Litigation Section

The Litigator: A Litigation Section Publication

In This Issue
Upcoming Events
Ignore Georgia's Physical Precedent Rule at Your Own Risk
AT&T Mobility LLC v. Concepcion
Ashcroft v. Iqbal
Andy Scherffius Speaks to the Section
Peter Canfield and Richard Griffiths Speak to the Section
Mike Thurmond Speaks to the Section
Beth Tanis Speaks to the Section
Justice Harold D. Melton Speaks to the Section
Quick Links
May 2011
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
Next Section Breakfast
Friday, May 13, 2011 - 7:30 am
"What's New Under the Gold Dome"
    Representative Stacey Y. Abrams
    84th House District
    Representative Edward H. Lindsey, Jr. 
    54th House District
    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
Ignore Georgia's Physical Precedent Rule at
Your Own Risk
by Drew D. Dropkin, King & Spalding LLP 
When eight Justices of the United States Supreme Court concur fully in an opinion and the ninth Justice concurs in the judgment only, litigators instinctively know that the opinion constitutes binding precedent.  In similar fashion, when a three-judge panel of the Eleventh Circuit issues an opinion in which two judges fully concur while the third judge concurs in the judgment only, litigators again naturally-and correctly-view the opinion as binding precedent.  See Marks v. U.S., 430 U.S. 188, 193-94 (1977) (when a single rationale explaining the result enjoys the assent of the majority of the Court, that rationale constitutes the controlling opinion).
But, unbeknownst to many litigators who practice in Georgia courts, when the Georgia Court of Appeals issues a three-judge opinion in which two judges concur fully and the third judge concurs in the judgment only, that opinion is not binding precedent.  Instead, under Georgia Court of Appeals Rule 33(a), the opinion is merely "physical precedent," which means that it "is not a controlling precedent."  Sheet Metal Workers Int'l Ass'n v. Carter, 133 Ga. App. 872, 876 (1975).  For litigators unaware of Georgia's unique "physical precedent" rule, Rule 33(a) poses a trap for the unwary.
AT&T Mobility LLC v. Concepcion:  U.S. Supreme Court Holds That The FAA Preempts State Court
Rule Finding Class Waivers in Arbitration
Contracts Unconscionable
by Ashley Cummings, Hunton & Williams LLP
  To combat the trend among companies to
  insert into consumer contracts mandatory
  arbitration clauses that waive the right to
  proceed as a class action, plaintiffs - often
  successfully - argued that such clauses were
  unconscionable and thus unenforceable.  The United States Supreme Court recently rejected that argument in AT&T Mobility LLC v. Concepcion.
The foundation for plaintiffs' unconscionability argument was laid by Discover Bank v. Superior Court, in which the California Supreme Court held that class waivers in arbitration clauses are unconscionable if the clause is in a consumer contract of adhesion, the parties' disputes are likely to involve a small amount of damages, and the party with inferior bargaining power alleges that the company engaged in a deliberate scheme to defraud consumers.   Other state appellate courts followed this reasoning to reach similar conclusions.   The Ninth Circuit enforced the California state court rule barring the enforcement of class action waivers.   Likewise, federal circuit courts applied other states' unconscionability laws to hold class waiver arbitration clauses unenforceable.  
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009):
The "New" Rule 8, F.R.Civ.P
by Wallace R. Nichols, WR Nichols Law Firm
Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) is the "new" Rule 8, F.R.Civ.P., for every action filed in federal courts.  It is ill-advised for plaintiffs or defendants affected by this decision to attempt to limit or circumvent Iqbal's explanation
of the Bell Atlantic Corp. v. 
First, plaintiff must fully understand the cause of action to be pled and, arguably, the most obvious defenses that will be raised.  If there are gray areas concerning the "contours" of the substantive law in any areas, plaintiff is well-advised to allege facts with as much specificity as possible to make them plausible under the existing state of the law as is most appropriate to support plaintiff's case.  Second, plaintiff must plead facts that support each element with sufficient "amplification" to avoid being "conclusory."  Finally, plaintiff needs to consider "obvious" alternative interpretations of the facts alleged, and ensure that plaintiff's version of the facts, as alleged, contain enough further factual enhancement to "cross the line between possibility and plausibility of entitlement to relief," test.  The decision arguably weighs heavier on plaintiffs.  Still, that is not the end of the analysis for plaintiffs facing this new frontier.  Plaintiffs need to understand the Twombly 2-Step Analysis and simply meet it in order to overcome defensive motions to dismiss grounded on Iqbal and Twombly.
Andy Scherffius  Speaks to the Litigation Section at the December 10, 2010 Section Breakfast

The Litigation Section was honored to have national, if not international, expert Andy Scherffius speak about aviation litigation at the December 10, 2010 meeting.  Andy provided a fascinating and insightful glimpse into this complex and highly specialized area of the law that most practitioners will never encounter.  He discussed the evidence that is generated from a plane crash, how it can be obtained in the course of litigation, evidentiary problems that might be encountered at trial, and how this evidence can be used to establish liability at trial.  Andy also offered insights into the human side of these catastrophic cases.
Peter Canfield and Richard Griffiths Speak to the Litigation Section at the January 21, 2011 Breakfast 
  Peter Canfield
, a partner
  with Dow Lohnes PLLC, 
  and Richard Griffiths,
  Senior Editorial Director
  with CNN, spoke to the
  Litigation Section on
  January 21, 2011.  Their
  talk, titled "Lawsuits & Live Shots: Litigating in the Court of Public Opinion," was about the interaction between the media and the courts.  Richard Griffiths expressed his opinions about the importance of open access, but he also discussed how the courts are becoming more difficult to access with financial cuts affecting both media outlets and courts.  Peter Canfield gave some practical advice about how talking to the media about litigation matters, and he also stressed the value to the public of having open access to the courts.  The program was well attended.
Mike Thurmond  Speaks to the Litigation Section at the February 11, 2011 Section Breakfast

Mike Thurmond, who is Of Counsel to Butler, Wooten & Fryhofer, LLP, spoke to the Litigation Section on February 11, 2011.  The title of his Black History Month presentation was "Advocacy and Litigation during the Slavery Era in Georgia."  Mike focused on the life and legacy of General James Oglethorpe, Georgia's founding father. Oglethorpe established the Georgia Colony in February 1733, and he led the effort to enact a statute prohibiting slavery in Georgia.  Pro-slavery advocates opposed his efforts and eventually abolished the anti-slavery statute in 1751.  According to Thurmond, this set the stage for decades of criminal and civil litigation in Georgia state courts involving the sale, purchase and enslavement of Africans.  Legal disputes in the area of trusts and estates became the epicenter of slavery-related litigation.  Georgia law allowed for deceased slave owners to manumit their slaves by will.  Disgruntled prospective heirs often sued to invalidate these "death bed" manumissions.  Scores of the cases were eventually appealed to the Georgia Supreme Court.  Georgia lawyers played critical roles in securing the freedom of hundreds of enslaved blacks by successfully arguing that the intestate emancipations in question be upheld. 
Beth Tanis  Speaks to the Litigation Section at the March 18, 2011 Section Breakfast

Beth Tanis, a partner at King & Spalding LLP, spoke to the Litigation Section at the March 18, 2011 breakfast meeting.  The title of her talk was "Financial Fraud Litigation: Trial, Strategy and Other Unique Challenges."  Beth started by speaking about practical litigation tips when dealing with complex business litigation based on her personal experiences as a trial lawyer in financial fraud cases.  She also discussed the importance of developing an early litigation strategy when preparing a case for trial, including identifying and embracing the strengths of your case during discovery.  The breakfast was well attended and well received.
Justice Harold D. Melton Speaks to the Litigation Section at the April 8, 2011 Section Breakfast

On April 8, 2011, Georgia Supreme Court Justice Harold D. Melton gave an entertaining and informative presentation on "Supreme Court Oral Argument: Do's and Don'ts."  Justice Melton encouraged appellate advocates to present clear, concise and logical arguments and to steer clear of hyperbole, emotional appeals and excessive reliance upon policy arguments.  He provided 20 concrete tips for better arguments, including making ample use of outlines, timelines and flow charts, answering questions in the manner most helpful to the Court, dealing with adverse authority, and understanding judicial psychology. 
The Litigator is Looking for Articles of Interest
typewriter news
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.