Supreme Court correspondent Jan Crawford has a report at Crossroads about the potential nominees to replace Justice John Paul Stevens, including former Georgia Supreme Court Chief Justice Leah Ward Sears. 

Wyc Orr, a founding partner of Orr Brown Johnson LLP, and his wife, Lyn Orr, sponsor an annual lecture at the University of Tennessee School of Law.  This year, the Orrs were proud to host Fred Bartlit, who was named by the American Bar Association Journal as one of the "Seven Over 70 Lions of the Trial Bar."  The lecture can be viewed here.   For more information about the Orr Lecture Series, see this announcement from the UT School of Law.  

The most vulnerable of Georgians suffered a significant defeat last week that will make it more difficult for them to recover for injuries that they suffer as a result of a medical professional’s negligence.  Under Georgia law, the mentally incompetent are ordinarily entitled to the tolling of their personal injury claims until their disability is removed.  O.C.G.A. 9-3-90(a), 9-3-91.  But the Georgia General Assembly has refused, in all but three circumstances, to toll medical malpractice claims (whether the claimant is mentally incompetent or not):

[A]ll persons who are legally incompetent because of mental retardation or mental illness . . . shall be subject to the periods of limitation for actions for medical malpractice provided in this article.

O.C.G.A. 9-3-73(b).  The three exceptions apply to foreign object cases, unrepresented estates, and actions for contribution.  O.C.G.A. 9-3-73(e), 9-3-92, 51-12-32(b).  The legislature’s refusal to toll the statute of limitations in all other medical malpractice cases is supposedly the result of the legislature’s stated finding that

a reasonable relationship exists between the provisions, goals, and classifications of this Code section and the rational, legitimate state objectives of providing quality health care, assuring the availability of physicians, preventing the curtailment of medical services, stabilizing insurance and medical costs, preventing stale medical malpractice claims, and providing for the public safety, health, and welfare as a whole.

A federal district court in the Southern District of Georgia failed to see the rational relationship between the statute and the legislature’s objectives.  In Deen v. Egleston, 601 F. Supp. 2d 1331 (S.D. Ga. 2009), the court held that, because none of the stated objectives were served by denying the mentally incompetent the benefits of tolling, there was no rational basis for treating the mentally incompetent differently from those with malpractice claims based on foreign objects, those who had been killed by the act of alleged malpractice, or those with contribution claims.  In reaching this conclusion, the district court concluded that limiting medical practice lawsuits could bear no rational relationship to Georgia’s interest in assuring quality healthcare because:

Experience and experimentation in the states has shown that medical malpractice lawsuits are not a major driver of skyrocketing healthcare costs.  The Court doubts whether medical malpractice lawsuits were ever a real part of the healthcare problem, with respect to rising costs, in this country.  The impetus behind the special legislation for medical malpractice cases appears to have been based on either misunderstanding of the problem of healthcare expenses, or an outright boondoggle.

On appeal, the 11th Circuit of Court of Appeals saw things differently.  Although it expressly refused to take sides or weigh in on whether or how healthcare ought to be reformed, the panel cites a number of cases in which other circuit courts of appeal have concluded that legislation that limits malpractice actions is indeed rationally related to the goals of improving healthcare.  Again, according to the 11th Circuit, those cases do not necessarily establish the rational relationship; they simply demonstrate that there is an ongoing debate and, apparently, that is enough:

[I]t is quite enough to note the existence of a viable, ongoing debate, and determine that Georgia’s approach to a particularly thorny legislative problem–embodied in its statutes of limitations–is rational.  What the district court did was wade far too deeply into the debate.  There are powerful arguments on both sides of the issue, and it is for the legislature to weigh them and decide on that course which is most prudent.

And, with that, the 11th Circuit reversed the thoughtful district court order and struck a devastating blow to those who dare highlight the proven inefficacy of tort reform legislation.

I am no fan of Lexis or Microsoft, but the pair’s new product/collaboration sounds pretty awesome:

Lawyers live in Outlook.  I don’t know if that’s a good thing or a bad thing, but it is the truth, (we also frequent Word, Excel, and Power Point).  Between all these programs there is search.  So at the most basic level, lawyers (1) get a communication, (2) identify action steps, (3) research for context on how to proceed, and then (4) compose a response.  This process can take hours and often involves using new associates to research and create the response for a partner who has bigger fish to fry.  Lexis for Microsoft Office takes the four steps above and creates 1-experience.  Let’s take a sneak peek at the Outlook integration.

Outlook Use Case: the partner at a law firm gets an email about a pending litigation involving a major corporate client in a case about defective tires.  He has a few choices at this point: (1) drop everything and start looking into the case, (2) delegate the task to an associate, or (3) click “Background” in Lexis for Microsoft Office.  Choosing option “3″ will highlight terms in the email that relate to the case and opens up a side panel with research results including documents from the Lexis system, firm articles, and web results, all in context.

Without ever leaving Outlook a lawyer can have hours of research presented to them with the click of a button.  If the lawyer wants to suggest a term that wasn’t bubbled up by the tool, they can do that too and get even more results, which can then be filtered in context for what needs to happen next.  The outcome is that the partner can hand over a focused stack of results to an associate.  The associate is saved the tasks of figuring out where to start, researching, and culling results allowing them to do some real analytical work on what has been presented before handing it back to the partner for sign off.

Follow the developments at the Martindale blog.  Hat tip to the Legal Writing Prof Blog.

The Athens-Banner Herald reports this morning that the bill to ban texting while driving in Georgia is expected to be voted out of the House Public Safety Committee sometime next week.  If the bill passes committee as expected, it will be voted on by the full House.  According to State Representative and Committee Chairman Burke Day, who initially opposed the legislation, “This might just be a time for common sense. Taking your hands off the wheel while driving is dangerous. . . . A clear role of the government is to protect us from ourselves.”   Agreed.

For the full story, click here.

A judgment is hardly worth the paper that it is printed on if you can’t collect it.  In most personal injury and premises liability cases in Georgia, the defendant’s insurer will satisfy all or part of the judgment.  But when there is no insurer, i.e., when the defendant is uninsured, the plaintiff and his lawyer must collect the judgment directly from the defendant himself.  If the defendant is solvent or employed, then, under Georgia law, the plaintiff creditor can garnish his bank accounts or wages (or both).  But if you are going to attempt to garnish the defendant’s wages, then you best follow the rules and procedures mandated by Georgia law, or your garnishment petition will be dismissed.

This is the lesson of TBF Financial, LLC v. Houston, 298 Ga. App. 657 (2009).  In Houston, the plaintiff-creditor sought to garnish the defendant-debtor’s bank account.  The plaintiff filed its post-judgment garnishment petition and promptly served the garnishee bank.  Under O.C.G.A. § 18-4-64(a)(2), the plaintiff should have also provided notice of the garnishment petition to the defendant “by registered or certified mail or statutory overnight delivery” within 3 business after serving the bank.  But it didn’t serve him for 6 months, and the trial court, on its own motion, dismissed the garnishment petition.  On appeal, the plaintiff argued that the defendant (who did not even file an appellate brief) waived any defense that he might have had regarding the timing of the service by failing to file a traverse to the petition.  The Court of Appeals swiftly and strongly rejected the argument.  Under § 18-4-64, the plaintiff can serve the defendant with notice pursuant to O.C.G.A. § 9-11-4 (service via sheriff’s deputy) or provide it to him via certified mail, personal delivery, or even ordinary mail.  What Houston makes unmistakably clear, though, is that a plaintiff must utilize one of these “several alternative methods for providing notice to a defendant.”  If he doesn’t, his  petition will be dismissed.