Litigation Commons^™

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the 1996 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

Trial Practice And Procedure, C. Frederick Overby, Teresa T. Abell

Mercer Law Review

Developments in the law of personal jurisdiction and venue, the professional malpractice affidavit pleading requirement embodied by Official Code of Georgia Annotated ("O.C.G.A.") section 9-11-9.1, and the doctrines of res judicata and collateral estoppel continued to refine the law during this survey period. Additionally, this survey reviews significant decisions discussing disqualification of jurors for cause, actions for prenatal injuries, procedure in connection with trials involving default judgment, and remedies for spoliation of evidence. Due to the number of decisions, this review seeks to analyze the most significant and practical developments in the areas of trial practice and procedure in Georgia …

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the 1995 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

Trial Practice And Procedure, C. Frederick Overby, Jason Crawford

Mercer Law Review

Developments in the law interpreting and applying the Official Code of Georgia Annotated ("O.C.G.A.") section 9-11-9, the professional negligence affidavit pleading requirement, and Georgia's various statutes of ultimate repose overshadowed the usual decisions concerning personal jurisdiction, service of process, and venue. This review will analyze the developments in these areas of trial practice and procedure in Georgia for the survey period. Also, the authors will discuss new developments concerning Georgia's renewal and dismissal statutes, res judicata, and discovery.

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the 1994 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues related to trial practice and procedure.

Pre-Litigation Contractual Waivers Of The Right To A Jury Trial Are Unenforceable Under Georgia Law, E. Michelle Robinson

Mercer Law Review

In a recent decision, Bank South v. Howard, the Georgia Supreme Court held pre-litigation contractual waivers of the right to a jury trial are unenforceable in Georgia! This decision is particularly interesting in light of two factors: (1) of the jurisdictions considering this issue, Georgia is the only one to hold such waivers unenforceable; and (2) contractual arbitration agreements, which essentially waive the right to a jury trial, are enforceable in Georgia. In Bank South v. Howard, Bank South filed suit against Howard to recover over two million dollars under 1985 and 1988 guaranties. Howard raised several defenses …

Appellate Practice And Procedure, William M. Droze, Cynthia Honssinger Frank

Mercer Law Review

Appellate practice and procedure in the Eleventh Circuit during 1992, consistent with previous years, has produced a number of interesting cases and is often a reflection of the attitudes of the panel considering the appeal. In one instance, despite lacking appellate jurisdiction due to the absence of a final order, the panel invited the parties to obtain the required certification from the district court in order to perfect the appeal. In another, the panel delivered stinging criticism to the district court for creating a policy that restricted the ability of parties to file summary judgment motions.

The court expanded its …

Trial Practice And Procedure, Steven A. Miller, Kristen K. Duggan

Mercer Law Review

This Article surveys the 1992 decisions of the Eleventh Circuit Court of Appeals that have significant impact upon the area of trial practice and procedure.

• Subject Matter Jurisdiction
• Personal Jurisdicition
• Pleading
• Issues at Trial
• Judgment
• Local Rules
• Sanctions

Farrar V. Hobby: When Moral Victories Will Not Feed The Attorney, Seán W. Conley

Mercer Law Review

In Farrar v. Hobby, the Supreme Court granted "prevailing party" status, as required by 42 U.S.C § 1988, to those plaintiffs who are awarded only nominal damages. The Court rejected the Fifth Circuit's rationale that an award of nominal damages is a "technical" or "insignificant" victory and insufficient to allow prevailing party status.

Although the Court unanimously found that a party who is awarded nominal damages is a prevailing party, the Court split five to four as to what reasonable attorney fees would be in this case. Writing for the Court, Justice Thomas compared the relief sought to the …

Trial Practice And Procedure, David A. Forehand Jr., Ken M. Nimmons

Mercer Law Review

The majority of a trial lawyer's work is completed before the jury is placed in the box. The extent of trial preparation is the only means by which one* can arguably predict success. The authors of this Article hope that the reader will view the law of trial practice and procedure as modern day weaponry in the war to preserve justice. To paraphrase Mark Twain, it is a worthy thing to fight one's own fight; it is another sight finer to fight for another man's.

Appellate Practice And Procedure, Kathryn L. Allen, William M. Droze

Mercer Law Review

This survey Article tracks the 1991 developments in appellate practice and procedure for the United States Court of Appeals for the Eleventh Circuit.

• Jurisdiction
• Standard of Review
• Waiver of Right to Appellate Consideration and Harmless Error
• Miscellaneous Issues: Authority of the Court of Appeals

Trial Practice And Procedure, Benton J. Mathis Jr., Leigh C. Lawson

Mercer Law Review

This Article surveys the 1991 decisions of the Eleventh Circuit Court of Appeals that made a significant impact upon the area of trial practice and procedure. One of the most important developments in this area of law occurred in the case Wright v. Preferred Research, Inc. In Wright the Eleventh Circuit examined closely Federal Rule of Civil Procedure 58 and, in a case of first impression, held that when a district court amends a judgment, Rule 58 did not require that a separate document, setting out the terms of the remitted judgment, be entered before the time for the appeal …

Appellate Practice And Procedure, Marion T. Pope Jr., Ann H. Kelley

Mercer Law Review

Practitioners in Georgia's state appellate courts recognize that the most important step in the appellate process is to first ascertain the proper procedure to insure that their appeal is properly before the court, Because the statutory and decisional law governing appellate practice and procedure is not immutable, the appellate practitioner must consistently strive to stay abreast of the law in this area. With these thoughts in mind, this Article will survey selected opinions of Georgia's state appellate courts pertaining to appellate practice and procedure rendered during the period from June 1, 1988 to May 31, 1991. The Article will also …

Trial Practice And Procedure, Molly Townes O'Brien

Mercer Law Review

If "[t]he history of liberty has largely been the history of the observance of procedural safeguards," then 1990 should be regarded as a fine year in the history of liberty. In this year's rulings, the Eleventh Circuit required the district courts to scrutinize in forma pauperis complaints carefully before dismissing them as frivolous and demanded that pro se parties receive express written notice that they must file affidavits in response to a motion for summary judgment. The Eleventh Circuit was also unusually receptive this year to claims by nonresident defendants that the court's exercise of personal jurisdiction over them would …

And God Created Woman. . . . But To Be A Criminal Defense Attorney?, Ellen S. Podgor, Leonard D. Pertnoy

Mercer Law Review

The focus of this Article is to discuss how different stereotypes affect the court presentation by a male and female defense attorney. The authors believe actual differences predicated upon a feminist methodology or approach are gender neutral. An awareness by an individual of what has been termed "feminist" controls actual methodology. For a more comprehensive discussion of feminist legal method or methodology, see generally Bartlett, Feminist Legal Methods, 103 Harv. L. Rev. 829 (1990); C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987).

Closing Argument: Tapping The Human Experience, Drew Findling

Mercer Law Review

To every criminal defense attorney there comes the inevitable daydream. That time when you imagine yourself in front of the jury passionately proclaiming your client's innocence. It is a fantasy dominated by your emotion and shared with an imaginary jury. You can sense the jury move with every word you utter. You expect the jury to applaud you at any moment. Finally, at the end of this reverie, you receive the ultimate ovation, a verdict of not guilty. It is your responsibility to convert that daydream into reality. Your closing argument should be that segment of the trial in which …

Building The Powerfully Persuasive Criminal Defense, Stephen C. Rench

Mercer Law Review

The persuasive case remains the foundation and sine qua non of trial advocacy. The importance of building the persuasive case first cannot be overestimated, for everything else flows 'from the thoroughly prepared and developed case. It furnishes the essential solid foundation from which the lawyer works in evaluating, negotiating, and when necessary, preparing the individual phases of the trial; The purpose of this Article is to describe the persuasive case and then to set forth a system and process for the building of that persuasive criminal defense case.

Literature, History, And Quotations: A New Perspective On An Old Technique, Peter A. Chang Jr., Elton B. Richey Jr.

Mercer Law Review

It was getting late. Outside, the sounds of the five o'clock traffic died down, and the grey twilight of a cold winter's day descended across empty streets and sidewalks. Across the square, the clock on the old church rang out the half-hour. Darkness was taking over inside as well. The grey twilight slipped through the windows and rolled like fog down the stairs and hallways of the aged building on Liberty Street, making the orange glow spilling out of the office at the end of the hall seem warmer still. Exasperated, the apprentice turned to the advocate.

Defending The Death Penalty Case: What Makes Death Different?, Andrea D. Lyon

Mercer Law Review

The United States Supreme Court has said time and again that "death is different." Lately, reading the Court's decisions makes the death penalty defense attorney wonder why, in those cases in which the imposition of the death penalty is the greatest, it is seemingly all right to have the most conviction-prone jury, a racially biased history of the death penalty's imposition, and fewer procedural safeguards.

Handling Client Perjury After Nix V. Whiteside: A Criminal Defense Lawyer's View, John Wesley Hall Jr.

Mercer Law Review

The law of client perjury remains a paradox,. notwithstanding the United States Supreme Court's vaunted, yet seemingly failed, effort to resolve some of the issues by dicta in Nix v. Whiteside. Where we have come from is still confusing, and even five years after Whiteside, where we are going remains a mystery.

Cross-Examination, David L. Lewis

Mercer Law Review

Cross-examination is a force of nature, an unswept intangible force of the universe harnessed in a small space for a very short time at best. It is akin to a newly created element seeking a place on the periodic table. Cross-examination is also the hunger of the wolf and the thirst for justice. It does not admit to being tied to a theory but only to being capable of absorbing life's breath. Good cross-examination begins with the very breath of life, complete with passion and righteousness. It is a terrible, swift sword.

Telling Stories: The Spoken Narrative Tradition In Criminal Defense Discourse, Laura Gardner Webster

Mercer Law Review

Near the end of the Criminal Procedure course that I teach, I assigned the case of Cuyler v. Sullivan, a treacherously complex decision grounded in the sixth amendment right to conflict-free counsel in criminal trials. While the case demonstrates the intricacies of federal habeas corpus review of state criminal convictions, I do not find it absorbing for that reason. I assign it because the respondent, John Sullivan, having successfully urged his claim before the United States Supreme Court, died in the jail in which he had spent most of the previous twenty years of his life.

Opening Statements, Robert B. Hirschhorn

Mercer Law Review

As we begin the last decade of the twentieth century, we are experiencing a revolution in the courtroom. The techniques of the old guard must give way to new and innovative means of motivating our captive audience called the jury. I will not engage in a legal treatise of the opening statement. Few cases have ever been reversed on error committed during the opening statement. Instead, I intend to address the humanistic factors that make the difference between a losing and a winning opening statement. Some cases have been lost because of an ineffective opening, but a disproportionate number of …

The Defendant As A Witness, Alex Zipperer

Mercer Law Review

Few tactical decisions facing the criminal defense lawyer are as problematic as the decision whether to present evidence on behalf of the defense, and particularly whether to have the defendant testify. Trial lawyering cannot be practiced effectively by simply "going by the book." There are no definitive studies, nor can there be, to tell us what the general rule should be in deciding whether the defendant should testify, or otherwise present evidence in any given case. The nature of the criminal trial does not lend itself to a neat set of rules one pulls out of the hip pocket and …

Every Mother's Son: Humanizing The Defendant, Lisbeth Potts

Mercer Law Review

When the jury panel walks into the courtroom, the first thing they do with "bull's eye" accuracy is zero in on your client. "He must be guilty. Why else would I have to be here? If he wasn't guilty, he wouldn't be here." Those are the thoughts flashing through most of their minds., This is typically the situation, whether the defendant has been charged with a minor offense or a heinous crime.

Political Trials, Ephraim Margolin

Mercer Law Review

In Political Criminal Trials, John Sink distinguished between cases in which the defendant admits the deeds, but invokes political reasons as a justification, and cases in which the prosecution proceeds against suspects for political reasons of its own. Each category of case is tried differently. Each compels a different approach to the handling of the media.

The Art Of War And The Art Of Trial Advocacy: Is There Common Ground?, Christopher D. Balch

Mercer Law Review

The most difficult task for me as a future litigator is to define a frame of reference within which to practice the art of advocacy. While law school offers many courses in trial practice, mock trial, and litigation drafting, there is little opportunity to coalesce these segments into a complete strategy for trial advocacy. In order to begin to make sense of the pieces, I needed to define a working model within which to place them. The most obvious place to start was with the oft quoted analogy that trial is civilized combat.

There Is No Such Thing As A Free Question: Examining The Hidden Costs Of Trial Advocacy, Michelle Schieber

Mercer Law Review

Readers of Robert H. Klonoff and Paul L. Colby's new book on trial tactics might well be surprised by the authors' frequent references to fictional works such as Presumed Innocent and Perry Mason. A reader might even go so far as to conclude that the text which he has undertaken to peruse is somewhat radical. But if the reader also assumes that the authors' quirky approach has resulted in a book without merit, then he would be very wrong indeed.

A Crisis Of Legality In The Criminal Law? Reflections On The Rule Of Law, Francis A. Allen

Mercer Law Review

The Carl Vinson Lecture

The notion of the Rule of Law dates from the beginnings of political thought in the western world. In many ways it has had a curious career, for the concept has inspired hyperbole and bombast while, at the same time, generating some of our most sensitive meditations on the nature of law and the relation of individual rights to the exercise of political power and authority.

Calling Your Attention To The Direct Examination: How To Avoid The What Happened Next Question, Christina L. Hunt

Mercer Law Review

When presenting a direct examination, whether it'is the testimony of your client or of another witness, you must remember one thing-prepare your case. Without preparation, a number of consequences inevitably follow:

1. you will definitely lose your client's case;
2. your client will call you every day and drive you insane;
3. your client will then proceed to the penitentiary;
4. he will say unflattering things' about you (and you will deserve it);
5. you will lose potential new clients;
6. he will file habeas corpus papers pro se;
7. he also will sue you for millions of dollars, and, he will do that pro …