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Archive for the ‘Appellate Advocacy’ Category

Certiorari in the Georgia Supreme Court by the Numbers

Posted on: June 22nd, 2021

By: Jacob Daly

The Georgia Court of Appeals has just ruled against your client, and so you’re considering whether you should file a petition for a writ of certiorari in the Georgia Supreme Court. Your client wants to know the likelihood of your petition being granted and, if it is granted, what the possible outcomes are likely to be. You have a vague understanding that most petitions are denied and that the odds of reversal are good when a petition is granted, but you do not know the exact numbers to tell your client. Now you do.

Between 2017 and 2020, the Georgia Supreme Court ruled on 1,883 petitions, 1,166 of which were filed in civil cases. It granted only 174 of all petitions and only 119 that were filed in civil cases.[1] In 2017, the Court ruled on 516 petitions (289 in civil cases) and granted 52 (35 in civil cases). In 2018, the Court ruled on 407 petitions (251 in civil cases) and granted 47 (33 in civil cases). In 2019, the Court ruled on 464 petitions (300 in civil cases) and granted 43 (31 in civil cases). In 2020, the Court ruled on 496 petitions (326 in civil cases) and granted 32 (20 in civil cases). Thus, the overall odds of a petition being granted were 10.08% in 2017, 11.55% in 2018, 9.27% in 2019, and 6.45% in 2020, for a 4-year rate of 9.24%. In civil cases, the odds of a petition being granted were 12.11% in 2017, 13.15% in 2018, 10.33% in 2019, and 6.13% in 2020, for a 4-year rate of 10.21%. Until the numbers for future years are available, it is impossible to know whether the down numbers for 2020 represent a shift in the Court’s (un) willingness to grant petitions or just an anomaly related to COVID-19.

Once you tell your client the odds of a petition being granted are only about 10%, the next question is likely to be about the expected outcome if your petition happens to be among the lucky few that are granted. In the 174 total cases in which the Court granted a petition between 2017 and 2020, there were 12 different outcomes.  And in the 119 civil cases in which the Court granted a petition between 2017 and 2020, there were 10 different outcomes. These various outcomes are reflected in the chart below.

From the standpoint of the petitioner, the goal is to obtain a change to the ruling of the lower court. An outright reversal is the best possible outcome for the petitioner, and it is also the most frequent outcome (this is not surprising because the Court can “affirm” the lower court’s decision by denying the petition. If the Court wants to reverse the lower court’s decision, it must first grant the petition). An outright reversal was the outcome in 65 of 174 cases (37.36%) in which the Court granted a petition, including 50 of 119 civil cases (42.02%). But an outright reversal is not the only favorable outcome for the petitioner. The outcomes listed in the chart above that would be at least partially favorable for the petitioner are reversed, vacated, vacated and reversed, affirmed in part and reversed in part, reversed in part and vacated in part, affirmed in part and vacated in part, reversed summarily, and vacated summarily. Including all of these outcomes together yields a favorable outcome rate for the petitioner of 64.37% in all cases (112 of 174 cases decided wholly or partially in favor of the petitioner) and 66.39% in civil cases (79 of 119 cases decided wholly or partially in favor of the petitioner).

In contrast, the outcomes that would be completely negative for the petitioner are affirmed and dismissed as improvidently granted. Combining these outcomes yields a completely negative outcome rate for the petitioner of 29.89% in all cases (52 of 174) and 29.41% in civil cases (35 of 119). The only other outcomes are cert dismissed on motion and no decision yet, which represent only 5.75% of all cases (10 of 174) and 4.20% of civil cases (5 of 119). These outcomes cannot be characterized as favorable or unfavorable for the petitioner because (1) a petition that is dismissed pursuant to a motion probably means that the case settled, and (2) a case that has not yet been decided can still be decided either way. When the Court decides the 5 undecided cases (4 criminal and 1 civil), these numbers will change slightly, but not enough to alter any conclusions that may be drawn from them.

In conclusion, an analysis of the petitions decided by the Court between 2017 and 2020 and the outcomes in the cases in which the petition was granted confirms what most attorneys probably assume. That is, there is a very low chance of the Court granting a petition and a very good chance of at least a partially favorable outcome for the petitioner in those few cases. For attorneys handling civil cases, the odds of the Court granting your petition are only 10.21%, but once your petition has been granted, the odds of success greatly increase, depending on how you define success. If you define success as nothing less than an outright reversal, you have a 42.02% chance of achieving that goal. However, if you define success as any outcome that has some negative impact on the lower court’s decision, then you have a 66.39% chance of success.

For questions, please contact Jake Daly at [email protected] or (770) 818-1431.


[1] There was one civil case in 2018 and one civil case in 2019 in which a petition was filed and granted with a note indicating that the case would be treated as a direct appeal rather than as a cert case. Those two cases are not included in this analysis.

FMG Attorneys File Amicus Brief on Duties of Employer for Criminal Conduct of Employees

Posted on: November 13th, 2020

By: Phil Savrin and Alexia Roney

FMG attorneys Phil Savrin and Alexia Roney authored an amicus brief on behalf of the Georgia Defense Lawyers Association in support of appellees in the companion cases of Johnson v. Avis Rent A Car System, LLC and Smith v. Avis Rent A Car System, LLC on the question of legal duties owed by an employer for criminal conduct of an employee that is outside the scope of employment and away from the business premises. 

In these cases, an employee who stole a vehicle from the rental car lot where he worked ended up in running from the police and ultimately crashing into a brick wall thereby injuring the two plaintiffs. Two separate juries found Avis to be either partially or entirely at fault for damages of $7 million in one case and $47 million in the other case. The Court of Appeals reversed on several grounds including a finding that the trial court should have directed a verdict on the absence of proximate cause as a matter of law. 

The Supreme Court granted plaintiffs’ petitions for writs of certiorari on two questions: (1) whether the employee’s criminal conduct was an intervening proximate cause as a matter of law; and (2) whether the employee acted under “color of employment.” In its amicus brief, GDLA argues that the question of proximate cause is not reached because Avis did not owe a tort duty to plaintiffs in the first place which is a question of law for the court to resolve and not a jury. To hold Avis liable in these circumstances would essentially hold employers to be insurers of their employers’ conduct no matter how remote the injury might be. Similarly, on the second issue, GDLA argues that Avis had no control over the manner in which the employee used the stolen vehicle. As such, stretching the “color of employment” standard to apply would likewise create a duty “to all the world” which the Supreme Court has expressly rejected in previous rulings. 

The case is set for oral argument on December 8, 2020. 

If you have questions or would like more information, please contact Phil Savrin at [email protected] or Alexia Roney at [email protected].

California Appellate Court Concludes That Employer Lawfully Rounded Employee Time Up and Down

Posted on: July 12th, 2018

By: Laura Flynn

The Second District of the California Court of Appeal has ruled that calculating payroll by automatically rounding workers’ hours either up or down to the nearest quarter-hour is legal as long as it does not result in workers being systematically underpaid over time. In a published opinion, the three-judge panel found the payroll system implemented by a Southern California hospital system was neutral both on its face and in the way it was applied.

Under the employer’s payroll system, an hourly worker who clocked in between 6:53 and 7:07, was paid as if they clocked in at 7:00.  Meal breaks that lasted between 23 and 37 minutes were rounded to 30 minutes.  The legality of the calculation method was challenged by two former employees who alleged they weren’t paid properly or given adequate meal breaks or rest periods.  The primary allegation was that the rounding system did not comply with the California Labor Code because it did not use employees’ exact clock-in and clock-out times.

A statistical expert analyzed the time records for all of the hospital employees over a four-year period.  Although some employees lost work time, the remainder either gained time or broke even. Overall, the calculation method resulted in the employer over compensating employees.  The Appellate Court held a rounding system is valid if it “average[s] out sufficiently,” rejecting claims that minor discrepancies in an individual employee’s wage calculations establish that the employee is entitled to assert a claim for underpayment.

The Court relied on Section 785.48 of title 29 of the Code of Federal Regulations which allows employers to round work time as long as it doesn’t result in workers being underpaid over statistically significant periods of time. California’s Division of Labor Standards Enforcement has adopted the federal regulation as part of its enforcement standards.  The Court’s opinion confirms Section 785.48 and the policies underlying it “apply equally to the employee-protective policies embodied in California labor law.”

AHMC Healthcare, Inc. v. Superior Court, filed 6/25/18, Los Angeles Superior Court Case No. B285655.

If you have any questions or would like more information, please contact Laura Flynn at [email protected].

$10M Wrongful Death Verdict Against City of Albany Reversed on Sovereign Immunity Grounds

Posted on: June 26th, 2018

By: Wes Jackson

In a much-anticipated opinion, the Georgia Court of Appeals reversed a $10,640,000 trial verdict against the City of Albany on sovereign immunity grounds. Freeman Mathis & Gary attorneys Sun Choy, Jake Daly, and Wes Jackson represented the City as appellate counsel.

At trial, Sheryl Stanford and Wilfred Foster, as co-administrators of their son’s estate, argued that the City was partially responsible for the murder of their son at Brick City, a night club in Albany, after a fight that started in the club.  It was undisputed that, while Brick City was only licensed as a recording studio, the City allowed it to operate as an illegal nightclub even though it knew that the establishment was rife with drug use, illegal alcohol sales, and violence.  In an effort to overcome sovereign immunity, plaintiffs asserted the City maintained a “nuisance” by failing to shutter the illegal club.

After trial, a jury awarded the plaintiffs $15,200,000 in damages, apportioning 70% of the liability to the City. The jury only apportioned 10% of the liability to the owners and operators of Brick City, 13% to the actual murderer, and 1% each to seven participants in the brawl.

In reversing, the Court of Appeals concluded that plaintiffs cannot circumvent sovereign immunity by simply alleging that the City’s discretionary conduct amounted to the maintenance of a “nuisance.” While the plaintiffs may appeal to the Georgia Supreme Court, the case marks an important victory for the City of Albany and strengthens sovereign immunity protections for local governments in Georgia.

For additional questions about this matter or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]), Jake Daly ([email protected]), or Wes Jackson ([email protected]).