Litigation Section

The Litigator: A Litigation Section Publication

In This Issue
Upcoming Events
What Happens in Bankruptcy Stays in Bankruptcy?
The Revised Rules for Expert Discovery in Federal Court
David Russell Speaks to the Litigation Section
Ken Hodges and Sam Olens Speak to the Litigation Section
Jud Graves Speaks to the Litigation Section
Quick Links
December 2010
Editor: Stephen P. Cummings
Litigation Section Board of Directors
Chair James D. Blitch IV
Vice Chair/Chair-Elect: Stephen T. LaBriola
Secretary: John R. "Jake" Bielema, Jr.
Treasurer: J. Matthew Maguire, Jr.
Immediate Past Chair: John W. Harbin

Lee Ann Anand
Terrence Lee Croft
Stephen P. Cummings
Cindy Spindler Manning
Leigh Martin May
Michael J. Rust
David A. Webster
Kevin P. Weimer

Emeritus Member
H. Lane Young, II

Thank you to our Section Sponsors

Next Section Breakfast
Friday, December 10, 2010 - 7:30 am
Aviation Litigation"An Overview of the Aviation Case"
Speaker: Andrew M. Scherffius, Scherffius, Ballard, Still & Feagle LLP
Location: The Colonnade
1879 Cheshire Bridge Road
Atlanta, GA  30324

Cost: Section Members - $20; Non-Section Members - $25
Add $5 to receive 1 CLE hour
What Happens in Bankruptcy Stays in Bankruptcy?  Not Always. What Every Litigator Should Know about Claims Disclosure
by Charlotte M. Ritz, Hunton & Williams LLP and
Mark I. Duedall, Hunton & Williams LLP
bankruptcy stampUnless you regularly represent debtors or creditors in bankruptcy, you may think that bankruptcy law has little relevance to your cases.  And, for the most part, you're probably right.  But if the plaintiff in a case you are handling has ever filed for bankruptcy, you should determine whether the claims currently being prosecuted were disclosed in the bankruptcy proceedings.  If the claims were not disclosed, and the plaintiff knew or should have known of their existence, the claims likely will be barred outside of bankruptcy. 

Regardless of whether you represent the plaintiff or defendant in an action, the sooner that you determine whether any parties have failed to disclose claims in a bankruptcy proceeding, the better.  If you represent a plaintiff's whose claims were not disclosed in bankruptcy, you may be able to keep the claims alive by taking the steps outlined below.  If you represent the defendant in such a case, you may able to secure a dismissal or increase your client's settlement leverage based on the doctrines discussed below. 
Take a Breath and Relax a Bit/The Revised Rules for Expert Discovery in Federal Court
by John W. Harbin, King & Spalding LLP
For those who practice in federal court, the rules governing federal court and gavelexpert witness discovery have been changed to (a) broaden the categories of experts who must be disclosed and (b) more importantly, enhance the work product protections afforded communications with testifying experts and the drafts of their reports.
Specifically, Rule 26 of the Federal Rules of Civil Procedure has been modified in several respects, the following being the most notable. The amendments are effective December 1, 2010.
A. The revised rule as to mandatory disclosure of testifying experts.
Rule 26(a)(2)(A) previously required each party to disclose "the identity of any witness it may use at trial to present evidence under [FRE] 702, 703, or 705." Subpart 26(a)(2)(B) required the disclosure to be accompanied by a written report, prepared and signed by the witness, if "the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony."

A new subpart (C) has been added to Rule 26(a)(2), concerning expert witnesses who do not have to provide a written report under 26(a)(2)(B). Subpart 26(a)(2)(C) requires that the disclosure of such witnesses include (unless otherwise stipulated or ordered by the court) (i) the subject matter on which the witness is expected to present evidence under FRE 702, 703, or 705, and (ii) a summary of the facts and opinions to which the witness is expected to testify. Thus, such additional information appears to be required for employees who are going to be called to give expert testimony but whose duties do not regularly involve expert testimony and third parties who will be called to give expert testimony but who have not been specially retained or employed as an expert.
David Russell Speaks to the Litigation Section at the November 12, 2010 Section Breakfast
by James D. Blitch IV, 
Holland Schaeffer Roddenbery Blitch, LLP
David Russell, a partner with Parker Hudson Rainer & Dobbs LLP, spoke to the Litigation Section on November 12, 2010.  The title of his talk was "10 Sure-Fire Ways to Write Persuasively."  David started by stressing the importance of the one minute test: making sure that you state your main point in the first sentence and that it takes no more than one minute for the court to read and understand it.  Another point was avoiding all of the archaic phrases in legal writing that only impede the real point the author wants to make.  David stressed making a solid introduction that summarizes all of the major points.  Regarding the facts, it is important to write a compelling story that tells the essential facts.  David encouraged writers to take time to rewrite and to use lively language (but never extremist language) that adds color and is enjoyable to read.  David mentioned the ABCs of good legal writing: be accurate, be brief, be clear.  Another point he stressed was being respectful regarding opposing counsel, advising that the good writer should "vent to your colleague; write for the court."  The talk was well attended and well received.
Ken Hodges and Sam Olens Speak to the Litigation Section at the October 8, 2010 Section Breakfast
by Michael J. Rust,
Gray, Rust, St. Amand, Moffett & Brieske, LLP

On October 8, 2010, the Litigation Section of the Atlanta Bar Association hosted a debate between Attorney General Candidates Kenneth B. Hodges, III, the Democratic primary winner, and Samuel S. Olens, the Republican primary winner, at the Colonnade Restaurant in Atlanta. Libertarian candidate Don Smart was unable to attend. The debate was moderated by Litigation Section board member Michael J. Rust. 

Both Mr. Hodges and Mr. Olens each asserted that their backgrounds in local government made them uniquely qualified to serve as the State's next Attorney General. As Dougherty County's District Attorney, Mr. Hodges was involved in prosecuting public corruption and corporate fraud, protecting children from predators and working with local law enforcement to fight violent crime. Mr. Olens, the former chairman of the Cobb County Commission, led a county government with over 4,500 employees and an annual budget of $800 million and through his position as Vice-Chair of the Metropolitan North Georgia Water Planning District assisted in developing comprehensive regional water resources plans.


The Candidates addressed questions posed by litigation section members on numerous issues including the tri-state water litigation, the proposed Amendment 1 to the Georgia Constitution, the role of the Attorney General in addressing healthcare reform, and ethics reform for government officials. Both gentlemen answered the difficult questions with skill and made compelling arguments as to why they were qualified to be Georgia's next Attorney General. At the end of the debate, Mr. Hodges and Mr. Olens were each presented with the coveted Litigation Section mug for participating in the spirited debate. 

Jud Graves Speaks to the Litigation Section at the September 10, 2010 Breakfast 
by James D. Blitch IV, 
Holland Schaeffer Roddenbery Blitch, LLP 

Jud Graves of Alston & Bird spoke to the Litigation Section of the Atlanta Bar Association at the section's breakfast meeting on September 10, 2010.  The title of Jud's talk was "In Your Face Litigation: Thoughts on Conflict, Hostility, and the Adversarial Process."  Jud started by describing the situation where a trial lawyer during the course of a trial is "in the zone."  He compared this state of mind and performance to that of a basketball player who can't miss a shot or a baseball player who's on an incredible hitting streak.  For the trial lawyer, this is a highly pleasurable and attainable place to be.  The question, though, is this: How does the lawyer get there?  Jud stressed that it starts with being open and upfront - taking the mature approach - about what the real issues of the case are about.  Instead of hiding the ball and relying constantly on trickery, the trial lawyer who wants to be "in the zone" needs to start by focusing on the real issues of the case and not succumbing to the gamesmanship stuff that frequently takes over litigation matters.  A related point that Jud stressed was that while trials are adversarial and about conflict, they need not be about excessive hostility.  The trial lawyers who practice at the highest level are not lawyers who adopt the take-no-prisoners approach.  The talk was very well attended.

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 email the editor, Stephen P. Cummings.