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The Litigator: A Litigation Section Publication

In This Issue
Upcoming Events
Take Your Adversary to Lunch
Iqbal Raises New Pleading Hurdles
The New Restrictive Covenants Act
December 11th Breakfast
November 20th Breakfast
October 16th Breakfast
September 11th Breakfast
Quick Links
December 2009
Editor: Kevin P. Weimer
Litigation Section Board of Directors
ChairJohn W. Harbin 
Vice Chair/Chair-Elect: James D. Blitch IV
Secretary: Stephen T. LaBriola
Treasurer: John R. "Jake" Bielema, Jr.
Immediate Past Chair: Rita A. Sheffey

Lee Ann Anand
Stephen P. Cummings
Halima Horton
Caroline C. Kresky
J. Matthew Maguire, Jr.
Michael J. Rust
David A. Webster
Kevin P. Weimer

Emeritus Member
H. Lane Young, II

Thank you to our Section Sponsors
Upcoming Events
2010 calendar blue
Mark your calendars
for these upcoming
Section Meetings!
January Section Breakfast Meeting
Friday, January 15, 2010 - 7:30 am
at the Colonnade Restaurant
Speaker: Bobby Lee Cook, Cook & Connelly
Topic:  TBD
Please register online

Mark your calendars for the following Breakfast Meetings:
  • February 12
  • March 19
  • April 16
  • May 14
Securities and Corporate Litigation
Sub-Section Meeting
January 28, 2010 - 5:30 pm
at the law offices of Baker Donelson
Speakers:  Scott Sherman, Baker Donelson and
Robert Port, Cohen Goldstein Port & Gottlieb LLP
Topic:  "Securities Broker-Dealer Arbitrations from the Claimant's and Respondent's Perspectives "
To register, email Abena Smith
Section CLE on Cross Examination
February 17, 2010 - 9:00 am to 12:15 pm
at the State Bar of Georgia
3 CLE hours, including 3 Trial Practice Hours
More information will be posted soon at
Bench and Bar Reception
May 6, 2010 - 5:30 pm
at the law offices of Nelson Mullins Riley & Scarborough LLP
2010 Take Your Adversary to Lunch Program
 boxing blue and gold
Time to take off the gloves and
 Take Your Adversary to Lunch
Atlanta Bar Association members are encouraged to invite an adversary (or more than one) to lunch during the month of February and then enter for a drawing of two gift cards from the Buckhead Life Group Restaurants - one is for the member and one for the member's adversary.  The drawing will take place at the Section's breakfast meeting on March 19, 2010 at the Colonnade Restaurant.

Iqbal Raises New Pleading Hurdles
by John W. Harbin, King & Spalding LLP
John HarbinIn Ashcroft v. Iqbal, 556 U.S. ____, 129 S. Ct. 1937 (2009), in a 5-4 decision, the Supreme Court appears to have heightened the pleading requirements of FED. R. CIV. P. 8. The case arises out of some fairly unique facts, but the Supreme Court indicated its ruling applies to all civil litigation.
A. Background. The Iqbal case concerned a Bivens civil rights action brought by Iqbal, a Pakistani Muslim who was arrested on criminal fraud charges following the September 11, 2001 terrorist attacks, against several federal officials including then attorney general John Ashcroft and the director of the FBI, Mr. Robert Mueller.
The New Restrictive Covenants Act:
Sloppy Draftsmanship May Soon Be Forgiven
by J. Matthew Maguire, Jr. and Geremy W. Gregory,
Balch & Bingham, LLP 
Maguire GregoryOn April 29, 2009 Governor Perdue signed a bill fundamentally altering the treatment of restrictive covenants in Georgia. Assuming the required constitutional amendment is ratified as discussed below, Georgia General Assembly Act 64 (formerly HB-173) will have a dramatic effect on the legality of non-compete, non-solicitation, and non-disclosure covenants.
Georgia courts are among the most hostile in the nation to restrictive covenants due to Georgia's strong public policy against contracts in partial restraint of trade. This policy is
reflected in ART. III, SEC. VI, PARA. V(c) of the Georgia Constitution of 1983, which prohibits the General Assembly from authorizing any contract "which may have the effect of or which is intended to have the effect of defeating or lessening competition, or encouraging a monopoly..."
Judge Doris L. (Dee) Downs and Lynn M. Roberson Speak at the December 11th Breakfast
by Kevin P. WeimerFellows LaBriola, LLP 

lit dec 09On December 11th, the Section welcomed Fulton County Superior Court Chief Judge Doris L. ("Dee") Downs and Swift Currie litigation partner Lynn M. Roberson to speak on, "Making Opposing Counsel's Job Easier:  Pitfalls To Avoid-A View from the Bench and the Bar."  Relying on their wealth of litigation experience, including numerous jury trials, both speakers identified mistakes they have observed by litigants, including:  (1) failing to communicate with opposing counsel prior to raising issues with the Court; (2) being unfamiliar with the rules of evidence or procedure; (3) being unfamiliar with the substantive area of the law on which the case purportedly is based; (4) taking on cases with little viability; (5) feeling compelled to argue every point and every issue; (6) failing to use an expert; and (7) using the wrong expert.  This very practical presentation was well attended.

Barry Frankel and Ray Persons Speak at the November 20th Breakfast
by Stephen T. LaBriola, Fellows LaBriola, LLP
lit nov 09At the November 20, 2009 Litigation Section Breakfast, Ray Persons, a litigation partner with King & Spalding, and Barry Frankel, a CPA, JD partner of Habif Arogeti and Wynne were the speakers for a topic titled, "Show Me the Money:  Effective Presentation of Damages at Trial." Ray and Barry spoke on the importance of early involvement of litigation counsel with forensic accounting both to prove damages for the plaintiff and to defend against damages theories when representing the defendant.  They discussed several different types of cases and explained the common elements shared in the litigator/accountant role leading up to and during trial.  Taking a series of transactions and making the presentation easy to understand was both a goal to achieve at trial and one they achieved during the presentation.  Barry, in particular, focused on the assumptions upon which every calculation must be based and the need for litigation counsel to understand how the numbers change when the variables utilized for each calculation change.  The presentation was well attended, educational, and entertaining.

Tye G. Darland and Elizabeth Finn Johnson Speak at the October 16th Breakfast
by John W. Harbin, King & Spalding LLP
lit oct 09The October 16 breakfast featured Tye G. Darland, General Counsel of Georgia Pacific Corporation, and Elizabeth Finn Johnson, Senior Litigation & Employment Counsel for The Coca-Cola Company, speaking about "What In-House Counsel Hate, and Appreciate, About Trial Counsel," and how outside litigation counsel can better work with in-house counsel and help their joint clients through the current downturn.  Tye and Elizabeth described the legal departments of their respective companies and the issues they are facing.  Both spoke about the growing importance of predictability of litigation costs and thus of fixed fee and other alternative fee arrangements.  Both said that clients appreciate litigation counsel who are proactive about such matters. On matters other than fees, Tye emphasized the importance of early case assessment and keeping the client informed, including giving prompt notice of bad news.   Elizabeth emphasized the importance of the outside attorney learning the client's business.  Both said they want as counsel someone who views the relationship as long-term.  The breakfast was well-attended, and the audience appreciated the interesting and current information shared by Tye and Elizabeth.
Tony Cochran Speaks at the September 11th Breakfast
by James D. Blitch IV, Holland Schaeffer Roddenbery Blitch
Sept. 09 lit breakfast pictureAnthony L. Cochran of Chilivis Cochran Larkins & Bever, LLP spoke to the Section on September 11, 2009, about witness preparation.  Tony has practiced in Atlanta for 33 years and handled a wide variety of business and criminal litigation matters.  In his talk, he stressed the importance of preparing the witness to be natural and to tell the truth. Witnesses who are honest will do just fine on the stand. The lawyer needs to understand who the witness is and how he/she comes to the case.  What motivates the witness?  What biases are there?  What are the potential dangers (e.g., the salesman who thinks he/she can close the deal or the CEO who thinks he/she is always in control)? Preparing a chronology and reviewing documents also are critical steps in working with witnesses.  The more time you have to work with the witness in multiple prep sessions, the better, but it is important not to over prepare because the witness needs to come across as being natural.  Tony also mentioned what he calls the 97% rule:  no matter how many suggestions are made, 97% of witnesses are likely to testify their own way.  The talk was very well received.
The Litigator is Looking for Articles of Interest
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The Litigator is looking for articles of interest to Atlanta trial attorneys.  If you would like to submit an article for publication, please contact the editor, Kevin Weimer, at or