Friday, March 10, 2017
TRIAL AND ERROR
6 CLE Hours Including
1 Ethics Hour | 1 Professionalism Hour | 3 Trial Practice Hours
Sponsored By: Institute of Continuing Legal Education
ICLE: Satellite Series
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Printed By:
Publication No.
179478
iii
FOREWORD
The Institute is especially grateful to our outstanding Seminar Chairperson(s) for providing the
necessary leadership, organization, and supervision that has brought this program into a reality.
Indeed a debt of gratitude is particularly due our articulate and knowledgeable faculty, without
whose untiring dedication and efforts this seminar would not have been possible. Their names
are listed on the brochure for this program and their contributions to the success of this seminar
are immeasurable.
I would be remiss if I did not extend a special thanks to each of you who are attending this
seminar and for whom the program was planned. All of us hope your attendance will be most
beneficial as well as enjoyable. Your comments and suggestions are always welcome.
March, 2017
Tangela S. King
Interim Director, ICLE
v
TABLE OF CONTENTS
PAGE
CHAPTER
Foreword .................................................................................................................................................. iii
Federal vs. State Court ...................................................................................................................1–12
Mathew K. Titus
01
Evidence Law ....................................................................................................................................1–10
R. Matthew Reeves
02
Cross Examinations & Depositions.............................................................................................. 1–7
James E. Butler, III
03
Appellate Practice in Georgia .....................................................................................................1–34
Kenneth L. Shigley
04
The Chief Justice’s Commission on Professionalism ...........................................................1–31
05
Judicial Perspectives on Effective Trial Advocacy ................................................................1–20
06
Appendix:
Georgia Mandatory CLE Fact Sheet ................................................................................................ 1
Postface ..................................................................................................................................................... 2
vi
TABLE OF CONTENTS
Materials Were Not Submitted for the Following Presentations at the Time of Printing/Duplication:
WRITTEN DISCOVERY
Natalie S. Woodward, Shamp, Speed, Jordan & Woodward, Atlanta
COUNTDOWN TO TRIAL
L. Christopher Stewart, Stewart, Seay & Felton LLC, Atlanta
LEGISLATIVE UPDATE
David Dreyer, Representative, District 59, Georgia House of Representatives, Atlanta
TRIAL AND ERROR
Federal vs. State Court
Mathew K. Titus
Titus Law, LLC
Alpharetta, Georgia
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Federal vs. State Court
Mathew K. Titus, Titus Law, LLC.
I.
A.
Timing and Content of Initial Pleadings
Answer
Georgia State Court
•
•
The answer to a complaint is due 30 days after service of the summons
and complaint unless proof of service is not filed with the court within
five business days after service was made, in which case the answer
will not be due until 30 days after proof of service is filed. O.C.G.A. §§
9-11-12(a), 9-11-4(h).
No answer is required to a cross-claim or counterclaim unless ordered
by the court. O.C.G.A. § 9-11-12(a).
Federal Court
•
•
•
The answer is due 21 days after service of the summons of complaint.
FED. R. CIV. P. 12(a)(1)(A).
Any party served with a counterclaim or crossclaim must serve an
answer to the counterclaim or crossclaim within 21 days. FED. R. CIV.
P. 12(a)(1)(B).
If a party is ordered by the court to reply to an answer, that reply will
be due within 21 days after being served with the order, unless the
order specifies a different time. FED. R. CIV. P. 12(a)(1)(C).
B. Defenses
Georgia State Court
•
•
•
The defenses of lack of personal jurisdiction, improper venue,
insufficient process, and insufficient service of process are waived if
not raised in the initial responsive pleading or written motion before
or at the time of the initial pleading. O.C.G.A. § 9-11-12(b).
A motion to dismiss filed at or before the time of filing an answer will
result in a stay of discovery for 90 days or until the court rules on the
motion. O.C.G.A. § 9-11-12(i).
The Civil Practice Act requires only, in the initial defensive pleading,
that a party assert the affirmative defenses of accord and satisfaction,
arbitration and award, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow servant,
laches, license, payment, release, res judicata, statute of frauds,
statute of limitations, and waiver. O.C.G.A. § 9-11-8(c). Other
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defenses, whether affirmative defenses or otherwise, need not be
asserted in a defendant’s answer and can be raised for the first time in
a motion for summary judgment or other motion, or even at trial.
Federal Court
•
•
•
C.
A party may assert the defenses of lack of subject-matter jurisdiction,
lack of personal jurisdiction, improper venue, insufficient process,
insufficient service of process, failure to state a claim upon which
relief can be granted, and failure to join a necessary or indispensable
party through a motion filed before pleading (if a responsive pleading
is allowed). FED. R. CIV. P. 12(b).
As a general rule, where a party files a motion to dismiss under Rule
12 in lieu of filing an answer, the due date for the responsive pleading
will be 14 days after receiving “notice” that the court has denied the
motion to dismiss or postponed disposition of the motion until trial.
FED. R. CIV. P. 12(a)(4)(A).
In federal court, “[e]very defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is required.” FED.
R. CIV. P. 12(b). Typically, failure to raise an affirmative defense in
one’s answer or other responsive pleading will result in waiver of the
defense. See Edwards v. Fulton County, 509 Fed. Appx. 882, 887 (11th
Cir. 2013); Am. Nat’l Bank of Jacksonville v. FDIC, 710 F.2d 1528,
1537 (11th Cir. 1983). But the Eleventh Circuit Court of Appeals has
held that a defendant will be permitted to assert an omitted defense
later, sometimes even for the first time in a motion for summary
judgment, if the delay does not result in prejudice to the plaintiff.
Edwards, 509 Fed. Appx. at 887; Proctor v. Fluor Enters., Inc., 494
F.3d 1337, 1350 (11th Cir. 2007); Sweet v. Sec’y of Dep’t of Corrections,
467 F.3d 1311, 1321, n. 4 (11th Cir. 2006).
Asserting/Waiving the Right to Trial by Jury
Georgia State Court
•
A party is entitled to a jury trial unless the parties stipulate otherwise in
writing or in open court and on the record. O.C.G.A. § 9-11-39(a).
Federal Court
•
A party must make a demand for jury trial within 14 days after service of
the last pleading directed to the issue on which jury trial is demanded.
FED. R. CIV. P. 38(b), (d).
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D.
Filing Third-Party Complaints
Georgia State Court
•
The Civil Practice Act provides that third-party complaints may be filed in
state court without leave of court within 10 days after filing of the initial
answer and otherwise, they require leave of court. O.C.G.A. § 9-11-14(a).
Federal Court
•
In federal court, the deadline for filing a third-party complaint is 14 days
after service of its original answer, after which time leave of court is
required. FED. R. CIV. P. 14(a)(1).
E.
Amending Pleadings
Georgia State Court
•
In state court, parties may amend their pleadings as a matter of course,
without leave of court, any time before entry of a pretrial order. O.C.G.A.
§ 9-11-15(a). No response is required to an amended pleading unless
ordered by the court. Id.
Federal Court
•
•
In federal court, a party generally may amend his pleading once, either
within 21 days after service of the initial pleading or within 21 days after
the earlier of service of the responsive pleading or service of a motion to
dismiss, motion for more definite statement, or motion to strike. FED. R.
CIV. P. 15(a)(1). Otherwise, a party may amend its pleading only with
written consent from the opposing party or leave of court, the latter of
which should be freely given when justice requires. FED. R. CIV. P.
15(a)(2).
Unless the court orders otherwise, any required response to an amended
pleading must be made within remaining time to respond to the original
pleading or within 14 days after service of the amended pleading,
whichever is later. FED. R. CIV. P. 15(a)(3).
F.
Special Pleading and Formatting Requirements
Georgia State Court
•
Venue is a very important consideration, and facts on which venue
depends must be alleged in the Complaint. O.C.G.A. § 9-11-8(a)(2).
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Federal Court
II.
•
Any nongovernmental corporate party must file a disclosure statement
that either identifies any parent corporation and any publicly-held
corporation owning ten percent or more of its stock or states that there
is no such corporation. FED. R. CIV. P. 7.1(a). The statement must be
filed at the time of a party’s first appearance, pleading, petition, motion,
response, or other request to the court, and “prompt” supplementation of
the disclosure statement is required if any of the required information
changes. FED. R. CIV. P. 7.1(b).
•
In the Northern District of Georgia, parties also are required to file a
“certificate of interested parties” consisting of (i) “[a] complete list of
other persons, associations, firms, partnerships, or corporations having
either a financial interest in or other interest which could be
substantially affected by the outcome of th[e] particular case; and (ii)
“[a] complete list of each person serving as a lawyer in th[e] proceeding.”
N.D. Ga. L.R. 3.3(A).
•
Always check local rules and standing orders.
Scheduling and Discovery Procedures
A.
Initial Disclosures and Scheduling Requirements
Georgia State Court
•
No requirement.
Federal Court
•
The Federal Rules require the parties in most types of civil cases to make
certain “initial disclosures” even without being served with any written
discovery requests.
The information and documents that must be
provided in these initial disclosures include:
o The name and, if known, the address and telephone number of
each individual likely to have discoverable information that the
disclosing party may use to support its claims or defenses, and
the subjects of that information, unless the use would be solely
for impeachment;
o A copy, or a description by category and location, of all
documents, electronically-stored information, and tangible things
that the disclosing party has in its possession, custody, or control
and may use to support its claims or defenses, unless the use
would be solely for impeachment;
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o A computation of each category of damages claimed by the
disclosing party, and a copy (or the right to inspect and copy) all
documents or other evidentiary material, unless privileged or
protected from disclosure, on which each computation is based,
including materials bearing on the nature and extent of injuries
suffered; and
o A copy of (or the right to inspect and copy) any insurance
agreement under which an insurance business may be liable to
satisfy all or part of a possible judgment in the action or to
indemnify or reimburse for payments made to satisfy the
judgment.
FED. R. CIV. P. 26(a)(1)(A).
•
•
Generally, a party must serve its initial disclosures within 14 days after
the parties’ Rule 26(f) initial planning conference, as outlined below,
unless the parties stipulate or the court orders otherwise. FED. R. CIV. P.
26(a)(1)(C).
Importantly, failure to provide information or to disclose a witness in a
party’s initial disclosures will result in exclusion of that information or
witness on a motion, at a hearing, or at trial, unless the failure was
“substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1).
Initial Planning Conference
B.
State Court
•
None.
Federal Court
•
•
The conference must include every party in the case (either personally or
through counsel) and must be held “as soon as practicable” and, in any
event, no later than 21 days before a scheduling conference is set to be
held or the scheduling order is due under Rule 16(b). FED. R. CIV. P.
26(f)(1).
o In the Northern District of Georgia, the Rule 26(f) conference must
be held within 16 days after appearance of a defendant by answer
or motion. N.D. Ga. L.R. 16.1.
o In the Southern District, the conference must be held by the earlier
of 21 days after filing of the last answer of the defendants named in
the original complaint or 45 days after the first appearance of a
defendant by answer or Rule 12 motion. S.D. Ga. L.R. 26.1(a).
During the Rule 26(f) conference, “the parties must consider the nature
and basis of their claims and defenses and the possibilities for promptly
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•
•
settling or resolving the case; make or arrange for the disclosures required
by Rule 26(a)(1); discuss any issues about preserving discoverable
information; and develop a proposed discovery plan.” FED. R. CIV. P.
26(f)(2).
The conference may take place by phone unless the court orders the
parties or their attorney to confer in person. Id.
The parties’ discovery plan is due 14 days after the Rule 26(f) conference
and must state “the parties’ views and proposals” on the following
matters:
o
(i) any changes to be made to the timing, form, or
requirement of the parties’ initial disclosures, as well as a
statement of when the parties’ disclosures will be made;
o
(ii) the subjects on which discovery will be needed, the
proposed deadline for discovery, and whether discovery should be
conducted in phases or limited in scope in some way;
o
(iii) any issues regarding disclosure or discovery of
electronically-stored information, including the form of production
thereof;
o
(iv) issues pertaining to claims of privilege or protection of
trial preparation materials;
o
(v) any other limitations that should be imposed on
discovery in the case; and
o
(vi) any protective orders under Rule 26(c), scheduling
orders under Rule 16(b), or pretrial orders under Rule 16(c) that
the parties believe should be issued in the case. FED. R. CIV. P.
26(f)(3). In both the Northern and Southern Districts of Georgia,
there is a specific form which must be used.
Scheduling Orders and Sanctions for Noncompliance
C.
Georgia State Court
•
The Civil Practice Act does not specifically provide for the issuance of
scheduling orders, though an increasing number of state and superior
courts have begun issuing scheduling orders as a matter of course or in
more complex cases.
Federal Court
•
Federal district courts, by contrast, are required to issue a scheduling
order “as soon as practicable,” but in any event no later than 120 days
after any defendant has been served with the complaint or 90 days after
any defendant has appeared, whichever is earlier. FED. R. CIV. P. 16(b).
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D. Sanctions
Georgia State Court
•
While other sanctions may be appropriately imposed, “[e]xclusion of
probative trial evidence is not an appropriate remedy for curing an
alleged discovery admission.” Hunter v. Nissan Motor Co. of Japan, 229
Ga. App. 729, 729-30 (1) (1997) (en banc). See also Hart v. Northside
Hosp., Inc., 291 Ga. App. 208, 209-10 (1) (2008); Thakkar v. St. Ives
Country Club, 250 Ga. App. 893 (1)(a) (2001).
Rather, the “only
appropriate remedy” for a party’s alleged failure to disclose relevant
information in discovery, including regarding potential expert witnesses,
is postponement of trial or a mistrial. Hunter, 229 Ga. App. at 730 (1);
Hart, 291 Ga. App. at 210 (1). “[A] motion to strike is never an
appropriate tool for excluding probative evidence during a civil jury trial.”
Hunter, 229 Ga. App. at 729-30 (1), citing Sharpe v. Dept. of Transp., 267
Ga. 267, 270 (2) (1996). An exception exists where a party fails to comply
with a specific deadline for identification of experts that is set in a
scheduling order. See Section II.H.3., infra.
Federal
•
E.
The Federal Rules permit the imposition of Rule 37(b)(2)(A)(ii)–(vii)
sanctions for failure to comply with the court’s scheduling order. FED. R.
CIV. P. 16(f)(1)(C). Moreover, the Federal Rules specifically provide that
“[i]f a party fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” FED. R. CIV. P.
37(c)(1).
Written Discovery
State Court
•
•
•
•
In state court, the discovery period generally begins upon filing of a
defendant’s answer and lasts for six months, although the court has
discretion to shorten, extend, or reopen the discovery period. GA. UNIF.
SUPER. CT. R. 5.1.
No party may serve more than 50 interrogatories, including subparts, on any
other party without leave of court. O.C.G.A. § 9-11-33(a)(1).
30 days to respond.
In state court, there generally is no duty to supplement prior discovery
responses to include information acquired after the responses are served.
O.C.G.A. § 9-11-26(e)(3). A duty to supplement does exist as to: (1) any
question directly address to the identity or location of persons with
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knowledge of discoverable matters; (2) expert witnesses who will be called at
trial; and (3) any situation in which later-obtained information reveals that
the earlier response was incorrect when made, or that although the response
was correct when made, it is no longer true and “the circumstances are such
that a failure to amend the response is, in substance, a knowing
concealment.” Id.
Federal Court
In federal court, by contrast, the discovery period typically does not begin
until after the Rule 26(f) conference or, in the Northern District of Georgia,
30 days after appearance of the first defendant by answer. FED. R. CIV. P.
26(d)(1); N.D. Ga. L.R. 26.2(A).
o In the Northern District, cases will be assigned a different length
of discovery period depending on the type of case, most typically
four or eight months, although the parties may request more time.
N.D. Ga. L.R. 26(A), (B).
o In the Southern District, unless the court provides otherwise in its
scheduling order, all written discovery must be served and all
depositions must be completed within 140 days after filing of the
last answer of the defendants named in the original complaint.
S.D. Ga. L.R. 26.1(d)(i).
• The Federal Rules limit a party to serving no more than 25 interrogatories,
including discrete subparts, on any other party without leave of court. FED.
R. CIV. P. 26(a)(1).
A party must supplement or correct any statement made in a disclosure or a
discovery response “in a timely manner” either if ordered by the court or upon
learning that the disclosure or response is incomplete or incorrect “in some
material respect” if the additional/correct information has not otherwise been
provided to other parties during discovery or in writing. F ED. R. CIV. P. 26(e)(1).
•
•
III.
Motion Practice and Deadlines
State Court
•
•
A motion generally must be filed sufficiently early that the time for
response will elapse prior to trial. Motions for summary judgment, in
particular, must be filed “sufficiently early so as not to delay the trial,”
and “no trial shall be continued by reason of the delayed filing of a motion
for summary judgment.” GA. UNIF. SUPER. CT. R. 6.6.
Any response to a motion filed in superior court must be filed and served
within 30 days after service of the motion. GA. UNIF. SUPER. CT. R. 6.2. In
state court, a response must be filed within 30 days after service of the
motion or on the date of the hearing (if any), whichever is sooner. GA.
UNIF. STATE CT. R. 6.2.
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•
Most motions generally will be decided without a hearing unless the court
orders otherwise. GA. UNIF. SUPER. CT. R. 6.3. In state court, an
exception exists for motions for new trial, motions for judgment
notwithstanding the verdict, and motions for summary judgment. GA.
UNIF. SUPER. CT. R. 6.3. As to motions for summary judgment, oral
argument must be permitted if a party requests oral hearing through a
written pleading entitled “Request for Oral Hearing” which is filed either
with the motion or no later than five days after the time for a response.
Id.
Federal Court
In federal court, deadlines for filing motions may be set either by the court’s
scheduling order or by local rule. In all Federal courts in Georgia, motions are
generally decided without a hearing.
•
Northern District of Georgia:
o Motions to compel discovery typically must be filed prior to the close of
discovery or within 14 days after service of the disclosure or discovery
response at issue. N.D. Ga. L.R. 37.1(B).
o Motions for summary judgment must be filed as soon as possible but no
more than 30 days after close of discovery unless otherwise ordered by the
court. N.D. Ga. L.R. 56.1(D).
o Motions for reconsideration, which “shall not be filed as a matter of
routine practice” and should only be filed when “absolutely necessary,”
must be filed within 28 days after the order or judgment to be
reconsidered; responses must be filed within 14 days after service of the
motion. N.D. Ga. L.R. 7.2(E).
o Daubert motions generally must be filed no later than the date the
proposed consolidated pretrial order is submitted. N.D. Ga. L.R. 26.2(C).
o All other motions must be filed within 30 days after the beginning of
discovery absent prior leave of court. N.D. Ga. L.R. 7.1(A)(2).
o Responses to motions are due 14 days after service of the motion, except
for responses to motions for summary judgment, which are due 21 days
after service of the motion. N.D. Ga. L.R. 7.1(B). Moreover, a failure to
respond will be deemed as indicating that a party does not oppose the
motion. Id.
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o In the Northern District, briefs in support of and in opposition to motions
are limited to 25 pages, and reply briefs are limited to 15 pages. N.D. Ga.
L.R. 7.1(D). At the end of each brief, counsel must certify that the brief
has been prepared with one of the font and size combinations permitted
under Local Rule 5.1(C) or, if typewritten, does not contain more than ten
characters per inch of type” Id.
•
Southern District
o Responses to motions are due 14 days
for responses to motions for summary
after service of the motion. S.D. Ga.
respond will be deemed as indicating
motion. Id.
after service of the motion, except
judgment, which are due 21 days
L.R. 7.5. Moreover, a failure to
that a party does not oppose the
o All briefs filed in the Southern District are limited to 26 pages without
prior permission from the court, including any title pages, tables of
contents, tables of cases, or “other pages prefatory to the main body” of
the brief. S.D. Ga. L.R. 7.1(a).
•
Middle District
o There are few specific deadlines for filing motions in the Middle District,
meaning that most motion deadlines will be set in the court’s scheduling
order in each individual case or by default under the Federal Rules.
o In the Middle District, responses are due within 21 days. M.D. Ga. L.R.
7.2.
o In the Middle District, briefs in support of or in response to motions are
limited to 20 pages, and a movant’s reply brief is limited to ten pages,
without prior permission from the court. M.D. Ga. L.R. 7.4.
IV.
Dismissal
Georgia State Court
•
•
A plaintiff may dismiss his case voluntarily and without prejudice once at
any time prior to the first witness being sworn at trial. O.C.G.A. § 9-1141(a)(1)(A).
This advantage can be significant, particularly given that Georgia’s
renewal statute, O.C.G.A. § 9-2-61, applies both in state and federal court.
See Scott v. Muscogee County, 949 F.2d 1122, 1123 (11th Cir. 1992). In
determining whether the prerequisites for renewal have been met, such
as whether the original action constituted a “valid action” from which
renewal is permitted under O.C.G.A. § 9-2-61.
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Federal Court
•
V.
In federal court, after an opposing party has filed an answer or a motion
for summary judgment, a plaintiff may only dismiss his case either by
court order or by a stipulation of all parties in the case. Fed. R. Civ. P.
41(a)(1)(A).
Pretrial Procedure
State Court
•
•
•
Whether to hold a pretrial conference is within the court’s discretion.
O.C.G.A. § 9-11-16(a).
In state court, “[f]ailure of counsel to appear at the pretrial conference
without legal excuse or to present a proposed pretrial order shall
authorize the court to remove the action from any trial calendar, enter
such pretrial order as the court shall deem appropriate, or impose any
other appropriate sanction, except dismissal of the action with prejudice.”
GA. UNIF. SUPER. CT. R. 7.1.
The Uniform Superior Court Rules contain a form pretrial order with
which substantial compliance is required. GA. UNIF. SUPER. CT. R. 7.2.
Federal Court
•
The Federal Rules require parties to make pretrial disclosures about the
evidence they may present at trial other than solely for impeachment
purposes. FED. R. CIV. P. 26(a)(3)(A). Generally, pretrial disclosures must
be made at least 30 days before trial. FED. R. CIV. P. 26(a)(3)(B). Within
14 days after a party makes its pretrial disclosures, a party may serve and
file any objections to presentation of a witness’s testimony by deposition
or to the admissibility of any items of evidence identified in the disclosure.
Id.
•
Whether to hold a pretrial conference is within the court’s discretion.
FED. R. CIV. P. 16(a).
•
The Federal Rules of Civil Procedure contain form pretrial orders with
which substantial compliance is required, the form used in federal court
tends to be substantially more complex and time-consuming. FED. R. CIV.
P. 26(a)(3).
o In the Northern District of Georgia, in particular, nearly all
pretrial matters must be addressed in the consolidated pretrial
order filed by the parties, including a listing of the parties’
proposed voir dire questions and objections, a complete list of
exhibits and documentary evidence to be used and objections to
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other parties’ exhibits, any trial briefs to be submitted by the
parties, all requested jury charges, and a proposed verdict form.
See N.D. Ga. L.R. 16.4(B). In state and superior court, by contrast,
those items are not due until just before trial unless ordered
otherwise by the court in a scheduling order or trial notice.
TRIAL AND ERROR
Evidence Law
R. Matthew Reeves
Anderson, Tate & Carr, P.C.
Duluth, Georgia
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EVIDENCE LAW – TRIAL & ERROR CLE 2017
R. Matthew “Matt” Reeves
Andersen, Tate & Carr, P.C.
Duluth, Georgia
(770) 236-9768
[email protected]
Georgia evidence law has undergone many procedural and substantive changes since
2013, and learning and utilizing Georgia's current Evidence Code is a key component of success
at trial. Conversely, ignorance of evidence law places you in danger of defeat before and at trial.
In addition to having Title 24 of the Georgia Code, its interpreting caselaw, Carlson on
Evidence, Milich on Evidence, and many other Georgia evidence law resources to aid you in this
critical area of trial practice, today you get "Matt on Evidence" concerning three evidence law
issues: 1) noteworthy Georgia Supreme Court civil evidence cases over the past year; 2) the
Evidence Code’s voluminous records statute; and 3) the Evidence Code’s expert witness statute.
Before briefing these three areas, it is always good to renew a sense of the historical
nature of the legal profession, and draw upon some big-picture legal wisdom, when pursuing
annual continuing education credits.
President and Lawyer Abraham Lincoln said, "[i]n law it is good policy to never plead
what you need not, lest you oblige yourself to prove what you can not."
"Without the tape-recorded evidence demonstrating irrefutably, in Nixon's own voice, his
knowledge of and active involvement in obstruction of justice, it is likely that Nixon would have
escaped impeachment and removal from office." -Watergate Prosecutor Richard Ben-Veniste
Testis oculatus unus plus valet quam auriti decem: One eyewitness is worth more than
ten earwitnesses. -Ancient maxim/unknown
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"Although I broke a lot of laws as a teenager, I straightened out immediately upon
turning eighteen, when I realized the state had a legal right to execute me." -George Carlin
These quotes remind us that evidence law and our daily work have dramatic real-world
consequences.
I.
2016-17 Georgia Supreme Court Civil Evidence Cases
There were approximately one hundred (100) Georgia Supreme Court cases over the past
year that addressed evidence issues in some fashion. Ninety percent or more of the cases were
appeals of criminal convictions, and many of the criminal cases presented unsuccessful
arguments concerning the sufficiency of evidence relating to the guilty verdict below. The
Georgia Supreme Court has handled fewer civil evidence cases than the Georgia Court of
Appeals, but the Supreme Court publishes more of its opinions, than does the Court of Appeals
which often uses Rule 36 affirmances or unpublished opinions. It will be interesting to see
whether the recent modification of appellate jurisdiction impacts the number of evidence
decisions by the Georgia Supreme Court. Other than the two expert witness cases cited in
Section Three below, it does not appear that there were any substantive evidence code civil cases
at the Supreme Court level over the past year.
Cushenberry v. State, 794 S.E. 2d 165 (Ga. Nov. 21, 2016), is an example of the kind of
evidence issues presented in criminal appeals at the Supreme Court level over the past year. The
Cushenberry Court held that Defendant's gang-related tattoos, and gang-related photos on a
MySpace page did not warrant a reversal of a guilty verdict under Rule 403, because the trial was
in 2011 before the statute was in effect.
Webb v. Reeves, 299 Ga. 760 (2016), was a testamentary capacity evidence case, not an
evidence code case. This case shows how low the evidentiary standard is for evidence in support
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of testamentary capacity, or alternatively how difficult it is to prove lack of testamentary
capacity. The Supreme Court also noted that future such appeals will go to the Court of Appeals
pursuant to the 2016 appellate jurisdiction legislation.
Cottrell v. Smith, 299 Ga. 517 (2016), affirmed a JNOV which vacated a $635,000
defamation verdict. The Court held that the heightened "actual malice" standard applied to
defeat a "motivational speaker's" defamation claims against a blogger, who had accused the
motivational speaker of theft, affairs, and other alleged acts of swindling. The actual malice
standard presents a heightened clear and convincing evidentiary standard, and evidence in the
record of the "truth" of the alleged defamatory statements - in addition to an acknowledgement
by the motivational speaker's counsel at oral argument that the motivational speaker was had
engaged in extramarital affairs - warranted a JNOV which vacated the large jury verdict.
Another clear and convincing evidence standard case is Strickland v. Strickland, 298 Ga.
630 (2016). In Strickland, the Court reversed the Court of Appeals, and affirmed the trial court's
award of custody to grandparents of their three grandchildren, adversely to their daughter. The
Supreme Court held that the Court of Appeals disregarded evidence upon which the trial court
relied, such as that the mother frequently failed to come home at night to her fiancé's residence
where she lived, that she proved no income from her alleged employment, that she was not drug
free, and other evidence which clearly and convincingly rebutted the presumption in favor of
parental custody.
II.
Summaries of Voluminous Works Statute
O.C.G.A. § 24-10-1006 provides as follows:
The contents of otherwise admissible voluminous writings, recordings, or photographs
which cannot conveniently be examined in court may be presented in the form of a chart,
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summary, or calculation. The originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at a reasonable time and place. The
court may order that the contents of such writings, recordings, or photographs be
produced in court.
O.C.G.A. § 24-10-1006.
In three recent cases, attempted summaries failed twice and succeeded once. In Tafel v.
Lion Antique Cars, 297 Ga. 334 (2015), a case authored by Justice Thompson, concerned a
disputed race car loan. The Court excluded a summary of legal bills, because five years' worth of
bills were not made available to opposing counsel. Tafel puts teeth in the "shall be made
available" provision of the statute.
In D'Agnese v. Wells Fargo, 335 Ga. App. 659 (2016), Judge (now Justice) Peterson held
that a screen shot of a bank computer record attached to a banker's summary judgment affidavit
was inadmissible. The analysis of the screen shot focused on the fact that the screen shot was
not of a business record account history, but instead was just of an alleged daily amount due
report. A ledger or account history would have reflected historical transactions and data, whereas
the overview of an amount allegedly owed on a certain date was not viewed as a summary that
falls within the purview of the statute.
Lyman v. Cellchem International, 335 Ga. App. 266 (2015), reversed on Georgia
Computer Systems Protection Act punitive damages grounds in Lyman v. Cellchem
International, 2017 WL 279514 (Ga. Jan. 23, 2017), was written by Judge Billy Ray and held
that summaries of a distributor's sales reports were admissible. The summaries were created in
the ordinary course of business. This was a computer trespass case in which a former employee
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was sued for pirating trade secrets, and the jury returned a $7.4 million verdict which is now in
jeopardy due to the Supreme Court’s GCSPA punitive damages decision.
Examining these three cases, in Tafel, a summary created by counsel was inadmissible,
while in Lyman, summaries created by a party in the ordinary course was were admissible. In
D'Agnese, the screen shot was of a record created by the party, but the record was held not be a
"summary", like a ledger or account history may have been were it presented instead.
Words to the wise from these cases are make the underlying data available to opposing
counsel, if possible use summaries made by the client rather than counsel, ask whether the record
is really a "summary", and inquire whether there is a better record or summary to present the
voluminous evidence.
III.
Expert Witness Statute
Under the Daubert standard codified/renewed in the new Evidence Code, the trial court is
empowered to be the "gatekeeper" of expert testimony. See Toyo Tire North America Mfg. Inc.
v. Davis, 299 Ga. 155 (2016) (nuisance and trespass diminution in value case scrutinizing an
expert real estate appraiser's opinion); see also Yugueros v. Robles, 2016 WL 6407314 (Ga. Oct.
31, 2016) (liposuction medical malpractice case).
In McKuhen v. TransformHealthRX, 338 Ga. App. 354 (2016), the trial court was
affirmed in determining that the plaintiff's medical malpractice expert did not meet statutory
qualifications. A week after her arrest, Carol McKuhen died in the Effingham County jail due to
complications from alcohol detoxification and withdrawal without proper food and medicine.
While the Court of Appeals held that a deliberate indifference Section 1983 claim could proceed
against the doctor and healthcare company at the jail, the Court held that the expert's deposition
testimony which contradicted his affidavit concerning qualifications justified striking the
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affidavit in support of the medical malpractice claim. Specifically, the expert had made
generalized statements in his affidavit concerning experience in jail healthcare, but the expert
testified in his deposition that he had not practiced or taught in the relevant area in three of the
past five years.
In a somewhat similar factual scenario, Blake v. KES, Inc., 336 Ga. App. 43 (2016),
presented a wrongful death claim following a handicapped adult's death at a residential care
facility. Mr. Blake's parents' tort claims for negligence, negligence per se, and intentional
infliction of emotional distress were allowed to remain pending even though the medical
malpractice affiant had deficient credentials and caused that claim to fail.
Zarate-Martinez v. Echemendia, 299 Ga. 301 (2016), concerned a medical malpractice
expert affidavit. The plaintiff presented a single doctor's affidavit in a case against a surgeon,
health group and surgery center. The Supreme Court held that the medical malpractice expert
statute is constitutional, and that the single affidavit was deficient and should be stricken. Justice
Melton's opinion is a thorough analysis of the codification of the Daubert rule, in Georgia's new
Evidence Code, in addition to the previous tort reform statute.
The high standards for medical malpractice affiants make extensive pre-filing selfscrutiny on point a necessity.
In Old Republic National Title Insurance Co. v. RM Kids, LLC, 337 Ga. App. 638 (2016),
the Court of Appeals affirmed the expert real estate appraiser's opinion, but reversed a $7.1
million jury verdict because the damages were presented based on the date of date of a loan
closing rather than the date of foreclosure. This case shows that unfortunately a party can
present an admissible expert opinion about a reversible legal matter.
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Daubert generally does not apply in eminent domain/condemnation cases, pursuant to
OCGA 22-1-14. This is a stark contrast to the thorough appraisal scrutiny in the private sector
real estate tort case Toyo Tire North America Mfg. Inc. v. Davis, 299 Ga. 155 (2016).
O.C.G.A. § 24-7-701, et seq., of the Evidence Code governs expert witness testimony.
O.C.G.A. § 24-7-702 provides as follows:
(a) Except as provided in Code Section 22-1-14 and in subsection (g) of this Code
section, the provisions of this Code section shall apply in all civil proceedings. The
opinion of a witness qualified as an expert under this Code section may be given on the
facts as proved by other witnesses.
(b) If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify thereto in the form of
an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the
case which have been or will be admitted into evidence before the trier of fact.
(c) Notwithstanding the provisions of subsection (b) of this Code section and any other
provision of law which might be construed to the contrary, in professional malpractice
actions, the opinions of an expert, who is otherwise qualified as to the acceptable
standard of conduct of the professional whose conduct is at issue, shall be admissible
only if, at the time the act or omission is alleged to have occurred, such expert:
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(1) Was licensed by an appropriate regulatory agency to practice his or her
profession in the state in which such expert was practicing or teaching in the
profession at such time; and
(2) In the case of a medical malpractice action, had actual professional
knowledge and experience in the area of practice or specialty in which the
opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at
least three of the last five years, with sufficient frequency to establish an
appropriate level of knowledge, as determined by the judge, in performing the
procedure, diagnosing the condition, or rendering the treatment which is alleged
to have been performed or rendered negligently by the defendant whose conduct
is at issue; or
(B) The teaching of his or her profession for at least three of the last five years as
an employed member of the faculty of an educational institution accredited in the
teaching of such profession, with sufficient frequency to establish an appropriate
level of knowledge, as determined by the judge, in teaching others how to perform
the procedure, diagnose the condition, or render the treatment which is alleged to
have been performed or rendered negligently by the defendant whose conduct is
at issue; and
(C) Except as provided in subparagraph (D) of this paragraph:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care of a defendant who is
a doctor of osteopathy; or
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(iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant
who is a medical doctor; and
(D) Notwithstanding any other provision of this Code section, an expert who is a
physician and, as a result of having, during at least three of the last five years
immediately preceding the time the act or omission is alleged to have occurred,
supervised, taught, or instructed nurses, nurse practitioners, certified registered
nurse anesthetists, nurse midwives, physician assistants, physical therapists,
occupational therapists, or medical support staff, has knowledge of the standard
of care of that health care provider under the circumstances at issue shall be
competent to testify as to the standard of that health care provider. However, a
nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife,
physician assistant, physical therapist, occupational therapist, or medical support
staff shall not be competent to testify as to the standard of care of a physician.
(d) Upon motion of a party, the court may hold a pretrial hearing to determine whether
the witness qualifies as an expert and whether the expert's testimony satisfies the
requirements of subsections (a) and (b) of this Code section. Such hearing and ruling
shall be completed no later than the final pretrial conference contemplated under Code
Section 9-11-16.
(e) An affiant shall meet the requirements of this Code section in order to be deemed
qualified to testify as an expert by means of the affidavit required under Code Section 911-9.1.
(f) It is the intent of the legislature that, in all civil proceedings, the courts of the State of
Georgia not be viewed as open to expert evidence that would not be admissible in other
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states. Therefore, in interpreting and applying this Code section, the courts of this state
may draw from the opinions of the United States Supreme Court in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522
U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other
cases in federal courts applying the standards announced by the United States Supreme
Court in these cases.
(g) This Code section shall not be strictly applied in proceedings conducted pursuant to
Chapter 9 of Title 34 or in administrative proceedings conducted pursuant to Chapter 13
of Title 50.
O.C.G.A. § 24-7-702.
Matt Reeves is a litigation partner at Andersen, Tate & Carr. His practice covers a wide
range of matters within the areas of real estate litigation, commercial and banking litigation, and
probate litigation, including representing private property owners and business owners in
eminent domain and disputed zoning matters. Matt served on the Evidence Code Commission in
2009, and was Chairman Wendell Willard’s Legal Counsel in the House Judiciary Committee in
2008. He is a past President of the Gwinnett County Bar Association.
Matt has represented clients in the following road projects: Georgia Highway 316,
Sugarloaf Parkway Extension, Georgia Highway 20, Pleasant Hill and Buford Highway,
Highway 29, Friendship Road/Lanier Islands Parkway. He also provided representation in the
Archer High School condemnation and represented the North Georgia Conference of the United
Methodist Church in its sale of the Simpsonwood property on the Chattahoochee River to
Gwinnett County.
10
TRIAL AND ERROR
Cross Examinations & Depositions
James E. Butler, III
Butler Tobin LLC
Atlanta, Georgia
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TRIAL AND ERROR
Appellate Practice in Georgia
Kenneth L. Shigley
Shigley Law, LLC
Atlanta, Georgia
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Appellate Practice in Georgia
Kenneth L. Shigley
President, State Bar of Georgia, 2011-12
Candidate for Court of Appeals of Georgia, 2018
There is a small cadre of appellate specialists in Georgia. This paper is not intended
for them. It is for ordinary lawyers who labor every day in the trenches -- in law offices
and trial courts -- and rarely venture into the Supreme Court or Court of Appeals.
Moreover, the focus is on state rather than federal appellate practice. Before undertaking
an appeal, a lawyer should review treatises on appellate practice, 1 the Appellate Practice
Act 2 and the recently revised court rules of the Supreme Court and Court of Appeals. 3
A. Preserving Error.4
Without preservation of error in the record of the trial court, there is no basis for a
successful appeal. Elite law firms employ appellate specialists to guide major litigation so
as to fully develop positions for eventual appeals. That is a luxury not available to the
small firm practitioner.
A successful appeal requires both that error be preserved before the trial court and
that the error be shown harmful to the party seeking appellate review. Failure to properly
preserve error will usually be fatal to review, at least on the point not preserved, except in
rare circumstances such where there is “plain error.” 5
McFadden, Brewer & Sheppard, GEORGIA APPELLATE PRACTICE WITH FORMS (2016–2017
edition); Stephen Louis A. Dillard, Open Chambers Revisited: Demystifying the Inner Workings and
Culture of the Georgia Court of Appeals, 68 MERCER L. REV. 1 (Fall 2016); Michael B. Terry, GEORGIA
APPEALS: PRACTICE AND PROCEDURE WITH FORMS (2016); NUTS & BOLTS OF CIVIL APPELLATE
PRACTICE (Seminar Materials, ICLE in Georgia, 2017); Milich, GEORGIA LAW OF EVIDENCE
(Chapter 3); and Shigley & Hadden, GEORGIA LAW OF TORTS: TRIAL PREPARATION & PRACTICE
(2016 edition)(Chapter 30).
1
O.C.G.A. § 5-6-1 through 5-6-51.
Court of Appeals: http://www.gaappeals.us/rules2/rules.php?name=general; Supreme Court:
http://www.gasupreme.us/rules/rules-of-the-supreme-court-of-georgia/ (last visited Feb. 21, 2017).
4 This section is based upon Shigley & Hadden, GEORGIA LAW OF TORTS: TRIAL PREPARATION & PRACTICE
(2016 ed.)(Chapter 30), of which the presenter is co-author but John Hadden wrote this chapter.
5 See generally McFadden, Brewer & Sheppard, GEORGIA APPELLATE PRACTICE §9:5 (2015-2016 ed.) See also
O.C.G.A. §24-1-103(d).
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Perfecting the record for an occasional appeal is just one of the balls that a lawyer
must juggle, along with all other aspects of cases as well as the administrivia of managing
a law office. But it is essential. If this ball is dropped, the opportunity to seize victory from
the jaws of defeat on appeal may be forfeited. And if successful in the trial court but
ineffective on appeal, the lawyer and client may experience the excruciating pain of
seizing defeat from the jaws of victory.
1. Preservation of error in pre-trial proceedings.
a. Motions.
In order to seek appellate review of pre-trial proceedings, there must be a record
from which the appellate court can determine the relief that was sought in the motion or
request and determine precisely the ruling of the court. Generally, this requires the entry
(meaning filing with the clerk) of a written order of the court granting or denying the
relief. 6 If the court's order was made based on an oral motion, a party so moving or
objecting should attempt to place on the transcript record the basis for its request or
opposition sufficient to demonstrate that it properly preserved the issue for appeal and
did not acquiesce to the ruling or waive the argument. On any point that could provide a
ground for reversal, counsel must respectfully persist in getting a ruling on the record, as
silent submission to a direction to “move along” will likely constitute waiver. A motion for
reconsideration of a written order made in response to an oral motion may be prudent to
ensure there is no argument of waiver or consent raised later. Motions in limine, which
are technically pre-trial actions though they are often considered just before trial or even
after the picking of a jury, are discussed in the following section since the evidentiary
issues upon which they are filed often arise at trial.
In some cases, a valid argument regarding the trial court's grant or denial of a
motion will be disregarded on appeal because it was not raised below. Although the “right
for any reason” rule will allow an appellate court to uphold the grant of a motion even if
the specific basis argued by the moving party below did not support that result, this will
not protect a party seeking to reverse such a ruling based on a novel argument on appeal,
Titelman v. Stedman, 277 Ga. 460, 460-61, 591 S.E.2d 774 (2003). But see State v. Morrell, 281 Ga. 152,
635 S.E.2d 716 (2006) (oral order may be appealable so long as it appears somewhere in record).
6
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as there is no corresponding “wrong for any reason rule.” 7 The general rule is that where
an argument is advanced on appeal for the first time, it will not be considered, even
though it may be meritorious and otherwise demand reversal. 8 The dissent in Pfeiffer v.
Ga. DOT demonstrates that this area of law is not entirely clear, and subsequent cases
reveal varying results in the application of this rule. Although many attorneys decline to
have an oral argument taken down by a court reporter where no evidence is introduced at
the hearing, the transcript may reveal arguments presented that were not specifically
raised in the party's brief that would serve to preserve those argument for appellate
review. 9
b. Depositions.
Since no judge is present at depositions, these proceedings merit special
consideration. O.C.G.A. §9-11-30 states that all objections be recorded by the court
reporter so that they can be later reviewed. The Civil Practice Act provides that objections
to the deposition notice are waived unless made promptly upon the receipt of that
notice.10 Similarly, any objections to the qualifications of the court reporter, to the
manner in which the deposition is taken, or to the oath or affirmation are waived if not
made upon discovery. 11 But objections to “competency of a witness or to the competency,
relevancy, or materiality of testimony” are not generally waived by the failure to assert
them at the deposition.12
With respect to the actual testimony taken, parties usually stipulate that objections
as to the form of the question or responsiveness of the answer will be reserved until the
first use of the deposition in court. This is consistent with O.C.G.A. §9-11-32(d)(3)(B),
which provides, in pertinent part, that “[e]rrors and irregularities occurring at the oral
examination ... in the form of the questions or answers, in the oath or affirmation, or in
the conduct of parties, and errors of any kind which might be obviated, removed, or cured
if promptly presented are waived unless seasonable objection thereto is made at the
Heard v. City of Villa Rica, 306 Ga. App. 291, 293-94, 701 S.E.2d 915 (2010).
Pfeiffer v. Georgia Dept. of Transp., 275 Ga. 827, 828-29, 573 S.E.2d 389 (2002).
9 Id.
10 O.C.G.A. § 9-11-32(d)(1).
11 O.C.G.A. § 9-11-32(d)(2) and (d)(3)(B).
12 O.C.G.A. § 9-11-32(d)(3)(A).
7
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taking of the deposition.”
The question is often raised as to what constitutes an “objection to form.”
Unfortunately, Georgia case law does not offer a great deal of guidance on this issue. Given
that the statutory waiver under O.C.G.A. § 9-11-32(d)(3)(B) is broad enough to encompass
any issue at the deposition that could be corrected at the time of taking, counsel, while
being mindful not to interrupt the proceedings with dilatory interjections (or “speaking
objections”) during the testimony,13 should be careful to raise any objection that might
result in a changing of the question or the answer based on a poorly asked or
misunderstood question. In the few Georgia cases dealing with this issue, it has been held
that hearsay objections are not waived by failure to make them at the time of the
testimony,14 while an objection to an attorney's question that allegedly misstated the
proper standard of medical causation was deemed to be an objection to form and thus
waived. 15 It has also been held that a party's failure to object to an expert witness's
qualifications to opine as to medical causation constituted a waiver, since it believed that
any lack of qualification or competency could have been remedied had the objection been
made. 16 Thus, while perhaps not an absolute rule, a party's failure to object to a witness
based on his or her lack of qualification or foundation may well serve to waive any such
objection at trial.
As a general principle, when an objection is made at a deposition, the deponent is
allowed to answer subject to that objection.17 In some circumstances, such as in response
to questions touching on particularly sensitive or inappropriate matters, or matters that
are alleged to be protected by a privilege, the party may decline to respond, sometimes at
the advice of counsel. In those circumstances, the response should be noted on the record
and may be subject to a motion to compel should the asking party wish to pursue the
question further.
Where a deposition is taken for the purpose of preservation of evidence, the general
13 See Hall v. Clifton Precision, a Div. of Litton Systems, Inc., 150 F.R.D. 525, 27 Fed. R. Serv. 3d 10 (E.D.
Pa. 1993).
14 Bryant v. Food Giant, Inc., 184 Ga. App. 155, 361 S.E.2d 38 (1987).
15 Haynes v. McCambry, 203 Ga. App. 464, 468, 416 S.E.2d 893 (1992).
16 Jones v. Scarborough, 194 Ga. App. 468, 390 S.E.2d 674 (1990); Andean Motor Co. v. Mulkey, 251 Ga.
32, 302 S.E.2d 550 (1983).
17 O.C.G.A. § 9-11-30(c)(2).
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practice is that the parties modify the usual rule of reserving objections to require that all
objections be made on the record at the time of taking. There does not appear to be any
statutory or case law governing this practice, however, and thus a party could decline such
an agreement and the deposition would presumably continue under the standard
reservation rules set forth above. Where a video deposition is taken, a common and
helpful practice is for the attorneys to agree to raise a hand prior to making an objection
so that the objections can be taken off of the video record, which serves to simplify the
task of editing the video for trial. Objections that are made on the record but later waived,
as is common, can thus be disregarded without editing since the objections are not on
video.
2. Preservation of error at trial.
a. Motions in limine.
A motion in limine may be made either in writing or orally. 18 But any hearing on
the motion should be on the record, and, to the extent that any factual matters are
considered in the trial court's ruling on the motion, the lack of a transcript may result in
a presumption that the facts supported the ruling.19 The general rule is that a party
alleging error as to the granting or denial of a motion in limine need not raise a further
objection at trial when the evidence either comes in or the party believes it should be
admitted. But counsel should be careful to recognize that the preservation of error as to a
motion in limine can be waived or lost based on conduct at trial. 20
If the court has granted a motion in limine, no further action is generally required
to preserve the right to appeal the opposing party's introduction of evidence in violation
of the granted motion.21 The Supreme Court has recently ruled that where the party
moving successfully in limine has opened the door as to the evidence sought to be
excluded, violation of the motion by the opponent will not be grounds for a reversal. 22 It
See, e.g., Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982) (oral motion).
Studard v. Department of Transp., 219 Ga. App. 643, 466 S.E.2d 236 (1995). It should be noted, however,
that this holding was based largely on a presumption that public employees were following the law.
20 See generally Milich, GEORGIA RULES OF EVIDENCE §3:6 (2012-2013 ed.).
21 Reno v. Reno, 249 Ga. 855, 295 S.E.2d 94 (1982).
22 CSX Transp., Inc. v. Smith, 289 Ga. 903, 717 S.E.2d 209 (2011).
18
19
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is possible that a court could rule that the plaintiff's act of answering a prohibited question
on cross-examination, even if the question was improper to begin with, may constitute
opening the door. It may, therefore, be prudent to object to any line of questioning that
could result in a witness discussing the prohibited evidence in order to ensure that there
is no waiver argument made at the appellate level. 23
The party opposing a motion in limine that is ultimately granted does not need to
attempt to introduce the prohibited evidence or draw the court's attention to the objection
at trial in order to argue error before the appeals court on the propriety of that evidence
being presented, assuming that the opposition to exclusion is documented in the record
from the time it was raised. 24 If the court denies a party's motion in limine, there is no
need to re-object at trial when the evidence that the party sought to keep out is
introduced. 25 But if an attorney, having moved unsuccessfully in limine for exclusion of
evidence, states at trial that there is no objection to the evidence, the objection made in
limine will be waived. 26 Finally, O.C.G.A. § 24-1-103 expressly provides that “[o]nce the
court makes a definitive ruling on the record admitting or excluding any evidence, either
at or before trial, a party need not renew an objection or offer of proof to preserve such
claim of error for appeal.” Because this statute has only been effective since January 1,
2013, the extent to which the courts will interpret the provision in light of existing law is
unclear.
b. Voir dire.
Counsel often elect not to have voir dire transcribed in order to save on expenses,
but without a record of the jury selection process there is no way to review whether a
ruling on juror exclusion was in error. Jurors may be excluded from a number of reasons,
including failure to properly qualify as jurors (e.g., they are not actually residents of the
county in which the trial is being held or are felons convicted of certain offenses), or
having a relationship with a party or personal views that would bias their decision-
Id.
Automated Print, Inc. v. Edgar, 288 Ga. App. 326, 654 S.E.2d 413 (2007).
25 Harley-Davidson Motor Co., Inc. v. Daniel, 244 Ga. 284, 260 S.E.2d 20 (1979).
26 See, e.g., Givens v. State, 281 Ga. App. 370, 636 S.E.2d 94 (2006).
23
24
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making. 27 O.C.G.A. § 15-12-133 provides for the right to individual examination of jurors
in order to discovery any such bias, while O.C.G.A. §§ 15-12-120 to 15-12-142 cover the
selection process generally. The judge will generally ask counsel whether there are any
challenges for cause outside the presence of the jury after individual questioning. 28 But a
court is not required to strike a juror for cause sua sponte, and therefore it is essential
that counsel raise the objection and articulate the basis thereof as thoroughly as
possible.29 The right to examination itself is just that--a right--and is not subject to the
judge's discretion. Therefore, denial of the right is reversible error, but counsel should
make an objection to the denial of examination, or the denial of the right to inquire into a
particular area, on the record. 30 It is worth considering that a judge may be more likely to
allow a more thorough inquiry if she knows that voir dire is being transcribed and thus
could be subject to appellate review.
Although O.C.G.A. § 15-12-133 provides that
counsel for either party shall have the right to inquire of the individual
prospective jurors examined touching any matter or thing which would
illustrate any interest of the prospective juror in the case, including any opinion
as to which party ought to prevail, the relationship or acquaintance of the
prospective juror with the parties or counsel therefor, any fact or circumstance
indicating any inclination, leaning, or bias which the prospective juror might
have respecting the subject matter of the action or the counsel or parties
thereto, and the religious, social, and fraternal connections of the prospective
juror,
within those guidelines the trial judge has discretion to allow or disallow particular
questions, which will not be disturbed absent manifest abuse.31 If counsel or a party
becomes aware of a basis to exclude a juror after voir dire but before the verdict, this fact
should be brought to the attention of the court as soon as possible.32
27 See generally Ruskell, Davis & Shulman, GEORGIA PRACTICE AND PROCEDURE §§20:5 to 20:12 (2015-2016
ed.).
28 See, e.g., Elliott v. Home Depot U.S.A., Inc., 275 Ga. App. 865, 622 S.E.2d 77 (2005).
29 Phillips v. State, 275 Ga. 595, 571 S.E.2d 361 (2002).
30 Thomas v. State, 247 Ga. 7, 273 S.E.2d 396 (1981) (motion for further examination made on record).
31
32
Ridgeway v. State, 174 Ga. App. 663, 330 S.E.2d 916 (1985).
Georgia Power Co. v. Mozingo, 132 Ga. App. 666, 209 S.E.2d 66 (1974).
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c. Opening statement and closing argument.
In order to raise an objection to the conduct of opposing counsel in opening or
closing, it is necessary to raise a timely objection or motion for mistrial, which generally
means doing so immediately upon the making of the statement. 33 Doing so at the
conclusion of the statement or argument will probably result in waiver of error as to that
statement. 34 The possibility remains, however, that if a party can show that counsel's
improper statement probably changed the outcome of trial, the failure to object during
the attorney's argument may not be fatal. 35 Still, it is probably better to make the
objection at the time the statement is made, unless counsel is worried that doing so would
undermine his own credibility with the jury. The Court of Appeals has also held that where
the judge directs the parties to reserve objections until the end of arguments, any
objections made in that manner will be deemed preserved. 36
d. Evidence and testimony.
Assuming that particular evidentiary matters are not otherwise subject to a motion
in limine, it is incumbent upon a party unsuccessful in introducing or excluding evidence
or testimony to make a proper record of the objection for appellate review. A party is
required to make a timely objection on the record, with as much specificity as possible, to
the introduction of evidence that it believes should be excluded. The appellate courts have
held that the party must “stand his ground and fight in order to successfully enumerate
as error an (alleged) erroneous ruling by the trial judge.” 37 A mere colloquy with the judge
wherein a party raises concerns about the evidence, without a firm and specific objection,
is insufficient to preserve the error. 38 The same is generally true of imprecise statements
such as “I object,” “objection,” and “irrelevant and immaterial,” without further
elaboration. 39
With regard to evidence that is excluded over a party's objection, the same
33
See generally O.C.G.A. § 9-10-185 regarding improper conduct of counsel.
Mullins v. Thompson, 274 Ga. 366, 553 S.E.2d 154 (2001).
Benton v. Chatham County, 206 Ga. App. 285, 425 S.E.2d 317 (1992).
36 Nationwide Mut. Fire Ins. Co. v. Rhee, 160 Ga. App. 468, 287 S.E.2d 257 (1981).
37 CSX Transp., Inc. v. McCord, 202 Ga. App. 365, 414 S.E.2d 508 (1991).
38 Horan v. Pirkle, 197 Ga. App. 151, 397 S.E.2d 734 (1990).
39 See, e.g., Davenport v. State, 283 Ga. 171, 656 S.E.2d 844 (2008).
34
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specificity in objecting is required. Significantly, however, the party denied introduction
of the evidence must make an offer of proof in order to provide the appellate court with
error to review. 40 Failure of the trial court to allow such an offer is itself error. 41 In the
case of testimony, the record must show that the question was asked of the witness, that
the testimony was disallowed, and that the testimony would have benefited the offering
party. 42 With regard to documentary or other evidence, the offering party should
introduce the document itself into the record for appellate review. 43
Regardless of whether an objection was properly made, and regardless of whether
it was sustained or overruled, counsel should take care to renew any such objection should
the evidence at issue come up again, and if the court attempts to provide a curative
instruction that counsel deems insufficient, an objection to the instruction should also be
made on the record. Additionally, where an objection is sustained as to evidence that the
jury has already seen or heard, it may be necessary to make an appropriate motion to
strike, or for a mistrial, to cure the harm from any such evidence having been introduced
in the first place.44
Finally, a separate question exists as to whether a particular item of evidence
should go out with the jury, and an objection to the introduction of the evidence, by itself,
will not suffice as an objection to its going to the jury room. Therefore, where counsel
argues, for example, that a medical narrative or other evidence that could fall under the
“continuing witness rule” should not go back with the jury, this objection should be made
on the record separately from the objection made when the document was first
admitted. 45 Although it is probably sufficient to do so at the close of the evidence or after
closing arguments (and many judges will ask the parties for objections on this basis before
sending that evidence back with the jury), it may be advisable to raise this issue at the
same time as the general objection.
See generally McFadden, Brewer & Sheppard, GEORGIA APPELLATE PRACTICE §9:7 (2015-2016 ed.).
Steele v. Department of Transp., 295 Ga. App. 244, 671 S.E.2d 275 (2008).
42 Zohbe v. First Nat. Bank of Cobb County, 162 Ga. App. 604, 292 S.E.2d 444, 34 U.C.C. Rep. Serv. 362
(1982).
43 Sasser v. Adkinson, 258 Ga. App. 699, 574 S.E.2d 907 (2002).
44 James v. State, 196 Ga. App. 569, 396 S.E.2d 306 (1990).
45 Varner v. State, 297 Ga. App. 799, 678 S.E.2d 515 (2009).
40
41
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e. Directed verdict; judgment notwithstanding the verdict.
At the close of evidence, a party may move for directed verdict based on an
opponent's alleged failure to present evidence sufficient to authorize a verdict in the
opponent's favor. 46 The defendant may so move at the close of the plaintiff's case-in-chief,
while either party may do so at the close of all evidence. 47 A defendant that moved for
directed verdict at the close of the plaintiff's case-in-chief is not required to renew its
motion at the close of all evidence in order to preserve the issue for appeal, although it
may do so.48 A motion that is made prematurely, however, such as before the close of the
opponent's evidence, is insufficient to preserve error based on denial of the motion. 49 A
party moving for directed verdict must state the specific basis for the relief sought, and
error alleged on appeal may only be based on the grounds raised before the trial court.
Therefore, where a party believes it is entitled to directed verdict on alternate grounds, all
of the grounds should be made on the trial court record. 50
Following a verdict, a party may also move for judgment notwithstanding the
verdict (historically referred to as judgment non obstante veredicto, or J.N.O.V.), which
is in essence a renewal of the motion for directed verdict alleging that, despite the jury
verdict against it, the moving party is nevertheless entitled to judgment as a matter of law.
A party is not entitled to move for judgment notwithstanding the verdict unless it has
previously moved for directed verdict on the grounds it seeks judgment. 51 The opposite is
not true, however, and a party need not move for judgment notwithstanding the verdict
in order to argue on appeal that the court erred in denying a motion for directed verdict
raised earlier. 52
The Federal Rules of Civil Procedure now refer to motions for directed verdict and
judgment notwithstanding the verdict/J.N.O.V as motions for judgment as a matter of
law and renewed motions for judgment as a matter of law, reflecting a trend toward
simplified terminology and also eliminating any perceived substantive difference between
O.C.G.A. § 9-11-50.
Anderson v. Universal C. I. T. Credit Corp., 134 Ga. App. 931, 931-32, 216 S.E.2d 719 (1975).
48 Lexmark Carpet Mills, Inc. v. Color Concepts, Inc., 261 Ga. App. 622, 626, 583 S.E.2d 458 (2003).
49 Krause v. Vance, 207 Ga. App. 615, 619, 428 S.E.2d 595 (1993).
50 Sun-Pacific Enterprises, Inc. v. Girardot, 251 Ga. App. 101, 104, 553 S.E.2d 638 (2001).
51 Bailey v. Annistown Road Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009).
52 O.C.G.A. § 5-6-26.
46
47
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the evidentiary considerations raised in each motion. 53
f. Jury charges.
Uniform State/Sup. Ct. R. 10.3 provides that
All requests to charge shall be numbered consecutively on separate sheets of paper
and submitted to the court in duplicate by counsel for all parties at the
commencement of trial, unless otherwise provided by pretrial order; provided,
however, that additional requests may be submitted to cover unanticipated points
which arise thereafter.
Thus, it is appropriate for a court to require written requests, although courts may also,
in their discretion, waive the uniform rule requirement as necessary.54
In order to properly preserve an objection as to a charge not given, it is important
that the charge actually be submitted to the court. Although the court is obligated to
charge the jury on certain matters, these are far less extensive than in criminal cases and
a civil litigant should not rely on the court to give the most appropriate or relevant
charges. In order to object to a charge given or not given upon request, a party must make
an objection on the record after the charge is given but before the jury returns with the
verdict.55 An objection made solely at the charge conference is not sufficient to preserve
an issue for appellate review, although it may be considered by the appellate court in
determining the propriety of the given charge, and therefore it would be prudent to object
both at the charge conference and after the charges are given to any charge the party
believes was erroneously given or omitted. 56
Traditionally, lawyers submitted requests to charge on paper in court at the time
of trial, with an original to the clerk and copies to the judge and opposing counsel. A
potential trap for the unwary may arise when the trial judge’s staff attorney asks counsel
to email requests to charge several days before trial. That does not constitute filing of the
requests with the court. Counsel should also file the request in the court record, either by
e-filing or filing a hard copy with the clerk at the time of trial.
Fed. R. Civ. P. 50.
Kelley v. State, 301 Ga. App. 43, 686 S.E.2d 810 (2009).
55 O.C.G.A. § 5-5-24.
56 Christie v. Rainmaster Irr., Inc., 299 Ga. App. 383, 682 S.E.2d 687 (2009); Golden Peanut Co. v. Bass,
249 Ga. App. 224, 547 S.E.2d 637 (2001).
53
54
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A distinction exists between the level of specificity required in objecting to the
court's failure to give a requested instruction and its giving of an instruction over
objection. As to the former, it has been held that it is sufficient to merely state that the
party objects, while as to the latter the party should state the specific basis for the
objection.57 Nevertheless, the Court of Appeals has held that “the better practice, and the
one we would urge the litigants and courts of this state to follow, is that the grounds of
objection, i.e., the reasons urged for the requested charge, should be placed somewhere
on the record.” 58
g. Verdict form.
If a party objects to any item on a verdict form, it must raise a timely and specific
objection. “To be reviewable on appeal, an objection must clearly direct the attention of
the trial court to the claimed error and must be stated with sufficient particularity to leave
no doubt as to the specific ground upon which the charge is challenged. In addition, a
party must voice its objection to a verdict form at the time of its rendition or otherwise
such technicality is waived. This is so because a verdict may be reformed or remodeled in
the presence of the jury before they have retired from the box.” 59
Notwithstanding this general principle, a verdict that is inconsistent on its face is
void, and failure to raise an objection before discharge of the jury does not result in
waiver. 60 At one time, the Court of Appeals followed the rule that, where a special verdict
form was submitted, failure to object to the form before its submission to the jury waived
any objection, even if the verdict rendered was inconsistent.61 This principle was
subsequently disapproved by the Supreme Court in Anthony v. Gator Cochran Const.,
Inc.62 In Anthony, the court discussed the rule applied in determining whether a verdict
is, in fact, inconsistent:
Verdicts shall have a reasonable intendment and shall receive a reasonable
Golden Peanut Co. v. Bass, 249 Ga. App. 224, 547 S.E.2d 637 (2001). Federal courts do not follow this
distinction. See Fed. R. Civ. P. 51.
58 Id.
59 Torres ex rel. Torres v. Tandy Corp., 264 Ga. App. 686, 592 S.E.2d 111 (2003) (cits. omitted).
60 Thompson v. Ingram, 226 Ga. 668, 177 S.E.2d 61 (1970).
61 Brannan Auto Parts v. Raymark Industries, 183 Ga. App. 82, 357 S.E.2d 807 (1987). But see Lynas v.
Williams, 216 Ga. App. 434, 454 S.E.2d 570 (1995) (reaching contrary conclusion).
62 Anthony v. Gator Cochran Const., Inc., 288 Ga. 79, 702 S.E.2d 139 (2010).
57
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construction. They shall not be avoided unless from necessity. Thus, the
presumptions are in favor of the validity of verdicts, and if possible a construction
will be given which will uphold them. Even if the verdict is ambiguous and
susceptible of two constructions, one of which would uphold it and one of which
would defeat it, that which would uphold it is to be applied. Furthermore, in
determining the proper interpretation of a jury verdict and to remove any ambiguity,
the trial court may question the jury prior to disbursal in order to clarify the jury's
intent.63
The trial court and Court of Appeals had not considered the argument regarding the
defective verdict, ruling that the objection was waived. Finding this conclusion to be
erroneous, the Supreme Court vacated and remanded the decision of the Court of
Appeals.64
B. Appellate Jurisdiction.
In preparing an appeal, counsel must determine whether the appeal goes to the
Supreme Court or Court of Appeals. That decision is simplified somewhat by the
Appellate Jurisdiction Reform Act of 2016 which produced significant changes in the
jurisdiction and structure of the appellate courts.
a. Supreme Court
The Supreme Court, expanded to nine Justices but has a narrower original
jurisdiction. It now considers cases it accepts on writ of certiorari to the Court of Appeals,
and has exclusive original jurisdiction in cases of murder (“sentence of death was imposed
or could be imposed”), habeas corpus, election contests, and construction of a treaty or
the state or federal constitutions. See Constitution of Georgia, Art. VI, § 6, ¶¶ 2 and 3.
b. Court of Appeals
Enlarged to 15 judges sitting in panels of three, and with the scope of its original
jurisdiction broadened by the Appellate Jurisdiction Reform Act of 2016, the Court of
Id. See also O.C.G.A. § 9-12-4; Surles v. Cornell Corrections of California, Inc., 290 Ga. App. 260, 659
S.E.2d 683 (2008).
64 Anthony v. Gator Cochran Const., Inc., 299 Ga. App. 126, 682 S.E.2d 140 (2009), judgment vacated,
288 Ga. 79, 702 S.E.2d 139 (2010).
63
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Appeals under O.C.G.A. § 15-3-3.1 now has original jurisdiction in all state cases not
exclusively granted to the Supreme Court. The Court of Appeals jurisdiction expressly
includes: “(1) Cases involving title to land; (2) All equity cases, except those cases
concerning proceedings in which a sentence of death was imposed or could be imposed
and those cases concerning the execution of a sentence of death; (3) All cases involving
wills; (4) All cases involving extraordinary remedies, except those cases concerning
proceedings in which a sentence of death was imposed or could be imposed and those
cases concerning the execution of a sentence of death; (5) All divorce and alimony cases;
and (6) All other cases not reserved to the Supreme Court or conferred on other courts.”
C. Interlocutory, Discretionary (Plenary) or Direct Appeal?
Court insiders attest that interlocutory and discretionary appeals do not get the
same amount of time and attention as direct appeals. It is thus essential to make a
compelling argument within the self-contained application in order to have a chance. If
the petition is granted, however, it will be handled in the same manner as a direct appeal.
1. Interlocutory Appeals.
Appeals prior to a final judgment are allowed only when the trial judge, within ten
days of the contested order certifies “that the order, decision, or judgment is of such
importance to the case that an immediate review should be had.” 65 It is still an uphill
battle to get an interlocutory appeal considered. Within ten days after entry of a certificate
for immediate review, the notice of appeal must be filed. 66 The time for the notice of
appeal may be extended up to 30 days by the trial court. 67 Applications for an
interlocutory appeal are granted only when it appears from the documents submitted
that: (1) The issue to be decided appears to be dispositive of the case; (2) the order appears
erroneous and will probably cause a substantial error at trial or will adversely affect the
O.C.G.A. § 5-7-2. The statutory exceptions involve crime or delinquency cases against juvenile.
O.C.G.A. § 5-7-2(b).
66 O.C.G.A. § 5-6-34(b); § 5-6-35(g); Riley v. State, 280 Ga. 267 (2006).
67 O.C.G.A. § 5-6-39
65
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rights of the appealing party until entry of final judgment in which case the appeal will be
expedited; (3) the establishment of precedent is desirable
Rule 30 (b) states that the applicant bears the burden of persuading the Court that
the application should be granted. Rule 30 (d) prohibits the Clerk from accepting an
application unless the filing fee is paid or an exception permits nonpayment. It also
provides that the filing date is the date the application is received in conformity with court
rules and payment of fees. Rule 30 (g) (1) & (2) provides specific guidance for e-filing
applications and paper-filed applications. Failure to follow the detailed guidance
contained in the rule may result in the application being dismissed or returned for
preparation in accordance with Court rules... Court of Appeals Rule 30(a).
There is little time for consideration as the court must grant or deny an application
for interlocutory appeal within 45 days. O.C.G.A. § 5-6-34(b). That time limit requires
that an application for interlocutory appeal concisely and persuasively focus on these
criteria, driving home not only that the trial court erred but there will be a terribly unjust
result unless the Court of Appeals immediately sets it right, or that judicial economy truly
requires granting the application.
a. Discretionary (Plenary) Appeal.
O.C.G.A. § 5-6-35(a) lists categories cases requiring application for appeal. These
include: Appeals in cases that themselves are de novo appeals from earlier trials in
magistrate court (O.C.G.A. § 5-6-35(a)(1), (11)); domestic relations appeals (O.C.G.A. § 56-35(a)(2), (12), except O.C.G.A. § 5-6-34(a)(11)); judgments awarding $10,000 or less
(O.C.G.A. § 5-6-35(a)(6)) and awards of fees under OCGA § 9-15-14 (O.C.G.A. § 5-635(a)(10)). While commonly referred to as “discretionary appeals,” this is a misnomer at
the appellate courts do not have discretion to deny an appeal where reversible error exists.
The task for appellant’s counsel in the application for discretionary appeal is to persuade
the court that there is reversible error.
Rule 31 (b) adds the requirement that the applicant bears the burden of persuading
the Court that the application should be granted. Rule 31 (b) (3) & (4) adds two additional
rationales for the Court to accept a discretionary application, i.e., that the “further
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development of the common law, particularly in divorce cases, is desirable” and that the
application is for leave to appeal a judgment and decree of divorce that is final under
O.C.G.A. § 5-6-34 (a) (1), timely under O.C.G.A. § 5-6-35 (d), and determined to have
possible merit. If a discretionary application is filed under this rationale, it must include
a certificate of good faith stating that the application has merit. If the application is found
to be frivolous, the party may be sanctioned. Rule 30(d) and 30(g)(1) are similar to 30(d)
and 30(g)(1) regarding payment of fees, e-filing and word count limits. It also prohibits
exceeding 100 pages of exhibits (combined) unless there is a signed certificate of good
faith that states, among other things, that the additional documents are necessary to
apprise the Court of the appellate issues. Exempted from the 100-page limit are the
application brief, application index, trial court order, certificate of immediate review, and
motions with supporting documents. Also, if documents are uploaded that are deemed
unnecessary or contain duplicative exhibits, the party may be sanctioned. Failure to
follow the detailed guidance contained in the rule may result in the application being
dismissed or returned for preparation in accordance with Court rules. Rule 31 (i) informs
that extensions of time to file a discretionary application must be made via Rule 40 (b)
and clarifies that filing the Rule 40 (b) motion and the later applications are separate
actions, each requiring separate filing fees.
As with interlocutory appeals, time is short. The court must grant or deny the
application within thirty days, so there is little time to weigh the merits. Pro forma
applications are not persuasive, so the application must include the most persuasive parts
of the brief of appellant. The application must be filed in the appellate court within 30
days of the order complained of. O.C.G.A. § 5-6-35(b).
b. Direct Appeal.
If there is a final judgment in a case not subject to discretionary appeal rules, the
route to appeal is a Notice of Appeal within 30 days as discussed below.
D. Time Limits.
1. Notice of appeal.
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Subject to tolling during pendency of a motion for new trial and an extension of
time up to 30 days, the notice of appeal is due 30 days after entry of the appealable order
or judgment.68 Rather than immediately popping out a notice of appeal, one might
choose to use all the available time for preparation of the appeal brief and record without,
of course, missing the deadline. A notice of cross-appeal is due 15 days after filing of the
notice of appeal. 69
2. Tolling of time limit by motion for new trial.
“When a motion for new trial, a motion in arrest of judgment, or a motion for
judgment notwithstanding the verdict has been filed, the notice shall be filed within 30
days after the entry of the order granting, overruling, or otherwise finally disposing of the
motion...” 70 However, a motion for reconsideration does not toll the time limit.
3. Preparation and filing of court record.
The burden is on the appellant to get the clerk to prepare and transmit the court
record. The notice of appeal must designate whether to transmit the entire record or
exclude portions. At $1.00 per page and $35 for certification, the cost of a voluminous
record can be prohibitively burdensome unless the trial court approves a pauper’s
affidavit. 71 The appellant has four weeks to pay for the record after receipt of the clerk’s
bill, or risk dismissal of the appeal by the trial court.
Court of Appeals Rule 17 includes a new requirement for the appellant, court
reporters, and court clerks to cooperate to ensure that the record is complete. Rule 18 (a)
adds a requirement that the trial court clerk must certify each part of the record volume.
Rule 18 (c) requires that any video or audio recording of evidence submitted to the Court
include the proprietary software necessary to play the recording.
O.C.G.A. § 5-6-39.
O.C.G.A. § 5-6-38(a).
70 O.C.G.A. § 5-6-38
71 O.C.G.A. § 5-6-77(g)(12); O.C.G.A. § 9-15-2,
68
69
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The full record may include voluminous material that is not pertinent to the issues
on appeal, though the exclusion of material can be fraught with danger. The speed and
efficiency of clerks varies. Therefore, it may be highly cost effective to send a paralegal
who is familiar with the case to the courthouse in order to assist the clerk with assembling
the record. If there are problems in the record, correct them early, before the first brief is
due. Once the appellate court renders its decision, it is too late. 72
Another sage suggestion is that lawyers get a personal copy of the record organized
in notebooks with the pages numbered as record transmitted to the appellate court. One
might also consider the advantages of scanning the paginated record into a searchable
PDF format. Either way, a personal copy of the record saves time consuming trips to the
courthouse, eases the chore of referencing page and line numbers, and is accessible at
home in the middle of the night.
4. Filing of transcript.
The party responsible for filing the transcript must cause it to be filed within 30
days after the filing of: (i) the notice of appeal; or (ii) designation by appellee. That
includes arrangements to pay the court reporter for producing the transcript. If the party
responsible for filing fails timely to file the transcript and the trial court determines that
the delay was inexcusable, unreasonable, and caused by that party, the trial court has
discretion to dismiss the appeal. An appellant’s appeal may not be dismissed for failure
to pay costs if the costs for preparing the record are paid within 20 business days of the
appellant’s receipt of the notice of the amount of costs. 73
Appellant’s counsel should ask the court reporter for an estimated time for
completion, and promptly file a motion for extension and get an order from the court to
extend the time to file the transcript. As that extended deadline approaches, follow up
with the court reporter and if necessary move for an additional extension. Moreover, if a
motion for new trial is filed, the pendency of that motion may be utilized to obtain the
transcript.
72
73
Roberts v. Nessim, 297 Ga. App. 278, 286–287 (2009)(on motion for reconsideration).
O.C.G.A. § 5-6-42.
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Court of Appeals Rule 18(e) authorizes transmittal of transcripts in electronic
format on compact disc. In any event, counsel should ask the court reporter to provide an
electronic copy of the transcript. Most court reporters have the software to provide
searchable PDF versions of transcripts. If a court reporters is not so equipped, counsel
may have a paralegal scan the transcript into PDF format and upgraded versions of Adobe
Acrobat® perform OCR (optical character recognition) conversion in order to do word
and phrase searches of the full text. The amount of time saved in computer word searches
of transcripts is critical when writing the statement of facts in an appellate brief.
5. Tolling by motion for new trial.
Trial courts seldom grant motions for new trial, but such motions can buy time for
getting the record and transcript in proper order before the appeal clock starts running.
Filing of a valid motion for new trial, a motion in arrest of judgment, or a motion for
judgment notwithstanding the verdict tolls the time limit for filing the notice appeal,
record and transcript. 74
b. Extensions of Time for Filing Notice
The trial judge may grant one 30 day extension of time for filing a notice of appeal and
one 15-day extension to file a notice of cross-appeal. 75 Given the amount of work involved
in preparing an excellent appellate brief and the time constraints involved, immediately
upon entry of an appealable order or judgment, it may be prudent to seek a consent order
to obtain that additional time for preparation before other deadlines begin to cascade.
E. Content of Notice of Appeal.
The Notice of Appeal should be carefully drafted, not just copied from a form book.
OCGA § 5-6-37 specifies the required content of a Notice of Appeal:
. . . The notice shall set forth the title and docket number of the case; the
name of the appellant and the name and address of his attorney; a concise
74
75
O.C.G.A. § 5-6-38
O.C.G.A. § 5-6-39(a).
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statement of the judgment, ruling, or order entitling the appellant to take
an appeal; the court appealed to; a designation of those portions of the
record to be omitted from the record on appeal; a concise statement as to
why the appellate court appealed to has jurisdiction rather than the other
appellate court; and, if the appeal is from a judgment of conviction in a
criminal case, a brief statement of the offense and the punishment
prescribed. . . . In addition, the notice shall state whether or not any
transcript of evidence and proceedings is to be transmitted as a part of the
record on appeal.
Evaluate each of the required elements in each case:
1. “Title and docket number of the case.” Make sure you don’t mess
up the simple stuff. Every court clerk has legions of stories of
lawyers filing documents with the wrong case numbers.
2. “The name of the appellant and the name and address of his
attorney.” Ditto. Watch out for typographical errors in spellings,
and in street, suite and zip code numbers.
3. “A concise statement of the judgment, ruling, or order entitling
the appellant to take an appeal.” Draft this with precision.
4. “The court appealed to” and “a concise statement as to why the
appellate court appealed to has jurisdiction rather than the
other appellate court.” In light of the Appellate Procedure
Reform Act, this will almost always be the Court of Appeals, but
check the jurisdictional rules discussed herein and cite the correct
subparagraph(s).
5. “A designation of those portions of the record to be omitted from
the record on appeal.” This is where the step of sending a
paralegal to assist the clerk in organizing the record can be
invaluable. Rather than simply stating that “nothing shall be
omitted” or on the other hand omitting too much, be precise.
While some dross and immaterial documents may be omitted,
include enough to fully cover all issues on appeal.
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6. “If the appeal is from a judgment of conviction in a criminal
case, a brief statement of the offense and the punishment
prescribed.” Res ipsa loquitur.
7. “State whether or not any transcript of evidence and
proceedings is to be transmitted as a part of the record on
appeal.” Do not slavishly copy language from a form. Drafting of
this statement should be informed by counsel’s working with the
court reporter and such extension orders as may be necessary in
order to obtain the transcript.
F. Calendaring and Electronic Filing in Court of Appeals.
1. Register for electronic filing and pay filing fee.
As e-filing is now mandatory for lawyers in the Court of Appeals, counsel should
register in advance. To avoid a $10 convenience fee for the uploading the Brief of
Appellant, also prepay the $300 filing fee for civil appeals. 76
2. Check record and transcript to confirm appellate
pagination.
Obtain the clerk’s index to the record transmitted on appeal. Make sure the page
numbers assigned in the record and transcript transmitted to the Court of Appeals
matches the numbers in the record below. Glitches in pagination may occur due to pages
skipped or double copied in a photocopier, documents unbundled and rearranged,
renumbering of pages in depositions, etc. Counsel should also check legibility of
documents, photographs, etc. If exhibits are transmitted on a CD, make sure they are
legible, properly organized, and in color if the original was in color. It may be useful to
enter docket items and pages on a spreadsheet to reconcile anomalies in pagination. If
pagination is changed, conform your copy to the court’s page numbers immediately.
76
Ct. App. R. 23(a); S.Ct. R. 10; Ct. App. R. 4(b); R. 46; S.Ct. R. 13; Ct. App. R. 2(b), and 5 and S.Ct. R. 5.
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3. 20 days from docketing.
From the time of docketing, counsel for the appellant has 20 days to e-file the Brief
of Appellant and a request for oral argument, and to pay the $300 filing fee and $10
convenience charge if the filing fee was not prepaid.
4. Request for oral argument.
The request for oral argument, due 2o days after docketing, must be a separate
document, filed with the Clerk, certifying that opposing counsel has been notified of the
request and that opposing counsel desires, or does not desire, to argue orally. The request
must identify the counsel who would argue, and any change of counsel shall be
communicated to the Clerk as soon as practicable. 77 An extension of time to file the brief
does not extend the time for requesting oral argument.78 That must be done by a separate
motion. Do not just copy a form but explain with some convincing specificity how oral
presentation would aid the court in addressing the issues in the case.
5. Extension of time and extension of length.
The Court of Appeals will normally grant a motion for one or two week extension,
but due to constraints of the two term rule, will seldom grant longer extensions. If
variation of the page / word count limits is appropriate, that requires a separate motion
and order. However, remember that brevity is the soul of wit. Both time and length
extensions are best done through separate consent motions and orders.
G. Enumeration of Errors and Jurisdictional Statement.
A separate “enumeration of errors” document is no longer required. It is included
in Section 2 of the Brief of Appellant.
77
78
Ct. App. R. 28.
Ct. App. R. 28(a).
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H. Standards of Review.
Carefully evaluate the standards by which the appellate court will review rulings in
the trial court. The strongest arguments before the trial court and jury may be the weakest
on appeal, and vice versa. This cold analysis after the passions of trial have cooled may
enable appellant’s counsel to surgically trim the potential issues down to the three or four
most likely to result in reversal and, where appropriate, another “bite at the apple,” a
second chance to persuade the trial court and jury. This winnowing process has been
called “the hallmark of effective appellate advocacy.”79
The Court of Appeals website includes a page of citations summarizing standards
of review in many types of rulings. 80 This list was last updated in 2001, is neither
exhaustive nor up to date, and should be viewed as only a starting point for further
research on Westlaw, Lexis or Fastcase, e.g., “(standard /2 review) /20 [key words for
type of ruling].”
Clearly, the lower the standard of review, the greater the theoretical probability of
reversal. There is little or no deference to the trial court when the standard is de novo
review, e.g., motions for summary judgment, pure question of law, suppression of
evidence in a criminal case, and construction of contracts. Other standards of review are
tougher nuts to crack, e.g., “abuse of discretion,” “clear abuse of discretion,” “clear and
manifest abuse of discretion,” “clearly erroneous,” “any evidence” to support ruling, and
waiver by failure to state specific ground for objection.
In selecting the issues upon which to focus on appeal, evaluate which have the best
chance of success under the applicable standards of review.
I. The Appellant’s Brief.
Appellant’s brief must be filed within 20 days after the appeal is docketed. 81 The
appellant’s motion for an extension of time to file a brief and enumeration of errors must
Arrington v. Collins, 290 Ga. 603, 604 (2012).
http://www.gaappeals.us/standards_of_review.php (last visited Feb. 21, 2017).
81 Court of Appeals Rule 23(a).
79
80
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be filed before the date the documents are due or the Court may dismiss the appeal, and
without such an extension the appeal may be dismissed.82
Thus, in order to file a well-drafted and timely brief, preparation of should begin
long before the case is docketed. Usually there are prior trial court briefs and memoranda
from which hurried counsel may be tempted to copy and paste. The lawyer should
suppress that urge as the appellate brief is a new document addressed to a new audience,
the overworked appellate judge and staff attorney to whom the case is assigned on a
computer “wheel” in the clerk’s office. They are inundated with a deluge of cases, wading
through hundreds of briefs written in dreary, repetitive, formulaic legal prose. Yours
should be more engaging those.
1. Page and word limitations.
The Supreme Court still limits briefs to 30 pages. As e-filing is now required of
attorneys, the Court of Appeals has recast this as a limitation of 8,400 words in civil case,
14,000 words in criminal cases, and 4,200 words in reply briefs.
2. Structure of the brief.
Court of Appeals Rule 25 states the minimum requirements for the structure of the
appellant’s brief. The Supreme Court does not prescribe the structure but generally one
would follow the same structure as in the Court of Appeals. A lawyer may add an
introductory “Summary of Argument” section which some judges highly recommend,
tables of contents, table of authorities and an appendix.
a. Part One.
1. Summary of Argument (optional).
Write this section last, after drafting the rest of the brief. This is where the effective
advocate writes a succinct “elevator speech” about why the appellant should prevail. It is
an early opportunity to engage the judge and staff attorney and provide a taste of the key
82
Court of Appeals Rules 16(a) and 23(a).
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facts and legal arguments developed more fully in the body of the brief. But avoid overt
appeals to emotion and sympathy which are likely to backfire on appeal.
2. Statement of the Case.
Succinctly and accurately summarize the proceedings below, with citations to the
record and a statement of the method by which each enumeration of error was preserved
for consideration. Include exhaustive citations to volumes, parts, pages and if possible
lines in the record as transmitted by the trial court.
3. Statement of Facts.
Tell the story of the case in an engaging manner, with scrupulous adherence to the
evidence. One each point include detailed citations to volume, page and line of the
transcript as transmitted by the trial court. Beware that the page numbering system used
in transmitting the record may differ from page numbers generated by the court reporter.
This can be one of the most maddening and time-consuming aspects of preparing
an appeal, but it is essential. “Appellate judges should not be expected to take pilgrimages
into records in search of error without the compass of citation and argument.83 It is the
burden of the party asserting error to show it affirmatively by the record.” 84
In both the “Statement of the Case” and the “Statement of Facts,” counsel must
remember that failure to direct the court to the precise location in the record or transcript
that supports an enumerated error will result in waiver of that issue. Counsel cannot
expect judges and staff attorneys with overwhelming workloads to go on a scavenger hunt
for material to support an argument.
b. Part Two – Enumeration of Errors.
Concisely state the specific errors to be argued in the brief. Avoid a scattershot
approach, focusing on the issues most likely to result in success in light of the evidence,
Vick v. Tower Place, L.P., 268 Ga.App. 108, 109(2), 601 S.E.2d 348, 349 (2004).
Crumity v. State, 321 Ga.App. 768, 769, 743 S.E.2d 455, 457, n.1 (2013); Jones v. State, 318 Ga.App.
342, 348(3)(a)(iii), n. 4, 733 S.E.2d 400 (2012).
83
84
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rulings, issues and the applicable standards of review. Do not dilute your arguments with
weak arguments on a plethora of other issues. Lead with your strongest issues.
c. Part Three
1. Standard of Review.
Include a concise statement of the applicable standard of review with supporting
authority for each issue presented in the brief with citation to the one best source of
authority for that standard.
2. Argument and Citation of Authorities.
This is the body of the brief. Issues must be set forth in the same order in which
they are listed in the Enumeration of Errors. Focus on what really matters most.
J. Appellee’s Brief.
It is good to be the appellee. Inertia is on your side. Usually there is no burden to
carry. Most standards of review defer to the trial court. You have the advantage of seeing
what the appellant argues and responding.
Court of Appeals Rule 23 states that the Brief of Appellee is due 40 days after
docketing or 20 days after filing of the appellant’s brief, whichever is later. Part One points
out material inaccuracies or incompleteness of appellant’s statement of facts. It
supplements the statement of facts and provides citations to additional parts of the record
or transcript. Except as controverted, appellant’s statement of facts may be accepted by
this Court as true. Part Two includes any different standard of review than that claimed
by appellant and sets forth the appellee’s argument and the citation of authorities.
K. Persuasion beyond the rules.
1. Write well.
Put yourself in the shoes of a judge or staff attorney whose days are filled with
reading reams of turgid lawyer prose. Liven up your brief within the general bounds of
civility and professionalism. Make it a jewel of clarity and style, a welcome relief for the
reader. Tell an engaging story. Search out the precise words and clear illustrations to
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persuade the court of your position. Long before time to write your brief, immerse
yourself in books on legal writing, especially the works of Bryan Garner. 85 Plan your time
to allow for multiple rounds of editing and rewriting.
2. Organize before you write.
Before beginning to write, use outlines or mind maps to organize and prioritize
your points and authorities. Budget your time accordingly.
3. Know your judges.
Upon docketing, each case is randomly assigned on the “wheel” in the clerk’s
computer to a panel of three judges. The panel assignment is disclosed with the docketing
notice. It is important to read decisions by the panel members on matters related to the
issues in the case, and when appropriate cite those decisions in your brief.
The internal process within the panel remains opaque to the lawyers. Primary
responsibility for each case is assigned on the “wheel” to an individual judge whose
identity is not disclosed. Some judges have their judicial assistant assign each case to a
staff attorney before the judge looks at it, and some judges reportedly so not read the
briefs before a staff attorney prepares a memorandum or draft order. The degree to which
judges rely upon drafting of opinions by staff attorneys varies. None of that is revealed to
lawyers in the case. But if the brief refers to relevant opinions authored by each member
of the panel, the assigned judge and staff attorney may see their previous work referenced.
4. Know the judges’ caseload.
The Georgia Court of Appeals has one of the highest caseloads per judge of any
state intermediate appellate court in the United States. Each judge has primary
responsibility for roughly four final decisions per week, plus reviewing and voting on
twice as many decisions authored by other judges and a steady flow of other motions,
Bryan A. Garner, GARNER'S MODERN ENGLISH USAGE (2016); Bryan A. Garner, THE WINNING BRIEF: 100
TIPS FOR PERSUASIVE BRIEFING IN TRIAL AND APPELLATE COURTS (2014); Bryan A. Garner, Legal Writing in
Plain English (2d Ed., 2013); Bryan A. Garner, THE REDBOOK: A MANUAL ON LEGAL STYLE (3d ed., 2013);
Antonin Scalia and Bryan A. Garner, THE ART OF PERSUADING JUDGES (2008).
85
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orders, and interlocutory and discretionary applications. The pressure is further
intensified by the “two term rule” which requires decisions by the end of the second term
after docketing. The last days before the end of the term are thus referred to as “distress.”
Lawyers should do all they can to make the court’s job easier.
5. Understand “physical precedent only.”
In citing authority, it is important to recognize the distinction between decisions
that are binding authority and those that are physical precedent only. A Court of Appeals
decision is “physical precedent only” if one of three judges on the panel concurs in the
judgment only. Such a decision “may be cited as persuasive authority, just as foreign case
law or learned treatises may be persuasive, but it is not binding law for any other case.” 86
6. Use pinpoint cites and parenthetical summaries.
To effectively use case authority, make it easy for judges and staff attorneys to go
directly to pertinent passages in cases. Pinpoint citations, which refer to a specific page of
the case, efficiently direct the reader to the location of the proposition for which the case
is cited. In addition, brief parenthetical summaries or direct quotes are an effective way
of citing to a number of precedents without detailed discussion of each case. For example:
See Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 796-97, 9
L. Ed. 2d 799, 805 (1963) (holding that Sixth Amendment mandates the
appointment of counsel at no cost to the indigent defendants charged
with a crime in state courts).
7. Include a Table of Contents and Table of Authorities.
These do not count against word or page limitations and are useful to the court.
Consider use of electronic hyperlinks or bookmarks with these tables. “Tables of contents,
tables of citations, cover sheets and certificates of service and of compliance with the word
count limit shall not be counted toward the applicable page or word count limit.”87
Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 349-50, 606 S.E.2d 567, 575 (2004) (Barnes, J.,
concurring specially).
87
Ct. App. R. 24.
86
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8. Consider aesthetics of your brief.
In an era of mandatory e-filing, we no longer have the option of enriching the legal
printing industry with professionally typeset briefs on 60 pound rag paper, in booklet
form or with blue manuscript backings. But we can be thoughtful in font selection and
page layout. Court of Appeals Rule 2(c)(2) and (3) requires double spacing and a serif,
proportionally spaced typeface of 14-point or larger. Sans-serif fonts may be used in
headings and captions. Consider going beyond default choices of Times New Roman,
which screams aesthetic apathy. Other acceptable serif fonts in Microsoft Word include:
Georgia (used in the body of this paper)
Century (Century family of fonts required in U.S. Supreme Court)
Palatino Linotype
Garamond
Bookman Old Style
Constantia
Plantaganet Cherokee
Going a step further, one may consider purchase of additional fonts specifically
designed for legal documents. See, e.g., Matthew Butterick, TYPOGRAPHY FOR LAWYERS. 88
9. Consider electronic bookmarks and hyperlinking to an appendix.
Though not addressed in Georgia appellate court rules, entirely optional, rare and
time consuming, counsel may consider inserting electronic bookmarks and hyperlinks in
an e-filed brief. Bookmarks may provide internal guidance to sections and subsections.
88
http://typographyforlawyers.com/ (last visited Feb. 22, 2017)
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Hyperlinks embedded in a brief may link to cases within Westlaw or Lexis, or to
highlighted copies of authorities, record and transcript excerpts in an appendix.89 While
potentially a great convenience for the court, this extra step in brief preparation requires
advance planning and careful time management. Plan ahead.
10. Consider inserting graphics.
Appellate briefs traditionally are text only, perhaps referring to exhibits in the
record. But persuasion can include visual elements as well. A well designed diagram may
bring clarity to thousands of words of a legal argument. A few examples:
89 See, e.g., GUIDE TO CREATING ELECTRONIC APPELLATE BRIEFS, APPENDICES, HYPERLINKING (California
Courts of Appeal, 2016), http://www.courts.ca.gov/documents/DCA-Guide-To-Electronic-AppellateDocuments.pdf (last visited Feb. 22, 2017); Brett Burney, How to Build Electronic Briefs, GP Solo (June
2010)(last visited Feb. 22, 2017).
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Software tools such as Microsoft Word Smartart® make it relatively easy to design
insert graphics in a document, though much time and thought is required to design well.
One or two key photographs from the record may be inserted as well, with reference to
the record page and preferably with a hyperlink to a record excerpt in the appendix. These
technical capabilities, combined with length limits expressed in word counts rather than
pages, may encourage greater use of visual strategies in appellate briefs. Budget time to
do this well.
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11. Be concise.
Brevity requires hard work. If you can effectively tell your story in less than the
word or page limits, do so. Hyperlinking and graphics may help.
12. Edit and rewrite.
You probably learned in high school that good writing requires multiple rounds of
proofreading, editing and rewriting. But you won’t do that well if you push too hard on
deadlines. Budget time to allow at least three days for this process.
L. Oral Argument.
It is the mark of a novice to attempt to read a brief or outline before a panel of
appellate judges. Any such presentation will be interrupted by an exasperated judge and
the lawyer thrown off his game.
Assume that the judges have read the briefs and prepared lines of questioning to
test the arguments of both sides. In preparing for oral argument, outline the most likely
questions and the most difficult questions, and prepare succinct responses to all of them.
Review the court’s rule on oral argument in order to avoid any inadvertent breach
of protocol. 90
Practice your presentation and your responses to all foreseeable questions. While
not every appellate case merits a full blown moot court exercise, practice before office
personnel, your family, or at least your mirror. Each time you practice, cut out
unnecessary words.
If you plan to use the court’s technology for presentation of visual aids, ask
permission of the clerk to familiarize yourself with its operation in advance.
It is often useful to take to the podium a folder in which are taped overlapping
index cards on which you have legibly written key points of cited authorities and
90
Ct. App. R. 28; S. Ct. R. 50-55.
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responses you have prepared for anticipated questions. While it is best to be able to speak
without notes, this can be a useful crutch if you get stuck.
When you arrive for oral argument, check in with the clerk. If offered the option of
five or fifteen minutes, take fifteen. You can use less time than you choose but not more.
Try to be conversational with the judges. Even if you know the judges personally,
maintain decorum by addressing them respectfully as “Judge __” and “your honor.” If
you have had prior conversations with them about football or hunting, it is easier to
maintain a relaxed, conversational tone about issues in your case.
View the judges’ questions not as annoying interruptions in a planned speech but
rather genuine opportunities to clear up their concerns and persuade them of the
rightness of your position. Perhaps the most confident approach to oral argument would
be to simply say, “I know you have read the briefs. What questions can I answer for you?”
The author of this paper has never been that bold.
Prepare well in advance so you can just review your notes the day before oral
argument and get a really good night’s sleep the night before. For habitual procrastinators
that is a lot to ask, but strive to make it happen.
M. Certiorari.
Now that the Appellate Jurisdiction Reform Act has given the Court of Appeals
original appellate jurisdiction in all but a few narrow classes of cases, almost all appeals
will start in the Court of Appeals rather than Supreme Court. After the Court of Appeals
rules in a case, a losing party may seek another round in the Supreme Court. Within 10
days after entry of judgment or disposition of a motion for reconsideration in the Court
of Appeals, the losing party must file a notice of intention to apply for certiorari shall with
the Clerk of the Court of Appeals. Within 20 days from entry of such a disposition in the
Court of Appeals, the petition for certiorari must be filed with the clerk of the Supreme
Court.91 Length is limited to 30 pages. 92 Certiorari is not given of right, and is limited to
91
92
S.Ct. R. 38.
S. Ct. R. 30.
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cases deemed to be of “gravity or great public importance,” 93 and is not granted to review
the sufficiency of evidence.94 Of course, the determination of “gravity or great public
importance” is in the eye of the beholder.
N. Final thoughts.
There is no appeal from a settlement. Both sides bear a risk in appeals. Your client
could lose an appeal when you least expect it, so if there is a reasonable opportunity to
resolve a case before a final decision on appeal, resist the temptation to be cocky about
how bullet-proof your case is.
And always go to the bathroom before you go to the courtroom.
93
94
GA CONST Art. 6, § 6, ¶ V.
S. Ct. R. 40.
34
TRIAL AND ERROR
The Chief Justice’s Commission on Professionalism
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THE CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM
(Founded 1989)
25 Years of Institutionalized Lawyer Professionalism in Georgia:
A Brief History of the Chief Justice’s Commission on Professionalism
Avarita L. Hanson, Executive Director
This year the Georgia legal community commemorates and celebrates the 25th
anniversary of the Chief Justice’s Commission on Professionalism (Commission).
The mission of the Commission is to support and encourage lawyers to exercise the
highest levels of professional integrity in their relationships with their clients, other
lawyers, the courts and the public, and to fulfill their obligations to improve the law
and legal system and to ensure access to that system. The Commission’s twenty-fifth
anniversary is significant in that it provides an opportunity to both reflect on its
development, operations, and successes and to envision its future challenges and
opportunities to fulfill its mission.
After a series of meetings of key figures in Georgia’s legal community in 1988,
in February of 1989, the Supreme Court of Georgia created the Chief Justice’s
Commission on Professionalism, the first entity of this kind in the world created by
a high court to address legal professionalism. In March of 1989, the Rules of the State
Bar of Georgia were amended to lay out the purpose, members, powers and rules of
the Commission. The brainchild of Justice Thomas Marshall and past Emory
University President James Laney, they were joined by Justices Charles Weltner and
Harold Clarke and then State Bar President A. James Elliot in forming the
Commission. The impetus for this entity then and now is to address uncivil
approaches to the practice of law, as many believe legal practice is departing from its
traditional stance as a high calling – like medicine and the clergy – to a business.
The Commission carefully crafted a statement of professionalism, A Lawyers
Creed and Aspirational Statement on Professionalism, rules and standards addressing
attorneys’ relationships with colleagues, clients, judges, law schools and the public
and retained its first executive director, Hulett “Bucky” Askew. Professionalism
continuing legal education was mandated and programming requirements were
developed by then assistant and second executive director Sally Evans Lockwood.
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In the 1990s, after a series of convocations with the bench and bar to discern
professionalism issues from practitioners’ views, the State Bar instituted new
initiatives, such as the Committee on Inclusion in the Profession (fka Women and
Minorities in the Profession Committee). Then the Commission sought the concerns
of the public in a series of town hall meetings held around Georgia. Two concerns
were raised in these meetings: lack of civility and the economic pressures of law
practice. As a result, the State Bar of Georgia established the Law Practice
Management Program.
Over the years, the Commission has worked with the State Bar to establish
other programs that support professionalism ideals, including the Consumer
Assistance Program and the Diversity Program. In 1993, under President Paul
Kilpatrick, the State Bar’s Committee on Professionalism partnered with the
Commission in establishing the first Law School Orientation on Professionalism
Program for incoming law students held at every Georgia law school. This program
is now replicated at more than forty U.S. law schools. It engages volunteer
practicing attorneys, judges and law professors with law students in small group
discussions of hypothetical contemporary professionalism and ethics situations.
Fifteen years ago, the Justice Robert Benham Community Service Awards
Program was initiated to recognize members of the bench and bar who have combined
a professional career with outstanding service to their communities around Georgia.
The honorees are cited for voluntary participation in community organizations,
government-sponsored activities, youth programs, religious activities or humanitarian
work outside of their professional practice or judicial duties. This program is now
held annually at the State Bar Headquarters in Atlanta, is co-sponsored by the
Commission and the State Bar, and attracts several hundred attendees who celebrate
the community and public servants.
Today, the Commission is under the direction and management of its third
executive director, veteran attorney and former law professor, Avarita L. Hanson. It
continues to support and advise persons locally, nationally and globally who are
interested in professionalism programming and maintains a resource library to
support its mission. The Chief Justice of the Supreme Court of Georgia serves as its
chair, and in this historic year both Chief Justice Carol Hunstein and Chief Justice
Hugh Thompson serve in that capacity. The Commission has twenty-two members
representing practicing lawyers, the state appellate and trial courts, the federal district
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court, all Georgia law schools and the public. It meets three times a year and in
addition to its executive director, staff includes Terie Latala (Assistant Director) and
Nneka Harris Daniel (Administrative Assistant). With its chair, members and staff,
the Commission is well equipped to inspire and develop programs to address today’s
needs of the legal profession and those concerns on the horizon.
The Commission works through committees (Access to Justice, Finance and
Personnel, Educational Video Projects, Professionalism Curriculum, Benham Awards
Selection) in carrying out some of its duties. It also works with other state and
national entities, such as the American Bar Association’s Center for Professional
Responsibility and its other groups. The Executive Director currently serves as the
Chair of the ABA Consortium on Professionalism Initiatives, a group that informs
and vets ideas of persons interested in development of professionalism programs. She
has authored an article on “Reputation,” for the recently released ABA publication,
Essential Qualities of the Professional Lawyer. To keep Georgia Bar members
abreast of professionalism activities and issues, there is a regular column on the
Professionalism Page of every issue of the Georgia Bar Journal. Current
Commission projects include: addressing issues of lawyers aging in the practice of
law, intergenerational communications, innovations in professionalism law school
curriculum and supporting access to justice initiatives.
After 25 years, the measure of effectiveness of the Chief Justice’s Commission
on Professionalism may ultimately rest in the actions, character and demeanor of
every Georgia lawyer. There remains work to do. The Commission’s leadership and
dedication to this cause, along with Georgia’s capable, committed and innovative
bench and bar, will continue to lead the charge, movement and dialogue on legal
professionalism.
Chief Justice’s Commission on Professionalism
104 Marietta Street, N.W.
Suite 104
Atlanta, Georgia 30303
(404) 225-5040
[email protected]
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CHIEF JUSTICE'S COMMISSION ON PROFESSIONALISM
INTRODUCTION
In 1986, the American Bar Association ruefully reported that despite the fact that lawyers'
observance of the rules of ethics governing their conduct is sharply on the rise, lawyers'
professionalism, by contrast, may well be in steep decline:
[Although] lawyers have tended to take the rules more seriously because of an
increased fear of disciplinary prosecutions and malpractice suits, . . . [they] have also
tended to look at nothing but the rules; if conduct meets the minimum standard,
lawyers tend to ignore exhortations to set their standards at a higher level.1
The ABA's observation reflects a crucial distinction: while a canon of ethics may cover what
is minimally required of lawyers, “professionalism” encompasses what is more broadly expected
of them -- both by the public and by the best traditions of the legal profession itself.
Also in 1986, President James T. Laney of Emory University delivered a lecture on “Moral
Authority in the Professions.” While expressing concern about the decline in moral authority of all
the professions, he focused on the legal profession because of the respect and confidence in which
it has traditionally been held and because it has been viewed as serving the public in unique and
important ways. Dr. Laney expressed the fear that the loss of moral authority has as serious a
consequence for society at large as it does for the legal profession.
In response to these challenges, the Supreme Court of Georgia and the State Bar embarked
upon a long-range project -- to raise the professional aspirations of lawyers in the state.
Accordingly, in early 1989, the Georgia Supreme Court, acting through the State Bar of Georgia,
established the Chief Justice's Commission on Professionalism. The Commission -- the first such
body of its kind in the country -- has as its primary charge ensuring that the practice of law remains
a high calling, enlisted in the service not only of the client, but of the public good as well.
Composed of representatives of the organized bar, practicing bar, judiciary, law schools, and
the public, the Commission serves as a catalyst for systemic change in the legal profession through
(a) educational programming and (b) periodic recommendations to the State Bar, the judiciary,
and the law schools.
To further its mission and charge, the Commission:
1
American Bar Association Commission on Professionalism, “ . . . In the Spirit of Public Service:” A Blueprint for the Rekindling
of Lawyer Professionalism, (1986) p.7.
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!
Coordinates professionalism activities in the organized bar, courts, law schools, and law
firms
!
Develops educational materials, law school curricula, and continuing legal and judicial
education programs on the professionalism values of competence, character, civility, and
commitment to the public good
!
Administers the Professionalism Continuing Legal Education (CLE) requirement, effective
January 1, 1990, by which the Georgia Supreme Court mandated that each active member
of the State Bar complete annually one hour of CLE on the topic of professionalism
!
Provides guidance to professionalism efforts in other states
!
Serves as both an archive and a clearinghouse for exchange of information regarding
professionalism efforts past and present, local and national
The Commission’s major activities include:
Ç
Statewide Convocations on Professionalism
Ç
Law School Orientations on Professionalism
Ç
Upper Level Law School Professionalism Programs
Ç
Annual Law School Symposia on Ethics and Professionalism in the Practice of Law
Ç
Approval and oversight of more than 500 Professionalism Continuing Legal Education
sessions annually
Ç
Production of Professionalism CLE curricula and materials
Ç
Statewide Town Hall Meetings for lawyers and judges to address ethics and professionalism
concerns
Ç
Justice Robert Benham Awards for Community Service
Ç
Continuing Judicial Education sessions on Professionalism
Ç
Judicial District Professionalism Program
Ç
Transition into Law Practice Program
Ç
Resource for professionalism initiatives of lawyers, judges, local bar associations
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HISTORICAL BACKGROUND OF THE COMMISSION AND
THE GEORGIA PROFESSIONALISM PROJECT
Since 1985, Georgia's Supreme Court and State Bar have been heavily involved in an
ongoing project to promote professionalism among the state's lawyers. During his 1985-86 term of
office as State Bar President, Jule Felton appointed a Special Committee on Professionalism to
recommend ways in which the Georgia Bar might foster professionalism among its members.2 In
1988, responding to a proposal from the Court, Emory University President James Laney hosted a
Consultation on Professionalism where, for the first time, the topic might be discussed at length by
40 of the state's most distinguished lawyers and judges. Held in March, 1988, at Emory in Atlanta,
and chaired by Chief Justice Thomas O. Marshall, the Consultation set in motion the process of
addressing the issue of professionalism in a systematic and sustained manner.
State Bar President A. James Elliott gave that process additional momentum when he placed
the professionalism project at the top of his agenda upon taking office in June, 1988. In conjunction
with Chief Justice Marshall, President Elliott gathered 120 prominent judges and lawyers from
around the state to attend the first Annual Georgia Convocation on Professionalism. Prior to the
convocation, each invitee received a copy of the edited Emory proceedings as background for the
upcoming deliberations. Those deliberations, which took place in Macon on October 14, 1988,
centered around two questions: (1) “The Practice of Law: Is There Anything More To It Than
Making Money?” and (2) “How Can Professionalism Be Institutionalized?”
The second question in particular reflected an entirely new approach to the professionalism
issue. According to Professor Thomas Morgan of Emory Law School, writer of the ABA's
professionalism report and a convocation moderator, previous attempts to examine the issue had
taken too narrow a focus. They concentrated exclusively on the individual practitioner and failed
to analyze professionalism problems -- and remedies -- from a broader, systemic standpoint. By
contrast, the convocation's invitees were selected precisely because they occupied the institutional
niches (such as, for example, managing partner) where they had the opportunity to affect those legal
institutions that most affect lawyers' conduct: law firms, courts, law schools, and the organized bar.
The convocation sought commitments from each of those four institutional sectors to begin pilot
projects which would, in turn, propel the professionalism project as a whole.
For its part, the Georgia Supreme Court took three important steps to further the enterprise.
First, at the convocation itself, the Court announced and administered to those present a new
Georgia attorney's oath emphasizing the virtue of truthfulness, reviving language dating back to
1729. Reflecting the idea that the word “profession” derives from a root meaning “to avow
publicly,” this new oath of admission to the State Bar of Georgia indicates that whatever other
expectations might be made of lawyers, truth-telling is expected, always and everywhere, of every
true professional. Since the convocation, the new oath has been administered to thousands of
2
That Special Committee has now become the Standing Committee on Professionalism.
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Attorney's Oath
I,_____________, swear that
I will truly and honestly, justly, and
uprightly dem ean m yself, according to
the laws, as an attorney, counselor,
and solicitor, and that I will support
and defend the Constitution of the
United States and the Constitution of
the State of Georgia. So help m e
God.
lawyers in circuits all over the state. Additionally, the
new oath -- together with the broader professionalism
project itself -- has been the subject not only of local
news reports but also of a story nationally broadcast on
Cable News Network (CNN).3
As its second institutional action meant to
ensure that professionalism efforts in Georgia would
continue, the Court issued an order, effective January
1, 1990, requiring each of the state's then 16,000 active
lawyers to attend at least one hour per year of
continuing legal education (CLE) on the topic of
professionalism.
This CLE professionalism
requirement was the first of its kind in the nation. The Court, in concert with the Institute of
Continuing Legal Education in Georgia, began to develop original instructional materials for use
in the new professionalism courses.
Third, and perhaps most important for the long-term prospects of the professionalism project,
the Court in 1989 launched the Chief Justice's Commission on Professionalism. In effect, the
Court's action institutionalized the professionalism project itself, thereby weaving it into the actual
institutional fabric of the organized Bar in Georgia. As such, the Commission has the potential to
serve as an institutional model that can be replicated by other bars and professionalism projects
throughout the country. As an example, the Commission developed and adopted a Lawyer's Creed
and an Aspirational Statement on Professionalism. It is the hope of the Commission, and of the
Supreme Court, that Georgia's lawyers, judges and legal educators will use these as inspiration to
re-examine the justifications of the practice of law and will consider their conduct in light of these
goals.
The Commission's initial funding was provided by a grant from the Commission on
Continuing Lawyer Competency in Georgia from funds generated by continuing legal education
fees. The initial funding was devoted to payment of consultant fees and the first and second
convocations. Permanent funding through the professionalism continuing legal education fees
provides for staff salaries and benefits, office space, supplies, equipment, data base creation and
maintenance, and program development.
3
Prior to 1823, the attorneys’s oath in Georgia contained the wording: “I swear that I will truly and honestly demean myself . . . .”
This oath was taken from an English statute dating back several years before the founding of the colonies. From 1823-1988, the oath
called for attorneys to conduct themselves “justly and uprightly.” In 2002 the Professionalism Committee of the State Bar
recommended that the oath be revised with updated and clarifying language. (See page 53). However, the 2002 revision left intact the
language on truthfulness restored in 1988. 29 Georgia State Bar Journal No. 2, 66 (1992).
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SUMMARY
For some years now, many have talked of the need to restore to America's lawyers a sense
of professionalism, a sense of the highest aspirations that the legal profession in America has, at its
best moments, embodied. But sadly, much of the talk about professionalism has tended to remain
only talk.
In marked contrast, however, Georgia's Supreme Court and State Bar have in fact acted to
promote professionalism. They have devoted considerable time, energy, and funding to their shared
project of raising professionalism standards. Although much has been done -- the development of
a Mission Statement, Lawyer’s Creed, and Aspirational Statement on Professionalism, the creation
and staffing of a commission to oversee the professionalism CLE requirement, annual
professionalism convocations, town hall meetings, law school orientations, production of videotapes
and publications on professionalism, the community and public service effort, mentoring programs
-- much more remains to be done. Whether we speak of convocations, regional meetings, CLE
seminars, or the Commission itself, we are always speaking of bold, imaginative projects which can
serve as models for the legal profession throughout the United States, carrying with them profound
implications for the life of that profession. The Commission can accomplish its charge, and in the
process, start to accomplish professionalism's overriding goal: “knowledge and skill in the law
faithfully employed in service of client and public good.”
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CHIEF JUSTICE'S COMMISSION ON PROFESSIONALISM
2013 - 2014
Members
The Honorable Hugh P. Thompson (Chair), Atlanta
Professor Frank S. Alexander, Atlanta
Professor Clark D. Cunningham, Atlanta
The Honorable David P. Darden, Marietta
Ms. Jennifer M. Davis, Atlanta
The Honorable J. Antonio DelCampo, Atlanta
Associate Dean A. James Elliott, Atlanta
Ms. C. Joy Lampley Fortson, Atlanta
Mr. Joseph H. Fowler, Douglasville
Professor Matthew I. Hall, Athens
Ms. Catherine M. Hilton, Atlanta
Ms. Dawn M. Jones, Atlanta
The Honorable Steve C. Jones, Atlanta
Professor Patrick E. Longan, Macon
Dean Richardson R. Lynn, Atlanta
The Honorable M. Yvette Miller, Atlanta
The Honorable Kathy S. Palmer
Mr. Daniel J. Porter, Lawrenceville
Mr. Charles L. Ruffin, Macon
Ms. Claudia S. Saari, Decatur
Ms. Lynne E. Scroggins, Atlanta
Mr. Darrell L. Sutton, Marietta
Advisors
The Honorable Robert Benham, Atlanta
The Honorable Brenda S. Hill Cole, Atlanta
Mr. Baxter L. Davis, Atlanta
The Honorable Norman Fletcher, Rome
Ms. Sally E. Lockwood, Atlanta
Associate Dean Roy Sobelson, Atlanta
LIAISONS
Mr. Cliff Brashier, Atlanta
Ms. Elizabeth Louise Fite, Atlanta
Ms. Paula J. Frederick, Atlanta
Mr. Stephen J. Harper, Athens
Mr. W. Seaborn Jones, Atlanta
Ms. Tangela S. King, Atlanta
Staff
Ms. Avarita L. Hanson, Atlanta
Ms. Terie Latala, Atlanta
Ms. Nneka Harris-Daniel, Atlanta
Italics denotes public member/non-lawyer
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CHIEF JUSTICE’S COMMISSION ON
PROFESSIONALISM
Hugh P. Thompson, Chief Justice
Supreme Court of Georgia
Terie Latala
Assistant Director
Avarita L. Hanson
Executive Director
Nneka Harris-Daniel
Administrative Assistant
M ISSION STATEMENT,
OATH OF ADMISSION,
LAWYER’S CREED
AND
ASPIRATIONAL STATEMENT
ON
PROFESSIONALISM
Suite 620 • 104 Marietta Street, NW • Atlanta, Georgia 30303
Phone: (404) 225-5040 • Fax: (404) 225-5041 • E-mail: [email protected]
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MISSION STATEMENT
The mission of the Chief Justice’s Commission on
Professionalism is to support and encourage lawyers to exercise
the highest levels of professional integrity in their relationships
with their clients, other lawyers, the courts, and the public and
to fulfill their obligations to improve the law and the legal
system and to ensure access to that system.
CALLING TO TASKS
The Commission seeks to foster among lawyers an active
awareness of its mission by calling lawyers to the following
tasks, in the words of former Chief Justice Harold Clarke:
1.
To recognize that the reason for the existence of lawyers
is to act as problem solvers performing their service on
behalf of the client while adhering at all times to the
public interest;
2.
To utilize their special training and natural talents in
positions of leadership for societal betterment;
3.
To adhere to the proposition that a social conscience and
devotion to the public interest stand as essential elements
of lawyer professionalism.
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OATH OF ADMISSION
TO THE STATE BAR OF GEORGIA
“I,_________________, swear that I will truly and
Attorney’s Name
honestly, justly and uprightly conduct myself as a
member of this learned profession and in accordance
with the Georgia Rules of Professional Conduct, as an
attorney and counselor and that I will support and
defend the Constitution of the United States and the
Constitution of the State of Georgia. So help me
God.”
As revised by the Supreme Court of Georgia, April 20, 2002
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A LAWYER'S CREED
To my clients, I offer faithfulness, competence,
diligence, and good judgment. I will strive to represent
you as I would want to be represented and to be worthy
of your trust.
To the opposing parties and their counsel, I
offer fairness, integrity, and civility. I will seek
reconciliation and, if we fail, I will strive to make our
dispute a dignified one.
To the courts, and other tribunals, and to those
who assist them, I offer respect, candor, and courtesy.
I will strive to do honor to the search for justice.
To my colleagues in the practice of law, I offer
concern for your welfare. I will strive to make our
association a professional friendship.
To the profession, I offer assistance. I will
strive to keep our business a profession and our
profession a calling in the spirit of public service.
To the public and our systems of justice, I offer
service. I will strive to improve the law and our legal
system, to make the law and our legal system available
to all, and to seek the common good through the
representation of my clients.
Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of the Rules and
Regulations of the State Bar of Georgia
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ASPIRATIONAL STATEMENT ON PROFESSIONALISM
The Court believes there are unfortunate trends of commercialization and loss of professional
community in the current practice of law. These trends are manifested in an undue emphasis on the
financial rewards of practice, a lack of courtesy and civility among members of our profession, a
lack of respect for the judiciary and for our systems of justice, and a lack of regard for others and
for the common good. As a community of professionals, we should strive to make the internal
rewards of service, craft, and character, and not the external reward of financial gain, the primary
rewards of the practice of law. In our practices we should remember that the primary justification
for who we are and what we do is the common good we can achieve through the faithful
representation of people who desire to resolve their disputes in a peaceful manner and to prevent
future disputes. We should remember, and we should help our clients remember, that the way in
which our clients resolve their disputes defines part of the character of our society and we should
act accordingly.
As professionals, we need aspirational ideals to help bind us together in a professional
community. Accordingly, the Court issues the following Aspirational Statement setting forth
general and specific aspirational ideals of our profession. This statement is a beginning list of the
ideals of our profession. It is primarily illustrative. Our purpose is not to regulate, and certainly not
to provide a basis for discipline, but rather to assist the Bar's efforts to maintain a professionalism
that can stand against the negative trends of commercialization and loss of community. It is the
Court's hope that Georgia's lawyers, judges, and legal educators will use the following aspirational
ideals to reexamine the justifications of the practice of law in our society and to consider the
implications of those justifications for their conduct. The Court feels that enhancement of
professionalism can be best brought about by the cooperative efforts of the organized bar, the courts,
and the law schools with each group working independently, but also jointly in that effort.
Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of the Rules and
Regulations of the State Bar of Georgia
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GENERAL ASPIRATIONAL IDEALS
As a lawyer, I will aspire:
(a)
To put fidelity to clients and, through clients, to the common good, before selfish
interests.
(b)
To model for others, and particularly for my clients, the respect due to those we call
upon to resolve our disputes and the regard due to all participants in our dispute
resolution processes.
(c)
To avoid all forms of wrongful discrimination in all of my activities including
discrimination on the basis of race, religion, sex, age, handicap, veteran status, or
national origin. The social goals of equality and fairness will be personal goals for
me.
(d)
To preserve and improve the law, the legal system, and other dispute resolution
processes as instruments for the common good.
(e)
To make the law, the legal system, and other dispute resolution processes available
to all.
(f)
To practice with a personal commitment to the rules governing our profession and
to encourage others to do the same.
(g)
To preserve the dignity and the integrity of our profession by my conduct. The
dignity and the integrity of our profession is an inheritance that must be maintained
by each successive generation of lawyers.
(h)
To achieve the excellence of our craft, especially those that permit me to be the
moral voice of clients to the public in advocacy while being the moral voice of the
public to clients in counseling. Good lawyering should be a moral achievement for
both the lawyer and the client.
(I)
To practice law not as a business, but as a calling in the spirit of public service.
Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of the Rules and
Regulations of the State Bar of Georgia
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SPECIFIC ASPIRATIONAL IDEALS
As to clients, I will aspire:
(a)
To expeditious and economical achievement of all client objectives.
(b)
To fully informed client decision-making. As a professional, I should:
(1)
(2)
(3)
(4)
(5)
(c)
To fair and equitable fee agreements. As a professional, I should:
(1)
(2)
(3)
(4)
(5)
(6)
(d)
Counsel clients about all forms of dispute resolution;
Counsel clients about the value of cooperation as a means towards the
productive resolution of disputes;
Maintain the sympathetic detachment that permits objective and independent
advice to clients;
Communicate promptly and clearly with clients; and,
Reach clear agreements with clients concerning the nature of the
representation.
Discuss alternative methods of charging fees with all clients;
Offer fee arrangements that reflect the true value of the services rendered;
Reach agreements with clients as early in the relationship as possible;
Determine the amount of fees by consideration of many factors and not just
time spent by the attorney;
Provide written agreements as to all fee arrangements; and
Resolve all fee disputes through the arbitration methods provided by the
State Bar of Georgia.
To comply with the obligations of confidentiality and the avoidance of conflicting
loyalties in a manner designed to achieve the fidelity to clients that is the purpose of
these obligations.
As to opposing parties and their counsel, I will aspire:
(a)
To cooperate with opposing counsel in a manner consistent with the competent
representation of all parties. As a professional, I should:
(1)
(2)
(3)
(b)
Notify opposing counsel in a timely fashion of any cancelled appearance;
Grant reasonable requests for extensions or scheduling changes; and,
Consult with opposing counsel in the scheduling of appearances, meetings,
and depositions.
To treat opposing counsel in a manner consistent with his or her professional
obligations and consistent with the dignity of the search for justice. As a
professional, I should:
Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of the Rules and
Regulations of the State Bar of Georgia
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(1)
(2)
(3)
(4)
(5)
(6)
Not serve motions or pleadings in such a manner or at such a time as to
preclude opportunity for a competent response;
Be courteous and civil in all communications;
Respond promptly to all requests by opposing counsel;
Avoid rudeness and other acts of disrespect in all meetings including
depositions and negotiations;
Prepare documents that accurately reflect the agreement of all parties; and
Clearly identify all changes made in documents submitted by opposing
counsel for review.
As to the courts, other tribunals, and to those who assist them, I will aspire:
(a)
To represent my clients in a manner consistent with the proper functioning of a fair,
efficient, and humane system of justice. As a professional, I should:
(1)
(2)
(3)
(4)
(5)
(6)
(b)
Avoid non-essential litigation and non-essential pleading in litigation;
Explore the possibilities of settlement of all litigated matters;
Seek non-coerced agreement between the parties on procedural and
discovery matters;
Avoid all delays not dictated by a competent presentation of a client's claims;
Prevent misuses of court time by verifying the availability of key participants
for scheduled appearances before the court and by being punctual; and
Advise clients about the obligations of civility, courtesy, fairness,
cooperation, and other proper behavior expected of those who use our
systems of justice.
To model for others the respect due to our courts. As a professional I should:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Act with complete honesty;
Know court rules and procedures;
Give appropriate deference to court rulings;
Avoid undue familiarity with members of the judiciary;
Avoid unfounded, unsubstantiated, or unjustified public criticism of members
of the judiciary;
Show respect by attire and demeanor;
Assist the judiciary in determining the applicable law; and,
Seek to understand the judiciary's obligations of informed and impartial
decision-making.
As to my colleagues in the practice of law, I will aspire:
(a)
To recognize and to develop our interdependence;
(b)
To respect the needs of others, especially the need to develop as a whole person; and,
(c)
To assist my colleagues become better people in the practice of law and to accept
their assistance offered to me.
Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of the Rules and
Regulations of the State Bar of Georgia
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As to our profession, I will aspire:
(a)
To improve the practice of law. As a professional, I should:
(1)
(2)
(3)
(b)
Assist in continuing legal education efforts;
Assist in organized bar activities; and,
Assist law schools in the education of our future lawyers.
To protect the public from incompetent or other wrongful lawyering.
professional, I should:
(1)
(2)
(3)
As a
Assist in bar admissions activities;
Report violations of ethical regulations by fellow lawyers; and,
Assist in the enforcement of the legal and ethical standards imposed upon all
lawyers.
As to the public and our systems of justice, I will aspire:
(a)
To counsel clients about the moral and social consequences of their conduct.
(b) To consider the effect of my conduct on the image of our systems of justice including the
social effect of advertising methods. As a professional, I should ensure that any
advertisement of my services:
(1) is consistent with the dignity of the justice system and a learned profession;
(2) provides a beneficial service to the public by providing accurate information
about the availability of legal services;
(3) educates the public about the law and legal system;
(4) provides completely honest and straightforward information about my
qualifications, fees, and costs; and
(5) does not imply that clients' legal needs can be met only through aggressive
tactics.
(c)
To provide the pro bono representation that is necessary to make our system of
justice available to all.
(d)
To support organizations that provide pro bono representation to indigent clients.
(e)
To improve our laws and legal system by, for example:
(1)
(2)
(3)
(4)
Serving as a public official;
Assisting in the education of the public concerning our laws and legal
system;
Commenting publicly upon our laws; and,
Using other appropriate methods of effecting positive change in our laws and
legal system.
Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of the Rules and
Regulations of the State Bar of Georgia
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TRIAL AND ERROR
Judicial Perspectives on Effective Trial Advocacy
Moderator:
Christopher R. Abrego
The Abrego Law Firm, LLC
Atlanta, Georgia
Panelists:
Honorable Tangela Barrie
DeKalb Superior Court
Stone Mountain Circuit
Decatur, Georgia
Honorable Wesley B. Tailor
Fulton County State Court
Atlanta Judicial Circuit
Atlanta, Georgia
Honorable John F. Doran, Jr.
Gwinnett County State Court
Gwinnett Judicial Circuit
Lawrenceville, Georgia
Honorable Mark H. Cohen
U.S. District Court
Northern District of Georgia
Atlanta, Georgia
Chapter 6
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JUDICIAL PERSPECTIVES ON EFFECTIVE TRIAL ADVOCACY
TABLE OF CONTENTS
A.
Ten Things that All Attorneys Should Know ......................................................... 1
Honorable J. Antonio DelCampo, State Court of DeKalb County (retired)
B.
A Judge's Perspective on Trial Attorneys and “Rookie” Mistakes ...................... 5
Honorable Beverly Collins, State Court of Cobb County (retired)
C.
Comments on Legal Professionalism and Ethics .................................................. 9
Honorable Craig L. Schwall, Sr., Superior Court of Fulton County
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Ten Things That All Litigators Should Know
Honorable J. Antonio DelCampo
State Court of DeKalb County
1.
The Judge and His/Her Staff
Treating the staff with anything less than the same level of respect you give to the
Judge is unacceptable. The staff does want to help you, as this generally makes
things run smoothly, but they are not there for you to look down on and order
around. Most Judges have small, close-knit offices that work well together, and
your behavior will be reported to the Judge.
On the flip side, it is also a mistake not to utilize the Court staff as a resource,
especially if you are new to the practice of law or to a particular Judge. Usually,
staff is happy to explain methods or procedures. It never hurts to ask, and often
helps chambers keep a smooth, steady pace.
2.
Conflict Letters: Uniform Superior Court Rule 17
Rule 17 very clearly delineates when letters are to be filed and what cases take
priority over others. Filing a conflict letter the DAY before a calendar is not
sufficient compliance with the rule and does not excuse you from appearing. It is
your responsibility to continually update the Court with your progress and
estimate when you may be arriving. If you state that you are in trial/on a
calendar in another jurisdiction, do not be surprised if we call to confirm the
conflict.
3.
Calendars
Calendars are planned carefully before the date on which you are to appear.
They are published in advance, with notice sent out to ALL parties, not just you.
Each Judge has their own set of rules for removing cases from these calendars; it
is not automatic.
Calling chambers the day before you are set to appear and stating, “Well, I filed a
Motion, so the case should come off the calendar” or “the other party and I
agreed to continue the case” are not decisions that you can make without Court
approval. The Judge controls his or her own calendar and if you've been given
notice, you'll be expected to appear. You may make requests always, but don't
assume that your case will be off the calendar until the Court tells you so.
4.
Ex Parte Communication
A Judge wants his/her office to run smoothly, and generally that indicates a
willingness to help parties resolve conflicts or get past any bumps in the
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litigation process. This does not, however, give you a free pass to tell your side of
the case, usually to the law clerk/staff attorney, over the phone. All of the
following are inappropriate:
*
*
*
*
5.
Asking how the Judge would prefer that you prove your case. If
you cannot make this decision yourself, consult with an attorney
experienced in that area of law. The Court can not give free legal
advice.
Calling and asking when the Judge will rule on your Motion, and
then proceeding to relay your version of the facts in the hopes that
this will somehow sway things in your favor.
Reciting facts or background information not found in the
pleadings.
Asking procedure or research related questions (i.e. “which statute
do I use to claim attorney's fees?,” “what is the standard review on
a Motion for ____?”).
Motions Practice
One of the most unproductive things an attorney can do is submit a lengthy brief
in support or in response to a Motion, and not say anything of substance. So
often, attorneys submit briefs filled with information that is not useful. Some
things that are not helpful include:
*
*
*
6.
Long lists of string citations with no annotation as to how they
relate to your theory of the case or claim.
Citing large blocks of text from cases, but then failing to tie those
citations into the facts of the case at hand.
Short-changing the “Brief Facts and Procedure” section. You know
your case inside and out, but the Judge doesn't. It's very hard to
follow your legal analysis if we don't have a good grasp on the basic
facts at hand.
Dishonesty or “stretching the truth”
There is nothing worse than a lawyer who is dishonest with the Court. This
includes lack of candor both in the context of your pleadings and in your
representations to the Court.
*
*
*
Do not state that you mailed pleadings to the opposing party when
in fact you did not.
If you are late, admit it. If you forgot about a scheduled
appearance, admit it.
Do not misstate the facts of your case so as to enhance your
position, especially if those facts are directly contradicted by the
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*
*
*
record.
Do not posture and accuse other attorneys of “misbehaving” unless
it is absolutely true and needs the Court's assistance. The Court
does not want to hear your discovery disputes, unless they involve
valid differences in factual/legal interpretation.
Do not fail to provide the Judge with case law that contradicts the
position you are arguing. This is required of you Rule 3.3 in the
Georgia Rules of Professional Responsibility- Candor Towards the
Tribunal.
Do not attempt to tell the Judge that the Court reporter didn't do
what you asked him/her to do when the truth is you forgot to pay
her/him. Remember, he or she usually is part of the Judge's staff.
The legal community is very small. A lawyer's reputation is his/her “stock and
trade.” Do not squander that commodity on any one case, because the Judge will
remember your conduct.
7.
Jury Charges
Prior to the charge conference, either the Judge or his staff attorney will review
the charges both for correctness and applicability to the case. The following is a
list of time-consuming mistakes that you can make:
*
*
*
*
*
Failing to verify your citations. Nothing is more frustrating than
having to hunt down the case you were trying to cite because the
numbers were all wrong.
Citing cases from the 1800s.
Citing to outdated pattern charge books.
Presenting ten different versions of the same charge or the same
subject matter.
Including charges that have absolutely no relevance to the
proceedings at hand.
Generally, these errors come from just blindly pulling charges from the volumes
that are kept in many law offices. This is not an excuse; your signature goes on
the cover sheet. You are responsible for the contents of your pleadings.
8.
Attorney's Fees
Certain civil actions permit parties to request fee reimbursement or permit
attorney's fees for having to file certain Motions. Do not expect the Court to
grant you whatever you ask for. You must be prepared and to present sufficient
evidence that your fees are both reasonable and actually incurred. Stating your
hourly rate is insufficient. You may be asked to provide billing statements and
explain the work you did on a particular case.
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9.
Expecting the Court to do your job for you
Sometimes, when lawyers find themselves in difficult positions, they seek
assistance from the Court. Most judges will bend over backwards to assist the
litigant. There are some matters, however, where Court assistance is not
appropriate. Here are some examples of things NOT to ask for:
*
*
10.
Put your client's case on a calendar so the Judge can explain to
him/her why the Motion/continuance/other request was denied.
That's your job as the attorney.
Use our fax machine to receive lengthy
pleadings/orders/information from your office that you forgot to
bring with you to the hearing/calendar
Working with pro se individuals
When the opposing party is representing themselves, you have a responsibility to
act professionally and not take advantage of their inexperience. It is not a free
pass for you to run the case as you see fit.
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A Judge's Prospective on Trial Attorneys and “Rookie” Mistakes
Honorable Beverly Collins
State Court of Cobb County (retired)
Preparation
I.
The Six P's:
a.
Prior, Proper, Planning Prevents Poor Performance.
i.
Remember that a hearing or trial will run more smoothly and be
more enjoyable for everyone involved if you are prepared.
1.
Label/number evidence prior to court whenever possible.
a.
2.
Review Jury Charge Requests before filing them in with the
Court.
a.
b.
c.
3.
b.
II.
Properly numbered;
Citations correct, Shepardized, and updated;
Appropriateness and applicability of the requested
charges.
Planning to use Power Point, show a video or DVD, etc?
a.
4.
Keep a checklist of the evidence you expect to tender
so that you know what has been admitted into the
record as the trial proceeds.
Call ahead to check with the court about the
availability of equipment;
Arrive early, or arrange a time with the court, to make
sure the courtroom equipment is compatible with
your devices.
If you expect to refer a case during your legal argument,
bring a copy for the judge and opposing counsel.
Voir Dire is an important step in the trial process, but sometimes it can feel
tedious. Still, don't feel as though you need to apologize to the jury for asking
your questions.
a.
Read your questions out loud to ensure they will make sense to others.
Consider reading the questions to a third person who is not familiar with
the case.
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III.
Losing sight of the jury.
a.
Sometimes attorneys are overly prepared and familiar with the facts of
their case. Don't forget that your audience doesn't have the same depth of
knowledge. It is your job to get the evidence into the record so that the
fact finder has all the necessary information to make a well informed
decision.
Professionalism
I.
Don't forget that you have an audience.
a.
Dress professionally for court regardless of whether it is a 12 person jury
trial or a Friday afternoon plea (unless you have personal knowledge that a
particular courtroom is more “relaxed.”)
i.
b.
This applies to both men and women and isn't meant to sound oldfashioned.
Body language, facial expressions, overall reactions from counsel's table
i.
Avoid eye-rolling, smirking, unnecessary whispering and other rude
behavior while opposing counsel is speaking.
1.
Jurors are paying attention to counsel even when the
attorneys are not examining witnesses or speaking with the
court. Unprofessional behavior is distracting to jurors and
the judge and is often perceived as disrespectful.
a.
ii.
Though a trial should not be thought of as a “gamble,” you
might try wearing your “poker face.”
1.
2.
c.
You would be surprised at how many jurors make
post-trial comments that focus more on counsel's
conduct than on the facts of the case.
Nodding, smiling, and frowning at responses of prospective
jurors during voir dire lets everyone know what you are
thinking.
Pay attention to the demeanor of your client as well.
Be courteous to courthouse personnel.
i.
This includes the judge's staff, courtroom clerks, and bailiffs.
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1.
2.
d.
You never know when you will need their help.
Don't assume you know more because you have a law degree.
BE ON TIME.
i.
This is especially true if you do not personally know a particular
judge's habits for starting court on time.
Pet Peeves
(Some of the following suggestions may actually apply more readily to veteran attorneys.
The following list includes behavior to avoid now and in the future...)
I.
Cell Phones
a.
b.
II.
Walking away from the bench
a.
III.
If you can't turn the phone off, then at least make sure the volume is
turned down and that the phone doesn't vibrate in a distracting manner.
Walk out of the courtroom before answering your phone.
Your client depends on you, especially in a situation where they are
standing before the judge. Therefore, do not abandon your client during a
plea proceeding by walking away from the bench in order to talk to other
attorneys.
The Court understands that attorneys often have more than one place to be BUT:
a.
Superior Court Rule 17.1 regarding conflicts is in place for a reason.
Follow the guidelines and you shouldn't have too much trouble.
i.
b.
IV.
It is not a good sign when a court can't trust the information on an
attorney's conflict letter.
Don't announce, “Your honor, may I be excused momentarily,” only to
disappear for the remainder of the calendar.
You have asked for oral argument on a motion and the Court has scheduled a
hearing. This is not the time to read your motion and brief verbatim. Instead,
take this opportunity to further explain your position and to discuss the law as it
applies to your case.
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a.
b.
V.
If you do not think the Court is up to speed, you can always ask if the
Court would like to be refreshed on the facts.
Don't be alarmed or insulted if the Court interrupts to let you know it is
acquainted with the file.
Discovery Disputes
a.
Courts do not enjoy unnecessary involvement with discovery disputes.
i.
b.
Make a true, good faith effort to resolve a dispute before filing any
motions.
If you ask the Court to compel discovery, you should probably know what
you have requested and what you have yet to receive.
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Comments on Legal Professionalism and Ethics
Honorable Craig L. Schwall, Sr.1
Superior Court of Fulton County
Q.
How can you tell when a lawyer is lying?
A.
His lips are moving.2
Another ...
Q.
What do you call a smiling, sober, courteous person at a bar association
convention?
A.
The caterer.3
These jokes should not be found humorous by anyone in our profession. They
conform to society's stereotypes. Shame on those attorneys who commonly share these
kinds of jokes with their peers. Unfortunately, the public finds these jokes funny and
they've become email fodder because the public has a less than positive opinion of
lawyers. Attorney participation in such fodder only augments these perceptions.
According to Deborah Rhode of the Markkula Center for Applied Ethics, "threefifths of Americans think lawyers are greedy, and only one-fifth think either 'honest and
ethical' or 'caring and compassionate' describes most lawyers.”4 We should be ashamed
of these statistics. There was a time when being an attorney was to be a part of a noble
profession. We hold people's lives in the balance. Often times our clients' futures are
dependent on how well we do our jobs. We are not a profession driven by the pursuit of
1
Special thanks to: Robert J. Kaufman, Esq., Michael C. Kaplan, Esq., and Alex B. Kaufman, Esq. This paper is
reprinted with permission of the author from an earlier seminar, and therefore some internet citations may no
longer be available.
2 http://www.lawyer-jokes.us/humor/category/lawyer-humor
3 http://www.lawyer-jokes.us/humor/215
4 Rhode, Deborah, Makkula Center for Applied Ethics, “Expanding the Role of Ethics in Legal Education and the
Legal Profession.” http://www.scu.edu/ethics/publications/submitted/rhode/legaled.html (1/5/05).
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greed, but rather the pursuit of justice. We represent these people because they cannot
necessarily represent themselves effectively within the justice system.
Our profession is a unique calling with what has been a proud history. As Chief
Justice Burley B. Mitchell, Jr. of the North Carolina Supreme Court so eloquently states,
“The legal profession is unique, even among the true professions. As officers of the
court, lawyers automatically become a part of the judicial branch of government and are
directly involved in the exercise of its tremendous powers over the people. Unlike other
professionals, you... have an affirmative duty to see that... freedoms are preserved and
that justice is done in society.”5 Justice Mitchell continues by quoting Alexis de
Tocqueville, who in his observations of American society concluded, “There is hardly a
political question in the United States which does not sooner or later turn into a judicial
one.” Justice Mitchell's purpose in quoting de Tocqueville's observation is that, “The
fact that the great political controversies facing every generation of Americans have
eventually involved lawyers and the courts has meant that the legal profession has
enjoyed periods of high prestige and respect. However, like any other group directly
involved in governing, lawyers at times have been reviled.”6 Today, one does not have
to look far to see aspects of “lawyer-bashing” in our society-- just turn on the television
or listen to a conversation at a coffee shop.
Lawyers cannot and should not allow the public to lose confidence in our
profession and the American legal system. Our American society is a society based upon
the law. We are fortunate to be a country of laws that provide a place for dispute
5 Mitchell, Jr., Chief Justice Burley B., Norma Adrian Wiggins School of Law, Campbell University, Hooding
Ceremony 5/10/98. http://www.aoc.state.nc/copytight/aoc.speeches.campbell.html.
6 Id.
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resolution. Without this, people would be gripped with insecurity and the fear of losing
what they have worked so hard to gain. Through civil litigation, lawyers aid their clients
in protecting their investments and their futures. When disputes arise, lawyers guide
their clients through the judicial cycle until a peaceful resolution is found. In that spirit,
our profession should be that of the ethical helper and resolution seeker.
My summer intern asked me why I became a lawyer. It's a good question, one
that all of us here today should take a moment and think about for ourselves from time
to time. I remember the first time I decided that I wanted to become a lawyer-- an
officer of the court. I was a young boy and went to work with my dad, who is a lawyer. I
am lucky to have such a great father who took the time to share with me exactly what his
profession stood for and what it had always meant to him. As an adult I know that he is
recognized as a distinguished and well-respected attorney in the Atlanta community.
But at that young age, all I knew about my dad's profession is that he went to work each
day to help solve people's problems. His clients were grateful to him because he would
do his best to help them. I could sense that he felt his work involved doing the right
thing, fixing problems, and serving justice. I now understand that his beliefs, his
approach to the profession, and his day-to-day conduct are what established his
exceptional reputation that he still holds today.
Now that I am 46 years old, I realize that maybe my perception of the legal
profession at that time, although simplified and idealistic, was not actually wrong. Our
job is to do our best, to help our clients through the law, and to serve justice. Some of us
lose sight as to how to go about doing this in an ethical and professional way. The ironic
thing is we all learned the basics of how to be ethical lawyers sometime around
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elementary school. We learned the “golden rule” of “Treat other as you want to be
treated.”7 But do we always remember this?
It only takes a few bad apples to spoil the whole bunch. It only takes a few lawyers
to hurt the reputation of a noble profession. Our profession prides itself on being
stewards of ethics, so much so that we police ourselves and hold ourselves to the highest
standards; but are we doing our best? Can we do better? We need to understand that
just because a lawyer is not in violation of a particular law or code of responsibility,
some behaviors are still “unprofessional and demeaning to the high calling of the
practice of law.”8 According to the Bar Association of the City of Richmond, Virginia,
lawyers should recognize that professionalism involves “(1) A fundamental
understanding of the general principles of law and a mastery of one's chosen areas of
practice, (2) an understanding of and an adherence to high ethical standards of conduct
and (3) tolerance, respect and civility towards clients, opposing parties, colleagues and
the judiciary.”8 I believe they have hit the nail on the head. Lawyers need to be more
respectful to clients as well as each other. Why do we serve notice to opposing counsel
unilaterally mandating deposition dates and yet remain unwilling to accommodate
opposing counsel once the notice is served, especially when we could simply call them
up in advance and find a suitable date for scheduling a deposition for all parties without
dispute? Why serve a motion to compel? Have we lost decency amongst ourselves?
Surely we could make a simple phone call and agree on a time that makes everyone
happy, facilitates goodwill, and avoids confrontation.
7 http://en.wikipedia.org/wiki/Golden_Rule_(ethics).
8 The Bar Association of the City of Richmond, Principles of Professionalism,
www.law.stetson.edu/excellence/litethics/richmondbar.htm (1/5/06).
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In the August 1991 American Bar Association Journal, then Bar President John J.
Curtin Jr. aptly describes this aggressive and rude styled practice of law as the “Rambo
Litigator.”9 While the character Rambo is a hero in the movies, he is not a hero in the
legal profession. The characteristics of a Rambo litigator include: (1) A mindset that
litigation is war and that describes trial practice in military terms. (2) A conviction that
it is invariably in your interest to make life miserable for your opponent. (3) A disdain
for common courtesy and civility, assuming that they ill-befit the true warrior. (4) A
wondrous facility for manipulating facts and engaging in revisionist history. (5) A hairtrigger willingness to fire off unnecessary motions and to use discovery for intimidation
rather than fact-finding. (6) An urge to put the trial lawyer on center stage rather than
the client or his cause.10 This aggressive approach to the practice of law is nothing short
of inappropriate and counterproductive to the entire profession.
Thus, the logical question we must ask is: why do some lawyers gravitate to the
Rambo Litigator approach? I believe that the profession's increasing emphasis on the
bottom line over other concerns is primarily to blame for the increased incivility.11
However, while economic pressures are a major contributor to the increased discourtesy
amongst lawyers, it is not the sole reason for the Rambo Litigator psyche. “Discovery is
burgeoning and has led to strategic non-compliance by attorneys and inadequate
supervision by overburdened judges.”12 Our profession has also experienced an
enormous growth, particularly in the state of Georgia. With an ever-increasing number
of attorneys, there is a decreasing chance that one will repeatedly appear before the
9
10
11
12
Id.
Curtin Jr., John J., “Civil Matters,” American Bar Association Journal (August 1991).
Id.
Id.
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same judge or against the same attorney. The growing competition among lawyers often
creates the feeling that a lawyer should appear more aggressive in front of his client in
order to not look weak. Thus, Rambo Litigators feel that they have little incentive to
maintain cordial and professional relations.13 Mind you, these Rambo Litigators are
dead wrong.
I believe that lawyers can improve their image and “cultivate public respect for
the legal profession in a forthright and discreet manner” in their communities by
demonstrating their stewardship and devotion to the public good.14 I challenge you to
help defend someone who cannot afford your services but deserves justice. I encourage
you to coach a high school mock trial team and teach our children about the law. I dare
you to “defend our system of justice whenever it is challenged unfairly.”15 We as
lawyers do not live in a bubble; we are members of the community in which we live. We
can improve our image by improving our relations amongst ourselves as well. Honesty,
integrity, and courtesy should always be extended. We cannot win the public's trust and
respect if we cannot trust and respect ourselves. Senior members in firms should
mentor the younger members. New lawyers should not feel afraid to question the
integrity of senior partners. Integrity and ethical practice of the law are central to the
improvement of professionalism standards.
I want to speak to you as individual attorneys rather than as a collective group.
Each and every one of you has taken an oath on your honor to be stewards of the law as
well as ethical and honorable members of the court. In short, you swore to always tell
13 Id.
14 The Bar Association of the City of Richmond, Principles of Professionalism,
www.law.stetson.edu/excellence/litethics/richmondbar.htm (1/5/06).
15 Id.
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the truth. Your credibility before the court is to be unquestioned. You have gained this
personal credibility after years of study, hours of hard work, and a clean record. Yet, it
takes only a second to lose this credibility.
You may be, or should be, asking yourself how to avoid instantly losing your
credibility before the court. The answer is simple. Do not lie. That means, do not bend
facts, the law, or the record. These simple standards apply not only to you but to your
clients and witnesses as well. Let me share with you two stories that exhibit how not to
practice law.
The first instance of a lawyer who lost credibility in my eyes involved an attorney
in a medical malpractice case. The attorney used a so-called “expert” witness who
unabashedly and repeatedly lied under oath. Now I have been on the bench for some
time, but I have never seen an expert witness be allowed to flat out lie. This expert was
deliberately cooking testimony with the lawyer. So I banned this witness from ever
testifying as an expert in my court under penalty of contempt. Obviously this witness
lost his credibility before the court. Now, what about the attorney who called him to
protect his client? You bet he lost his credibility, and there is nothing that he can ever
do to get that back. The attorney has permanently tarnished his reputation-- and all
merely to protect a single client. Now listen to this advice, no client is worth the price of
compromising your credibility before the court. Control your clients. Stand up to your
clients. Do not allow your client to drive you to exhibit behavior that you know is
unethical or less than professional. Remember that you will be practicing in this town
for a long time... and shame on any lawyer that takes a Rambo approach and hides
behind his client as an excuse for his or her behavior. There should be no better gauge
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for professionalism than your own conscience. Have respect for your profession and
those who have come before you.
The second story I am going to share with you involves a dishonorable act that an
attorney allowed his client to do. The attorney that I am referencing represented the
plaintiff in the matter before the court. The client, who was still an employee and
minority shareholder of the business that was the defendant, actually accepted service
on behalf of the defendant even though the employee of the business who accepted
service was the plaintiff. And the worst part was that his attorney allowed him to do
this-- to take advantage of the act, and still he continued to pursue the action, following
his client's conduct. Allowing a client to act in this unethical fashion and to take
advantage of it is not different than if the attorney participated in the same unethical
behavior himself. Again, the countless hours this attorney presumably invested in order
to practice law and establish credibility before the court was lost in an instant. Do not
be an unethical member of the bar and do not let your clients act in a devious and
improper manner. It just is not worth it to you or to your fellow members of the legal
profession. You have undoubtedly heard the mantra: The ethics rules are the floor, not
the ceiling.16 Don't simply do what you think, is minimally virtuous because the
standard is merely a floor. Go beyond that. Endeavor to perform your duties to your
client in a manner that brings honor to the profession. Treat your fellow lawyers, not
only as you expect to be treated, but as members of an honorable vocation should treat
one another.
16 Morgan, Elizabeth Ann (Betty), Chair's Message: Your Reputation: Years to Build, Seconds to Lose,” ATLA
Business Torts Section, Vol. 10, No. 2 (Winter 2006).
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“Intangibles such as honesty, integrity, loyalty and caring for others are deemed
irrelevant in such a world of cash-on-delivery professionalism. We simply must not let
any self-serving notion of professionalism survive in the legal profession.”17 I have faith
in the lawyers of today and tomorrow-- that they will maintain the highest ethical
standards and project a kinder, gentler face of the legal profession. “Lawyers have an
honorable tradition of representing individuals and causes when they have had no hope
of personal gain, simply because it was the right thing to do.”18 I take comfort in
knowing that across the state there are thousands of lawyers who are doing the right
thing. Georgia has thousands of lawyers who are serving their communities in positions
that include prosecutors, public defenders, judges, and professors. One can be a
financially successful lawyer and still maintain the highest level of ethical
professionalism. Every lawyer should know that his or her oath is to serve others, not
one's self. “To protect the legal profession from the Rambos among us requires each of
us to isolate, not emulate, them. In so doing, we can expose them for what they are:
needlessly antagonistic and ultimately ineffectual. Perhaps we can also make them very
lonely.”19 This should be our first priority in the vital pursuit to restore the prestige of
the legal profession. Strictly policing ourselves allows us to concentrate our energies on
the true calling of our profession: competently helping others.
Some of you may believe that all this talk about ethics and professionalism is
simply inspirational, that it does not necessarily impact your practices in a specific and
tangible way when it comes to judicial decisions; but if you believe this then you would
17 Mitchell, Jr., Chief Justice Burley B., Norma Adrian Wiggins School of Law, Campbell University, Hooding
Ceremony 5/10/98. http://www.aoc.state.nc/copytight/aoc.speeches.campbell.html.
18 Id.
19 Curtin Jr., John J., “Civil Matters,” American Bar Association Journal (August 1991).
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be wrong. Conducting yourself in a professional manner is the best marketing tool you
can utilize. My first law clerk, to whom I consistently stressed the importance of
professionalism, has told me that he often has opposing attorneys refer business to him
simply because of the way he conducted himself in their case. You cannot get a higher
compliment from those in your profession than that.
In addition, there is a discernible trend that strongly suggests that ethics and
professionalism will be increasingly considered by the courts in rendering decisions.
There have already been several decision where the court's rulings were impacted by
counsel's professionalism and in some instances, this ultimately proved to be the
deciding consideration. Let me briefly touch on two of these important decisions. By the
way, much of the discussion of these cases comes from some excellent seminar materials
from a recent program that ICLE has put on called “Professionalism and Ethics UpdateProgram Materials 2005” -a seminar that I recommend to one and all. In the materials,
there is a discussion about how professionalism is impacting and being cited in judicial
decisions.
In Evanoff v. Evanoff, 262 Ga. 303, 418 S.E.2d 62 (1992), the Georgia Supreme
Court considered the professionalism issue. The facts in the case are straightforward.
The husband filed for divorce. The wife's lawyer filed a notice of appearance, but not an
answer. The parties' lawyers held many settlement discussions and the wife's lawyer
sent the husband's lawyer a confirming letter concerning the anticipated settlement.
Despite these circumstances and before the case came on for a final hearing, the
husband's lawyer went ex-parte in front of the presiding judge and obtained a final
decree after giving evidence. The wife's lawyer tried unsuccessfully to vacate the decree
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before the trial court. Although the Georgia Supreme Court affirmed (citing O.C.G.A § 911-60(d), which allows for setting aside judgments if there is fraud, accident, or mistake,
etc.) since the Court said that the husband's lawyer did not commit actual fraud, Justice
Benham spoke in his concurring opinion of professionalism and mentioned that the
lawyer representing the husband engaged in actions that exceeded the bounds of
professionalism and ethical conduct. Justice Benham cited Ethical Canon 7-10, which
recognizes a concurrent obligation of an attorney to treat with consideration all persons
involved in a legal process and to avoid the infliction of needless harm; Ethical
Consideration 7-38, which states that a lawyer should be courteous to opposing counsel
and should follow local customs of courtesy and practice, unless he gives timely notice to
opposing counsel of his intention not to do so; and Directory Rule 7-106(c)(6), which
states that a lawyer shall not engage in undignified or discourteous conduct which is
degrading to a tribunal. Not something that the Husband's lawyer would want to put on
his resume.
Federal courts also take professionalism seriously. In Lazar v. Mauney, 192
F.R.D. 324, 330 (N.D. Ga. 2000), the plaintiff's lawyer made an inadvertent disclosure
of some privileged materials. The next day, after realizing his mistake, he asked the
defense lawyer to return the document. The defense lawyer returned the document, but
made a copy that he attempted to use in the litigation. The court held that the privilege
remained intact and sharply rebuked the defense lawyer's conduct. Referring to the
secretly retained document, the court noted that the defense lawyer, “implicitly, if not
explicitly, behaved dishonestly.” (Id. at 330). The court, at page 330 of its opinion, took
pains to cite the Georgia State Bar Rules and Regulations, Canons of Ethics, Rule 3-107
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and Ethical Consideration 7-38 when it held that the defense lawyer had “a duty to 'be
courteous to opposing counsel and should accede to reasonable requests' of opposing
counsel which do not prejudice the rights of their clients.”
In closing, it is clear that the courts have and will increasingly in the future, look
to professionalism issues in influencing judicial decisions. The ICLE seminar materials
on Professionalism and Ethics, of which I have drawn upon in these remarks, and other
programs of that nature-- many of which are readily available-- offer keen insight in this
area. Although the State Bar only requires one hour of professionalism to fulfill your bar
requirements, I urge all members of the bench and bar to take it seriously. Recognize
that the one hour of CLE requirement should be viewed only as a minimum, due to the
importance of this area. Think about how Ethics and Professionalism can directly affect
your livelihood and quality of life. Consider taking additional hours above the minimum
of professionalism seminars, as it may be time extremely well spent.
I often like to inform litigants that their attorneys are “fine lawyers, with a fine
reputation.” My father taught me that there is no better compliment you can receive as
an attorney. I hope you all conduct yourselves in a manner to build that reputation so
that someday when I see you in my courtroom representing your client zealously, yet
ethically and professionally as you should, I can proudly make this statement to your
client so they can appreciate who they have representing them and can appreciate our
profession. We must resuscitate the honorable reputation of the legal profession from
the realm of caricatures and satirizing quips and this is where that process begins.
Thank you for the opportunity to present these remarks to you today.
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APPENDIX
Appendix
Appendix
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GEORGIA MANDATORY CLE FACT SHEET
Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually,
with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the
area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the
Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in
1990 or in any subsequent calendar year, must complete for such year a minimum of three hours
of continuing legal education activity in the area of trial practice. These trial practice hours are
included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of
“approved” CLE instruction.
Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next
succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess
trial practice hours may be carried over for one year.
A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the
program name, date, amount paid, CLE hours (including ethics, professionalism and trial
practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND
THIS CARD TO THE COMMISSION!
ICLE will electronically transmit computerized CLE attendance records directly into the Official
State Bar Membership computer records for recording on the attendee’s Bar record. Attendees
at ICLE programs need do nothing more as their attendance will be recorded in their Bar
record.
Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at
the registration desk. ICLE does not guarantee credit in any state other than Georgia.
If you have any questions concerning attendance credit at ICLE seminars, please call:
Toll Free:
1-800-422-0893
Athens Area:
706-369-5664
Atlanta Area:
770-466-0886 x 306
Appendix
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Dear ICLE Seminar Attendee,
Many thanks to you for attending this seminar. We hope that these program materials will
provide a great initial resource and reference for you in the particular subject matter area.
In an effort to make our seminar materials as correct as possible, should you discover any
significantly substantial errors within this volume, please do not hesitate to inform us.
Should you have a different legal interpretation/opinion from the author’s, the appropriate
way to address this is by contacting them directly, which, by the very nature of our seminars, is
always welcome.
Thank you for your assistance. It is truly appreciated.
Sincerely,
Your ICLE Staff
Jeffrey R. Davis
Executive Director, State Bar of Georgia
Tangela S. King
Interim Director, ICLE
Phillip C. Griffeth
Assistant Director, ICLE
Sherrie L. Hines
Assistant Director, ICLE