Tuesday, March 16, 2010

Another tort reform provision upheld in Georgia

In a case called Smith v. Baptiste, the Supreme Court of Georgia divided 5-2 to uphold a fee shifting rule that is supposed to deter the filing of frivolous suits and encourage settlements -- although whether it does have this effect is open to debate. The case addressed a provision that states that a party can be ordered to pay the other side's attorney fees if it rejects a settlement offer but doesn't fare much better than the offer when the case is decided in court. The lower court had declared the provision unconstitutional holding that it hinders access to courts. In reversing the lower court, the majority opinion concluded that the part of the state Constitution that says "no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state," was not intended to provide a right of access to the courts generally but to provide only a right of choice between self-representation and representation by a lawyer. Again, I have not read the full opinion, so I can't comment on how this conclusion was supported but given the language quoted in the story, I don't think this conclusion is very convincing. Do you? The dissenting opinion challenged not only the majority's interpretation of the constitutional language but also its sources. Go here for the full story in Law.com.

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