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.

Chew Tobacco, SPIT!

No TobaccoBy LaSona Turk

If you dip, chew or just enjoy a good spit, Marietta may not be the best place for these activities. Internet reports of a city ordinance restricting this particular habit have us wondering if it really does exist.

Those of you who spit from your trucks are welcome to do so in Marietta! Apparently, the city believes that driving a truck goes hand in hand with dipping, chewing and spitting. Bus passengers, however, must refrain from spitting in Marietta. If you are driving your car through the city, no spitting for you either.

We’re not sure if this ordinance was intended to curb tobacco use, encourage truck ownership or even if it exists as a law in Marietta. But, it does add flavor to the rich history of this great city!

Is Facebook Causing More Divorces?

LesleephotoBy Leslee Champion

Facebook, the site that was once used for sharing party pics and finding long-lost friends is now the reason behind one-third of divorces. In a study by Divorce Online, 33% of all divorce filings in 2011 contained the word “Facebook,” an increase from the 20% back in 2008. Not surprisingly, the number-one reason why Facebook was at fault in these cases was due to “inappropriate messages to members of the opposite sex.” Other common complaints included cruel posts or comments between separated spouses or Facebook friends exposing a spouse’s inappropriate social media behavior to their partner.

In the state of Georgia, bad conduct by either party may be relevant and may also impact judgments in child custody, visitation, property division and alimony matters. So it should come as no surprise that spouses’ incriminating Facebook timelines are increasingly finding themselves as evidence in divorce proceedings. According to the American Academy of Matrimonial Lawyers, 81% of its members have seen a rise in the number of divorce cases involving information taken from social networking sites, and 66% cite Facebook as the primary source for online divorce evidence of marital discord and misconduct.

Facebook may be used as evidence for a multitude of family law issues. For example, a party’s posting may show expenditures that do not align with the claims the party is making regarding child support or maintenance. The party may be claiming non-payment of support due to financial inability to pay in the litigation, and yet the posting may show a lavish trip or expensive new purchase for a significant other. Similarly, a party’s profile may evidence his or her employment or employability, despite claims in a litigation of unemployment or inability to be employed. Facebook may also play a role in custody cases, as spouse may engage in an angry tirade against the other, thereby demonstrating an inability to get along and co-parent. Posted pictures or videos may reveal a night of heavy drinking, which may be used against a spouse in a custody battle. Notably, it is not only a party’s postings, but postings by friends or relatives of the party that may be evidence in a litigation.

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.

Gabrielle Union Insists on a Pre-Nup

Leslie_ONeal_9797_8x12By Leslie O’Neal

Gabrielle Union makes no bones about that the fact that although she is looking forward to her impending nuptials to NBA star Dwyane Wade, she and Wade will have an iron clad pre-nuptial agreement before she walks down the aisle.  “The biggest difference between this and the last marriage [to NFL star Chris Howard] will be a prenup – at my insistence,” she candidly told Arsenio Hall during a recent interview, explaining that “I’ve got to protect my stuff.”

Pre-nuptial agreements can be a very sticky subject for couples planning to tie the knot; and for some folks, it’s a downright deal breaker.  Let’s face it, planning a wedding is supposed to be blissful and romantic, and nothing kills the mood more than a contract that contemplates divorce.  Regardless, pre-nuptial agreements can serve a very important function.   In the unfortunate event of a divorce, they streamline the issues and can save both parties a lot of time, stress, and money.

In Georgia, pre-nuptial agreements generally protect the individual assets that each party owns at the time of the marriage, establish the parties’ respective rights to future assets that are accumulated during the marriage, and in some instances, establish or prohibit alimony rights.  Pre-nuptial agreements cannot, however, address the issues of custody, visitation, and child support.  Child support deals with the rights of the child and therefore, parents cannot predetermine the rights of another person.  Additionally, custody and visitation issues are based on the best interest of the child involved and therefore, those arrangements must be determined at the time of the dispute since neither parent can predict what the circumstances will be at the time of a divorce.

Enforceability of pre-nuptial agreements in Georgia is an entirely different matter.  Many people are willing to sign a pre-nup prior to the wedding, thinking that it will never actually see the light of day, and then seek to set it aside when a divorce is filed.  In order to enforce the terms of a pre-nuptial agreement, Courts in Georgia will consider three things.  First, the court will determine whether the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts (such as one party’s assets or income at the time of the marriage).  Second, the Court will look to whether the agreement is unconscionable.  Finally, the Court will determine whether the facts and circumstances have changed so much since the agreement was executed so as to make its enforcement unfair and unreasonable.  Although these elements may seem daunting, Georgia has seen a significant movement towards Courts favoring the enforcement of pre-nuptial agreements over the past decade.

For some people, it’s not necessarily the protection of assets that’s the main goal, but simply the peace of mind that a pre-nuptial agreement brings when you’re marrying someone who may not be as financially savvy as you are.  In Union’s case, her fiancé likely has plenty of his own assets after 10 seasons as an NBA guard.  But as Union put it, “the reality is, I’ve never seen Dwyane balance a checkbook.”  Not having to stress if her husband invests poorly or spends recklessly might just be the solution to making their marriage work!

Cops & Kids Shop Together

Cops for Kids 2Cops in Cobb County don’t always patrol our streets and neighborhoods looking for bad guys. Sometimes, they shop with kids! In December, the Cops & Kids event paired more than 50 police officers and sheriff’s deputies with 150 underprivileged Cobb school children for $125 shopping sprees at the Target on Austell Road at the East-West Connector. The Fraternal Order of Police’s Kermit C. Sanders Lodge No. 13 organizes on the event. During the summer golf tournament which funds this event, O’Dell & O’Neal joined other sponsors in our community to raise in excess of $25,000.

Among the goals for this event is the hope that it will provide these children with a positive experience with law enforcement. Some of them have seen police officers in their homes for domestic disputes so this pairing with a police officer helps ease their fears with more positive interaction. All of the officers who participate in this event volunteer their time.

As with any charitable event, the money raised to fund it dictates the number of those benefiting. So, we urge you to consider participation in this summer golf tournament for Cops & Kids and help provide more under-privileged children the opportunity to shop with a Cop! For more information, call 770 528-3817 or visit:

http://www.foplodge13.org/copsandkids_donations.htm

Georgia Laws That Make You Go Hmmm…

ice-cream-pocketSweet Things

By Tammie Gruhn

You know how Georgians love their sweet things, but on Sunday you have to keep your ice cream cones out of your back pocket. Carrying ice cream in that pocket is against the law…but only on Sunday!

According to many sources on the internet, this is one of many stupid laws that remain on the books. Though there are indeed some silly laws in Georgia and all across the US, research has revealed this one to be nothing more than fun folklore! The origin of this particular faux law is in Lexington, KY, where horse thieves supposedly used this tactic to lure horses away from their rightful owners. If caught, the thief could claim he never touched the horse, it just followed him home. Apparently, Sunday was not a fun day for horse thieves in Lexington!

Just for fun and a little education along with way, we’ll continue to explore the crazy laws that may or may not exist in Georgia and elsewhere!

Celebrity Scenarios – Khloe and Lamar List their House for Sale

Leslie headshot outside_9797_10x10Is that Required?

By Leslie O’Neal

Following up last month’s blog post (and the continuing realization that every month’s blog could be dedicated to the family law issues arising from the Kardashian relationships), the divorce proceedings between Khloe and Lamar are moving along quickly.  Not even a month after Khloe filed for divorce from Lamar on the grounds of irreconcilable differences, the couple placed their 8,000 square foot home in Tarzana, California up for sale for a paltry $5.499 million.

It seems to be the commonplace in high profile divorces that the real estate assets are immediately sold.  In Georgia, it is not necessarily required that the marital residence be sold as part of the divorce proceedings.   Who is ultimately awarded the house can be an emotional issue during divorce cases, particularly if there are children involved.   Often the party to be awarded primary custody of the children will also want to be awarded the home so that the children are not uprooted from their environment in the middle of what is already a difficult time of transition for them.  Even if there aren’t minor children involved, sometimes the home has sentimental value to one party such that he or she wants to keep it at the conclusion of the case rather than sell it.

Generally, in order to be awarded the marital residence at the conclusion of a divorce case, three things have to happen.   First, the spouse being awarded the house has to have the ability to pay the monthly mortgage premium with his/her own income (which can include any spousal or child support he or she is awarded).   Second, if the other party’s name is on the mortgage, the spouse being awarded the house has to be able to refinance the mortgage within a reasonable period of time in order to remove the other spouse’s name from that debt.  Finally, if there is any equity in the home, the spouse being awarded the home must be able to cash out the other spouse for his/her equitable share of that equity, either through the refinance process or by offsetting the equity in the home with another asset.  Generally if any of these three criteria cannot be accomplished by the party desiring to keep the marital residence, the house will ultimately be placed on the market for sale, either by agreement of the parties or by Court Order.

Even if the parties agree that the house needs to be sold, the specifics of the sale can be difficult to maneuver, particularly if the divorce case is contentious.  Commonly, guidelines are established either by agreement or Court order which determine who the real estate agent will be, what the listing price will be, what offers or counter-offers must be accepted, what offers or counter-offers may be rejected, and how the closing costs will be paid.   It is not uncommon for the agreement outlining the parameters for the sale of the house to remain confidential rather than being filed with the Court; because if it becomes public record, the buyer’s agent could see the parameters and make the lowest possible offer that the sellers are required to accept.

Given that Khloe and Lamar’s marriage only lasted 4 years and didn’t result in any children, neither party likely had an emotional attachment to the house and they presumably reached a mutual agreement to sell it without being ordered to do so.