Divorce: Contested v. Uncontested

IMG_8717By Justin O’Dell

Starting this month, we are going to switch our discussion of Dick and Jane to the topic of divorce.  This topic has a variety of subtopics and issues and we will spend time each month looking at issues ranging from division of property, alimony, child support, child custody and attorney’s fees.

For this month, the discussion needs to start with an overview of the divorce process.  A divorce is a lawsuit and is similar, in parts, to any other civil proceeding.  A divorce is initiated by filing a Complaint.  The other party files an Answer.  Both parties are able to conduct discovery.  The Courts will hear a interlocutory or temporary hearing and, if necessary, will hear and consider a final hearing.  In Georgia, a party can actually have a jury trial on the issues of division of property and alimony.

When people hear the word divorce and learn that lawyers are involved, visions of the classic film “War of the Roses” with Michael Douglas and Kathleen Turner begin to pop into their minds.  http://www.youtube.com/watch?v=5ebv3i_9Ltc

The reality is that the overwhelming majority of divorce cases are resolved by agreement.  In many instances, the case can be resolved without any legal disagreements at all.  In others, the case may start off in a disagreeable posture, but eventually finds a middle ground.

The divorce process is best divided into two types of divorces:  uncontested and contested.  An uncontested divorce is one in which the case is resolved first and then filed with the Courts.  Sometimes these cases are filed with the assistance of a lawyer and other times not.  Due to increasing levels of complexity related to dividing assets like 401(k) plans and issues related to Court mandated parenting plan forms and child support calculator worksheets, it is difficult and unwise for anyone with children or any level of assets to proceed with a divorce without at least consulting with a lawyer.

In an uncontested divorce, a lawyer cannot represent both the Husband and Wife.  The lawyer can only represent one of the spouses.  The other spouse can consult with a lawyer of his or her choosing or waive that right.  Given that every divorce involves some inherent level of mistrust or lack of communication, it is often helpful for the non-represented spouse to engage the services of a lawyer to at least review and explain the paperwork.

Uncontested divorces can still be contentious, it is just that the arguing takes place outside of the Courtroom and there is no judge to make decisions.  However, in virtually every instance, the parties will find that if they are able to reach the agreement themselves as opposed to having a Judge impose it upon them, the spouses have a much better chance of parting ways amicably.

There are some areas in which an uncontested divorce can be unwise or a poor choice, even if the process is amicable.  Those instances are:

1)      Where one spouse is at an informational disadvantage.  It is unwise for a spouse to simply sign off on a division of assets and debts where he or she has no independent knowledge of the parties’ income, assets and liabilities.  The spouse has no idea whether what is being agreed to is really a “fair deal.”

2)     Where one spouse is at an emotional disadvantage.  This situation can occur in one of several ways.  When a spouse is caught in an adulterous relationship (or perhaps is itching to pursue a new relationship), that spouse may be tempted to sign an agreement out of feelings of guilt.  It is very common for these spouses to sign away far more than ever would have been occasioned in Court.  In a short while, the spouse finds themselves in financial trouble or unable to meet the obligations that they agreed upon.  In many instances, these agreements cannot be undone or modified.  Other emotional disadvantages occur when one spouse has been subjected to emotional, mental or physical abuse.  In these cases, the spouse may sign an agreement which is disadvantageous simply because they have been abused to the point where they do not have the ability or psyche to stand up to their partner any longer.

3)     Where one spouse is at a financial disadvantage.   Sometimes spouses find themselves in a situation wherein the primary wage earner presents a divorce agreement with the statement that the deal is “off the table” if the other spouse seeks to hire a lawyer.  Other times, the spouse will threaten to stop paying for certain expenses if a spouse contests things or disagrees with a proposal.  Once again, these situations lead to unfair and unreasonable divorce agreements.

4)     Where the assets, debts or case is complex.  There are instances wherein the parties get along amicably and really have no desire to fight, however, their earnings structure, asset pool or debt structure are such that each side is going to have to engage a lawyer (and perhaps accountants, business valuation experts and others) to help them fully understand the process and make the best decision for the parties collectively.  The divorce process does allow the parties to move certain assets without penalties and allows for certain tax benefits, if the parties structure the agreement appropriately.  In these cases, it can be financially costly to sign a quick agreement.

Outside of these situations, most cases should be resolved by the parties and attorneys should aid in that process whenever possible.  Some cases must be filed and fought either temporarily or to a bitter end.  A case which is filed without an agreement attached is a contested divorce.  As indicated above, many of these cases are still resolved by an agreement at some point.

Next month, we will look at the process involved with filing a divorce and some of the initial items that Dick and Jane will need to consider in bringing a divorce.  Throughout our divorce discussion, each month will look at the case first from Dick’s perspective and then from Jane’s perspective to try and provide insight into the thought process and legal advice for each.

The Trial – Part IV

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.  We have moved through the trial process to the conclusion which consists of closing arguments by the attorneys, jury charges and the jury deliberation and verdict.

Closing arguments are perhaps the one instance where television and movies and reality have some overlap.  The trial process is, in reality, fairly mundane and rarely contains the “gotcha” moments depicted in Hollywood.  Closing arguments, however, are the one instance where an attorney can perform.

A successful closing argument will do three things:

1)         Recap the evidence shown;

2)        Inform the jury of the law that they will apply; and

3)        Tell the jury what the party wishes for them to do and why.

The first portion of the closing argument should be tied back to the opening statement.  Recall that in our opening statement, the task was to provide the jury with a roadmap of what the party anticipated the evidence would be.  In closing, it is important for the attorney to show to the jury the ways in which they have kept their promise.  Likewise, if the opposing party has failed to deliver a key piece of evidence which was promised in opening statement, it is critical to point it out to the jury.

The second portion of the closing argument is a challenge.  After closing arguments, the Judge is going to read a lengthy charge to the jury regarding the applicable law.  A good closing argument will pull out key portions of the charge are highlight those to the jury.  The challenge for the lawyer is to keep the jury’s attention during this phase.  Jurors are not used to hearing statements of law and legal phraseology.  Much of what the judge reads will either put them to sleep or go over their heads.  Thus, it is critical for the lawyer to inform the jury of the applicable law in ways that they can process, understand and apply.

Lastly, the closing argument must tell the jury what the party wishes to be done and why.  It is amazing how often attorneys will leave out this critical step.  They will state, “please do what you think is fair” or something similar.  It is important that the attorney precisely spell out the verdict sought and tell the jury why this precise verdict is the fair one.  This is the portion of the closing argument where Hollywood and reality can actually agree.

The charge of the law by the Judge is the step following closing arguments and is a much debated process.  When trials began, a Judge could provide a charge of the law in short order.  However, as the law has evolved and become more complicated, the charge has gotten lengthy.  Most juries manage to pay attention for about 10 – 15 minutes for the charge, but tune out after that.  Unfortunately, due to the way the charge is structured, the first 10 – 15 minutes contain only general statements of law regarding witnesses, evidence and the process.  About the time the jury tunes out, the Judge gets to the law which actually applies to this type of case.  By way of illustration, in a simple breach of contract case like the one we have outlined involving Dick and his new company, the jury charge to be read could easily reach 50 – 60 pages.

The last phase of the trial is deliberations and verdict.  The process is the most varied since each jury is different.  The jury is instructed to retire to the jury room and elect a foreperson.  The jury is then to review the evidence presented.  Most of the exhibits tendered will be taken with them to the jury room.  Post-trial polling of juries by lawyers reveals that many juries will first take a vote (blind or not) to determine the overall attitude of the room.  Although they have been instructed not to make up their minds prior to the end of the case and not to discuss the trial with their co-jurors during the trial phase, most of the jurors have done both.  As they deliberate a civil case like the one we have discussed, the jury will have two questions to resolve:  1) Is the Defendant (Dick in our case) liable to the Plaintiff and 2) If so, for how much.

Many juries have figured out a mechanism to quickly adjourn.  Each juror will write a number of a piece of paper and throw it on the middle of the table.  In order to account for those jurors who believe the Defendant is not liable, the number can be zero.  The numbers are then added and averaged (divided by twelve).  The result is the verdict amount.  This process is called a “quotient verdict” and is not permissible.  Lawyers will often spot a quotient verdict when they receive a number than is not correlated to the evidence in any way.  Unfortunately, there is little that can be done.  If the lawyer raises the issue, the Judge will ask if it is a quotient verdict.  Assuming the jury admits it (some won’t), the Judge will instruct them that they have to reach a unanimous verdict on the merits.  Quick-thinking jurors will then retire, agree that the number reached is a unanimous award based on the merits and return.  The quotient verdict is a source of great frustration to lawyers and clients who have invested so much in a trial, only to have it decided in such a cavalier fashion.

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.

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.”

Mediation vs. Arbitration

Justin cropped Super LawyerBy 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 then looked at the discovery process.

For this month, we switch to attempts to settle a lawsuit amicably.  Generally, parties during the case will send and receive settlement offers by and through their attorneys.  Some cases are in a settlement posture from the very beginning.  Other cases require discovery and the exchange of information in order for the parties and their lawyers to accurately evaluate the case and possible outcomes.  In either scenario, most every case eventually goes to mediation.

There is some public confusion about the difference between mediation and arbitration.  Mediation is a good faith effort by the parties to resolve the case by agreement (or at least resolve parts of the case).  The parties meet and work with a trained mediator.  At mediation, the parties will usually meet with the mediator for a period of time to outline their case and contentions.  After the joint session, the mediator will break apart and spend time with each party privately.  These individual sessions are called “caucus.”  In caucus, the mediator will often speak candidly with each party about their position, the strengths and weaknesses of their case and the potential for settlement.  The mediator then moves back and forth between the parties relaying offers of settlement and compromise.  If the parties can reach a result, a memorandum of settlement is prepared and signed.  Unlike arbitration, mediation is not final and binding on the parties if they choose to adjourn.  Either party can reject the position of the other party and continue in Court.  The discussions, offers and exchanges at mediation are confidential and cannot be admitted at trial.  Neither party is able to subpoena the mediator to trial and try and use anything gained at mediation in evidence.

Arbitration is a completely different method of dispute resolution.  In arbitration, the parties present their case just as they would in trial.  However, instead of presenting the matter in Court, the matter is presented to an arbitrator (or panel of arbitrators) selected by the parties.  Quite often, arbitration is the result of language buried in contracts such as credit card applications and other commercial transactions wherein an entity wishes to ensure that disputes are litigated in a common forum rather than in local courtrooms across the Country.  The enforceability of these adhesion style arbitration clauses is the subject of extensive case law.

In other instances, arbitration can present a high degree of value, particularly for sensitive cases, very high net worth cases and clients and other matters wherein the parties may require or desire a hearing officer with a certain level of expertise or background.  In lieu of waiting in turn for available time and attention with a Judge, the parties in arbitration can often privately schedule the matter at times and dates which are convenient for them.  In addition, arbitration is not a public proceeding whereas Courtrooms must almost always be open to the public.  In certain cases, privacy concerns can be a paramount reason for selecting arbitration.  Unlike mediation, the parties are bound by the decision of the arbitrator and cannot withdraw from the process, once commenced.

In an employment case such as Dick’s dispute with his former employer, it is a virtual certainty that the parties would be ordered to attend mediation in an attempt to resolve the case.  It would not be unreasonable that the parties might also consider a private arbitration for the reasons stated above.  For purposes of our continued discussion/education, we will assume that arbitration was agreed upon and that a Court-ordered mediation failed to result in settlement.  Thus, our discussion next month will turn to the process of a final jury trial.

Dick & Jane’s Discovery

Justin cropped Super LawyerBy 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 that would shut down his new company.  For this week, we look at the next phase of litigation, discovery.

From the outside, discovery often appears tedious, burdensome and voluminous.  Stories abound of “discovery wars” and lawyers burying opposing parties under a mountain of paper or hiding documents and witnesses.  This scene from “The Rainmaker” starring Matt Damon is Hollywood’s take:


While these types of situations can and do happen and tend to give discovery a black-eye, the reality is that the discovery process is essential to litigation and can be the point in which many cases are won and lost.  Remember, the famous Courtroom scene from the same movie comes on cross-examination of the Insurance Company, Great Benefit, where Matt Damon has him reading from an internal document related to the value of bone marrow transplants; a document which would have been found in discovery.

Discovery generally occurs in three areas:  document production, written interrogatories and depositions. In document production, each party requests records from the other party which they belief to be reasonably calculated to lead to admissible evidence.  In our lawsuit, relevant documentation would include client and customer lists, e-mail and other correspondence from Dick and his business partners about the formation of the new company and correspondence to clients and customers,   Secondly, the parties exchange written discovery questions called interrogatories.  These questions are generally designed to gather broader amounts of information and sources of discovery.  For example, the lawyers in Dick’s case would ask Dick to identify all witnesses with knowledge about the new company and its clients and customers.  Finally, the parties can conduct depositions.  Depositions are usually an in-person examination (question and answer) done before a Court Reporter.  The proceeding is attended by all parties and taken under oath.  Depositions of the parties can be recorded  in order to gain information and also of parties and witnesses to preserve testimony.

Due to the discovery process, many of the questions and answers in a trial are known to all parties involved.  Although unexpected events and statements do occur at trial, true “AHA!” moments are rare.  Most of the exhibits have been seen and exchanged and most of the witnesses have already testified in some format.

While we are all used to powerful scenes in the Courtroom from movie scripts, it is discovery where the meat and bones of these scenes are made.  Hard work and lots of digging make a Courtroom scene like this possible:



Dick & Jane – Preliminary Hearings

Justin cropped Super LawyerBy Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract.  We looked at the general dynamics of a Complaint and the various Courts in which a Complaint can be filed.  Recall that this Complaint made the rare request for a Temporary Restraining Order and Interlocutory Injunction.  In a sense, Dick’s former company was seeking an immediate Court order to shut down Dick and his company.

Temporary Restraining Orders and Interlocutory Injunctions are tough to obtain and rightfully so.  These orders can have the effect of giving one party an overwhelming victory in a case without the process of a lawsuit having played out.  If Dick’s former employer can shut down Dick’s new company while the case is pending, it is quite likely that before the case is ever final, Dick will be out of business anyway.  By contrast, if Dick can keep operating during the case, it is possible that the damage done to his former employer is too great to even calculate.

A Temporary Restraining Order is granted on a motion, usually without the other party being present.  This order is emergency in nature and lasts only 30 days.  Generally, the order is entered and a full hearing is scheduled.  At that hearing, the Judge can take evidence and consider the matter more fully and openly.  Following that hearing, an Interlocutory Injunction can be issued to govern the parties during the case.

The threshold for an Interlocutory Injunction is quite high.  The party bringing the motion must show that the damages absent the injunction would be irreparable, that it is not able to be remediated or reduced to monetary value.  Further, the party must show that they are likely to prevail on the merits of the underlying suit.  Finally, the party must show that on balance the entry of the injunction is fair and equitable.

In our case, Dick and his attorney must go all in for the injunction hearing.  As indicated, if the injunction issues, he could be out of business before the lawsuit is ever finished.  Dick should elect to attack the injunction on two fronts.  First, Dick can show that the injunction is not necessary because the damage caused is not irreparable.  If Dick has, in fact, violated his contract and taken business from his former employer, that amount of business should be quantifiable in dollars.  Thus, although potentially damaging, the harm is not irreparable.  Secondly, Dick can show that on balance, the entry of an injunction is not fair and equitable.  The injunction would prohibit (without determining the validity of the covenant not to compete) a customer from freely choosing where that customer would wish to do business.  Such an order is in restraint of free trade and against general public policy.

Dick should avoid the other component of an injunction argument and the former employer will likely focus all of their attention and effort in this area.  As discussed in our prior blog, due to the Constitutional Amendment of 2010 on covenants not to compete, the company’s position is much stronger on the merits and they are much more likely to prevail on the merits in some fashion.

For purposes of our story, Dick and his attorney are able to prevail and keep a Judge from entering an injunction shutting down Dick’s new company.  The case now proceeds into a second critical phase:  discovery.  Our next blog will review the various aspects of discovery including written discovery, document production and depositions.  The discovery process is where most cases can be won or lost.

Until then, Dick and Jane wish everyone a very Merry Christmas, Happy Holidays and a wonderful New Year!

Dick & Jane – A Complaint is Filed

Justin cropped Super LawyerBy Justin O’Dell

When we last saw Dick and Jane, Dick had received a threatening letter related to his new start up company.  The letter threatened litigation should Dick fail to respond.  Although Dick retained Counsel and sent a thorough response, a lawsuit has been filed.  For the next few months, we will analyze the various parts of a typical lawsuit and ways in which Dick needs to respond.

A lawsuit is initiated by the Plaintiff filing a Complaint or Petition, a Summons and service of process.  The Complaint outlines the facts and allegations of the case and the specific legal bases upon which the Complaint is brought, i.e. “breach of contract.”  The Summons directs the Defendant to file an Answer within a specified time period or be subject to default.  Service of Process is the formal mechanism by which the Defendant is notified of the lawsuit.  Service must be made in strict compliance with Georgia law and can be handled by the Sheriff’s office, a private process server or can be coordinated and waived between the lawyers handling the case.  In our situation, because Dick has already retained counsel to respond to the demand letter, service of process was waived as a professional courtesy between the lawyers involved and Dick was spared the embarrassment of having the Sheriff show up at his place of business or home to deliver the papers.

The lawsuit against Dick was filed in the Superior Court of Cobb County.  The Superior Court is the Court of general jurisdiction for a County and each of the 159 Counties have a Superior Court.  Cobb County also has a State Court which is able to handle many, but not all types of litigation (cases involving felonies, divorce and equitable relief must be in the Superior Court).  Many smaller counties do not have a State Court.  Dick’s former employer is seeking an injunction and restraining order against Dick and his new company.  A restraining order and injunction is equitable relief, thus the Complaint is in the Superior Court.

The Superior Court, including the offices of the Clerk and the District Attorney, are now all located in the new Cobb County Courthouse on Haynes Street.  The Superior Court of Cobb County consists of 10 elected judges and four assisting Senior Judges.  The ten elected Judges are:

Chief Judge Adele Grubbs
Judge Robert Leonard
Judge Mary E. Staley
Judge James G. Bodiford
Judge S. Lark Ingram
Judge Robert Flournoy
Judge J. Stephen Schuster
Judge C. LaTain Kell
Judge Reuben Green

Judge Gregory Poole


The four assisting Senior Judges are: Judge Conley Ingram, Judge Grant Brantley, Judge George Kreeger and Judge Michael Stoddard.  Each Senior Judge assists on a one-week rotating basis.  The Senior Judges administer the jury oaths, call the daily uncontested divorce calendar, hear and consider temporary protective orders and hear and consider emergency matters.

In addition to the Senior Judges, the Cobb Superior Court Judges also designate one of the four Cobb Juvenile Court Judges as an assisting Superior Court Judge on a one-week rotating basis.  Each Judge receives the assistance of a Juvenile Court Judge once every ten weeks.  The Superior Court Judge is able to delegate any matters to that Judge for hearing.  Most of the Superior Court Judges use this time to delegate the regular criminal and domestic calendars while they are presiding over a lengthy criminal or civil jury trial.

Business litigation of this nature is often won or lost in two areas, both relate to preparation.  The first area of critical importance is the initial response and any immediate hearings.  The second area of critical importance is the discovery phase.

In Dick’s case, the request for a temporary restraining order and interlocutory injunction will require an immediate hearing.  Dick’s former employer wishes to shut Dick’s new enterprise down during the litigation.  Obviously, Dick wants to stay in business.  Believe it or not, the entire case could be won or lost in this hearing.  Fortunately for Dick, the burden upon his former employer is high.

Coming next month, we will discuss the hearing and see what happens. . .

Dick & Jane Interrupted

Justin cropped Super LawyerBy Justin O’Dell

We left Dick and Jane with the subject of a letter threatening legal action by Dick’s old company for violation of his employment contract.  Before we see what happens, the lives of our little family are once again being interrupted.

This month’s interruption is designed to introduce a new feature to our newsletter, blog and website.  Each month hereafter, we will feature a community section and we will highlight the work of a local non-profit, specifically a non-profit agency with whom we are involved and support.  We will briefly mention our involvement, but devote most of the space to describing the agency, their mission and their upcoming event.

To introduce the new feature, we have decided to use Dick and Jane.  We will get back to their lives and legal issues next month and most months thereafter.

You may recall that the eldest daughter, Lindsay, is an avid cross-country runner.  Dad (a UGA grad) is often at events yelling “Run, Lindsay, Run”.  This year, Dad is proud to sponsor Lindsay to run in the GOBBLE JOG benefiting MUST Ministries.  Dick and Jane don’t talk about it much, but Jane has an older brother, Frank, who has struggled with homelessness in the past.  Frank appears outwardly to be normal, however issues with mental illness have made it hard for him to maintain employment and a family structure.  While on proper medication, he is functional and productive.  However, the medication has strong side effects and he does not feel good, so he stops taking them.  Once this happens, a downward spiral ensues.  Part of his illness causes him to run away from family and other loved ones who try to help him.

MUST Ministries has and continues to be there for Frank.    MUST is able to provide him with shelter, food and a warm and loving environment.  The caring and understanding volunteers have become folks that Frank can trust.  Once in the care of MUST Ministries, Frank is able to get medical treatment and get back to normal.  As he regains himself, MUST is there to help Frank find employment and get back to being productive.

Frank’s family struggles because of Frank’s issues.  His ex-Wife works 2 jobs, but she and children rely heavily on public assistance and other forms of support when Frank spirals, loses his job and cannot pitch in.  Often times, the best meals that the children receive are the free breakfast and free lunch at school.  Unfortunately, during the summer, these meals are not available.  Thankfully, due to the MUST Ministries summer lunch program, these children (and hundreds of others) are guaranteed a healthy meal every day.

We all have a Frank in our family, a friend’s family or as someone we know.  Sometimes homelessness is not a person’s fault or the result of bad choices.  Sometimes life just takes a wrong turn.  MUST Ministries is there in these situations and is there to help those in need.  MUST Ministries firmly believes that a hand up is far better than a hand out.  Rather than just provide a meal and shelter, MUST Ministries engages in transforming a life and making sure that a person can return to being productive.

This is why Lindsay is proud to support MUST Ministries by running on Thanksgiving Day in the Gobble Jog.

This is why O’Dell & O’Neal is proud to support MUST Ministries in contributing toward this worthy event.  If you want to do the same, follow the links, seek them out and do what you feel led.

Thanksgiving Day Gobble Jog

MUST Ministries