O’Dell & O’Neal Celebrating Families

Celebrating Families 2014 croppedCelebrating Families is a weekly event in Judge Stedman’s drug treatment court program. Families in the program come together every week for a dinner, fellowship, parenting and life skills training. The staff at O’Dell & O’Neal partnered with Kiwanis volunteers, David Cohen and Julie Jacobs, to help serve food for the May 8th dinner. We enjoyed the interaction with the kids and their parents who are working so hard to function positively.

The View Isn’t Looking Good for Sherri Shepherd

IMG_8925By Leslie O’Neal

The View doesn’t look too good right now for Sherri Shepherd.  The typically upbeat co-host of the daytime talk show “The View” is currently dealing with not one, but two separate custody battles.  It has been widely reported that Shepherd’s current husband, Lamar Sally, initiated legal proceedings on May 2, 2014 seeking full legal and physical custody of their unborn child, who is presently being carried by a surrogate.   However, what flew under the radar until just recently was that Shepherd’s former husband, Jeffrey Tarpley, had already filed a request with the Los Angeles Superior Court in April of 2014 requesting that his custody arrangement with Shepherd be modified and the Court award him full custody of their 9 year old son, Jeffrey.  Tarpley is claiming that Shepherd’s demanding professional life has “caused her to neglect Jeffrey and deprive him access to basic educational needs, a nurturing and loving environment, and care that Jeffrey so desperately needs”.   Shepherd has filed a response contending that it is actually Tarpley that is the absentee parent.

Custody modifications are not uncommon in Georgia.  The law recognizes that because children mature and develop in unforeseeable directions, an initial award of custody may not always remain the arrangement that promotes the best interests of the child.  Changes that arise such as the addition of step-parents or the potential relocation of one parent can cause modification lawsuits to be just as contentious, if not more so, than the original divorce action.

Thankfully Georgia has parameters in place to prevent repetitive modification lawsuits, which can cause a significant amount of tension between parents.  Georgia law requires that a parent can only seek a change to the custody arrangement in place if he or she can demonstrate that there has been a material change of circumstances affecting the welfare of the child since the last custody award was entered.   O.C.G.A. 19-9-3.  The change can be either a positive or a negative change, but must be material in order to justify the Court revisiting a previous order.

Because Tarpley cites to Shepherd’s “demanding professional life” as the cause of his lawsuit, his lawsuit would be subject to attack in Georgia.   Shepherd began her role as permanent co-host on “The View” in 2007 and the parties didn’t divorce until 2009.  Therefore, she presumably already had a demanding work schedule when the original order was entered regarding custody of Jeffrey.   If the case were being litigated in Georgia, Tarpley would need to demonstrate that the professional demands and time requirements of Shepherd’s job are substantially different than they were in 2009, or Shepherd could seek a dismissal of the suit altogether.

In the meantime, Sheperd’s current husband is seeking to set aside their Pre-Nuptial Agreement which reportedly guarantees that Shepherd has full custody of their unborn child.  To find out whether Georgia law allows for Pre-Nuptial Agreements to cover custody of a child, read Leslie’s February, 2014 Celebrity Scenario Blog: http://www.odelloneal.com/blog/celebrity-scenarios/gabrielle-union-dwyane-wade/

The Trial – Part II

IMG_8717By Justin O’Dell

 

 

Thus far, Dick has been served with a lawsuit for breach of his employment contract, but has prevailed in avoiding an interlocutory injunction shutting down his new company.  We have discussed the discovery process, mediation/arbitration and are now on to a final trial.  Recall that employment contracts are unique in that a Judge decides whether or not the contract can be enforced as a matter of law.  If the Judge decides that the contract is not clearly in violation of public policy, the matter can proceed to a jury on damages.  In our last discussion, we outlined the pre-trial motion and opening statement phase of a final trial.  This month, we will look at the presentation of evidence from the Plaintiff and Defendant.  Recall that the general outline of a jury trial is as follows:

  1. Pre-trial matters outside the jury;
  2. General Instructions from the Court;
  3. Opening Statements;
  4. Presentation of the Plaintiff’s Case;
  5. Motions for Directed Verdict by Defendant;
  6. Presentation of the Defendant’s Case;
  7. Presentation of Rebuttal Evidence by the Plaintiff;
  8. Closing Argument by the parties;
  9. Jury Charges and Instruction
  10. Jury deliberation & verdict

The presentation of evidence by the Plaintiff and the Defendant is done generally by the examination of witnesses and introduction of documents into evidence.  Both testimony and documents are considered as evidence for the jury.  The jury decides all issues related to the weight and credibility to allow the testimony of each witness and to give various documents.

When a witness is presented by a party, that witness is called for “direct examination.”  During direct examination, the attorney is limited to asking non-leading questions.  Leading questions are those which are suggestive of the answer.  Following direct examination, the opposing attorney is entitled to “cross examination” of each witness.  During cross examination, the attorney may use leading questions and, most trial experts agree, should only use leading questions.

An example of a non-leading question, appropriate for direct examination in our case would be:

Q:  “Now Dick, can you tell the jury about how this new contract containing the disputed covenant came to be signed?”

As you can see, the question is open-ended and calls for Dick to do the majority of the talking and tell the story.

An example of leading questions on the same subject matter, appropriate for cross examination, in our case would be:

Q:  Now Sir, isn’t it true that this is your signature on the contract?

A:   Yes.

Q:  And isn’t it true that you signed the contract on Friday, June 24, 2011?

A:  Yes

Q:  And when you signed the contract, you were allowed to read it first?

A:  Yes.

Q:  And if you chose not to read it, that is not the company’s fault, correct?

A:  Correct.

Q:  And you are here today to try and get this jury to get you out of the document that you freely read and signed back in June of 2011, aren’t you?

A:  …..

As you can see, at the point of the last question, the Witness’ answer no longer matters.  The attorney asking the questions is doing the testifying and telling the story.

Proper examination and the introduction of evidence takes volumes of knowledge and years of practice.  The best trial lawyers are able to be completely invisible on direct examination and become the center of attention on cross examination.  Maintaining the balance between the two roles is essential to a trial.

As the evidence is introduced and each side presents their case to the jury, the only item remaining is deliberation and a verdict.  Next month, we shall see what happens.

The Trial

IMG_8717By Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction shutting down his new company.  We moved through discussions of the discovery process, mediation/arbitration and are now on to a final trial.  Recall that employment contracts are unique in that a Judge decides whether or not the contract can be enforced as a matter of law.  If the Judge decides that the contract is not clearly in violation of public policy, the matter can proceed to a jury on damages.  In our last discussion, we outlined the process for selecting a jury.  Now that a jury is in the box, we turn to the process of a final trial.

A jury trial is a very complicated process and can vary slightly based on the type of case being presented.  Nonetheless, virtually every trial will follow this process:

1)      Pre-trial matters outside the jury;

2)    General Instructions from the Court;

3)    Opening Statements;

4)    Presentation of the Plaintiff’s Case;

5)    Motions for Directed Verdict by Defendant;

6)    Presentation of the Defendant’s Case;

7)    Presentation of Rebuttal Evidence by the Plaintiff;

8)    Closing Argument by the parties;

9)    Jury Charges and Instruction

10)  Jury deliberation & verdict

The pre-trial motion phase conducted outside the presence of the jury is the final attempt by the Court and the lawyers to outline the evidence which can and cannot be presented to the jury.  Most evidentiary issues must be handled during the trial as the case is being presented and unfolds.  However, there are certain types of evidence which could be so prejudicial and harmful to one side or the other that it would be improper for a party to even make reference to it.  Using our present case as an example, it would be out of bounds for either party (Dick or his former company) to make reference to the total financial condition of the other.  The case involves a dispute over an employment contract and potential breach of the same.  While it might be permissible for Dick’s former company to discuss specific customers that had been “poached” by Dick, the total amount of money Dick is making on other clients and customers had no bearing on the dispute.  Likewise, it is immaterial for the jury to learn or be made aware of the total amount of money the former company is making even despite Dick’s departure.  If a jury heard this information (even if it were ruled inadmissible upon an objection), the jury could be prejudiced into deciding the case based on the financial equities involved rather than the contract dispute itself.

Following the resolution of the pre-trial matters and some general instruction by the Court, each party is allowed to present an opening statement.  The opening statement to the jury is the first time that each party has a chance to introduce the case and their client.  An opening statement is not evidence, but rather an outline by the lawyers about what each believes the evidence will show and the conclusion to be drawn.  The lawyers often use the phrase “We anticipate the evidence will show….”  The best opening statements are those that tell a story or paint a picture almost leading the jury to the desired conclusion.

In our case, a formalistic opening statement for Dick would start with his employment contract and recount the anticipated evidence about the terms of the contract and Dick’s good faith compliance with the same.  The statement would conclude with the lack of damages on the part of the Defendant and the lack of evidence of any such damages.

A better opening statement would commence like this….  Dick is a married man with a wonderful wife and two beautiful children.  Dick spent most of his life dedicated to X Company.  He took a job there in 2005 and signed a contract regarding his rights and responsibilities to the Company and its customers.  Dick was a valued and dedicated part of the team and did an outstanding job for X Company.   Unfortunately, X Company did not see employees that way.  On October 12, 2009, a personnel memorandum was generated by Susan in HR.  That memorandum, obtained in discovery, will be in evidence and you will learn that X Company decided that it “should do everything in its power to make sure that its employees could never leave and take competitive jobs.”  That memorandum led to the contract that is the dispute in this case.  That contract was given to Dick one day along with a big stack of other new policies and he was told to sign.  Your decision will be to decide whether or not X Company should be allowed to “do everything in its power to make sure that its employees could never leave and take competitive jobs.”

Next month, we will continue our trial discussion and look at the presentation of the case and evidence.  In June, we will discuss the process of a jury verdict.

Skating on Thin Ice

IMG_8925By Leslie O’Neal

Olympic bronze-medal winning ice skater Johnny Weir’s marriage to his attorney husband, Victor Varnov, is on thin ice.  The pair wed in New York City on New Year’s Eve in 2011 in a civil ceremony.   Weir filed for divorce in February of 2014 citing domestic difficulties, and not unlike his flamboyant shows on the ice, the demise of his marriage has seen its fair share of drama.  So far the divorce has included accusations of adultery, meddling in-laws, and even arguments over custody of the couple’s beloved dog!  While many of these are typical issues dealt with in divorce cases, the dissolution of a homosexual marriage is a rapidly changing area of the law.

Thankfully for Weir and his husband, they aren’t seeking a divorce in Georgia, where there are currently very few legal protections for same sex couples.  Georgia’s Constitutional Amendment 1 was passed in 2004 and makes it unconstitutional for the state to recognize gay marriage.   Therefore, even if a same sex couple had been in a committed relationship for years or had been legally married in another state, their divorce petition would be denied as a matter of law.  But this state of the law doesn’t change the reality that there are countless same sex couples living in Georgia.  When same sex couples reach the end of their relationship, one or both of them can be in an extremely vulnerable position due to the lack of precedent regarding the division of their assets and/or debts. 

Because there is virtually no legal precedent in Georgia for the dissolution of same sex relationships, attorneys often have to get creative and use equitable theories and principles that are more traditionally used in business litigation.  For example, if the couple owned real estate together and both names are listed on the deed, either party could seek a partition of the property, at which point the Court would either apportion each party’s interest in the property, or possibly force the sale of the property so the proceeds can be divided.  Same sex couples can try to accomplish the division of non-real estate assets and personal property through other quasi-contract legal theories, but these approaches are still relatively uncertain.  Even the most creative legal approaches cannot allow for spousal support in a situation where one partner of a same sex relationship has been financially dependent on the other for a long period of time.

While there is very little clarity for same sex couples going through a separation in Georgia, recent high profile rulings on same sex marriages could mean new developments on the horizon for the state of the law.  Thankfully for Weir and his husband, they are divorcing in New Jersey, where same sex marriages are recognized and their legal rights to divorce have already been established.   Now they can focus on the truly important issues, like custody of their precious pooch!  According to Court papers obtained by PEOPLE, Weir’s husband claims that although their beloved dog was purchased by Weir, it should be awarded to him because it was “a ‘make-up gift’ after he caught Weir sending inappropriate text messages to another man.  A battle over the pup may be brewing, as Weir told People magazine last year that the dog was “the love of his life” and has been posting photographs of the dog on Instagram since the divorce proceedings began.

To find out how pets are treated in a divorce in Georgia, visit Leslee Champion‘s blog post: http://www.odelloneal.com/blog/for-the-good-of-the-order/who-let-the-dogs-out

 

Who Let the Dogs Out?

IMG_8618By Leslee Champion

For some, their pets are their children. So what happens to the family dog after a divorce? In most states, including Georgia, pets are treated as personal property. That is, the pet is treated as an “asset” and will be awarded to one party or the other depending on the facts and circumstances of the case. In determining who owns the pet, judges may consider factors such as who owned the pet prior to the marriage, who took care of the pet and who supported the pet financially. However, as pets are considered to be property in Georgia, individuals cannot be granted visitation with their pets.

Many find these laws to be too harsh, so it’s not surprising that many jurisdictions are changing the way they view pet custody laws. Recently several states have begun treating pets more like children, allowing divorced couples to divide ownership of the pet in a way that both parties get a chance to see their animal.  Like a child, these courts will look at what is in the best interest of the pet and determine custody, visitation, and even pet-support payments. In New York the Appellate Court awarded sole custody of the cat to a party Defendant, finding that the cat was a “feeling individual, who had “lived, prospered, loved and been loved” solely by the Defendant. (See Raymond v. Lachmann, 695 N.Y.S. 2d 308 (N.Y. App. Div. 1999)).  As Georgia still sees pets as property, the best approach for couples is to reach a mutual agreement on their pet issues and enter into a settlement agreement outlining the custody and visitation of the pet.

So, it could all come down to the question of who let the dogs out?

Who Pays for College?

IMG_8618By Leslee Champion

As you might have recently seen on the news, 18 year old Rachel Canning is suing her parents for financial support and college tuition. As the national average for public secondary education costs exceeds $13,000 (including tuition, fees, and room and board), you can understand why many children, and divorcing parents, have looked to the courts to force one or both parents to pay for these educational costs.

While parents have a duty to support their children until they reach the age of majority, most states, including Georgia, contain no legal provision requiring parents to contribute towards their children’s college expenses. In Georgia, a parents duty for child support, including educational expenses, will ordinarily terminate upon the child reaching the age of majority (18), getting married, dying, or becoming emancipated. (Code of Georgia Sec. 19-6-15(e)) However, the Georgia Code does allow the trial court, in its sound discretion, to require financial assistance to a child (not married or emancipated) who is enrolled in college, provided that the assistance shall not be required after the child is 20. So if you are lucky enough to get college parental support, you better graduate early, as the funds will likely end after your second year.

Additionally, parties are free to contract with each other to provide for their children’s educational expenses for longer periods and these contracts are enforceable by the courts. It should be noted however, that an intention to support a child beyond its minority will be found only if the agreement contains specific and unambiguous language to that effect. Without the parent’s consent, neither a court nor a jury can force that parent to support the child beyond the age of 18 (or for secondary school education up to age 20).

 

Dick & Jane – Striking a Jury

IMG_8717By Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction shutting down his new company.  We have moved through discussions of the discovery process, mediation/arbitration and are now on to a final trial.

The process of a final jury trial is so complicated that it could consume our discussion for the remainder of the year.  In order to move along, we will discuss the trial process in just two articles.  For this month, we will look at jury selection.  Next month, we will look at the actual trial process and verdict.

Jury selection is a very misunderstood process outside of trial lawyers.  Most non-lawyer members of the public believe that they are “selected” or “picked” for jury service.  In fact, it is quite often the case that in post-trial interviews jurors want to know “Why did you pick me?”.  The reality of the process is that jurors are not “picked” but rather jurors are “struck” and the jury which ultimately tries the case consists of those jurors who remain and are not stricken by either party.

The process begins with a qualification process administered by the Court.  If a jury of 12 (with 1 additional alternate) is to be seated, the Court will generally bring 36 or more eligible jurors into the Courtroom.  The Court will generally confirm that the jurors brought in are eligible to serve (over the age of 18, residents of the County and not been convicted of a felony).  The Court will then confirm that the jurors do not have any personal relationships or connections to the case being tried so as to be impartial or biased.

Once the jurors are confirmed as eligible, the parties to the case begin a process called “voir dire.”  The term is so archaic that lawyers cannot even agree as to how to pronounce it.  In regions outside of the South, “vwah deer” is the prevailing pronunciation.  Much as we do with all such things, Southerners tend to eliminate the European accent and say “vor dire.”  The process is more actually called “Q & A.”

In this process, each lawyer will ask the potential jurors are variety of questions about themselves.  The lawyers can ask questions based on the case, but not ask anything specific about the case or ask the jurors to prejudice the case in any way.  By way of example, in our case involving Dick and his former company, both lawyers would be interested to know which jurors owned businesses and which jurors were employees of businesses.  The lawyers might be inclined to know which jurors had left a company to start up their own business.  Deeper questions might involve asking the jurors to discuss or opine on whether they believe a contract was inflexible and binding or whether concepts of freedom and liberty of employment were more important.  The process walks a fine line in trying to solicit the personal leanings and sentiments of a jury without impermissibly asking them to judge the case at hand.   Most lawyers also have a series of standard, general questions designed to elicit personality types (leader v. follower), understandings of the legal system, prior dealings with Courts and lawyers, etc…  For example, a juror who reveals that he/she is an ardent fan of legal TV shows like Law & Order, CSI and NCIS will often have an unrealistic expectation of evidence and the drama of a real trial.

During the Q & A process, both sides of the case take notes and score the jurors for positive and negative attributes related to the case.  When the questioning is complete, both sides have the opportunity to strike or excuse any jurors for cause (meaning the juror is biased, has a personal conflict or something that prohibits them from serving).  Next, a sheet listing all of the jurors is given to the Plaintiff’s attorney.  The sheet lists the first 24 eligible jurors and the next 3 eligible jurors.  From the first 24 names, the Plaintiff “strikes” out one name and passes the sheet to the Defendant.  The Defendant then “strikes” out one name and passes the sheet back.  This continues until each side has stricken out 6 names, leaving 12 remaining.  Each side uses their strikes to remove the jurors they believe to be the most harmful to their case.  Jurors cannot be stricken for reasons related to gender, race or age and if a party believes such behavior has occurred, the party can challenge the other party to provide a non-prohibited basis for the strike.  There is incredible strategy in the order in which jurors are stricken.  Often times a party will hold off on striking a potentially negative juror to see if the other party will strike that juror first.  This gives the first party the ability to strike another juror.

After the first 12 strikes, the 12 individuals remaining will constitute the trial jury.  From the next 3 eligible jurors, each side strikes 1 name and leaves the remaining person to serve as the alternate juror.  In high profile cases or cases which will last an extended period of time, a Judge might require that 2 or 3 alternates be selected.  The alternate juror sits through the entire proceeding not knowing that they are the alternate.  If at any time a member of the 12 is excused for behavior, illness, emergency, bias or any other reason, the alternate is moved onto the formal jury.  If the trial ends without using an alternate, then the alternate is excused and does not take part in deliberations.

As you can see, a jury is not “selected” but rather “eliminated” which is the basis for the phrase “striking a jury.”  Quite often, the jury seated is made up of individuals who answered few, if any, questions during the voir dire process.  By largely remaining silent, these jurors gave very little information from which one side or the other could make a negative association.

In other words, if you want to increase your chances of NOT being on a jury, speak up early and often during “voir dire.”

O’Dell & O’Neal Joins the 100 Challenge

KEM at MUST - 100 Challenge croppedBack-to-back snow storms in Cobb County and the Metro Atlanta area in early 2014 took a toll on local food banks. O’Dell & O’Neal joined with surrounding businesses and residents in the “100 Challenge” to help replenish supplies at MUST Ministries. We gathered donations of food and household items along with a $100 cash donation for the pantry at MUST and Kelli Morrell delivered them to the donation center. We encourage everyone in the community to remain alert to the growing needs and diminishing supplies at our local non-profit organizations during these winter events.

Justin O’Dell Selected Again by Georgia Super Lawyers

Justin at podiumJustin O’Dell has been selected again by Georgia Super Lawyers as a Rising Star for 2014! While up to 5 percent of the practicing lawyers in our state are named to Super Lawyers, no more than 2.5 percent of those are named as Rising Stars.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-­‐phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. For more information about Super Lawyers, go to superlawyers.com.

The first Super Lawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 Super Lawyers was acquired by Thomson Reuters the world’s leading source of intelligent information for business and professionals.