Law Commons^™

Electronic Discovery, Alex Khoury, James R. Williams Jr.

Mercer Law Review

Cooperation, proportionality, and spoliation were the hot topics in electronic discovery in the United States Court of Appeals for the Eleventh Circuit in 2017. Multiple courts joined in Chief Justice Roberts' plea for cooperation in e-Discovery in his 2015 Year End Report on the Federal Judiciary, with a few even requiring the parties and their attorneys to read the Report before bringing additional discovery motions. On the proportionality front, several courts used the proportionality factors to limit e-Discovery burdens imposed on small businesses. On the spoliation battlefield, e-Discovery sanctions continue to punish bad actors, but there has been a decrease …

United States V. Osman: Including Future Therapy Costs In Mandatory Restitution Awards Is The Growing Trend Among Circuits, But Is It Wise?, Mary Theresa Mahfoud

Mercer Law Review

Mandatory restitution awards for child victims of sex crimes and child pornography now include future therapy costs. This trend, while theoretically increasing the amount of restitution awarded to the victim, can have unintended harmful consequences. The United States Court of Appeals for the Eleventh Circuit in United States v. Osman, as a matter of first impression, upheld a restitution order under the Mandatory Restitution for Sexual Exploitation of Children Act (Mandatory Restitution Act) to include future therapy expenses.

William Edward Osman pleaded guilty in the United States District Court for the Middle District of Florida to the possession, production, …

Trial Practice And Procedure, Brandon L. Peak, Tedra L. Cannella, Robert H. Snyder, David T. Rohwedder, Joseph M. Colwell, Christopher B. Mcdaniel, Rory A. Weeks, Ramsey B. Prather

Mercer Law Review

This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the June 1, 2016 to May 31, 2017 survey period.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The past year saw a mix of results in class-action litigation in the United States Court of Appeals for the Eleventh Circuit. with both plaintiffs and defendants notching victories in class certification controversies. Of significance to class-action practice was the court's first foray into applying the challenging new Article III standing decision of the Supreme Court of the United States, Spokeo, Inc. v. Robins. The court also continued to address arbitration issues arising in putative class actions, while the prospects for curbing the availability of arbitration as an alternative to class litigation appeared to fade with the changing political …

Electronic Discovery, K. Alex Khoury

Mercer Law Review

At the end of 2015, the Federal Rules of Civil Procedure were amended to reform the discovery process with three main goals in mind: (1) promoting cooperation between the parties, (2) emphasizing proportionality in discovery, and (3) encouraging active case management by the courts. This Article will examine how the courts in the Eleventh Circuit interpreted and applied the new rules in 2016 and consider whether the new rules are having their desired effect on E-Discovery practice.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby K. Fox, Tala Amirfazli

Mercer Law Review

The 2016 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit,I several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation and class actions.

The End Of Low-Value Consumer Class Action Lawsuits?: The Federal Circuit Split On The Ascertainability Requirement For Class Certification, Kyle Harris Timmons

Mercer Law Review

This Comment seeks to address the growing circuit split on the ascertainability requirement of class action lawsuits. The split centers around what Rule 23 of the Federal Rules of Civil Procedure' explicitly states are the requirements for class certification and what some courts have read into Rule 23. Under the high standard, creating a plan or proposing a method with which to identify purported class members is not enough to satisfy the ascertainability requirement. Instead, a class must show that evidentiary means exist and are readily obtainable to support the proposed method of identifying the case. Conversely, under the low …

The Great Escape: How One Plaintiffs Sidestep Of A Mandatory Arbitration Clause Was Applied To A Class In Bickerstaff V. Suntrust Bank, David Cromer

Mercer Law Review

For decades, class action lawsuits have played an integral role in the American legal system because of their ability to combine a large number of small claims into an action large enough to garner the attention of both defendants and courts. While class actions have undoubtedly provided a crucial service to many Americans, several key questions have persisted regarding the authority of the named party or class representative. Specifically, courts have struggled to define the named party's ability to assemble the class and launch the action. In both the federal courts and the courts of Georgia, a trend towards giving …

I Tolled You I Had More Time!: The Future Of Tolling Looks Bright For Crime Victims, As The Georgia Court Of Appeals Establishes New Meaning Of O.C.G.A. § 9-3-99, Gretchen O. Connick

Mercer Law Review

Gone are the days of crime victims rushing to the courthouse steps to beat the statute of limitations' ticking clock. Now, crime victims have the ability to make time stand still in regard to their claims arising out of the crime committed against them. Tolling statutes extend the time for plaintiffs to sue by temporarily suspending the running of the statute of limitations. One such statute, section 9-3-99 of the Official Code of Georgia Annotated (O.C.G.A.), tolls the statute of limitations for claims brought by plaintiffs who were the victim of a crime giving rise to their action. The statute …

Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, David T. Rohwedder, Robert H. Snyder, Joseph M. Colwell, Christopher B. Mcdaniel, Rory A. Weeks

Mercer Law Review

This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period of this publication.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit encountered some of the most controversial issues in class action law during 2015, including several that required the court to apply recent United States Supreme Court decisions or to choose sides on issues that have divided the circuit courts of appeal.

Electronic Discovery, K. Alex Khoury

Mercer Law Review

The most significant developments in electronic discovery (E-Discovery) law in the Eleventh Circuit in 2015 were the latest amendments to the Federal Rules of Civil Procedure (Amendments), which went into effect on December 1, 2015. As with the last round of amendments in 2006, the 2015 Amendments primarily addressed the rapidly expanding and evolving practice of E-Discovery. Some of the amendments are minor tweaks to existing rules that will have little or no impact on current precedent. Other amendments introduce entirely new rules designed to give the courts and the parties new tools to corral the beast that is E-Discovery. …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby K. Fox, Tala Amirfazli

Mercer Law Review

The 2015 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit,' several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, appellate practice, civil procedure, and statutory interpretation.

How The Narrative About Louisiana's Non-Unanimous Criminal Jury System Became A Person Of Interest In The Case Against Justice In The Deep South, Angela A. Allen-Bell

Mercer Law Review

Stories are central to what lawyers do; yet, to the average member of the legal community, they exist only inconspicuously. In actuality, all cases start with a story. As lawyers do their work, that initial story grows and evolves. When judges enter the picture, the story is revised and, ultimately, the final chapter is written; then, the process begins again with an entirely different cast of characters. This Article advocates against impersonal, mechanized systems of justice that are built upon defendants, dockets, cases, quotas, formulas, and rapidity. This Article calls for the justice community to see cases in a highly …

Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, David T. Rohwedder, Robert H. Snyder, Morgan E. Duncan, Joseph M. Colwell, Christopher B. Mcdaniel

Mercer Law Review

This Article addresses several significant opinions issued and legislation passed during the survey period of this publication for the Georgia civil trial practitioner.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

After an uneventful 2013 on the class action front, the United States Court of Appeals for the Eleventh Circuit tackled an assortment of class action issues during 2014, which often required the court to navigate around a recent wave of Supreme Court precedents affecting that area.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby K. Fox, Tala Amirfazli

Mercer Law Review

The 2014 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation, subject matter jurisdiction, arbitration, and civil procedure.

Fisher V. Gala: O.C.Ga. § 9-11-9.1(E) Keeping Malpractice Claims Afloat, Kathryn S. Dunnam

Mercer Law Review

For over four decades, the Georgia General Assembly has sought to strike a balance between the need for competent medical care and the role of the judiciary in determining relief for those injured by improper medical treatment. In its effort, Georgia adopted measures to limit the number of frivolous lawsuits to protect its professionals while giving plaintiffs an efficient avenue for relief. One of these adopted measures is the Official Code of Georgia Annotated's (O.C.G.A.) expert affidavit requirement, section 9-11-9.1 (§ 9.1). The use of expert testimony in malpractice cases is "firmly entrenched" in Georgia's policy and crucial to professional …

Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, Mary K. Weeks, Anna W. Howard, Morgan E. Duncan, Joseph M. Colwell

Mercer Law Review

This Article addresses several significant cases and legislation of interest to the Georgia civil trial practitioner that occurred during the survey period of this publication.

Evidence, W. Randall Bassett, Simon A. Rodell, Dmitry M. Epstein

Mercer Law Review

The 2013 term of the United States Court of Appeals for the Eleventh Circuit saw a number of precedential opinions dealing with a wide variety of evidentiary issues. Of particular interest to prosecutors and criminal defense attorneys are two Eleventh Circuit decisions applying the Sixth Amendment's Confrontation Clause and a unanimous United States Supreme Court decision dealing with the Fifth Amendment's' right against self-incrimination as applied to psychiatric evidence. A number of published Eleventh Circuit decisions involved non-constitutional issues under the Federal Rules of Evidence, including balancing probative value against prejudicial effect under Rule 403, authentication of audio and video …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby K. Fox, Tala Amirfazli

Mercer Law Review

The 2013 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation, subject matter jurisdiction, arbitration, and civil procedure.

The Seat-Belt Defense In Georgia, Jacob E. Daly

Mercer Law Review

For a doctrine of common-law origin, the seat-belt defense is a relatively youthful fifty years old. Credit for the first use of this defense has been attributed to the defendant in Stockinger v. Dunisch, a 1964 case in Sheboygan County, Wisconsin, in which the plaintiff's damages were reduced by 10% based on the jury's finding that she was negligent for failing to use a seat belt. Despite this initial success, most states have rejected the defense, some legislatively and others judicially, and therefore exclude evidence of a plaintiffs failure to use an available seat belt. The Georgia Court of …

Evidence, John E. Hall Jr., W. Scott Henwood, Alex Battey

Mercer Law Review

This year's Survey of evidence finds us in a unique position. The overhaul of the Georgia Evidence Code (Evidence Code) went into effect on January 1, 2013. Therefore, appellate cases continue to emerge that interpret and apply the former rules, providing insight and raising questions about how the new rules have changed the face of evidence in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2012 and May 31, 2013, that illustrate this tension between the old and new rules of evidence. These cases are presented alongside other …

Product Liability, Franklin P. Brannen Jr.

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2012 and May 31, 2013. The Article covers noteworthy cases decided during this period by the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Trial Practice And Procedure, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson, Mary K. Weeks, Jeb Butler, Anna W. Howard, Morgan E. Duncan

Mercer Law Review

This Article addresses several significant cases and legislation of interest to the Georgia civil trial practitioner occurring during the survey period of this publication.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

This year saw the United States Court of Appeals for the Eleventh Circuit set the ground rules for collateral attacks on class settlements and elaborate on the predominance requirements for class certification. The court also considered the enforceability of a, variety of arbitration provisions in light of the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion and examined standing issues common in data security breach class actions.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby Kent Fox, Amanda E. Wilson

Mercer Law Review

The 2012 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, statutory interpretation, subject matter jurisdiction, and civil procedure.

Trial Practice And Procedure, Kate S. Cook, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson, Mary K. Weeks, Jeb Butler

Mercer Law Review

This Article addresses several significant cases and legislation of interest to the Georgia civil trial practitioner occurring during the survey period of this publication.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Supreme Court's landmark recalibration of class certification requirements in Wal-Mart Stores, Inc. v. Dukes, together with its broad approbation of class action waivers in arbitration agreements in AT&T Mobility LLC v. Concepcion, establishes 2011 as a watershed year in class action practice. During the year, the United States Court of Appeals for the Eleventh Circuit only began to deal with the ramifications of Dukes but addressed Concepcion's impact directly.

Appellate Practice And Procedure, Robert G. Boliek Jr.

Mercer Law Review

In 2011 the United States Court of Appeals for the Eleventh Circuit decided a number of cases of first impression for the circuit that are of interest to the appellate practitioner. These cases include the following: (1) an appeal addressing whether a severance under Federal Rule of Civil Procedure 21 is an appealable collateral order; (2) an appeal addressing whether Budinich v. Becton Dickinson & Co. applies in bankruptcy cases; (3) a number of appeals addressing the preservation and presentation of error; and (4) two appeals addressing standards of review.

One of the more interesting cases, however, is not …