The Mediation Process

mediation process personal injury

Mediation is a form of alternative dispute resolution whereby a neutral third party facilitates an agreement between the parties. It is a shorter and cheaper way to settle a dispute than litigation, and has the benefit of giving the parties full control of the outcome. It does, however, require parties to compromise. Unlike civil litigation, mediation is not an adversarial process; rather, the focus is on compromise. Mediation is a viable option in personal injury cases in Georgia.

Deciding if Mediation is Right for Your Personal Injury Case

The biggest reason to choose mediation is that it avoids expensive and lengthy litigation. The cost of court fees, expert witnesses, and other litigation costs can be significant. And, the expense of litigation is generally not compensable as a part of the damages in a case unless “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.”

Mediation is also attractive because trials can be unpredictable. Mediation takes away the uncertainty of a jury or bench trial and lets the parties control the outcome. They can also take into account nuances and subtleties in the facts and the parties’ interests that would be lost at trial.

Finally, mediation is relatively risk-free. When a personal injury victim has an excellent case, they can always reject any settlement offers made during mediation and continue on towards trial instead. If you have been injured due to the wrongful actions of another, the attorneys at Williams Elleby Howard & Easter, can help you understand whether mediation is a good option for you.

Choosing When to Mediate

When the facts of a case are clear, it may be the case that both parties will be willing to mediate a claim right away. But in many personal injury cases, it isn’t clear whether mediation is the right choice until after the discovery phase has occurred and all of the relevant evidence is uncovered. At this point, each party has a good idea of how the case is likely to go, and they are thus in a better position to decide whether they want to take the risk of trial.

When a personal injury victim has a solid case, they will often choose to wait until after the summary judgment stage before agreeing to mediation, because after a claim survives this stage the final settlement value of the case will rise. Conversely, if the plaintiff’s claim is more questionable, a plaintiff may be eager to reach a settlement before reaching the summary judgment stage. Ultimately, an experienced personal injury attorney can determine when during the process mediation would be appropriate.

Choosing a Mediator

When parties agree to mediate, they are free to agree to any trusted third party they would like to act as their mediator. A personal injury mediator should be a practicing or retired attorney that understands Georgia tort law. The Georgia Commission on Dispute Resolution can help parties find a mediator. There are also private mediation firms with many excellent mediators. Three of the most popular in Georgia are Henning Mediation & Arbitration Service Inc. (https://www.henningmediation.com), Bay Mediation & Arbitration Services (https://www.bayadr.com), and Miles Mediation & Arbitration Services (https://milesmediation.com) . In other cases, the parties can request that the judge appoint a mediator.

Presenting Position Papers

The first step in mediation is to present the other side with a summary of your claim in the form of a position paper. This can also be a formal settlement demand. The mediator should also be given a copy of this document. A plaintiff’s position paper will address the merits of the claim and state the damages that are being demanded. A defendant may also have a position paper prepared.

Negotiating in a Joint-Session

After position papers have been presented and read, each side will explain their case. The purpose of this joint-session meeting is to make sure that each side fully understands the perspective and legal arguments of the other side. The mediator will objectively explain to both parties the likely outcome of a trial.

Holding Private Meetings as Needed

Following the initial joint-session meeting, the mediator will privately discuss with each side the strengths and weaknesses of their case. Any information learned by the mediator in these private sessions should remain confidential. The mediator will go back and forth as needed, acting as an intermediary to broker a compromise between the parties.

Reaching an Agreement

When the mediator feels that the parties are close to reaching a final agreement, the parties will come together again to discuss and then sign a settlement agreement. Most mediations can be completed in a few hours and take place in a single day.

If You Think You May Have a Personal Injury Claim, Contact Williams Elleby Howard & Easter, to Discuss Your Case

If you have been injured in an accident and would like to schedule a free consultation to discuss your case, call Williams Elleby Howard & Easter, at 833-LEGALGA today.

Vicarious Liability

vicarious liability responsible

Typically, a person is only liable for his or her own actions. It usually isn’t fair to hold one person responsible for the actions of someone else. But there is a big exception to this general rule: vicarious liability.

Vicarious liability is the theory that a superior can be held responsible for the actions of a subordinate that is acting in their control. In Georgia, people can be held vicariously liable for the actions of certain family members under the “family purpose doctrine.” Under the doctrine of respondent superior, employers can be held vicariously liable for the wrongful actions of their employees.

There are two big reasons that Georgia recognizes respondent superior. One is that employers benefit from the work-related actions of their employees. Because employers are enjoying the benefit of work-related actions, Georgia law suggests that they should bear the burden of risk for any harm that occurs as a result of those actions. Another reason is that Georgia law seeks to fully compensate victims for their harm. Employers typically have much bigger pockets than their employees. So it also makes sense for them to bear the financial cost of helping accident victims.

O.C.G.A. § 51-2-2

The basis of vicarious liability in Georgia is found in the Georgia Code Section 51-2-2, which states that “Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.”

Vicarious Liability and Auto Accidents

Vicarious liability, particularly under the doctrine of respondeat superior, occurs in a variety of circumstances. However, vicarious liability is invoked most commonly following auto accidents. The Court of Appeals of Georgia has defined the family purpose doctrine in this context by holding that “when an owner of a vehicle maintains the vehicle for the use and convenience of his family, that owner may be held liable for the negligence of a family member who was using the vehicle for a family purpose.”

Employers, meanwhile, are generally liable for harm caused by employees that are driving a vehicle for work purposes. There are two elements of respondeat superior:

1. The employee must be acting in furtherance of the employer’s business; and
2. The employee must be acting within the scope of his job.

Therefore, employers are generally liable for accidents caused by employees that are driving in the “course and scope” of their job. However, Georgia courts have generally concluded that employers are not vicariously liable for accidents caused by employees driving to and from work.

Cases involving vicarious liability can be exceedingly complex. Whether an employee was acting in the course and scope of their job is often highly contested. In some cases, whether a person should even be considered an employee in the first place is an issue. An experienced personal injury attorney can help accident victims navigate these types of claims successfully and get them justice.

CONTACT THE KENNESAW PERSONAL INJURY ATTORNEYS AT Williams Elleby Howard & Easter FOR MORE INFORMATION

The personal injury attorneys at Williams Elleby Howard & Easter have experience handling vicarious liability claims in Atlanta and throughout the state of Georgia. If you have been injured in an accident and think vicarious liability might apply, Williams Elleby Howard & Easter can help you understand your legal rights and options, and vigorously work to get you the compensation you deserve. Call 833-LEGALGA to schedule a free consultation today.

Avoiding Accidents Between Automobiles and Bicycles

bicycle safety tips duties

Bicycle Safety Tips

There are hundreds of thousands of accidents between automobiles and bicycles each year in the United States. These accidents often have devastating consequences for the cyclists involved, so it is crucial for cyclists to understand their duties on the road and to exercise caution when riding. This article explains the basic legal requirements of cycling on the road and offers some other safety tips to follow.

Georgia Law

The most important thing for bicycle riders to be aware of is that under Georgia law, bicycles are legally classified as “vehicles.” This means that cyclists generally have the same duty to follow the rules of the road as motor vehicles do. For instance, cyclists must obey traffic lights and signs, must give the right of way to pedestrians, and must ride along in the same direction as traffic. However, there are some special rules that apply to cyclists:

  • Under O.C.G.A. 40-6-292, it is illegal for more than one person to ride a single-person bicycle at the same time. An exception exists for infants that are secured by an infant sling or affixed to the bicycle in a bicycle trailer.
  • Under O.C.G.A. 40-6-293, it is illegal for cyclists to attach themselves to a vehicle as they ride.
  • Under O.C.G.A. 40-6-294, cyclists must ride as close to the right side of the road as possible, except when turning left or avoiding hazards. It is important to remember that, although cyclists should stay as far to the right as they safely can, they have every right to ride in lanes of traffic if they need to avoid poor road conditions, pedestrians, or any other “hazard.”
  • O.C.G.A. 40-6-295 actually makes it a crime for anyone to carry anything on a bicycle that prevents them from keeping both hands on the handlebars at the same time. This law, however, does not mean that riders must always maintain both hands on the handlebars at all times – rather, they cannot carry something that prevents them from doing so.
  • O.C.G.A. 40-6-296 outlines several requirements for bicycle equipment.  For instance, bicycles should always have working breaks and should have lights if they are being used at night.

Additional Safety Tips

Riding safely isn’t just about following the law; it is also about following your common sense. Here are some other basic safety tips:

  • Communicate with drivers by making appropriate hand signals and when possible, by making eye contact before crossing through an intersection.
  • Maintain control of your bicycle.
  • Protect yourself—reduce the risk of head injury by always wearing a helmet. In Georgia, riders under the age of 16 are legally required to wear a helmet.
  • Be visible, alert, and communicate your intentions.
  • Ride with traffic.
  • Motorists should always watch for cyclists at intersections, and be patient when passing a cyclist on the road. When passing, the Georgia DMV recommends allowing clearance of at least three feet.
  • The dangers of drunk driving get a lot of attention, but remember that riding a bicycle while intoxicated is highly dangerous as well. In fact, a recent federal study revealed that alcohol was involved in 34% of all fatal auto-cyclist crashes and that 24% of cyclists who were killed in these accidents were intoxicated.

Following these safety tips will help you stay safe on the road. Pay attention to other great resources out there are as well – but remember that not everything you read on the Internet is true. Official government sources, such as the National Highway Traffic Safety Administration, are excellent sources of gaining further information.

If you do get in a bicycle accident, a qualified bicycle accident attorney can help you understand your rights. If you would like more information about this issue, call Williams Elleby Howard & Easter, at 833-LEGALGA today for a free consultation.

Georgia Discovery Process

Georgia discovery process case

Georgia Discovery Process

Unfortunately, you were involved in a motor vehicle accident, which caused you injury and forced you to miss time from work. The injury has taken a toll on both your personal and professional life. You went to a lawyer who listened to your story and filed a complaint. Shortly thereafter, you received an answer from the other side.

At this point, you would like to gain more information about the accident. You would like to question the other side to help strengthen your case. You would also like to discuss certain things with eyewitnesses. In other words, you want to gather as much pertinent information as possible so that you can present your case. In addition, you would like information about the other party so that you can prepare for possible questions that the other side may ask you.

Title Nine of the Georgia code provides for such a mechanism, which is called discovery. Discovery is generally allowed during the six months after a defendant files an answer. This time period can be lengthened by motioning the court for an extension.

The main ways to obtain information during the discovery phase of a lawsuit are interrogatories, depositions, document production, and requests for admissions.

Interrogatories

Interrogatories are formal questions that one side will ask the other. These questions must be answered. The Georgia code allows one party to compel the other party through an interrogatory, to divulge who will be called as a witness.  Interrogatories will also seek information concerning other basic facts of the case such as insurance coverage and most anything relevant to the case.

Depositions

Depositions are an oral examination of the other party or a witness outside of court.  The party’s attorney will conduct a deposition and the person being deposed will be sworn in under oath. The deposition will usually be recorded. Georgia law generally caps the length of a deposition at seven hours, though the party conducting the deposition can request for an extension from the court.

Document production

One party can request that the other party produce all documents that may lead to the discovery of relevant evidence. This must be a written request and the other party generally has thirty days to respond. A request for document production can also be served on a third party, provided the requesting party reasonably believes that the third party has relevant information.

Request for admissions

One party can send formal questions asking the other party to either admit or deny certain allegations.  Request for admissions are generally used to narrow the issues for trial so the parties do not waste judicial resources litigating things that are not disputed.

It is important to note that the other party may not cooperate with the discovery process. When this occurs, your lawyer should consider filing a motion to compel. Under the Uniform of Superior Court Rules of the State of Georgia, a party claiming that the other party is not cooperating with the discovery process may file a motion in court asking to compel the other party to comply with the request. The court may issue a Protective Order in favor of the moving party to compel discovery compliance.  However, before any motion is filed, the parties must confer in a good faith effort to resolve any dispute prior to asking for court intervention.

Contact us

If you’ve suffered an injury due to a car accident, contact the personal injury law firm of Joel Williams, a Cobb County, Georgia, lawyer who fights for injury victims. If you have questions or would like to discuss your case, please call our office today at 833 – LEGALGA for a free consultation.

Georgia Comparative Fault Law

Two severely damaged cars, the back of a black car smashed in and the front of a gray car smashed in.

Georgia Comparative Fault Law

Imagine this scenario: Two cars are involved in an accident. One party suffers serious injury. The police arrive and prepare a report. An ambulance appears with medical personnel to treat the injured. Medical personnel remove the injured party from his car, place them on a stretcher, and put the injured person in the back of the ambulance. Shortly thereafter, the ambulance takes the injured party to the nearest hospital.
The injured party sues the other party for negligence. The injured party, who became the plaintiff, says that the accident occurred because the other party, the defendant, was negligent in operating his or her vehicle. The defendant counters that the plaintiff was also at fault because the injured party was speeding at the time of the accident. When this case goes to a jury, the jury will decide fault. The Georgia comparative fault rule will be in play, which, after each party’s proportionate fault is determined, may limit the reward available to the plaintiff.

Negligence Claim

The plaintiff must first prove the defendant was negligent in order to recover a reward from the defendant or his insurance company. To successfully prove negligence, a plaintiff needs to demonstrate the following:

  1. The defendant had a duty to conform to a certain standard of conduct;
  2. The defendant breached that duty;
  3. Such breach of duty was the actual (“but for” the defendant there would not have been an accident) and proximate (the defendant’s action was    reasonably foreseeable) cause of injury;
  4. The plaintiff suffered damages.

The standard of conduct for the first prong is what an ordinary person would do in such a situation.  If the defendant does not meet that standard, then he or she can be found negligent if the event caused the plaintiff’s damages.
If the plaintiff is able to prove that the defendant was negligent, the defendant may counter that comparative fault applies. In other words, he or she could argue that the plaintiff was also at fault. If the defendant were capable of proving comparative fault, the plaintiff’s recovery would be limited or even eliminated.

Georgia Comparative Fault Law

In personal injury cases, Georgia applies the comparative fault standard. Under this law, a plaintiff who demonstrates injury due to the defendant’s negligence can recover monetary damages provided that a jury determines the plaintiff is less than fifty percent at fault for the accident. In our example, if the jury finds that the plaintiff was somewhat a fault, but less than fifty percent, he or she could be awarded damages; however, if the jury finds that the plaintiff is at least fifty percent responsible for the accident, then the plaintiff cannot recover any damages. This is also known as partial comparative fault.
If the jury determines that the plaintiff is at fault but by less than fifty percent, then the plaintiff’s award will be reduced in a way that is proportionate to his or her fault. For example, if the jury awards $100,000 in damages and that the plaintiff was forty percent at fault, the plaintiff will recover $60,000, which accounts for the plaintiff’s portion of fault.

Contact Personal Injury Attorney Joel Williams if You Are Involved in an Accident

If you are involved in an accident, contact the personal injury law firm of Joel Williams, a Kennesaw, Georgia lawyer who fights for injury victims. If you have questions or would like to discuss your case, please call our office today at 833 – LEGALGA for a free consultation.

The Personal Injury Lawsuit Process

A closeup of a wooden gavel with a blurred background of a white open book.
Contrary to what you may see on television or hear on the news, the vast majority of lawsuits do not end up in court. Instead, they are settled. Some disputes are even settled before a party files a lawsuit. If you have been injured in Georgia and are considering initiating a lawsuit, it might be helpful to know the basics of how the process works. Understanding the steps can help provide you with a realistic idea of what to expect.

Before the Lawsuit

An insurance company will likely contact you shortly after the accident. It may attempt to get you to settle your claim even at this early point. Insurance companies are often successful because victims tend to be confused and overwhelmed after an accident. However, settling this early is rarely a good idea. When an insurance company contacts you after your accident, you may not yet understand or appreciate the full extent of your injuries or how they will affect your future. Instead of jumping at the first sign of money, you should contact an Atlanta, Georgia, personal injury attorney. A lawyer will be able to evaluate your case and determine whether the insurance company is offering you a good deal or trying to take advantage of you. If a reasonable settlement cannot be achieved, the next step is to file a lawsuit.

The First Step in Filing a Personal Injury Claim

The first step in a lawsuit is filing a petition. This petition lays out the facts of the case and explains why you are entitled to compensation under Georgia law. The other side will reply to your petition via what is called an “answer.” This answer must respond to each of the factual and legal assertions your personal injury attorney made in your petition. From there, the parties will begin the discovery process.

The Discovery Phase

Discovery takes up a majority of the time and effort in a legal case. During this phase, you will work with your Georgia personal injury lawyer to gather information. You can do this through formal discovery by asking the other side questions in writing and demanding that they produce particular documents. You can also request to depose the other side. A deposition is a formal, in-person question-and-answer session that is held under oath. Discovery may also involve extensive research or the use of experts. You can even subpoena other parties to gather more information. Discovery can be a long and complicated process, depending on the case. The discovery process is extremely important to building a good case for trial, however.

Trial

Most people are familiar with the trial process, but it is not like what you have seen on television. If the parties have prepared properly, there should be no surprises. Trial is your chance to present your case to the jury and explain why you deserve compensation for your losses after an accident. Personal injury lawsuits rarely reach the end of a trial because parties can still settle a claim throughout the trial. And while some cases are better suited for trial, many others can be more efficiently resolved through settlement, alternative dispute resolution, or mediation. Taking a case all the way to trial can take years, so parties often settle to save time and money. Your personal injury attorney will be able to help you navigate the process. Call Williams Elleby Howard & Easter at 833-LEGALGA for more information or to request a free consultation.

An Explanation of Wrongful Death Claims

explanation wrongful death claims

An Explanation of Wrongful Death Claims

Have you recently lost a loved one in a car accident where the other driver was at fault? Was your loved one taken from you early because of injuries caused by malfunctioning machinery or because they were prescribed the incorrect medication? Losing a loved one is devastating under normal circumstances, but when death is unexpected and the result of another person’s negligence, you may be able to file a wrongful death claim.

In Georgia, filing a wrongful death claim comes with specific rules that can be challenging for survivors of the deceased to process. It is important to seek the help of an attorney who can get you the compensation and closure you deserve.

What Qualifies As A Wrongful Death

According to Georgia legal codes, a “wrongful death” is defined as the death of a person due to the “negligent, reckless, intentional, or criminal” acts of another entity (person, business, etc.). Examples of when a wrongful death might occur include instances of medical malpractice, motor vehicle collisions, defective products, premises liability, violence, and work injuries. In these instances, certain survivors of the deceased may be able to bring a successful wrongful death lawsuit.

Who Can File A Wrongful Death Claim

A wrongful death case may be initiated by survivors of the deceased. This typically is the surviving spouse or parent. However, if there is no surviving spouse, children may file a wrongful death claim. In addition, a personal representative of the deceased may file a wrongful death claim, in which case damages recovered are held by the estate for the benefit of the deceased’s next of kin.

Compensation Available For Wrongful Death

There are two different types of wrongful death claims in Georgia. The first type of wrongful death claim seeks to establish the “full value of the life of the deceased.” In such cases surviving family members can recover monetary damages for both the monetary and intangible value of the deceased person, including:

● Any lost wages and benefits the deceased may reasonably have earned if they had not passed; and
● Pain and suffering, loss of companionship, and other non-monetary damages felt by loved ones of the deceased.

The second type of wrongful death claim, the “estate claim”, seeks compensation for financial losses that occurred because of the deceased person’s death. Here it is the deceased person’s estate seeking damages such as:

● Medical expenses for injuries or illness that caused the death;
● Funeral and burial expenses for the deceased; and
● Any pain and suffering the deceased endured before death.

Statute Of Limitations

A wrongful death claim must be filed within the time specified by the Georgia statute of limitations. Under most circumstances, the survivors have two years from the date of death to file a wrongful death claim in court. Depending on your case, however, the time may be lengthened or shortened and it is extremely important you file a case before the clock runs out.

Exceptions, for example, exist if there are criminal proceedings in court for the same wrongful death. The two year statute freezes and begins running after the criminal case is completed. There may also be an additional five year toll for cases where the person’s estate is not probated.

Why You Need An Attorney

In Georgia, a wrongful death attorney will usually work on a contingency fee basis, meaning the attorney isn’t paid until the case is successfully settled. Call wrongful death lawyer Joel Williams to speak to an experienced wrongful death attorney about your options. 833-LEGALGA

Georgia’s “Move Over” Law

Georgia's move over law

Georgia’s “Move Over” Law

Georgia wisely passed a “Move Over” law in an effort to reduce the number of injuries and fatalities to police officers, paramedics, firefighters, tow truck operators and highway maintenance workers. The law was passed in response to an increased number of police officers and emergency personnel being killed or seriously injured by passing motorists.

In its most basic terms, the law requires drivers to move-over one lane, when possible, if an emergency vehicle with flashing lights is parked on the shoulder of the highway. If the driver is unable to move over, the law requires the driver to slow down below the speed limit and to be prepared to stop.

This entire statutory text of the law, codified as O.C.G.A. § 40-6-16 is as follows:

(a) This Code section shall be known and may be cited as the “Spencer Pass Law.”

(b) The operator of a motor vehicle approaching a stationary authorized emergency vehicle that is displaying flashing yellow, amber, white, red, or blue lights shall approach the authorized emergency vehicle with due caution and shall, absent any other direction by a peace officer, proceed as follows:

(1) Make a lane change into a lane not adjacent to the authorized emergency vehicle if possible in the existing safety and traffic conditions; or

(2) If a lane change under paragraph (1) of this subsection would be impossible, prohibited by law, or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

(c) The operator of a motor vehicle approaching a stationary towing or recovery vehicle or a stationary highway maintenance vehicle that is displaying flashing yellow, amber, or red lights shall approach the vehicle with due caution and shall, absent any other direction by a peace officer, proceed as follows:

(1) Make a lane change into a lane not adjacent to the towing, recovery, or highway maintenance vehicle if possible in the existing safety and traffic conditions; or

(2) If a lane change under paragraph (1) of this subsection would be impossible, prohibited by law, or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

(d) Violation of subsection (b) or (c) of this Code section shall be punished by a fine of not more than $500.00.

The Georgia Governor’s Office of Highway Safety, citing FBI statistics, noted that traffic crashes claim the lives of more police personnel than any other cause of death in the line of duty, including shootings. As you travel Georgia roads, please adhere to this law and protect the lives of those who keep us safe.