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DISCUSSION OF PROCEDURE UNDER OCGA § 9-11-68(e)

OCGA § 9-11-68(e) Upon motion by the prevailing party at the time that the verdict or judgment is
rendered, the moving party may request that the finder of fact determine whether the opposing party
presented a frivolous claim or defense. In such event, the court shall hold a separate bifurcated hearing
at which the finder of fact shall make a determination of whether such frivolous claims or defenses were
asserted and to award damages, if any, against the party presenting such frivolous claims or defenses.
Under this subsection:

(1) Frivolous claims shall include, but are not limited to, the following:

(A) A claim, defense, or other position that lacks substantial justification or that is not made in good faith
or that is made with malice or a wrongful purpose, as those terms are defined in Code Section 51-7-80;

(B) A claim, defense, or other position with respect to which there existed such a complete absence of
any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the
asserted claim, defense, or other position; and

(C) A claim, defense, or other position that was interposed for delay or harassment;

(2) Damages awarded may include reasonable and necessary attorney's fees and expenses of litigation;
and

(3) A party may elect to pursue either the procedure specified in this subsection or the procedure
specified in Code Section 9-15-14, but not both.

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Monday, March 5, 2012

Subject: [gtlamembersdiscuss] 9-11-68e & Getting a Verdict Paid

Date: Monday, March S, 2012 11:18 AM

Conversation: 9-11-68e & Getting a Verdict Paid

Using 9-11-68(e) could not be simpler - the difficult part is obtaining the verdict in the first place - but
here's how I have used it on two separate occasions:

First, read the statute. It is a STAND-ALONE subsection of the offer of judgment statute. It does NOT
require that any offers of settlement judgment have ever been made in the case. The only pre-requisite
is that you have obtained a verdict in your client's favor.

After the jury has returned a verdict in your client's favor and the court asks if they may be dismissed,
you tell the court that you have a motion pursuant to the 9-11-68(e) and ask that the jury be returned to
the jury room so that the motion can be made in open court.

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Then, you essentially read 9-11-68(e) to the court and select the subsections that you think apply to the
defenses raised by the defense. After reading the statute aloud, you request a minitrial on the issue of
the frivolousness of the defenses and the amount of the attorneys fees incurred in the case.

I have done this twice. On both occasions the defendant and the court are completely caught off guard
by this process. The court has retired to review 9-11-68(e) and research it and comes back at sort of at a
loss but willing (not to go forward with this minitrial concept. Keep in mind the statute is written in the
mandatory "SHALL."

While the court is doing that. I immediately approach the defendants and request that they resolve the
case by agreeing to pay the verdict within a week plus an additional flat fee amount for the attorneys
fees. On both occasions, they have agreed to pay the verdict. Only once did they agree to pay an
additional amount for attorney fees.

Psychologically, the defense lawyers start blaming the court and recounting errors in the case. As we all
know, this can result in extended delays in payment even if an appeal is not immediately pursued (eg,
Motion for new trial). Plus, when the defense team has JUST been proven wrong with a verdict for way
more than their offer, they start defending themselves and puffing their chest about how awful the
judge or how crooked you were in violating the rules and putting error into the case.

Nevertheless. they get on the phone with their adjusters and get the authority. The defense team is in
panic mode at this point, and, depending on the size of your verdict, the threat of an additional 40% in
fees plus expenses is pretty intimidating. You will need to have the amounts handy for them to chew on.
On one occasion, the case settled while the jury was deliberating over fees. On the other occasion, the
case settled before the court even conducted the separate minitrial.

Keep in mind, even for a very sophisticated client, this scenario is exceedingly complex. The client is very
emotional about having obtained a verdict and IS pretty much in shock. You need to take time
explaining what's going on to the client. On both occasions, l explained this process to the client the
week before trial. Both of these clients were very sophisticated , but in the heat of battle after the
verdict has come back, they have been somewhat overwhelmed by the complexity of the process.

On both occasions, the at fault driver was being defended by a UM carrier so we also had to agree to
release the claim for statutory penalties and attorneys fees as well.

Also, on both occasions, the defense team had admitted that their driver caused the rack but denied the
extent of the claimed injuries. The defendant and the court may point to this as а basis for rendering the
statute inapplicable, but а plain reading of the statute would not allow this. It says "shall."

Nor does the statute change the rules regarding settlement discussions being inadmissible. On this most
recent occasion. the defense lawyer tried to argue about the settlement offers and demands pretrial
provided a basis for the "good faith" defenses. The court agreed with me that the rules of evidence are
not changed by the statute.

Once a settlement has been obtained, ANNOUNCE IT IN OPEN COURT, HAVE THE COURT REPORTER
TAKE IT DOWN AND HAVE THE DEFENSE LAWYERS VERBALIZE THEIR AGREEMENT.

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Perhaps the most important thing that I can tell you is that in discussing the attorney fee claim with the
jury after all is said and done, both ¡ug ganels have said to me that the fight in the jury room over
attorneys fees was going to be much more difficult than the deliberations over the original verdict.