Sometimes, a strategic decision is made by plaintiffs to try their case to a judge only and not pursue a jury trial. Some plaintiff lawyers relax their approach to these types of trials. However, a relaxed approach should be avoided for a number of reasons. The Georgia rules of evidence provides a framework for preserving error. These rules of evidence are in place and should be complied with by Georgia litigators in order to allow the appellate court to determine whether any of the evidentiary rulings by the trial court were error–and if so, was it reversible error which mandates a new trial. From a more practical standpoint, preservation of error allows the trial judge to re-consider an erroneous ruling once she has had an opportunity to hear the evidence being offered. This should be kept in mind before and during the trial, in order to make sure that the judge has all of the correct evidence that she needs to make the correct decision–and one that will be upheld should it be appealed.
One of the most common scenarios under which the preservation of evidence is critical is the award of attorneys’ fees at the trial level. Many times, these attorney fees awarded to clients are appealed and the evidence at the appellate level must support the award. Two common statutes under which Georgia lawyers argue for the award of attorneys’ fees are O.C.G.A. Section 13-6-11, which allows the award of attorneys’ fees to the plaintiff when the defendant is stubbornly litigious or acts in bad faith, or caused the Plaintiff unnecessary trouble or delay and O.C.G.A. Section 9-15-14, which allows for the award of attorneys’ fees when one party in the lawsuit brings a claim that is not based on sound law or facts. The award of attorneys’ fees based on these claims and statutes must be supported by competent evidence in order to be upheld at the appellate level. The question always becomes, should the order at the trial court level enumerate the reasons for awarding attorneys’ fees (therefore giving explicit bases for the award), or should it award the fees and not state the reasons which support it in the order (and therefore allow the appellate court to uphold the award based on what it finds in the record to support it). There is no correct answer and each situation is different.
Robert J. Fleming has been handling wrongful death cases, dental malpractice, bus accidents, car accident cases and premises injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured in a car accident and would like discuss your case, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.