Law Commons^™

Torts, Phillip Comer Griffeth, Cash V. Morris

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2011 and May 31, 2012. Unlike previous years, this Article will not review apportionment of fault under section 51-12-33 of the Official Code of Georgia Annotated (O.C.G.A.) as this issue has garnered such significance so as to require a dedicated article in this edition of the Mercer Law Review.

Product Liability, Franklin P. Brannen Jr., Jacob E. Daly

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2011 and May 31, 2012.'This Article covers noteworthy cases decided during this period by the Supreme Court of Georgia, the Court of Appeals of Georgia, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Legal Ethics, Patrick Emery Longan

Mercer Law Review

This Article covers the period from June 1, 2011 through May 31, 2012. As it does every year, the Georgia Supreme Court decided a number of lawyer-discipline cases and other matters related to licensure. The supreme court and the Georgia Court of Appeals decided cases involving legal malpractice, ineffective assistance of counsel, attorney disqualification, and judicial ethics. The State Bar of Georgia Formal Advisory Opinion Board took several actions that relate to the professional responsibilities of Georgia lawyers, and the supreme court promulgated a number of changes to the Georgia Rules of Professional Conduct.

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article describes selected cases and significant legislation from the period of June 1, 2011 through May 31, 2012 that pertain to Georgia fiduciary law and estate planning.

Workers' Compensation, H. Michael Bagley, J. Benson Ward

Mercer Law Review

The 2011-2012 survey period featured decisions of the appellate courts in areas ranging from medical privacy to diligent job searches, with only minor legislation impacting the Workers' Compensation Act.

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.

Georgia's New Evidence Code: After The Celebration, A Serious Review Of Anticipated Subjects Of Litigation To Be Brought On By The New Legislation, Matthew E. Cook, K. Todd Butler

Mercer Law Review

As January 1, 2013 approaches, the Georgia Bar is anticipating the new Georgia Evidence Code (GEC), House Bill 24, due to take effect on that day. Several authors have canvassed the particular changes the GEC brings to the existing Georgia Rules, of Evidence, as well as the differences between the new GEC and the Federal Rules of Evidence (FRE). Those articles are commended for your reading, as they drive not only lawyers' courtroom presentation but also their trial preparation. Rather than rehashing the changes the GEC brings, this Article will address the abbreviated history preceding the passage of House Bill …

Administrative Law, Martin M. Wilson, Jennifer A. Blackburn, Courtney E. Ferrell

Mercer Law Review

This Article surveys cases from the Georgia Supreme Court and the Georgia Court of Appeals from June 1, 2011 through May 31, 2012, during which principles of administrative law were either illuminated or formed an important piece of the decision making. For a change, the Authors observed a significant increase in the number of reported cases during the survey period, but that increase does not necessarily indicate a trend. No attempt has been made to survey cases that properly would fall under categories of more specific articles in this issue, although some degree of overlap is inevitable because of shared …

Construction Law, Frank O. Brown Jr.

Mercer Law Review

This Article focuses on noteworthy construction law decisions by Georgia appellate and federal district courts in Georgia between June 1, 2011 and May 31, 2012.

Death Penalty, Josh D. Moore

Mercer Law Review

Between June 1, 2011 and May 31, 2012, the Georgia Supreme Court addressed several significant points of law in the context of death penalty litigation. The court grappled with two challenging speedy trial issues, one constitutional and the other statutory, in Phan v. State and Walker v. State, respectively. The court announced a new rule on the calculation of time limitations for impeachable convictions in Clay v. State. The court revisited the subject of burden of proof in mental retardation cases in Stripling v. State. And the court articulated a clear standard for evaluating prejudice in a …

Domestic Relations, Barry B. Mcgough, Elinor H. Hitt

Mercer Law Review

This Article addresses significant case law and statutory changes that arose during the survey period.2 Legislation passed by the Georgia General Assembly in 2011 regarding the appellate procedure and in 2012 regarding grandparent visitation rights took effect, and the Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases, providing guidance regarding domestic relations law.

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

Mercer Law Review

This year represents the last survey period in which the "old" Georgia Evidence Code, Official Code of Georgia Annotated title 24, reigns. The "new" Georgia Evidence Code, which amends the O.C.G.A. and conforms in large part to the Federal Rules of Evidence, takes effect January 1, 2013. Therefore, next year's survey will undoubtedly report the ways in which Georgia courts have coped with the extensive changes. For now, courts continue to apply the existing Georgia Rules of Evidence. Cases covered in this Article were published between June 1, 2011 and May 31, 2012, and speak to a variety of topics …

Insurance, Bradley S. Wolff, Stephen Schatz, Stephen L. Cotter

Mercer Law Review

In property insurance cases, there were two Georgia Supreme Court decisions with the potential for significant impact. The court held that insurance companies are liable for diminution in value of real property under commercial and homeowners insurance policies, extending the reasoning in State Farm Mutual Automobile Insurance Co. v. Mabry beyond motor vehicles for the first time. Answering a certified question, the supreme court also held a one-year suit limitation in a homeowners insurance policy is enforceable for losses not caused by fire, despite an insurance commissioner-issued regulation that would prohibit any limitation shorter than, two years.

Despite an insurer's …

Labor And Employment Law, W. Melvin Haas Iii, William M. Clifton Iii, W. Jonathan Martin Ii, Alyssa Peters

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2011 to May 31, 2012.

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Mercer Law Review

For most of its history, Georgia followed the traditional common law rule of joint and several liability and the equally well-settled principle that negligence could not be compared with intent when apportioning liability. Both of those propositions were dramatically altered by the enactment of the 2005 amendments to the Official Code of Georgia Annotated (O.C.G.A.) section 51-12-33 as construed by the Georgia Supreme Court in two recent opinions. In McReynolds v. Krebs, the court held that pursuant to O.C.G.A. § 51-12-33(b): (1) damages must be apportioned among persons who are liable according to percentages of fault of each person …

Business Associations, W. Carter Bates Iii, Kort D.L. Peterson

Mercer Law Review

This Article surveys developments in Georgia law in the area of business associations, including corporations, partnerships, limited liability companies, and joint ventures. The first portion of this Article reviews noteworthy published cases addressing issues of first impression from the Georgia Court of Appeals, the Georgia Supreme Court, federal district courts of Georgia, and the United States Court of Appeals for the Eleventh Circuit, issued from June 1, 2011 through May 31, 2012. The second portion of this Article summarizes additional cases of note that do not involve issues of first impression. The third portion of this Article discusses relevant legislation …

Criminal Law, Franklin J. Hogue, Laura D. Hogue

Mercer Law Review

The Authors reviewed the most important criminal cases during this reporting period-from June 1, 2011 through May 31, 2012-that will likely have an effect upon the way prosecutors and defense attorneys approach criminal cases in Georgia.

Local Government Law, Kirk Fjelstul, James E. Elliott Jr.

Mercer Law Review

This was another active year of litigation by, for, against, within, and between local governments. The Article that follows includes appellate decisions with unique, new, or instructive issues.

Real Property, Linda S. Finley

Mercer Law Review

Given continued economic issues, it is tempting to turn any survey of Georgia real property law into a report solely about foreclosure law. The survey period of this Article-from June 1, 2011, through May 31, 2012-saw continued dire economic times for Georgia and the entire United States. As this Article was going to print, RealtyTrac, which reports national foreclosure statistics, released its mid-year 2012 foreclosure report showing that foreclosure activity had again increased in 125 of the nation's 212 metropolitan areas. Of the metropolitan areas making up the top ten on the foreclosure report, only Atlanta registered an increase in …

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 …

Bankruptcy, James D. Walker Jr., Amber Nickell

Mercer Law Review

This Article offers a review of recent bankruptcy law developments' in the United States Court of Appeals for the Eleventh Circuit.' Two notable areas of activity in the past year included: (1) bankruptcy court jurisdiction, which was ruled on by the United States Supreme Court; and (2) mortgages in Chapter 13 cases, which were the subject of both case law and a new bankruptcy rule.

Federal Taxation, Robert Beard

Mercer Law Review

In the year 2011, the courts addressed interesting issues in the areas of constructive receipt, taxpayer standing to pursue non-monetary damages, and lender liability for unpaid payroll taxes. This Article surveys these decisions.

United States V. Diaz: The Gap Between Medication And Restoration, Bryson Mccollum

Mercer Law Review

In United States v. Diaz, the United States Court of Appeals for the Eleventh Circuit, in a case of first impression, determined whether the state met its burden in applying the United States Supreme Court's test articulated in Sell v. United States, to involuntarily medicate an incompetent, schizophrenic defendant. Based on the Sell test that was established in 2003, the court of appeals had to determine which evidentiary findings were sufficient to meet the clear and convincing evidence standard allowing the State of Georgia to forcibly medicate the appellant, Michael Diaz. The court of appeals found no clear …

Evidence, W. Randall Bassett, Geoffrey M. Drake, Madison H. Kitchens

Mercer Law Review

The 2011 term of the United States Court of Appeals for the Eleventh Circuit did not signal any new trends in the interpretation and application of the Federal Rules of Evidence, which comes as no surprise given that the Rules have been in effect since 1975. The 2011 term, however, did include a case of first impression for the court and several cases applying well-established law to new and unique factual scenarios. Several of these cases resulted in unpublished opinions bearing no precedential weight but, nevertheless, offering guidance to the practitioner in future cases.

While the admissibility of hearsay testimony …

Intellectual Property, Laurence Colton

Mercer Law Review

This Article surveys legal developments in the area of intellectual property relevant to the Eleventh Circuit during the 2011 calendar year. This year, the developments will be presented in a different manner. In recent years, national and state case law has been the primary driver of the developments. However, in 2011, the more interesting and more pertinent drivers have been statutory and practical in nature, both national and international, yet all equally pertinent to the practice of intellectual property law in the State of Georgia.

Intellectual property law comprises several discrete yet overlapping areas of law. The four primary areas …

Labor And Employment, Patrick L. Coyle, Alexandra V. Garrison

Mercer Law Review

Courts within the Eleventh Circuit handed down a number of important opinions affecting labor and employment during the January 1, 2011 to December 31, 2011 survey period. The following is a discussion of those opinions.

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

Mercer Law Review

The 2011 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, some of which addressed issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings regarding arbitration, removal, subject matter jurisdiction, and civil procedure.

Crack, Congress, And The Normalization Of Federal Sentencing: Why 12,040 Federal Inmates Believe That Their Sentences Should Be Reduced, And Why They And Others Like Them May Be Right, Michael Mcneill

Mercer Law Review

The 1980s was a transitionary period in American history, when the general acceptance of casual drug use, which is still associated with the 1960s and 1970s, began to turn to widespread disapproval. The practice and dangers of "freebasing"-smoking cocaine that had been purified with ether and inhaled over an open flame-came into the public spotlight in 1980 when a prominent comedian immolated himself in an accident blamed on the dangerous practice. Beginning in 1984, a cheaper, more accessible form of freebase cocaine, called "crack," began growing in popularity in New York, Miami, and Los Angeles. In November 1985, newspapers began …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The United States Supreme Court was the center of the action in the area of employment discrimination during the 2011 survey period. The most talked about decision was the Court's opinion in Wal-Mart Stores, Inc. v. Dukes. The much-anticipated decision in Dukes was the most significant opinion handed down by the Court in the area of employment discrimination class actions since its 1982 decision in General Telephone Co. v. Falcon, and perhaps ever. The Court also continued to broaden the scope of potential Title VII retaliation actions with its decision in Thompson v. North American Stainless, LP. …