THE VERDICT
A Publication of GAPTA, Inc. (Georgia Association of Plaintiffs' Trial Attorneys)
Vol. 4, No.5 July 1962

THE "GEORGIA LAW AND PRACTICE” POLICY OF GAPTA

This policy is being well received -- out of State decisions and problems must be so glowing with interest as to "bowl one over" before they will be discussed, except as a citation with a Georgia Problem. There are many sources where foreign cases and problems are discussed, but none except GAPTA and "The Verdict" where "Georgia Law and Practice" from the plaintiff's standpoint are the core of interest and discussion.

WELCOME
Thirty-one (31) new applications for member ship were filed this month. They were from good men and received favorable action --- a little thought before we ask someone to join will keep it that way.

SIX MAN JURY??
Hugh Head advocates this -- gives facts and figures from other states and say s "think about it. "
FUTURE ECHO FROM SAVANNAH SEMINAR
A synopsis of Marcus Calhoun's Savannah talk will be featured in the next issue of "The Verdict" .

COMMITTEE APPOINTMENTS
Vacation time has interfered with committee appointments - - coming up next month.

ABOUT OUR SEMINARS
Our future evening and annual seminars are being discussed --- drop us a line by the 22nd of August about any suggestion you have as to location. A request has come from Atlanta for an evening seminar.

PRESIDENT'S COLUMN

Astounding as it may seem to laymen, cases frequently turn on (1) general demeanor of counsel and client in the courtroom, (2) word-tone, or (3) semantics. It has always been that way and most certainly will continue to be so.

Some personal thoughts on these subjects follow:

1. Demeanor:

(a) Use the sincerely polite but "dead pan" attitude in all contacts with opposing counsel in or about the courtroom - especially when court is being convened and during recesses.

(b) No whispering - speak to client and associate counsel in low voice but try to let distance make the conversation private"" huddles give the impression of conniving. Two people can talk casually as if about the weather and still be saying "We're sunk. Let's do the best we can and settle before they skin us alive. "

2. Word -tone:

(a) The word "No" with icicles on it will alienate the jurors whether it is said to a client, opposing counsel, or anyone else.

(b) A plaintiff can tell defense counsel from the witness stand "I told you that once" in a rude tone and" get counsel told" but injure his case, while if he simply repeats the answers the jurors are likely to be impressed with his patience at defense counsel's forgetfulness. But a general admonition to the client does not seem to suffice. A specific discussion seems to be necessary as to matters such as this.

(3) Semantics:

(a) The defendant had just left a beer joint.

My client had just stopped to get a cold glass of beer. (John Allen Appleman)

(b) Defense counsel says his client bumped into my client's vehicle.

I contend he crashed into it - or plowed into it, or rammed into it.

Astute defense counsel can use the word "bumped" so many times that the plaintiff himself will begin adopting its use although there was a severe impact. There seem s to be only one exception to this rule and that is when "ran into" or some such term is used by plaintiff's counsel for understatement in the opening statement so that when a terrific smash-up is shown the jury might reflect-"Well, he really did' run into I the
S. GUS JONES, President

RANDOM NEWER DECISIONS

"STATIC CONDITION" RULE NO DEFENSE HERE. Roll of linoleum standing upright falls on customer Plaintiff - no explanation for it falling cause of action stated. Parsons v. Youngblood, 105 Ga. App. 583.
BUS DRIVER INFLAMES CROWD AT BUS STOP -- by abusive language -one of crowd throws rock and broken glass injures passenger. (1) .Failure to warn states cause of action, and (2) Extraordinary care required even if bus at standstill. Savannah Transit v. Otem, 105 Ga. App. 740.

MANUF ACTURER' S LIABILITY, ETC. Defective steering gear. Stranger's parked auto damaged. --(1) no liability on maker for implied warranty because stranger is not purchaser or ultimate customer, but (2) while dealer repairman may assume manufacturer per.'" formed required duty, (3) dealer repairman owes public ordinary care in making repairs. Griffin v. Chevrolet, et al., 105 Ga. App. 588.
FIRE INSURANCE - BAD FAITH. $2,500.00 offered by insurer -$4,000.00 verdict? Jury question as to whether this was absolute refusal and if so whether there was bad faith in refusal. Fireman's Insurance v. Allmond, 105 Ga. APE. 763.

NON - RESIDENT MOTORIST ACTION --Defendant waives venue by appearance. Stanford v. Davidson, 105 Ga. App. 742.

ROLLING OFF OF UNATTENDED VEHICLE justifies inference of negligence. (Dentist's case - office damaged.) Kroger Company v. Perpall, 105 Ga. AEE. 682.

"FALL DOWN" CASE - slippery floor - appeared smooth, slick, etc. but not to extent of being dangerous--and plaintiff had "no means of ascertaining actual dangerous condition." Defendant's summary judgment motion overruled.) Clayton v. Steve-Cathey, Inc., 105 Ga. App. 570.
FAMIL Y CAR DOCTRINE - Requirements, etc. Furgerson v. Gurly, 105 Ga. AEE. 575.

GO ON RIGHT SHOULDER OF ROAD to avoid oncoming car?? Duty to share ride occupant to do so?? Jury question. Furguson v. Gurley, 105 Ga. App.575.
LEX FORI COMMON LAW (as to degree of care) applicable in absence of pleaded statute of Lex Loci. White v. Waters, 104 Ga. AEE. 746.

BRIDEGROOM'S AUTO - invited companion in, going to witness out of state wedding due ordinary care because substantial benefit (psychological) to bridegroom. Youmans v. Barry, 104 Ga. App. 762.
WILFUL AND WANTON negligence by defendant - Deceased's failure to exercise ordinary care not preclude recovery. Carr v. John J. Woodside Storage Co., 217 Ga. 438 and cit. reversing 103 Ga. App. 858.

INADEQUATE $730.. 00 VERDICT REVERSED because no contributory negligence by plaintiff. Failure to except to comparative negligence charge immaterial where verdict excepted to as contrary to law and evidence. Tallent v. McKelvey, 105 Ga. App. 660.

ECHOS FROM MARCH GAPT A SEMINAR IN SAVANNAH
"FIRST INTERVIEW WITH CLIENT"
By Vincent McCauley Columbus, Georgia

The most important step in the first interview with a client is to reach a definite understanding with respect to the terms of employment. For this purpose a standard form of employment contract, or "Power of Attorney", should be developed by each attorney to fit the particular needs of his practice. A model of such form can be secured from any standard formbook or I will be glad to furnish a copy similar to that used in our office.

Of almost equal importance is a "Facts Sheet" which each lawyer should use and which covers in some detail the farni1y and occupational background of the client, previous medical history, if any, the date, circumstances and a somewhat detailed description of the occurrence which caused injury, the names of witnesses, doctors, etc. This form, too, should be developed by each lawyer to meet his needs but for a starter we are placing on display the form which we use in our office for this purpose

There is also a form for medical authorizations which need not be notarized except in cases of malpractice or hospital negligence, this for the reason that the prospective defendant there is usually reluctant to give out the information which might determine his liability. These forms should constitute the base of your file.

Of course, before any form s are completed there is the question of whether or not the attorney should accept employment. In this connection he should become aware of the following types of clients:

(l) the "bargain shopper" who is trying to find the best deal he can get by traveling from one attorney to the other. Prescribed treatment for such would be to make it clear that one gets what one pays for. Of a similar stripe is the client who simply wants your estimate of what his case is worth so he can use this in handling his case with some adjuster.

(2) the "trouble maker" type who tells you of their experience with other lawyers and usually reflects a poor opinion of attorneys generally.

(3) the "telephone" client who does not want to bother you at the office, and insists on calling you at home for free legal advice.

(4) the" switcher" client who has had an attorney and wants to make a change. No general rule can be laid down for this type, but it is absolutely necessary that before accepting employment here, it is established that other counsel has either been discharged or withdrawn.

(5) the" impatient" client who cannot get to court fast enough and methods have to be developed to placate him.

(6) the potential client who tells you that he has heard that you are" a bright young attorney" and he has decided to let you handle his case, Look out!

(7) the "cash" client who wants an advance on the value of his case, and, of course, has to be informed that such practice is not permitted.

Of paramount importance to any personal injury lawyer, and particularly one beginning practice, is the rule that he should almost never go out to see a prospective client whether in the hospital or in the individual's home. Only in the rarest of cases should any exception to this rule be made, and then the attorney should protect himself by having a member of the family, or other interested individual, present.

There are many other remarks that I could make and other clients that I could characterize, but time does not permit. In general it should be remembered that it is at the first interview that the criteria and the guideposts are established for the conduct of the case and the future relationship between the attorney and the client.

Vincent P. McCauley Flowers Building Columbus, Georgia

ABOUT THE "DEFENSE LAW JOURNAL"

Published by Allen-Smith Company, this is a comparatively new weapon of the defense -- patterned after the NACCA Law journal, it crows (naturally) about defense victories and is the white book with the bright red nameplate on the complete volumes. -- To read it is to take a good look over the fence -- if it doesn't depress you. But when we note, for example, that they discuss a $20, 000.00 verdict in a Georgia death case reversed as excessive and never even mention that it is an administrator's death case based on the amount of contribution to a dependent relative and has absolutely no bearing on the usual death case by husband, wife, child, or parent we see an editorial weakness that makes the work not too formidable. - - However, it should not be underestimated.

NACCA LAW JOURNAL USED BY DEF ENDANTS
A great many defense attorneys subscribe to the NACCA Law journal to find out what p1aintiffs' attorneys are doing. --- In doing so they get an earful of talk about large, verdicts. Perhaps it helps plaintiffs in settlements.

SAY!!!! LOOK HERE A MINUTE!!!! (Did one of these points slip by you????)

THE WORD "WHIPLASH"---Is it a "plaintiffs' lawyers'" word (as defense counsel---who don't like it---frequent inform the jury) or a doctor's word??? Harold E. Crowe, M. D., a Los Angeles orthopedist coined it in 1928" - - A. B. A. Insurance Section Reports, 1958, Page 176.

PER SE NEGLIGENCE BY PLAINTIFF does not necessarily preclude a recovery. Jones v. Tanner, 26 Ga. App. 140.

EXPERT WITNESSES -"-They are not paid to "testify" - -that is improper. They are paid for the preparation for trial, etc. Schofield v. Little, 2 Ga. App. 287.

EXPERT WITNESS - -Must he boast and say "Yes” I am an expert" to qualify?? ---No. -- That is for the Court to decide after the witness has given the facts. Glower v. State, 129 Ga. 717. Some witnesses will absolutely refuse to say they are 'I experts".

WORKMEN'S COMPENSATION.. Employee works only one day a week??? --That is not his weekly pay so multiply by six before computing compensation. Many insurers attempt to settle and do settle on the one-day basis and express surprise when it is contended otherwise. Carter v. Ocean Accident & Guarantee Corp., 190 Ga. 857.

$17,000.00 RECOVERY UPHELD IN ADMINISTRATOR'S SUIT for 4 days pain and suffering of decedent. Hill v. Rosser, 102 Ga. App. 776.

THE "PURE ACCIDENT" CHARGE often requested by defendants in negligence cases can often be offset by the following request by plaintiff:

When I charge you that if the injuries, if any, resulted from an accident and neither party is at fault, there can be no recovery that charge is simply in the nature of an elaboration or additional statement of the proposition that the defendant is not liable if he is without fault. Baldwin v. Automatic Gas Co., 85 Ga. App. 767, 776.

In some instances the plaintiff can be "charged out of court" by the accident charge unless it is taken care of by careful explanation to the jury, and some charge such as the above because in the eyes of the juror every collision is an "accident" as against intentional harm.

However, it is frequently true that it is error for the court to charge on accident, (Everett v. Clegg, 213 Ga. 168, 171) and the choice would seem to be to explain to the jury in the argument and not request the charge because the right to except might be waived.

by S.G.J.