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.

Latin Singer Marc Anthony Tops the Charts in Child Support

IMG_8925By Leslie O’Neal

Marc Anthony is going to have to start churning out more hits in order to keep up with the recent child support obligation he was ordered to pay.  Dayanara Torres, Anthony’s first wife and the mother of his two oldest children, filed a child support modification action in November of 2013 seeking an increase in Anthony’s monthly child support payments.  According to TMZ, Torres claimed she was living a meager lifestyle with the $13,000/month that Anthony was previously paying for their two children.  The two faced off in Los Angeles County Superior Court last month, and the Court granted her request.  The Order noted that Anthony earned more than $600,000 per month in 2014 and therefore, the Court increased his child support obligation to Torres to $26,000 per month.

Thankfully for Anthony, Jennifer Lopez was much more generous on the issue! Coincidentally, Anthony and Lopez just finalized the details associated with their 3 year divorce case last month as well.  Despite the fact that Lopez will have custody of the couple’s two minor children the majority of the time, Lopez agreed that child support was not necessary.

These types of unusual child support obligations are not seen very often in Georgia, as Georgia’s child support laws were revised in 2007 to create strict guidelines for the calculation of the noncustodial parent’s obligation to support the minor child.  The new guidelines use a “calculator” called a Child Support Worksheet to generate the monthly child support obligation based on the incomes of both parents and the monthly costs associated with the children’s basic needs such as health insurance premiums and work related childcare expenses.  These numbers are imputed into the Child Support Worksheet and result in a presumptive child support number that the Court is required to adopt.  The only way for the Court to deviate from the presumptive child support number is if the Court specifically finds that the presumptive child support amount is not in the child’s best interest, explains the reasons for deviating from that presumptive amount, and explains how the best interests of the child would be served by deviating from the presumptive amount required by the Child Support Worksheet.

Likewise, Georgia does not allow for one parent to be completely let off the hook regarding child support as Anthony appears to be in his divorce with J.Lo.  Georgia Appellate Courts have repeatedly determined that child support waiver provisions in divorce decrees are void, noting that one parent cannot contract away the right of a child to be supported by the other parent.  O.C.G.A. 19-7-2.  The State of California doesn’t appear to be as strict, which is lucky for Marc Anthony.  He’s going to need all the help he can get to keep up with the demands of Torres’ lifestyle!

All is Fair in Love, But What About Divorce?

IMG_8618By Leslee Champion

Marcia Milliman may have stated it best when she said, “when love has vanished, there’s only money left to divide.” As nearly half of the marriages in the United States end in divorce, Courts are regularly faced with question of how to divide the martial property. Most states, including Georgia, provide for an equal distribution in dividing between the spouses any property acquired during their marriage through the labor of either party. Courts equally agree that property a spouse owned before the marriage began or acquired during the marriage through inheritance should remain with that spouse. It would seem these rules follow some idea of fairness in the marital relationship and according to the study, “Citizens’ Views About Fault in Property Division” by Sanford Braver and Ira Ellman, it appears most Americans generally agree with an equal split of property between the spouses. In fact, most respondents showed strong support for dividing property equally without regard to the spouses’ earnings, their relative contributions to the domestic labors, or their marital status.

But would the respondent’s division of the property change if marital misconduct was the reason behind the divorce? In their recent study, Bravers and Ellman asked the question of what effect adultery has on the public’s view of how marital property should be distributed. The participants in the study, over 600 citizens awaiting jury service in Arizona, were given 14 fact scenarios in which one of the spouses either admitted to or was accused of committing adultery. The participants were then asked to divide the couple’s property fairly. Interestingly, the study revealed that lay citizens generally support the leading American rule excluding fault from consideration in the allocation of property in divorces, even in cases where one spouse has been unfaithful. Even more surprising considering the long standing double standard between sexes, the respondents did not especially distinguish between adulterous wives and adulterous husbands. In fact, in the only scenario to receive any support for unequal distribution, the case in which one spouse admits adultery and offers no excuse of justification, men were found to have awarded less property than female respondents to the husband who admitted to cheating. The reasoning for not considering fault may be explained in the attitude questionnaire participants were required to complete. On average, respondents agreed that “marital relationships are too complicated for judges to figure out”, “courts would end up spending too much time and money”, and “divorcing spouses would often end up spending too much money for lawyers and other costs required to make such claims or to defend against them.” Bravers and Ellman suggests the reason behind these views might not be that individuals do not care about or condemn bad marital conduct, but because they appreciate limits in the law’s ability to deal with it.

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:

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:


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).