Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

The Alabama Legislature just ended its current session.  In light of the bad economy, there will be no legislative cure for a court system facing very difficult budget issues.  However, the Legislature did pass several bills that will impact the way cases are handled in our courts.  A quick summary of some of these new bills follows:

1. A change in the standard which applies to expert witnesses in litigation (SB 187).  Alabama state courts have long applied the Frye standard to the admission of expert testimony.  Under Frye, expert scientific testimony is admissible if the methodology used by the expert is "generally accepted" in the scientific community.  This new legislation will alter Alabama law so that courts will now apply the more restrictive Daubert standard applied by Federal Courts in admitting expert scientific evidence.  One excellent defense attorney in Birmingham recently commented that he expects the effects of this change to benefit the defense.  I think it will swing both ways.  Certainly, it may eliminate some claims by plaintiffs.  However, in many of my cases I routinely listen to defense experts spout opinions but then they cannot explain how they reached their conclusion.  The imposition of the Daubert standard will certainly raise the bar for both sides in litigation.
2. A change in the rule which governs venue for wrongful death actions in Alabama (SB 212).  Previously, the plaintiff in a wrongful death action often had a choice of which county to file his claim.  Such a claim could be filed in the county where the wrongful act causing the death occurred or it could be filed in the county where the estate's administrator resided.  The new legislation removes these options which allowed for a venue selection.  Now, a wrongful death claim may only be filed in a county where the deceased could have filed suit for his injury had he lived.  The practical impact is that counsel can no longer open the estate in a county thought to be a more favorable venue in an effort to file the case in that forum.
3. A change in the products' liability law which shields retailers and distributors (SB 184). Alabama already had some judicial doctrines applicable to products' liability claims that protected innocent sellers of a defective product.  Despite these protections, the Legislature enacted additional legislation.  The new law prohibits products' liability claims against distributors of a defective or dangerous product, except in certain limited circumstances. Mainly, the distributor is shielded from liability in most situations, unless it assembled, manufactured, designed, or modified, the product before it reached the consumer.
4. A change in the interest rate which applies to judgments (SB 207).  Previously, Alabama applied a 12% interest rate to uncollected judgments.  In talking with people, I believe this issue is often misunderstood.  Many people simply see the figure of 12% and think how high it is.  However, it is important that the post-judgment interest rate be high.  The time to win or lose a case is at trial.  Without a substantial interest rate applicable to judgments, the losing defendant would simply file a frivolous appeal and refuse to pay during the some 2 years it often takes for the case to wind its way through Alabama's appellate courts.  In most cases, the losing party's counsel knows whether an appeal has merit.  During this long appeal period, the losing defendant can invest its money and make a profit.  During the same time, the injured plaintiff can be left struggling to survive in the face of a loss of income and huge expenses.  I have seen appeals filed, especially in workers' compensation cases, for no real purpose other than to starve a disabled plaintiff into compromising their case.  The large interest rate acts as a deterrent to these frivolous appeals which harm the injured party and clog our court system.  The current legislative session saw a strong effort to reduce the post-judgment interest rate to basically nothing. Fortunately, some legislators who understood the devastating impact this would have on both the courts and consumers were able to negotiate a compromise that only reduced the rate to 7.5%.
5. A change in the time limit which bars certain claims related to construction (SB 59). This alteration basically shortens the statute of repose applicable to claims against architects, engineers, or builders, related to the construction of buildings.  This includes defects which cause the injury or wrongful death of a person.  In many cases, dangerous defects in buildings and other projects are often not discovered until much later.  Then, this discovery often only occurs after a devastating injury.  It will be interesting to see the extent of immunity this shortened time period will provide for those who create dangerous defects.

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It's a basic lesson from grade school social studies that the right to a jury trial is fundamental.  In this day and age, that basic right is under attack from many sides.  It is under attack from special interest groups who seek to limit their accountability for misconduct.  It is also under attack from the effects of general budget issues that chronically underfund our Courts.  With that said, let me come down from my soapbox and talk about something a little more practical - the importance of having enough potential jurors present for trial.

This morning, The Huntsville Times ran an article about a local case that had to be continued simply because of a lack of potential jurors.  The local case involves a proposed rock quarry and a significant claim for damages against a local municipality and its mayor.  Naturally, it's a high profile case.  Finding impartial jurors would have been difficult under the best circumstances.  That's understandable.  The residents living in and around the proposed quarry may very well have deep feelings on the issue preventing their service on the jury.

Yet, it appears the problem is not simply one of finding unbiased jurors.  Instead, it's a problem of starting numbers - too few people from which to strike a jury.  Several civil jury trials were set in Madison County this week, including this high-profile case.  However, according to the article in the paper, only 90 potential jurors were available for all these cases.  That's too few to provide panels for all the cases set.  It's far too few when one of those cases also brings some publicity with it.

I don't know why only 90 jurors were available.  However, I do know that the printed lists of people contacted for jury duty on trial weeks is much, much larger than 90 people.  I frequently see those printed lists because of my law practice in Madison County.  Is this a problem of the court system being ineffective in actually notifying all those potential jurors?  Does the court system need to better calendar and coordinate its jury trials?  I don't know.  I'll leave that issue to the people who run our local court.

In my experience, the people serving on our juries are deeply committed to bringing justice to the case they are hearing.  Our jurors listen and often take notes.  They pay close attention to the evidence and take the job very seriously.  After I finish a trial, I often talk with the jurors about their experience.  Every time I leave one of those conversations, I walk away with a deeper respect for our system and the seriousness in which the jurors listened and tried to make the best decision possible (often under difficult circumstances).

Whatever caused the lack of potential jurors, it is important that people are available to hear the cases in our local courts.  It does often take a very large starting number of potential jurors to get the 12 needed to hear each individual case.  It takes a large number when there are multiple trials happening at one time.  It also sometimes takes a large number when the issues, like the case this week, are public issues involving a local community.

It also takes a large number of potential jurors in the typical case involving damages from an automobile collision.  Why?  Alabama law requires every driver to have liability insurance.  Yet, in a trial involving damages from an automobile collision, the attorneys are prohibited from ever mentioning the truth that the defendant actually has insurance.  While this fact cannot be mentioned at the trial, the courthouse officials will typically ask the entire panel of potential jurors about their individual coverage before the trial ever begins.  What happens next - in our State several large automobile insurance companies dominate the market.  When those potential jurors have the same insurance as the defendant, they are typically stricken from serving on that particular jury.  In these cases, there could to be too few jurors remaining to have a trial.  That's why it is so important for our courthouse officials to plan and do everything possible to make sure that enough potential jurors are available.  It's also important that those called to jury duty appear, if at all possible.  Justice delayed often results in justice denied for all of us.

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Today, July 11, marks the 50th anniversary of the publication of To Kill a Mockingbird.  This weekend, The USA Today published a story discussing this literary milestone.

The author, Harper Lee, has published no other novels.  Yet, her one and only major novel has had such a profound impact.  Is this book the great American novel?  Perhaps I'm biased.  However, growing up in Alabama and now practicing law here, I think so.  While my question as to the great American novel could spark a lengthy debate, this book would certainly be one of the finalists.  Periodically, I will re-read the book or re-watch the excellent movie adaptation.

As I read several articles about this anniversary, I was genuinely surprised that there have been a few recent critics of the novel.  In my opinion, these few contemporary criticisms are mis-placed.  In making their criticisms, these few critics have largely removed and separated the story from its actual setting, both geographically and historically.  A Birmingham News article this morning addressed the few criticisms of the story.

If you have never read To Kill A Mockingbird, then I would strongly urge you to do so.  If you read the book long ago, perhaps back in high school, I would urge you to read it again.  It is certainly a story that will inspire you again and again.

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