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
Georgia Supreme Court Justice David Nahmias Discusses Professionalism at the December Section Breakfast
Judicial Qualifications Commission Panel Speaks at the October 2011 Section Breakfast
Judicial Qualifications Commission Panel Speaks at the October 2011 Section Breakfast
Jim Butler Speaks to the Litigation Section at the September 2011 Section Breakfast
Quick Links
December 2011
Editors: Stephen P. Cummings and Kevin P. Weimer 
Litigation Section Board of Directors
Chair: Stephen T. LaBriola
Vice Chair/Chair-Elect: John "Jake" R. Bielema
Secretary: J. Matthew Maguire Jr.
Treasurer: Leigh Martin May
Immediate Past Chair: James D. Blitch IV

Christina Baugh
Terrence Lee Croft
Stephen P. Cummings
Adrienne Hunter-Strothers
Cindy Spindler Manning
Michael J. Rust
David A. Webster
Kevin P. Weimer

Emeritus Member
H. Lane Young, II

Thank you to our Section Sponsors
Next Joint Section Breakfast with the
Environmental & Toxic Tort Section
Friday, January 13, 2012 - 7:30 am
"When Environmental Enforcement Knocks on Your Client's Door (or Forces it Open)"
Speakers: Anthony L. Cochran
Chilivis Cochran Larkins & Bever

Richard E. Glaze, Jr.
Balch & Bingham LLP

Maureen O'Mara
Special Agent in Charge of Atlanta's EPA Criminal Investigation Division
Location: The Colonnade
1879 Cheshire Bridge Road
Atlanta, GA  30324

Cost: Section Members - $20; Non-Section Members - $30
Add $5 to receive 1 CLE hour
Why It Is So Difficult to Successfully Sue Public Schools and Educators for Failing to Prevent Physical Harm, Including Bullying, to Students
by Michelle LeGault, LeGault Legal, LLC
Oftentimes, parents will ask if they can sue their child's public school, school district, teachers and/or principal for failing to prevent a bullying incident in which their child was the victim. To understand the answer to this question, we will first need to review the doctrines of sovereign and official immunity.
Sovereign Immunity
As discussed below, sovereign immunity protects county-wide school districts and therefore makes it difficult for parents to sue when their child is injured at school by a bully. Georgia
recognizes, and has recognized in some fashion or another since 1784, the "doctrine of sovereign immunity", which protects the state and its subdivisions from being sued without their consent.  Gilbert v. Richardson, 264 Ga. 744, 745-46, 452 S.E.2d 476, 478 (1994). In practical terms what this means is that if the state or one of its subdivisions is sued and the doctrine of sovereign immunity applies, it will be entitled to rely on that doctrine to be dismissed from the suit at a very early stage, such as at a motion to dismiss, motion for judgment on the pleadings, or motion for summary
judgment. In Georgia, the doctrine is also explained as a
way to protect public funds. Gilbert at 749 n.7, 452 S.E.2d
at 480 n.7.
Official Immunity
Official immunity provides similar protections to county-wide school board members, educators, principals and, where employed by the school district, school resource officers from suits involving failure to prevent a bullying incident which causes personal injuries. See discussion below.
E-Discovery Cost-Shifting
by Ronni Solomon and Andrew H. Walcoff, King & Spalding
Electronic discovery costs continue to rise.   Litigants are forever seeking ways to reduce e-discovery costs across all phases of the process.  An attractive option for big companies with voluminous electronically stored information (ESI) is to attempt to shift e-discovery costs to the opponent.  The Federal Rules of Civil Procedure provide an avenue for shifting such costs -- Fed. R. Civ. P. 26(b)(2)(B) -- but it is only available upon a showing that the ESI sought by the requesting party is not reasonably accessible.  Similarly, Rules 26(b)(2)(C) and 26(c) are general provisions that allow for relief, including cost-shifting, when courts find that the burden or expense of proposed discovery outweighs its likely benefit, or that they need to protect a party from undue burden or expense.
Courts, though, have been reluctant to use the above provisions to shift e-discovery costs in a non-sanctions context, except in limited circumstances.  Relying on the presumption espoused in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978), that responding parties must bear the expense of complying with discovery requests, courts find that cost-shifting "is not to be 'considered in every case involving the discovery of electronic data, which -- in today's world -- includes virtually all cases'. . . . Any principled approach to electronic evidence must respect [the Oppenheimer] presumption."  Barrera v. Boughton, 2010 WL 3926070, at *3 (D. Conn. Sept. 30, 2010) (quoting Zubulake v. UBS Warburg, 217 F.R.D. 309, 317 (S.D.N.Y. 2003)). 
Georgia Supreme Court Justice David Nahmias Discusses Professionalism at the December 2011 
Section Breakfast
by Stephen T. LaBriola, Fellows LaBriola LLP

On December 9th, Justice David Nahmias of the Georgia Supreme Court, presented on professionalism in a talk entitled, "Professionalism:  Good and Good For You."  While addressing certain obligations within the Georgia Rules of Professional Conduct, Justice Nahmias made a distinction between an "ethical" and a "professional" attorney.  All attorneys must be ethical pursuant to the State Bar's Rules of Professional Conduct.  Therefore, technically speaking, being referred to as an ethical attorney really only refers to an attorney who complies with obligations.  However, being referred to as a professional attorney refers to an attorney worthy of true praise.  Justice Nahmias provided a series of examples to emphasize the theme of his presentation that being professional not only is good for the legal community but also is good for the attorney acting in a professional manner.  One example was when Justice Nahmias was the United States Attorney for the Northern District of Georgia and an out-of-state attorney was questioning whether she could trust a promise of future conduct a particular AUSA was making toward her client.  The attorney was encouraged to call any criminal defense attorneys she knew in Georgia and ask them if this office would stand by its word.  The attorney did just that and concluded that she could indeed trust the word of the AUSAs within this district.  The example led to a rhetorical question to ask internally of whether each audience member could do the same and have any out-of-state attorney call any other attorney in Georgia to make similar inquiries.  Justice Nahmias also noted that the professional attorney is one who gives back to the community, even if just a little at a time.  The intangible benefits may be hard to quantify, but they are good for the profession and good for the attorney.   
U.S. Attorney Sally Yates Speaks at the November 2011 Section Breakfast
by Thomas D. Bever, Chilivis, Cochran, Larkins & Bever LLP

United States Attorney for the Northern District of Georgia, Sally Yates, was the breakfast speaker at the Atlanta Bar Association's Litigation Section breakfast on Friday, November 18, 2011. She spoke to a capacity audience.
U.S. Attorney Yates explained the current focus of the three divisions of her office, those being the criminal division, the civil division, and the asset forfeiture section. She explained that one of the challenges presently is that, through attrition, her office is down by at least a dozen attorneys, but due to the hiring freeze by the U.S. Department of Justice, her office is not yet in a position to replace those attorneys at this time. Ms. Yates explained that the office, for the first time, has accepted volunteers who are qualified lawyers who are willing to work in the office in a support position without pay.
The current scenario presents a special challenge to the U.S. Attorney's Office, because the case load of the office has gone up, and has become more complex. As one example, Atlanta has replaced Miami as the No. 1 cocaine warehousing and distribution metropolitan area in the country.  Also, new crimes not seen previously to the current extent have appeared within the district, such as human trafficking, for which Atlanta has unfortunately become a hub. Additionally, international gangs now operate in the suburban metro Atlanta area, while smaller gangs continue to operate within the inner city.  At the same time, white collar offenses have not diminished, but rather, have become larger and more complex.
Judicial Qualifications Commission Panel Speaks at the October 2011 Section Breakfast
by Stephen T. LaBriola, Fellows LaBriola LLP

The October 14, 2011 Litigation Section Program featured the Judicial Qualifications Commission (JQC).  Judge John Allen, Chief Judge of the Chattahoochee Judicial Circuit and Chair of the Commissioners of the JQC, Jeff Davis, Director of the JQC, and Richard Hyde, Investigator for the JQC, co-presented.  They provided an overview of the JQC and the frequent calls the JQC receives from judges in smaller jurisdictions seeking guidance.  In responding to why so many judges have resigned in the last few years, it was noted that a rule change allowing the JQC to seal its file as confidential when a judge under JQC investigation elects to resign has been a likely factor in the increase in judicial resignations.  Richard Hyde emphasized that the cases in which he is asked to investigate involve significant deviations from Judicial Canons and, in an analogy, he noted something to the effect of, "I'm not focused on those doing 60 in a 55 mph zone; I'm stopping those who are doing 80+ in a 55 mph zone."
The Colonnade restaurant was at or near capacity, and those in attendance had more questions than time permitted, but the panel members stayed to respond in private to audience members after the program ended.  For on-line information about the JQC and its reported cases and processes, visit:
Jim Butler Speaks to the Litigation Section at the September 2011 Section Breakfast
by Leigh Martin May, Butler, Wooten & Fryhofer, LLP

James E. Butler, Jr. of Butler, Wooten & Fryhofer, LLP, spoke to the Litigation Section on September 9, 2011 to kick off this year's season of breakfast programs.  The title of his sold-out seminar was "Effective Cross Examination."
Jim focused on his tips for cross examination and shared some examples of his most effective cross examinations.  He advised attendees that the secret of cross examination was the extensive preparation he put into each one.  He also instructed that the best cross examinations are those that are friendly, polite and never forced.  Cross examination is never to be used to show off or grandstand.  Instead, it is one of the best opportunities in a trial to explain the strengths of one's own case and debunk the other side's allegations.
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.