high crime areas and the creation of food deserts and other economic vacuums.

12. Truth in damages

Currently under Georgia law, a defendant is prohibited from telling a jury how much medical treatment actually costs for a plaintiff’s injuries. The plaintiff is able to introduce evidence of the initial billed amount by a medical provider when the actual amount paid to fully satisfy the debt (usually via health insurance coverage) is substantially lower in most cases. Even when no one actually pays the “billed amount,” the plaintiff is permitted to use an inaccurate, inflated number to quantify the cost of the plaintiff’s medical treatment. The same “phantom” number is then used as a multiplier for non-economic damages. This results in vastly inflated recoveries.

13. Punitive damages cap

A $250,000 cap on punitive damages exists for all claims except products liability claims. But products liability claims involve manufacturers and manufacturers provide jobs. Georgia should aim to level the playing field by extending the benefits of the punitive damages cap to all industries, including job-creating product manufacturers. Georgia is not a state who has traditionally picked winners and losers. And remember, punitive damages do not compensate the plaintiff—to even get punitive damages, the jury must first fully compensate the plaintiff.

14. Asbestos Bankruptcy Transparency

In asbestos cases, plaintiffs have successfully made multiple claims for the same asbestos-related injuries, which results in recoveries against multiple companies for the same injury. Legislation would simply require the plaintiff to disclose all exposures which will provide for proper and equitable allocation of fault.

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