David's blog

Georgia's schools are failing our children and we have a responsibility to fix them. I am pleased to have been appointed by the President Pro Tem of the Georgia Senate to serve on a study committee looking at the issue of foreign language programs in our elementary schools. For years, Georgia has provided very limited funding for "model" school programs. The City of Decatur School System has been a participant. Additionally, several individual elementary schools in the DeKalb County School System have also participated. Each year I have been in the Senate, I have had to fight to continue the funding for the model program. The state's budget writers should be expanding the program rather than seeking to cut it every year. Below is the body of the press release relating to my appointment.

Senator David Adelman (D-DeKalb) Appointed To
Study Committee for Elementary School Foreign Languages

Atlanta- State Senator David Adelman (D-DeKalb), who serves ad Minority Whip in the Senate, was appointed as one of only a handful of legislators to serve on the Study Committee for Elementary School Foreign Languages. “Georgia’s kids need to be prepared to compete in the global marketplace and they must have the language skills to do so,” said Sen. Adelman Senator Adelman’s metropolitan Atlanta district includes several elementary schools participating in the Georgia Model Foreign Languages Program. A series of Study Committee meetings will be conducted throughout the state before the 2006 Session of the Georgia General Assembly with the goal of identifying ways to expand the model program and provide funding for local school systems..

This appointment is part of a very busy summer for Sen. Adelman during which he has held a series of town hall meetings and was elected Chairman of the Georgia Code Revision Commission.

The following statement is issued by Senator David Adelman (D-DeKalb) on Wednesday, August 10, 2005:

The residents of DeKalb County are winners today. The Superior Court of DeKalb County has found that Georgia's law clearly requires disclosure of important information regarding the types of aircraft using PDK Airport and the frequency of takeoffs and landings at the airport.

Finally, the people who live near PDK Airport will be able to find out whether airplanes which regularly fly close to the rooftops of their homes are violating the law. I am pleased to have played a small part in this victory for open government. The court's order repeats the findings contained in the opinion of the Attorney General obtained by my office early this year.

In the name of open government, I implore the DeKalb County Commission and the managers of PDK to comply with the court's order immediately and cease their wasteful and stubborn litigation.

Per my previous entry, the drastic overhaul in the 2004 Session of the Georgia Civil Practice Act is full of problems.

At best, these issues are evidence of lousy draftsmanship and inattention to detail. I point out these problems to emphasize my belief that when making important changes to Georgia law, we should have a more deliberate legislative process than the one that resulted in the recently passed tort reforms.

Another "oops" in the offer of judgment provision is that the statute contains contradictory thresholds. Paragraph (b) requires the offeree to pay fees unless the judgment is 25% better than the offer, and paragraph (d)(1) requires the oferee to pay fees "if the offer of judgment was 25% more favorable than the monetary award . . . ."

Here's (b) and (d)(1) so that you can make the comparison:

"(b) When the complaint sets forth a tort claim for money, if the offeree rejects or does not accept the offer and the judgment finally obtained by the offeree was not at least 25 percent more favorable than the last offer, the offeree shall pay the offeror's reasonable attorney's fees and costs incurred after the rejection of the last offer.

. . .

(d) Upon motion made within 30 days of the entry of the judgment or after voluntary or involuntary dismissal, the court shall determine the following:

(1) If the offer of judgment was 25 percent more favorable than the monetary award, the court shall award reasonable attorney's fees and costs and the court shall set off such reasonable attorney's fees and costs against any award; and ..."

Thank you to all of you who have provided such positive feeback on my blog. You can reach me by going through my website at www.davidadelman.com. I hope you will sign up for the updates I provide during the Session.

During the 2005 Session of the Georgia General Assembly, proponents of the new tort reform law used procedural rules to preclude the offering of amendments to the bill in the Senate Judiciary Committee and on the Senate floor. By prohibiting debate and improvements, they denied themselves (and the people of Georgia) the benefit of any thoughtful trouble shooting of their legislation. So it should come as no surprise, the law is a mess. Here's one of many examples:

The new offer of settlement provision requires the offeree to get a judgment that is 25% more favorable (or actually any set percentage more favorable) than the offer in order to avoid paying the offeror's attorneys fees.

One problem is that, under certain scenarios (that are not at all unlikely), both parties could end up paying the other party's attorneys' fees: Assume Plaintiff makes a settlement demand of $100,000 and Defendant responds with a $70,000 settlement offer. Defendant needs to do 25% better than $100,000 (i.e. defense verdict or less than $75,000 judgment) to avoid paying Plaintiff's attorneys fees and Plaintiff needs to do 25% better than $70,000 (i.e., at least $87,500) in order to avoid paying Defendant's attorneys fees. If the verdict comes in at between $75,000 and $87,500, neither side will have done what it needs to do in order to avoid paying the other side's attorneys fees. So the statute would require each side to pay the other's attorneys fees.

Another problem is that it can penalize a party for not accepting a defendant's settlement offer that is clearly less than the value of the case or a plaintiff's settlement demand that is clearly more than the value of the case: Assume a clear liability case with a clear monetary value. Granted these are rare, but, for illustrative purposes, assume a child is injured in an automobile accident where the defendant clearly ran a red light so liability is clear. The parents have the claim for the child's medical bills. It is a purely special damages claim, no general damages for pain and suffering (since that is the child's claim). Assume the hospital bill is $100,000 and this is all the parents are suing for. Under this scenario, there is no question that the parents are entitled to recover $100,000 from the defendant. However, the offer of settlement statute (if it requires the offeree to do 25% better) would allow the defendant to make an offer of say $81,000. If plaintiffs rejected this offer (which would normally be understandable since they are unquestionably entitled to recover the full $100,000 hospital bill) and the verdict came in at the expected $100,000, the plaintiffs would have to pay the defendant's attorneys fees because they would have had to exceed $100,000 in order to do 25% better than the $81,000 settlement offer. Of course, this works in reverse too. Plaintiffs could make a counteroffer of $120,000 (even though they are only entitled to the $100,000 hospital bill) and defendant would then have to pay plaintiffs' attorneys fees when the verdict comes in at the expected $100,000 (since defendants would need a verdict of less than $90,000 to do 25% better than plaintiffs' $120,000 demand).

These hypotheticals leading to absurd results and others have been material for a lot of laughter amongst lawyers around the state who have struggled to apply the law the Governor rushed to sign in mid-Session. It is my hope the lesson taken from this experience will be in the future to slow down and take advantage of the expertise and thoughtful experience of all 56 members of the state Senate.

The 2005 Regular Session of the Georgia General Assembly concluded last Thursday, March 31, 2005 at midnight.

And with that, fundraising can begin again. Georgia law prohibits legislators from soliciting campaign contributions during the Session. The policy supporting the prohibition is clear. If fundraising occured at the same time as lawmaking there would be, at a minimum, an appearance of impropriety. And, perhaps there would be actual impropriety.

While the formal lawmaking in 2005 ended for legislators last week, it continues for the Governor. Over the next month or so, the Governor must either veto or sign into law the bills passed during the 2005 Session. (Technically, he may also allow bills to become law without signature which amounts to signing the bill.)

Why then wouldn't the prohibition on fundraising apply to the Governor during this critical period when he holds the veto pen? There's simply no good reason. The month following the Session is a continuation of the Session for Georgia's Governor. Thus, he should not solicit campaign contributions during this time. To do so would, at a minimum, create an appearance of impropriety. And, perhaps it would create actual impropriety.

It does not take much imagination to see how a special interest group or private company would feel pressure to provide financial support to the Governor during the time when he holds the veto pen so close to a bill on his desk that is of particular importance to that group or company. This concern is exaggerated in our state where the Governor may use a line item veto before signing the budget.

Our current Governor has proclaimed himself to be beyond reproach ethically. When I suggested to his representatives that the anti-revolving door provisions in the recently passed ethics reform bill (prohibiting legislators and agency heads from becoming lobbyists overnight) should apply to the Governor's office, I was told that the Governor's staff would comply voluntarily. In other words, no law would be necessary. If that is the case, the Governor should refrain from taking contributions until he has completed the bill signing period.

Thank you for your support and input. You can email me through my site at www.davidadelman.com