Civil Practice Reform Civil Practice: Amend Article 3 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, Relating to the “civil Practice Act,” So as to Change Provisions Relating to Civil Practice; Provide for the Appointment of Special Masters; Provide for Authority; Provide for Orders and Reports; Provide for Procedure; Provide for Compensation; Provide for a Stay of Discovery When a Motion to Dismiss Is Filed; Provide for Related Matters; Provide for Effective Dates and Applicability; Repeal Conflicting Laws; and for Other Purposes.

• Citation: Vol. 26 No. 1
• Publication year: 2010

Georgia State University Law Review

Volume 26 Ala Issue 1 Fall 2009 ⁸

10-1-2009

CIVIL PRACTICE REFORM Civil Practice: Amend Article 3 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, Relating to the "Civil Practice Act," so as to Change Provisions Relating to Civil Practice; Provide for the Appointment of Special Masters; Provide for Authority; Provide for Orders and Reports; Provide for Procedure; Provide for Compensation; Provide for a Stay of Discovery When a Motion to Dismiss Is Filed; Provide for Related Matters; Provide for Effective Dates and Applicability; Repeal Conflicting Laws; and for Other Purposes.

Kimberly Hermann

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Recommended Citation

Hermann, Kimberly and Hodson, Melissa G. (2009) "CIVIL PRACTICE REFORM Civil Practice: Amend Article 3 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, Relating to the "Civil Practice Act," so as to Change Provisions Relating to Civil Practice; Provide for the Appointment of Special Masters; Provide for Authority; Provide for Orders and Reports; Provide for Procedure; Provide for Compensation; Provide for a Stay of Discovery When a Motion to Dismiss Is Filed; Provide for Related Matters; Provide for Effective Dates and Applicability; Repeal Conflicting Laws; and for Other Purposes.," Georgia State University Law Review: Vol. 26: Iss. 1, Article 8.

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CIVIL PRACTICE REFORM

Civil Practice: Amend Article 3 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, Relating to the "Civil Practice Act," so as to Change Provisions Relating to Civil Practice; Provide

for the Appointment of Special Masters; Provide for Authority; Provide for Orders and Reports; Provide for Procedure; Provide for Compensation; Provide for a Stay of Discovery When a Motion to Dismiss Is Filed; Provide for Related Matters; Provide for Effective Dates and Applicability; Repeal Conflicting Laws; and for Other

Purposes

Code Sections:

Bill Number: Act Number: Georgia Laws: Summary:

Effective Date:

O.C.G.A. §§ 9-11-12, 9-11-53

(amended)

SB 108

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This Bill provided for a "loser pays" provision that the party losing on a motion to dismiss would be assessed the prevailing party's attorney fees. The Bill also provides for a stay of discovery when a motion to dismiss is filed to ensure that the costly discovery process would not begin until the legal merits of a complaint have been tested. This legislation was originally introduced by the Governor to reduce frivolous law suits in Georgia and provide relief to those wrongly sued.

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History

Georgia's 2005 Civil Justice Reform

Governor Sonny Perdue's floor leader, Senator Bill Cowsert (R-46th), introduced Senate Bill (SB) 108 as part of the Governor's

186 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:1

continued efforts at tort reform.¹ Since his first term in the Georgia Senate, Governor Perdue has devoted a great deal of time and energy into reforming Georgia's civil justice system. In 2005, the combined efforts on behalf of Governor Perdue, Georgia legislators, local public interest groups, and political action committees resulted in significant reform to Georgia's civil justice system.

The Georgia legislature had civil justice reform on its agenda for several years before the 2005 legislative session; the reform efforts, however, focused primarily on healthcare litigation.⁴ In April of 2004, Southeastern Legal Foundation held a conference on legal reform in Georgia.⁵ This conference initiated group efforts of compromising pro-reformers in many sectors including the following four major organizations: the Southeastern Legal Foundation, the Georgia State Chamber, the Medical Association of Georgia, and the Georgia Hospital Association.⁶ The group also included Representative Glenn Richardson (R-19th), who later became Speaker of the House.

Proponents of the 2005 civil justice reform aimed to level the playing field for all participants. On February 16, 2005, when Governor Perdue signed SB 3 into law,⁹ SB 3 contained numerous provisions related specifically to the healthcare industry and some to

1. See Press Release, The Office of Governor Sonny Perdue, Governor Perdue Introduces Tort Reform Legislation to Improve Business Environment, Protect Landowners (Feb. 6, 2009), available at http://gov.georgia.gov/00/press/detail/0,2668,78006749_132830663_133093179,00.html; see also Interview with Josh Belinfante, Executive Counsel to the Governor (Apr. 7, 2009) [hereinafter Belinfante Interview].

2. See Belinfante Interview, supra note 1; see also SB 3, as passed, 2005 Ga. Gen. Assem.

3. See SB 3, as passed, 2005 Ga. Gen. Assem.; see also Hannah Yi Crockett, Rebecca McArthur, & Matthew Walker, Review of Selected 2005 Georgia Legislation: Torts and Civil Practice, 22 Ga. St. U. L. Rev. 221 (2005).

4. Press Release, Southeastern Legal Foundation, Georgia Wins! Civil Justice Reform a Reality, Despite Trial Lawyers (Feb. 16, 2005), available at http://www. southeasternlegal. org/default.aspx?page= 1&release=363.

5. Id.

6. Id.

7. Id.

8. Shannon L. Goessling, Georgia Civil Justice Reform: A Business Primer, Part I, Atlanta Bus. Chron. (Jan. 7, 2005).

9. State of Georgia Final Composite Status Sheet, SB 3, Feb. 16, 2005.

2009] LEGISLATIVE REVIEW 187

civil litigation in general.¹⁰ The provisions relating to general civil litigation eliminated joint and several liability, provided for apportionment of fault, provided for offer of judgment in particular situations, strengthened expert witness rules, and allowed a co-defendant to move the case back to his home county if venue vanishes.¹¹ Not all pro-reform goals were achieved through SB 3, but there was no doubt that the reforms implemented were a major

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victory for supporters of civil justice reform in Georgia. Georgia's 2009 Civil Justice Reform

At the commencement of the 2009 Georgia legislative session, Governor Perdue announced a civil justice reform package that included SB 101, SB 108, and SB 75.¹³ The goal of Governor Perdue's second round of civil justice reform was "to improve Georgia's business environment" and to "make plain that the threat of meritless litigation is not a viable business strategy in Georgia."¹⁴

The 2009 civil justice reforms were spurred by the BIO International Conference, which Atlanta hosted in 2009,¹⁵ and recognition that, despite the achievements of the pro-reformers in 2005, the problem of meritless claims had not been addressed.¹⁶ Though the fairness and reasonableness of Georgia's civil justice system has improved since 2005, these ongoing issues are still of a

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great concern to many pro-reformers.

10. See SB 3, as passed, 2005 Ga. Gen. Assem.; see also Crockett, McArthur, & Walker, supra note

3.

11. See SB 3, as passed, 2005 Ga. Gen. Assem.; see also Press Release, Southeastern Legal Foundation, supra note 4.

12. Press Release, Southeastern Legal Foundation, supra note 4.

13. Press Release, The Office of Governor Sonny Perdue, supra note 1.

14. Id.

15. Id. The BIO International Conference did not implicate SB 108; however, it implicated SB 101, which was also part of Governor Perdue's 2009 tort reform package.

16. See Belinfante Interview, supra note 1.

17. The State Liability Systems Ranking Study conducted by the Harris Poll group ranked Georgia's liability system 39th and 28th in 2003 and 2008, respectively. See Goessling, supra note 8; see also Institute for Legal Reform, 2008 State Liability Systems Ranking Study, Harris Poll, Georgia (2008), available at http://www.instituteforlegalreform.com/states/pdf/Georgia.pdf. The study explores "how reasonable and balanced the tort system is perceived to be by U.S. business." Institute for Legal Reform, 2008 State Liability Systems Ranking Study, Executive Summary (2008),

188 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:1

The purpose of SB 108 was to "provide relief to individuals and companies wrongly sued" and to "free up [Georgia's] courts to pursue justice in cases with merit, protect our existing businesses that

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provide jobs for Georgians[,] and attract new investment." SB 108 contained a loser pays provision as well as a discovery stay provision.¹⁹ Though a version of the discovery stay provision

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eventually passed as part of House Bill 29, the pro-reformers did not have the same luck with the loser pays provision.

Loser Pays Provision

Supporters of the loser pays provision introduced in SB 108 wished to address what they viewed as a particular problem facing Georgia's civil justice system, the problem of nuisance lawsuits. SB 108 limited the loser pays provision to only those cases dismissed pursuant to Code section 9-11-12(b) and provided for numerous

₂₁

exceptions. It focused primarily on "allow[ing] the judiciary to sweep out unfounded lawsuits so that cases with merit can receive the

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court's full attention and justice can be pursued."...