Trial Practice and Procedure - C. Frederick Overby, Jason Crawford, Joshua Sacks, Richard A. Griggs, and Matthew E. Cook

• Publication year: 2000

Trial Practice and Procedureby C. Frederick Overby^*

Jason Crawford^**

Joshua Sacks^***

Richard A. Griggs^**** and

Matthew E. Cook^*****

I. Introduction

This survey period is most notable for the diversity of cases touching upon trial practice and procedure decided by the Georgia appellate courts. Among those were cases fleshing out the permissible parameters of attorney-client contractual relations, scaling back the malpractice affidavit pleading requirement, denning further what constitutes a doctor-patient relationship, interpreting the wrongful death act to determine who can properly bring a claim, and declining to apply the self-contradictory testimony rule to a party's expert witness. Other important decisions addressed previously undecided evidentiary questions, confused medical providers attempting to comply with third-party requests for production of documents, and expanded the remedies available to Georgia plaintiffs who are the victims of negligently inflicted emotional injury.

Although the legislation passed during the survey period is less diverse, it will still potentially affect trial practitioners. The General Assembly expanded the previously narrow alternatives for establishing proper venue against corporate defendants. Mandatory liability insurance policy limits were increased for bodily injury and/or death from $15,000 per person and $30,000 per incident to $25,000 per person and $50,000 per incident. Finally, in line with the service provision contained in the Federal Rules of Civil Procedure, plaintiffs are now allowed to seek a waiver of formal service of process in order to avoid the trouble and expense of formal service.

II. Case Law

A. Attorney-Client Relations

This survey period provided an opportunity for the Georgia Court of Appeals to establish precedent regarding the interaction between the state's ethical rules and attorney-client contracts. In Brandon v. Newman,¹ Judge Miller, writing for a unanimous panel, provided the following synopsis with respect to one of the fee-splitting ethical rules at issue: "We hold that an attorney's express employment contract obtained through a violation of Disciplinary Standard 13 of Bar Rule 4-102(d) is itself void as against public policy and therefore affirm the trial court's forfeiture of the lien."² The court also found that the splitting of fees between a lawyer and nonlawyer violated Disciplinary Standard 26 and any contract involving this violation was also void as a matter of public policy.³

In Brandon former Georgia lawyer Bobby Gay Beazley recommended that the appellee, Mr. Newman, retain the services of a specific lawyer to seek recovery for personal injuries Mr. Newman suffered in a truck wreck. Dissatisfied with the services of this first lawyer, Newman retained lawyer number two, Mr. Brandon, whom Mr. Beazley also recommended. The fee agreement between Newman and Brandon contained a provision whereby, in the event Newman dismissed Brandon, the lawyer would be paid the greater of $150 per hour or a contingency fee of any offers made during the litigation.⁴

Brandon also entered into an agreement with nonlawyer Beazley, in which Brandon agreed to pay Beazley a twenty-five percent contingency fee from any net proceeds paid to Brandon. The nature of this agreement became the central issue before the court of appeals. It turned out that Newman was dissatisfied with Brandon, so Newman hired a third lawyer who ultimately settled the case for an amount previously offered in the case while Brandon was handling it. Brandon filed an attorney's lien. Newman filed a motion for forfeiture and cancellation of the lien based upon Brandon's fee-splitting agreement with Beazley. The trial court granted the motion to forfeit and cancel the attorney's lien.⁵

The court of appeals appeared to have little problem affirming the trial court's ruling.⁶ The court wrote: "Georgia courts will not enforce illegal or immoral contracts because so doing would implicate the judiciary by facilitating the illegality or immorality. The trial court correctly granted Newman's motion to forfeit Brandon's O.C.G.A. Sec. 15-19-14(b) attorney's lien."⁷

The not-so-subtle message from Brandon is that attorney fee issues are serious business. The lawyer is well advised to read Georgia's ethical standards on the subject carefully.

B. Professional Malpractice Claims

The attorney-client relationship was also at issue in the Georgia Supreme Court's decision in Labovitz v. Hopkinson.⁸ In that case, the supreme court continued to provide avenues of potential relief from the historically stringently applied (but recently amended) professional malpractice affidavit statute, the Official Code of Georgia Annotated ("O.C.G.A") section 9-11-9.1.⁹ Here the court broadened the rule that a claim arising out of intentional misconduct, by definition, does not fall within the purview of the professional malpractice affidavit requirements.¹⁰ The context for the ruling in Labovitz was a legal malpractice claim.

The facts in Labovitz are familiar. Plaintiff filed a claim for legal malpractice within the ten-day window prior to the expiration of the statute of limitations. She invoked the statutory forty-five day extension to file an expert affidavit, but she failed to do so within that time. The trial court denied plaintiff's motion for a further extension within which to file the affidavit and granted defendant's motion to dismiss for failure to state a claim.¹¹

After the forty-five day period passed, plaintiff amended her complaint to add claims for fraud and misrepresentation arising from the same general set of facts as the original complaint. The trial court again dismissed the amended complaint for failure to state a claim. Plaintiff appealed both the dismissal arising from her failure to file an expert affidavit and the dismissal arising from her amended complaint.¹²

The court of appeals found the trial court properly dismissed the legal malpractice case as a result of plaintiff's failure to file an expert affidavit, but it reversed the trial court's dismissal of the amended complaint.¹³ The supreme court granted certiorari to determine what effect, if any, the doctrine of res judicata had on the claims set forth in the amended complaint.¹⁴ The court's analysis focused upon whether an expert affidavit is required in cases arising out of alleged intentional misconduct.¹⁵

The court unanimously held the professional malpractice affidavit requirement has no application to claims arising from intentional misconduct.¹⁶ The legal malpractice claim was gone, but the intentional misconduct (fraud) claim remained. Another obvious lesson is, if possible, to file cases well before the statute is going to run and to look objectively and deliberately at the issue of whether fraud or some similar intentional tort is a viable avenue of relief. The predicate for a legal malpractice claim is often that a lawyer withheld information essential to a client's decision making or failed to pursue a claim and never told the client of the transgression. In other words, these claims may often arise out of factual scenarios that involve colorable claims of intentional misconduct.

Professional relationships of a different sort took center stage in Schrader v. Kohout,¹⁷ a case in which a mental health patient brought a claim of medical malpractice against a psychologist with whom the treating psychologist consulted. The consulting psychologist, Schrader, never saw the patient, never saw the patient's records, and did not know the patient's last name. The patient's primary psychologist paid Schrader, apparently out of personal funds. Schrader did, however, provide extensive consultative services to assist with the care and treatment of the patient. These fee-based services continued over a four-year period during which the patient's condition was extensively discussed.¹⁸

A majority of the court of appeals found no physician-patient relationship existed between Schrader and the patient; therefore, the court reversed the trial court's denial of summary judgment.¹⁹ The fact Schrader never examined or met with the patient was important to the court. The primary psychologist screened the flow of information to the patient.²⁰

Judge Pope and Judge Eldridge dissented, emphasizing an important aspect of public policy:

As a matter of public policy, a professional should not be permitted to profit monetarily and experientially from professional consultation regarding the care and treatment of a patient, and still escape the duty to exercise ordinary care as a professional for such patient. Otherwise, a professional could indirectly through consultations use humans as guinea pigs upon whom to experiment without incurring liability.²¹

Schrader was consulted because she had special expertise in handling the types of mental health problems the patient was suffering.²² A blanket shield protecting an individual like Schrader from liability may be inappropriate, given the fact that the consultative advice may have proximately caused harm.

C. Standing

In Tolbert v. Maner,²³ the Georgia Supreme Court wrestled with relationships of another sort: intrafamily relationships. In that case the court was faced with statutory interpretation of Georgia's Wrongful Death Act.²⁴ The basic question was whether a grandchild of the decedent could recover under the Wrongful Death statute if his father, the natural child of the decedent, predeceased him.²⁵

A unanimous court held the grandchild could not recover.²⁶ After recognizing the statute was in derogation of the common law, thus requiring strict construction, the court examined the interplay between three of its subsections: O.C.G.A. section 51-4-2(a), (b)(2), and (d)(1).²⁷ The court determined that under the express language of subsection (a), a wrongful death claim may only be brought by a surviving spouse or a decedent's children.²⁸ Under subsection (b)(2), the court held the reference...