For the Good of the Order

LesleephotoSupplement Scams

By Leslee Champion

It’s that time of year again, you know, New Years resolutions. For most, the New Year is dedicated to shedding those holiday pounds and making promises for a healthier year ahead. If you are like me and dread the sight of a gym, you may be tempted to try dietary supplements. If Quick Trim can make the Kardashians skinny, it’s got to be legit right? Before you run to the nearest GNC there are a few things that might surprise you about these diet miracle makers. Did you know that dietary supplements are not approved by the government for safety and effectiveness before they are marketed? Unlike prescription drugs, which are heavily tested and regulated by the Federal Food and Drug Administration, dietary supplements (including vitamins, minerals, herbs, amino acids, and enzymes) are self-regulated by their own manufacturers and distributors. That’s right. Legally, the very same people selling the substance are responsible for testing its safety and effectiveness.

Because these products are not subject to regulation, you are at the mercy of the manufacturer.  That means you likely may purchase a product that doesn’t even work.  More concerning, many dietary supplements contain active ingredients that have strong biological effects in the body. The use of these products can cause serious injury or even death.  Gary Coody, R.Ph., FDA’s national health fraud coordinator warns that “products sometimes contain hidden drug ingredients that can be harmful when unknowingly taken by consumers.” In the past few years, FDA laboratories have found more than 100 weight-loss products, illegally marketed as dietary supplements that contained sibutramine, the active ingredient in the prescription weight-loss drug Meridia. In 2010, Meridia was withdrawn from the U.S. market after studies showed that it was associated with an increased risk of heart attack and stroke.

The FDA is permitted to ban a substance after it is proven to be unsafe. However, that doesn’t guarantee the product will stay off the shelves. Many manufacturers “reformulate” the same product with lesser amounts of the same harmful substance.  So what can you do to protect yourself? Be suspicious of the “miracle product” that claims to be a quick fix. It’s unlikely that you are going to lose “30 pounds in 30 days.” Be aware that the term natural doesn’t always mean safe.  And always ask your health-care provider for help in distinguishing between reliable and questionable information.


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!

Another Kardashian Marriage Bites the Dust

Leslie headshot outside_9797_10x10Why Didn’t Khloe Seek a Fault Grounds Divorce?

By Leslie O’Neal

It is becoming apparent that every monthly celebrity blog could be devoted to legal questions arising from the Kardashian family.  The most recent marriage to bite the dust is that of third daughter, Khloe, and her NBA player husband, Lamar Odom.   The two were famously married in September of 2009 after knowing each other for only one month.  However, despite their brief courtship, the two were commonly seen as the most stable and relatable of the Kardashian couples.   They documented their failed attempts to conceive and Lamar’s NBA struggles on their two-season reality show, “Khloe & Lamar”. 

Unfortunately, the marriage began to unravel in 2013 with rumors swirling that Lamar had relapsed into drug addiction, had moved out of the home the coupled shared, and was repeatedly unfaithful.   Khloe finally filed for divorce on December 13, 2013, citing irreconcilable differences.   With the rumor mill constantly swirling about Lamar’s poor conduct, why didn’t Khloe seek a fault grounds divorce?

In Georgia, there must be a statutorily recognized reason for a divorce.  Historically, that included one person being “at fault” for the demise of the marriage.  The twelve fault grounds for a divorce in Georgia are  1) intermarriage by persons within the prohibited degrees of affinity, 2) mental incapacity at the time of the marriage, 3) impotency at the time of the marriage, 4) fraud or duress in obtaining the marriage, 5) pregnancy of the wife by a man other than husband, at the time of the marriage, unknown by the husband, 6) adultery by either of the parties after marriage, 7) willful and continued desertion by either of the parties for the term of one year, 8) the conviction of either party for an offense involving moral turpitude and under which he or she is sentenced to imprisonment for more than two years, 9) habitual intoxication, 10) cruel treatment, 11) incurable mental illness, and 12) habitual drug addiction.

However, in 1973, Georgia introduced the “no fault” grounds of irreconcilable differences.  Irreconcilable differences is by far the most commonly used grounds for seeking a divorce in Georgia.   It is a common misconception that the “no fault” option means that conduct is not relevant to the issues in the divorce.   That is not the case.  The “no fault” option in Georgia simply means that either spouse is entitled to request a divorce without having to prove that the other spouse did something wrong.  One is entitled to a divorce by simply stating under oath that the marriage is irretrievably broken with no hope of reconciliation.

There are a number of reasons that Khloe would not benefit from seeking a fault grounds divorce from Lamar.  First, it draws more attention to the divorce proceedings because she would have to prove the misconduct alleged.  Additionally, proving misconduct on Lamar’s part may not have much of an effect on the issues of the divorce because the couple reportedly signed a Pre-Nuptial Agreement governing alimony and division of assets.  They also do not have to litigate custody or visitation because they did not have any children together.

Jane Seymour Files for Legal Separation

Leslie headshot outside_9797_10x13

Why Not a Divorce?

By Leslie O’Neal

Despite claiming that her marriage is irretrievably broken, former “Medicine Woman” star Jane Seymour appears to be in no real hurry to end her marriage to her husband of 20 years, James Keach.  On Monday, October 28, Seymour filed legal separation proceedings in L.A. County Superior Court.  According to her pleadings obtained by E! News, she identified the date of separation as “TBD”.   Seymour and her husband first announced back in April that they were separated and had been for several months.  This begs the question, if Seymour believes the marriage is irretrievably broken, what is the benefit of filing a legal separation instead of a divorce?

In Georgia, either spouse is entitled to pursue a legal separation action without formally requesting that the marriage be dissolved.  However, there are very few practical benefits to pursuing legal separation.  A legal separation lawsuit is often just perceived as delaying the inevitable because if the proceeding is pending and either party separately files for divorce, the entire legal separation proceeding is subject to immediate dismissal.  In other words, the parties must essentially start over, without regard to the time, money, and emotional energy they have applied to legal separation lawsuit.

One common reason that legal separation lawsuits are pursued as a short term solution is if the party initiating the action does not yet meet Georgia’s basic jurisdictional requirement for seeking a divorce.  Georgia law requires that the party initiating a divorce case be a resident of the state of Georgia for at least six (6) months preceding the filing of the divorce complaint, whereas legal separation lawsuits do not have this same requirement.  In some cases, the parties cannot meet this six (6) month threshold before they are in need of relief from the Court, often in the form of a temporary order governing child support, spousal support, parenting time, and/or exclusive use and possession of the marital home.

There are a few limited circumstances where a formal, legal separation might be an attractive long term option.  For example, a couple who is legally separated can still file their tax returns jointly.  Additionally, one spouse can continue to be eligible for the other spouse’s health insurance even if there is a legal separation.  And of course, some couples do not believe in divorce for personal or religious reasons, and would rather not ever pursue a complete dissolution of their marriage.   If both parties are content with a legal separation as a long term solution, they can negotiate or litigate nearly all issues that are traditionally negotiated and litigated in a divorce case.

Many of these circumstances presume that both parties are content with staying married to one another, at least on paper. However, given the current popularity of dating websites and the relative ease in communicating these days, it’s highly unusual to find a situation where neither party desires to move on with his or her life and possibly remarry.  And while it remains unclear whether Jane Seymour and her husband will ever file for divorce; given that Seymour is a former Bond girl, she’ll probably be tempted to get back on the dating scene eventually.

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. . .

Remembrance of Veterans Day

Veterans_Day_2013_PosterToday, we celebrate and honor all the brave men and women who have served in the U.S. military for their courage and sacrifice. At O’Dell & O’Neal, we had a front row seat for the Veterans Day Parade through downtown Marietta this morning! We snapped several photos to share with everyone of the high school ROTC students and local American Legion Veterans who participated. Thank you to Sprayberry High School ROTC and American Legion Post 29 in Marietta!American Legion


2013 Cobb Diaper Day Event Brings in 75,000

Diaper Day with Justin and BarbaraDid you know that food stamps do not cover personal hygiene products like diapers? Can you imagine being forced to choose between feeding your family and buying diapers for your little ones? Cobb Diaper Day collects donations of approximately 50,000 diapers each year  for low-income families so that they don’t have to make that choice. Justin O’Dell is one of the founding members of Cobb Diaper Day and was honored to read a proclamation from Governor Sonny Perdue at the first Diaper Day event.

As a member of the 2013 event committee, Justin worked with Founder and Committee Chair, Barbara Hickey, to facilitate the diaper collection that helps ease the burden for hundreds of families. O’Dell & O’Neal Attorneys served as a drop-off location for diaper donations which Justin then transported to the October 28th collection at Glover Park in Marietta. This year’s event resulted in 75,000 diapers being donated for families across Cobb County! Thank you to all who donated and supported Cobb Diaper Day!

  • For more information on the outstanding accomplishments of the annual Cobb Diaper Day event, go to

“Often times it is the little things in our lives that make the biggest difference” – Barbara Hickey, Cobb Diaper Day 2013 Committee Chair and Founder

Bruce & Kris Jenner Separate

Leslie headshot outside_9797_10x10What Happens to the Teenage Minors?

By Leslie O’Neal

For those who follow the Kardashian clan even casually, it does not come as a shock to hear that Kris and Bruce Jenner have finally announced their separation.   Their marital woes were often fodder for their reality TV show, “Keeping Up With the Kardashians.”  While the Jenner’s will likely have much to sort out in terms of dividing the assets and interests they’ve accumulated over their 20 year marriage, it will be interesting to see how they handle custody of their two independent and outspoken teenage daughters, Kendall and Kylie.

It is a common misconception in Georgia that once a minor child reaches a certain age, he/she has the freedom to choose which parent he/she wants to live with.  However, it is not quite that simple.  In Georgia, although a minor that has reached the age of 14 years old has the right to convey his or her desires about which parent he or she wants to live with, the Court still has the ultimate authority to determine that the parent selected is not in the best interests of the child.  Minors who are 11 years of age but not yet 14 also have the option of conveying their parental preference to the Court, though their desires are given even less weight and the Judge has the discretion to disregard the child’s preference entirely.  In other words, the child’s preference is not binding on the Court, and the Court is free to determine that the child’s preference is not appropriate based on the circumstances of the case.

Sometimes a child’s preference is given in the context of a modification of custody lawsuit.  This occurs when the parties and the child already have a visitation Order in place, and the child wishes to modify the status quo and move to the other parent’s residence.  If the child is between 11 and 14, the child’s desire to move to the other parent’s home does not automatically allow for a modification of custody lawsuit without some other change having occurred.  However, if the child is 14 years or older and desires to move to the other parent’s home, that desire is enough in and of itself to trigger a modification of custody lawsuit.

Even after a child’s formal preference is given, the parties are still required to follow the previous Court Order until the Court makes a new custody determination unless the parties can reach an agreement to the contrary.   Just last month, the Georgia Supreme Court affirmed a trial court’s decision to incarcerate a Mother for keeping her 15-year-old daughter away from her ex-husband.   Carlson v. Carlson, 2013 WL 5303253 (2013).  The teenage daughter had signed an Affidavit of Election stating a clear desire to live with her mother.  Id.  However, the Court rightfully noted that neither party, nor the child, has the authority to modify a visitation Order that has been issued by the Court without the agreement of the other party or the Court’s approval.  Id. Therefore, even in a situation like the Jenners’, with two teenage daughters who are driving and independent, the parties can still be expected to enforce a visitation schedule that has been Ordered by a Court.

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