5 Reasons to Hire a Georgia Native as Your Trial Lawyer

Hiring a Personal Injury Wrongful Death Attorney in Kennesaw Georgia

5 Reasons to Hire a Georgia Native as Your Trial Lawyer

Where a lawyer was born and raised may not seem like it’s important when choosing someone to represent you in your personal injury or malpractice case; however, it can make all the difference in the world. We’ve put together five reasons you should hire a Georgia native as your trial lawyer.

He Is Accessible and Available

A local Georgia personal injury attorney will be available to speak with you at his office for your free consultation, or whenever you have questions or concerns. He will also be able to come to you if needed. If you’ve been severely injured or do not have car access, then a Kennesaw attorney who is worth his salt will drive to you.

Face to face interactions are necessary in serious personal injury, car wreck, or slip and fall cases, not only so your attorney can assess your case, but so you can assess your attorney. You should feel like you are on a team with him, and there is no better test of compatibility than an in-person meeting.

He Supports Local Businesses

Georgia-based attorneys make sure to outsource their business needs to locally owned and operated companies. That includes local doctors, mechanics, printers, and experts. It takes a team of businesses and professionals to help prove fault in cases; keep that money local.

He Keeps Your Expenses Low

If you hire an out-of-state lawyer, he will bill you for travel-time to see you, interview witnesses, or take depositions, which will get deducted from your final settlement. Pick a local attorney and keep that money where it belongs: in your pocket.

He Works to Defend His Local Reputation

A lawyer’s reputation may not seem important when hiring your trial lawyer, yet it is critical because it ensures your premises liability attorney handles your case with dignity and integrity.  A Georgia native would not want to ruin the reputation he spent years building up.

A non-local attorney knows he will not be coming back to Georgia or Cobb County anytime soon. As a result, may not care about his actions in your case or the community. He may be lax in his preparation of your case, or worse, he could settle your case for less than you deserve to ensure he does not have to travel to represent you.

He Has a Better Chance at Getting Insurance Companies to Compensate You

When an insurance company knows your trucking wreck or product liability attorney is local, it is much more likely to settle. Why? A local attorney does not have to worry about travel to court, so he is going to push hard for a trial date. More than that, a Georgia lawyer will not be scared to take your case to trial since he knows the judges, the court staff, and other attorneys.

Contact us

Don’t be persuaded by the allure of out-of-state lawyers with shiny advertisements and billboards. If you or a loved one has been injured, call the personal injury and wrongful death law firm Williams Elleby at 833-LEGALGA in Kennesaw, Georgia for a free consultation.

Know Your Rights When Signing Commercial Gym Contracts

Gym Contracts Rights Personal Injury Attorney Georgia

Know Your Rights When Signing Commercial Gym Contracts

In 2015, there were 36,180 registered gyms located throughout the United States. Perhaps you were a member of one or looking to join another. At the beginning of every year, gyms scramble to get people to sign contracts the second they walk through the door. Before you fork over your hard-earned cash, make sure you know your rights as a consumer so you can identify which rights a gym is asking you to sign away in those contracts.

General Tips

Before you sign on the dotted line, do some research on the gym you want to join. Here are some questions you should know the answer to:

  • Is the gym accredited with the Better Business Bureau here in Georgia?
  • Have there been any complaints or lawsuits filed against the gym in the last three years?
  • Will the gym send you a contract via email so you can read it thoroughly before you sign it? Gyms typically won’t do this, but it doesn’t hurt to ask. If a gym does email it, that’s a good sign it isn’t hiding anything from you.
  • Is there an auto-renewal policy?
  • How can you cancel your contract? Most gyms require members to mail or email notice to the corporate office. Be sure to read the contract to see if you will be forced to pay for the remainder of your contract if you cancel it early.

Liability Waivers

A waiver is the forfeit or surrender of claims, rights, or privileges. In exchange for participating in activities as a gym member, you forfeit (certain) rights to sue the gym or trainer. Essentially, this means you promise not to sue the facility for the dangers associated with the activities detailed in the liability waiver. The gym also promises that you will not be injured from the equipment you will use.
Below are some things to consider before you sign a gym contract:

  • You will waive typical negligence claims but still retain the right to sue for gross negligence (intentional) or negligent security.
  • Will the gym be liable for premise liability associated with its equipment and staff?
  • You will likely sign a model release form. If you sign it, the gym will be able to take pictures of you and use them as it wishes.

If you signed a liability waiver at the gym where you were injured, you will want an attorney to investigate the incident and determine whether the waiver is valid and whether there are any ways to get around the waiver. For example, Georgia case law has established that liability waivers are invalid insofar as they purport to waive liability for gross negligence. Many times a jury must decide whether the negligence which caused an injury is “gross.” See McFann v. Sky Warriors, Inc., 268 Ga. App. 750, 758 (2004) and Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 477 (1997) (“[w]hen facts alleged as gross negligence are such that there is room for difference of opinion between reasonable men as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury”).
A key fact in all Georgia cases affirming the grant of summary judgment to Defendants based on liability waivers has been that in each of those cases the waivers contained specific language that relieved the Defendant of liability for negligence. In Georgia, exculpatory clauses must be “explicit, prominent, clear and unambiguous.” Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 477 (2007). Any ambiguities in exculpatory clauses are construed against the drafter. Id. If the “Waiver of Liability” at issue in your claim does not mention negligence, it may not bar your claims.

The Three-Business-Day Refund Rule

What happens if you sign a gym contract but get buyer’s remorse quickly thereafter? Don’t worry. You have three business days to tell an employee, generally the front desk manager, that you changed your mind and want a refund. By law, the gym is required to refund your money within 10 business days.

Answers to Your Gym Contract Questions

To protect your rights as a consumer, keep the foregoing tips in mind as you decide whether to join a Georgia gym. If you sign a contract, make sure to get a signed copy. If you need help or have questions, call the Atlanta area trial lawyers at Williams Elleby at 833 – LEGALGA for a free consultation.

How Does a Contingency Fee System Work?

Personal Injury Wrongful Death Attorney Contingency Fee Georgia

Under a contingency fee arrangement, clients do not pay their attorneys unless they win their case. For some arrangements, clients may still need to pay expenses and court costs, but in many arrangements the law firm will advance all legal costs until a case is settled or won.

Contingency fees are typically seen in personal injury cases. Car accident, premises liability, defective product, and malpractice claims are frequently conducted on a contingency fee basis. Other types of claims may be handled on a contingency basis in certain circumstances. However, contingency fees are never available for criminal law, immigration, or family law cases.

What is a typical contingency fee?

A typical contingency fee ranges from 33-40% of the total amount won by a plaintiff. However, fees can vary widely based on the particular facts of a case. The time an attorney expects to work, the amount of the potential award, and the overall strength of a case are all factors that the attorney will need to consider.

Benefits of a contingency fee arrangement:

  • Contingency fee arrangements give access to justice for plaintiffs that are unable to afford to pay an hourly rate or flat fee to their attorney upfront.
  • Because a law firm knows it will only get paid if it wins your case, it will only agree to represent you if the firm’s attorneys feel very strongly that you can win. Therefore, if a firm agrees to represent you on a contingency basis, you can rest easy knowing that your attorney fully believes in the validity of your case.

Detriments of a contingency fee arrangement:

  • A fair contingency fee is based on the law firm’s best-guess as to what is likely to happen in a case.  But, sometimes outcomes can be unexpected. For instance, if an attorney can settle a case more quickly than anticipated, he may gain a large contingency fee for a mere few hours of work. In other circumstances, a case can drag on far longer than an attorney expects and end up costing the attorney far more than the contingency fee was worth. Both clients and attorneys thus take on some risk that a contingency fee may, in hindsight, seem unfair.
  • Contingency fees can sometimes cost more in the end. With these arrangements, attorneys are absorbing the risk that their client may lose or be unable to collect their judgment. Despite a high likelihood of success in contingency fee cases, every once in a while, an attorney puts forth time and energy into a case and ends up getting paid nothing. To offset these losses, law firms need to charge more for contingency fee cases.

If you have a potential claim, you should consider whether a contingency fee is the best option for you. At Joel Williams law, we offer services on a contingency fee basis and would be happy to discuss this and other options with you if you would like to discuss your case. For most cases, we will advance all legal fee costs until your case is settled. Call Williams Elleby today at 833 – LEGALGA for a free consultation.

How Much Will a Georgia Car Accident Lawyer Cost?

Wrongful Death Personal Injury Attorney Fees Cost Georgia

Some people shy away from hiring an attorney after an accident because they think it will cost too much. It is true that lawyers can be expensive; however, many personal injury lawyers in Georgia accept cases on a contingency fee. This payment arrangement enables victims to file a claim without having to pay their attorney up front, but perhaps the most beneficial aspect of this arrangement is that victims often do not have to pay anything unless they win their case. In short, contingency fee arrangements allow the victim to file a claim virtually risk-free.

How Does a Contingency Fee Work?

A contingency fee is “contingent,” meaning it depends on a certain outcome. In a car accident case in Georgia, it means that you will only pay your attorney a fee if you receive compensation for your injuries.

Each payment arrangement is slightly different, so it is important to read your fee agreement with a potential attorney carefully. In some arrangements, the attorney may expect you to pay for costs such as filing fees or expert expenses as they become due. In most situations, however, the attorney will cover these costs for you, but they may be added to your bill if your case is successful.

Other examples of expenses that may be required to cover include:

  • Postage and copies
  • Mileage (or other travel expenses)
  • Court reporter fees
  • Medical records fees
  • Police reports
  • Expert fees
  • Filing fees

If you lose your case, your Georgia personal injury attorney will likely end up waiving these costs. You are generally not responsible for any fees if you do not win your case.

How Much Is a Contingency Fee?

The contingency fee is typically a percentage of your overall award or your settlement amount. The percentage usually ranges from 30 to 40 percent, but most contingency fees are around 33⅓ percent of the total award or settlement.

The fee may vary depending on how complicated your case is. For example, an attorney may work out a deal with you in which his fee will be 33⅓ percent if he can settle your case for a reasonable amount without filing a lawsuit. If the case must be filed, the fee may increase to 40 percent. If you appeal the lower court’s decision, the fee may increase to a higher percentage. Such increases are designed to account for the added time, effort, and expense at each stage of your claim. Keep in mind that this percentage is in addition to any costs that may need to be reimbursed.

What Are Benefits of the Contingency Fee Arrangement?

Car accident lawyers in Georgia use the contingency fee arrangement because it benefits victims who are likely dealing with a lot of issues, such as medical bills and an inability to work. Having to pay an attorney’s fees on top of that would deter many individuals from filing a car accident lawsuit and getting the compensation they deserve. The contingency fee arrangement removes cost as a barrier so that more people can have access to the court system.

Williams Elleby takes car accident lawsuits on a contingency fee basis because we want to help victims get their lives back on track. Call 833 – LEGALGA for more information or to set up a free consultation.

How Do I Prepare for My Deposition?

prepare my deposition attorney

What is a Deposition?

A deposition is a discovery tool that attorneys use to obtain the sworn testimony of parties and witnesses prior to the trial of a civil case. Depositions are an excellent time for lawyers to inquire about facts that may be relevant to the lawsuit. Lawyers also use depositions to evaluate how a party or witness will appear before a jury so they can better estimate the settlement value of a case. There is no judge or jury present during a deposition, only the lawyers and a court reporter and/or videographer. If a case goes to trial, depositions can be used in cross-examination of a witness if the trial testimony differs from the testimony given at the time of the deposition. Without question, depositions are the most important event that occurs during a civil lawsuit except the trial.

How Do I Prepare For My Deposition?

You have been summoned for a deposition. What now? If you are a party to the case, your deposition can go a long way in assisting your lawyer in handling the case either by way of settlement or trial. What you do at the deposition can help or hurt you, depending on your attitude, truthfulness, and appearance. Here are a few recommendations that may help you be an effective witness:

1. Physical Appearance For A Deposition:

It is important that you make a good impression upon opposing counsel. You should appear at the deposition dressed as you would expect to dress if you were going to Court to appear before the judge and jury. After all, this is the first opportunity opposing counsel has to see you. Wear neat and clean clothing and be prepared to show any and all injuries which you suffered. If this presents a potentially embarrassing situation, tell your lawyer in advance and he can take care of it.

2. How To Conduct Yourself At A Deposition:

Treat all persons in the deposition with respect and courtesy even if they do not return the favor. A famous trial lawyer once said, “Anger is the blood of the battle in Court.” Although you may feel anger, you must control it and never lash out at opposing counsel.

You must always tell the truth no matter the costs but it is important that you do not get trapped into saying something that is not true. Always listen to each question carefully and be sure you understand the question before you answer. If you do not understand a question, ask the opposing lawyer to repeat it or rephrase it so you do understand. When you do understand a question, answer it honestly and in a straightforward manner. If you don’t know the answer, say you don’t know. Never guess at an answer and remember honestly is always the best policy. If you tell the truth and don’t guess, you will be fine.

Give audible answers. The court reporter will take down all of the questions asked during a deposition as well as your answers and you must speak clearly to make sure the court reporter gets everything correct.

Avoid joking or wisecracks. Lawsuits are serious matters and jokes have no place is a deposition.

Never volunteer information. Sometimes when witnesses get nervous they get “diarrhea of the mouth.” They just start talking and inevitably say something they don’t really mean that can be taken out of context and used against them later in the lawsuit. The lawyer taking the deposition has the responsibility to ask proper questions to obtain the information he or she seeks. Let them do their job and only answer the question they ask.

Listen to your lawyer. Sometimes your lawyer may object to a question. If your lawyer objects, stop speaking immediately, listen to his objection, and follow his instructions.

Wait until the opposing lawyer finishes his or her question before you answer. Do not anticipate what the question is before the lawyer has finished asking the question. Do not start nodding your head or answering until the question is complete. This is a common mistake in depositions because it happens every day in normal conversation. A deposition is not a normal conversation and you should not treat it as such.

Be careful of questions in which the attorney puts words in your mouth. Attorneys often ask leading questions so they can phrase the answer. For example, “You had pain in your neck prior to this wreck, isn’t that right?” This is a leading question that calls for a “yes” or “no” answer. Leading questions are much different than a question that simply asks “Tell me about any pain you experience in the year prior to the wreck.” The difference is that the attorney is suggesting the answer in the leading question and asking you to agree with it. Never agree to a leading question unless you fully agree with what the attorney says.

Beware of questions involving distances and time. If you are making an estimate, be sure that everyone understands you are making an estimate. People are notoriously bad at giving distances and times. If you do not know a time or distance, say so. Never guess.

3. Your Deposition Is All About You:

The most important aspect of your deposition is you. If you are fair, honest, and professional in giving your deposition testimony, you will be taking a tremendous stride towards a satisfactory completion of your case.

Premises lawyer Joel Williams hopes this information will be helpful to you if you are ever required to give a deposition. Remember, a deposition is serious matter and you should always meet with your lawyer to prepare for your deposition. Review any documents related to your case and discuss what questions may be asked with your lawyer. You lawyer should not tell you what to say but he or she may be able to help you phrase answers to anticipated questions so your answers will be more effective and accurate. If your lawyer encourages you to tell anything but the truth, fire him immediately and hire someone who has the proper ethical compass required of legal professionals.

The Truth About Trial Lawyers

truth real trial lawyers

So you want the inside scoop on those low down, money hungry, ambulance chasing bastards that litter the interstate with billboards and your television with commercials?

Well, here it is from an admittedly biased trial lawyer:

Real trial lawyers are warriors.

They go to battle against insurance companies and corporations that have more money than many third world countries. Real trial lawyers get justice for those who don’t have the resources to take on the insurance companies and corporate giants. Real trial lawyers do all this despite being the brunt of nasty jokes and smear campaigns. Real trial lawyers often find themselves fighting for the very people that tell hateful “lawyer jokes” or fly the “tort reform” banner. Real trial lawyers fight for people, sacrifice time with their families, and put their own hard earned money on the line in the name of justice.
What about those low down, money hungry, ambulance chasing bastards? They are not real trial lawyers. Every profession has a few bad apples and the Plaintiff’s bar has more than its fair share. In my opinion, the negative perception of trial lawyers is due in large part to what I like to call “settlement mills.” Settlement mills are law firms with very few lawyers and a large number of legal secretaries or paralegals. They are usually the law firms you see with tacky billboard ads or classless commercials. Many times clients of a settlement mill will never meet their lawyer. Why? Because the lawyer probably has 5,000 cases managed by a staff of 10-15 paralegals. How sad is that? The goal of a settlement mill is simple: Take on as many cases as possible; settle them fast for whatever you can get; refer out the ones that won’t settle; move on to the next poor sap that didn’t know calling the number on the side of the bus was a bad idea. Smh…
Some who call themselves “trial lawyers” are even worse. They will hire people to scan local police reports and show up at the injured person’s house or hospital bed with a contract in hand. Of course, this is unethical under nearly every state’s bar rules but it is rarely enforced. In my humble opinion, lawyers who do this should be arrested, prosecuted, and thrown in jail.

Real trial lawyers have a unique responsibility in today’s world.

Yes, we run a business and must make money to stay in business. At the same time, we represent people who are suffering. Our clients are going through what is likely one of the most difficult times in their lives. They need a warrior that will take on the big corporation or insurance company. They need a warrior that is not afraid to stand up for justice. They need a champion.

Real trial lawyers put your interest first.

If you have been seriously injured or suffered the loss of a loved one due to the negligence of another, I encourage you to find a real trial lawyer. Find someone who will go to war with you against the insurance company. Above all, find a real trial lawyer that will always put your interest first.  I recommend that personal injury victims sit down and meet with at least three different lawyers before making a final decision.
Who do you trust? Who has the skill and knowledge and yes, the fortitude, to stand by your side and fight with you? Only you can make that call. But rest assured, it will be one of the most important decisions you will ever make.

Top 10 Mistakes Attorneys Make in Car Wreck Cases

car wreck attorney mistakes

Top 10 Mistakes Attorneys Make in Car Wreck Cases

Many attorneys handle car wreck cases but too many do it poorly. If you are an attorney, please don’t make these mistakes. If you are a car wreck victim, make sure your attorney is not making any of these mistakes. The most common mistakes I see are:

1. Failing to Notify All UM Carriers About the Wreck:

In Georgia, car wreck victims must promptly notify their own insurance company about the wreck to preserve their right to bring an underinsured motorist claim. Many attorneys fail to do this which can lead to the denial of benefits to their clients.

2. Failing to Identify All Sources of Insurance:

Many attorneys fail to identify all sources of insurance that may cover their client’s damages. For example, UM coverage may be available if the injured party lives with a “resident relative” who has UM coverage under a separate policy of insurance. Many attorneys do not know about this and fail to access this coverage. In cases where the at-fault party does not have enough insurance to cover the damages, this can be a catastrophic error. All “umbrella” or “excess” coverage must also be identified. In serious injury cases, it is vitally important to verify whether the at-fault party has “umbrella” or “excess” coverage over and beyond what may be available on the primary policy.

3. Failing to Settle a Case Pursuant to a Limited Liability Release:

O.C.G.A. § 33-24-41.1 allows a claimant to release the at-fault party from personal liability in exchange for payment of his or her insurance limits, except to the extent there is other liability coverage or underinsured motorist coverage available. If the claimant signs a general release (as opposed to a limited liability release), the claim is finished and the claimant will not be able to recover from any other available liability coverage or from his or her own underinsured motorist carrier.

4. Failing to Visit the Scene of a Wreck:

Many attorneys blindly rely on the diagram that is included with most police reports to visualize the scene of a wreck. This is usually due to the attorney either being too lazy to visit the scene or being overworked. Scene visits can often reveal information about a wreck that is not obtainable from a police report. For example, lighting conditions and other variables that could obstruct a driver’s vision may not be recorded by the investigating police officer. Roadway evidence such as skid marks or gouges in the pavement may be found which can become critical evidence in cases where liability is disputed.

5. Failing to Send Evidence Preservation Letters:

In every case, the claimant’s attorney should send letters to any potentially liable party and their insurer demanding that all evidence be preserved for inspection. The attorney should then inspect and document all evidence that may otherwise be destroyed. For example, in car wreck cases, insurance companies routinely sell “totaled” cars for salvage after their adjusters have inspected and documented the vehicle damage. If the injured party, or their attorney, hasn’t been afforded the opportunity to inspect and document the vehicles, they will be forced to rely the insurance company’s inspection. Obviously, this is a bad idea and should be avoided at all cost.

6. Failing to Prepare the Case for Trial:

After a car or tractor-trailer wreck, the at-fault driver’s insurance company will immediately begin its investigation with one goal in mind: to minimize any payout to you. Insurance companies know which attorneys will take a case to trial and which attorneys will simply settle cases for whatever they can get. Attorneys that prepare cases for trial consistently obtain larger settlements for their clients than those who simply accept the insurance company’s “take it or leave it” settlement offer.

7. Settling Cases without Knowing the Full Extent of Damages:

Unfortunately, many attorneys settle cases before their clients are finished with their medical treatment. I have never understood this. Many times, car wreck victims must undergo several different kinds of conservative procedures like physical therapy or injections before they know whether they are a candidate for surgery. If the case is settled without accounting for the tremendous costs associated with a surgery, the injured client is left to pay the surgical bills on their own. Do not let your attorney settle your case until you have a firm grasp on your diagnosis, prognosis, and future treatment plan.

8. Failing to Gather All Data Available from Public Agencies:

Many times there is much more information and documentation available from public agencies than the police report. For example, in wrecks resulting in death or serious injury the Georgia State Patrol will often dispatch its Specialized Collision Reconstruction Team “SCRT” to thoroughly investigate and reconstruct the wreck. Other items such as 911 calls, dash cam videos, body cam videos, and CAD reports are available. Attorneys should always obtain every piece of publicly available information related to every car wreck case.

9. Failing to Interview Every Witness:

Some cases seem so clear cut that attorneys fail to interview all potential witnesses. Imagine a collision where the claimant is rear ended by another driver at a stop light. Seems pretty straight forward right? What if a witness spoke to the at-fault driver and smelled alcohol on his breath but the attorney never spoke to this witness? What if the at-fault driver got out of his car and told a witness that he was messing with his phone and didn’t see the car he hit? Make sure your attorney is contacting all witnesses! You can be sure the insurance companies will.

10. Failing to Identify any Defective Products:

Automobile manufacturers are routinely issuing recalls for defects in their automobiles. These dangerous automobiles may have defective seat belts, airbags, brakes, seatbacks, roofs, gas tanks, sudden acceleration, steering mechanisms and many other dangerous components. If these defects are not investigated or recognized in catastrophic personal injury cases, the automaker will not be held accountable for putting lives at risk. Make sure your attorney has looked into whether any defective vehicle component contributed to or exacerbated the injuries you sustained in any catastrophic car wreck case.

Recent Updates on Spoliation in Georgia

spoliation evidence

Recent Updates on Spoliation in Georgia

The hack of the cheating website Ashley Madison reminded me of the great lengths people will go to cheat. People cheat on all sorts of things like sports, tests, and as Ashley Madison reminded us, their spouse. Some parties also cheat in litigation by destroying evidence their adversary needs to pursue their claim. Lawyers often refer to this kind of cheating as the spoliation of evidence.

“Spoliation” is the term used to describe the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation. Howard v. Alegria, 321 Ga. App. 178, 179 fn. 3 (2013). Such conduct creates the presumption that the evidence would have been harmful to the person who destroyed or failed to preserve the evidence. Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 845 (2012). “However, in order for the injured party to pursue a remedy for spoliation, the party who destroyed the evidence must have been under a duty to preserve the evidence at issue.” Phillips v. Harmon, 2015 WL 3936826 (June 29, 2015) citing Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807 (2013).

Until recently, Georgia courts routinely declined to sanction parties who destroyed evidence unless it could be shown that the sanctioned party had actual notice of contemplated litigation. In Phillips v. Harmon, 2015 WL 3936826 (June 29, 2015), a unanimous Georgia Supreme Court made the most of an opportunity to clarify that “actual notice of contemplated litigation” is not required to impose upon a party the duty to preserve evidence.

Phillips was a medical malpractice case in which the Plaintiffs alleged that the Defendants negligently monitored and responded to a babies’ heart decelerations and periods of bradycardia resulting in oxygen deprivation shortly before birth, resulting in severe and permanent neurological injuries. The destroyed evidence at issue were printed paper strips of the electronic monitoring of the babies’ fetal heart rate and there was some evidence that there were nursing notations on the printed strips. The hospital maintained the monitoring strips for 30 days and then destroyed them pursuant to their routine policies and procedures.

In its discussion of when the duty preserve evidence arises, the Georgia Supreme Court held:
[T]he duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party.

In regard to the injured party, usually the plaintiff, the duty arises when that party contemplates litigation, inasmuch as litigation is foreseeable to the plaintiff at that point. As to the opposing party, usually the defendant, the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of “notice” to the defendant.
Certainly, the defendant’s knowledge that the plaintiff is contemplating litigation may come when the plaintiff provides actual or express notice of litigation. And, such notice can be constructive as well as actual.

Phillips at *7 (emphasis added). The Court went on to explain that notice to the defendant that the plaintiff is contemplating litigation may be derived from other factors such as:

1. The type and extent of the injury;
2. The extent to which fault for the injury is clear;
3. The potential financial exposure if faced with a finding of liability;
4. The relationship and course of conduct between the parties, including past litigation or threatened litigation; and
5. The frequency with which litigation occurs in similar circumstances.

Phillips at *7. The Court then reasoned:
[I]t may be appropriate to consider, in determining whether the defendant actually did or reasonably should have foreseen litigation by the plaintiff, not only what the plaintiff did or did not do after the injury and before the evidence in question was lost or destroyed, but also what the defendant did or did not do in response to the injury, including the initiation and extent of any internal investigation, the reasons for any notification of counsel and insurers, and any expression by the defendant that it was acting in anticipation of litigation.
Phillips at *7. In light of the Phillips opinion, Plaintiffs can still pursue a spoliation claim even when the defendant destroys relevant evidence prior to receiving actual notice of contemplated litigation from the Plaintiff.

Nevertheless, if you have been injured due to the negligence of another, it is in your best interest to retain an attorney as soon as possible so that the attorney can promptly notify the at fault party of contemplated litigation and demand that relevant evidence be preserved.