Litigation Commons^™

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 …

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.

Appellate Practice And Procedure, Roland F.L. Hall, David R. Cook Jr.

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia Supreme Court and the Georgia Court of Appeals between June 1, 2010 and May 31, 2011. The cases discussed fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.

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

Mercer Law Review

I. INTRODUCTION

This Article addresses significant judicial and legislative developments of interest to the Georgia civil trial practitioner occurring during the survey period of this publication. II. LEGISLATION

Signed by Governor Deal on May 3, 2011, House Bill 242 rewrites and replaces the Georgia Evidence Code' as codified in Title 24 of the Official Code of Georgia Annotated (O.C.G.A.). The Act loosely conforms Title 24 to the Federal Rules of Evidence and makes the changes effective for any motion, hearing, or trial commencing on or after January 1, 2013.

Appellate Practice And Procedure, Robert G. Boliek Jr.

Mercer Law Review

In 2010 the United States Court of Appeals for the Eleventh Circuit addressed a number of cases of significance to appellate practitioners, including cases presenting issues of apparent first impression for the Eleventh Circuit on questions of mootness and justiciability as well as a number of such cases dealing with the preservation of error. In addition, the Eleventh Circuit decided a number of interesting cases relating to interlocutory appeals of orders involving injunctive relief, to questions of the finality of judgments, and to the timeliness of the filing of a notice of appeal.

Perhaps the most interesting case from the …

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

Mercer Law Review

The 2010 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 several recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation, removal, subject matter jurisdiction, and civil procedure.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit's 2010 decisions in class actions further developed the law on the requirements for class certification, the scope of the Class Action Fairness Act of 2005 (CAFA), and the preclusive effects of class settlements and judgments.

Neuropsychiatry In The Courtroom, Richard L. Elliott

Mercer Law Review

This Symposium, "The Brain Sciences in the Courtroom," will make frequent reference to neuropsychiatry, neuroinaging, and brain science, and assumes a rudimentary understanding of neuroscience. While some readers have considerable experience in these areas, others might benefit from a brief introduction to key concepts in neuroscience, and to their applications in the courtroom from a historical perspective. In providing such an introduction, several points will become clear. For 200 years, lawyers, judges, and expert witnesses have struggled to understand how neuroscience can be helpful in the courtroom, with varying degrees of success. This is, in part, due to the fact …

Appellate Practice And Procedure, Roland F.L. Hall

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia Court of Appeals between June 1, 2009 and May 31, 2010. The cases discussed fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.

Trial Practice And Procedure, Kate S. Cook, Alan J. Hamilton, Brandon L. Peak, John C. Morrison Iii, Mary K. Weeks

Mercer Law Review

This Article addresses significant judicial and legislative developments of interest to the Georgia trial practitioner occurring during the survey period of this publication.

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

Mercer Law Review

The 2009 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 several recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, subject matter jurisdiction, arbitration, and statutory interpretation.

Class Actions, Thomas M. Byrne, Stacey A. Mcgavin

Mercer Law Review

In its noteworthy 2004 decision in Klay v. Humana, Inc., the United States Court of Appeals for the Eleventh Circuit appeared to veer from its own precedents in affirming certification of a nationwide class asserting a claim under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). During 2009 the court returned to RICO class actions in Williams v. Mohawk Industries, Inc. , and this time the Eleventh Circuit vacated a district court's refusal to certify a RICO class. The proposed class consisted of Mohawk Industries employees who complained that Mohawk engaged in racketeering activity violating the federal …

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

Appellate Practice And Procedure, Robert G. Boliek Jr.

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit addressed a wide array of significant issues in the area of appellate practice and procedure in 2009. However, the most significant decision for the Eleventh Circuit in the area of appellate procedure came from the United States Supreme Court. In Mohawk Industries, Inc. v. Carpenter, the Supreme Court affirmed a 2008 Eleventh Circuit decision in which the court held that the collateral order doctrine does not allow for an immediate appeal of an order requiring the disclosure of evidence purportedly protected by the attorney-client privilege. Accordingly, this Article will …

Trial Practice And Procedure, Kate S. Cook, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson

Mercer Law Review

This Article seeks to identify and explain the cases and legislation published and enacted within the survey period between June 1, 2008 and May 31, 2009, which impact, illustrate, clarify, or change Georgia's law as it relates to trial practice and procedure.

Trial Practice And Procedure, Kate S. Cook, Alan J. Hamilton, John C. Morrison Iii

Mercer Law Review

This Article addresses significant judicial and legislative developments of interest to the Georgia trial practitioner.

Appellate Practice And Procedure, Robert G. Boliek Jr.

Mercer Law Review

If there is a single watchword for the Eleventh Circuit's decisions in 2007 in the arena of appellate practice and procedure, it is "jurisdiction." The requirement of a "final decision" received particular attention, as did the requirements for perfection of certain interlocutory appeals. The Eleventh Circuit also recognized an additional limitation on its jurisdiction over remand orders in removal cases. Accordingly, the first section of this Article will discuss cases that addressed questions of the Eleventh Circuit's appellate jurisdiction, followed by a section describing two notable cases that addressed the preservation and presentation of error. The final section discusses an …

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

Mercer Law Review

The 2007 survey period yielded several noteworthy decisions by the United States Court of Appeals for the Eleventh Circuit relating to federal trial practice and procedure, many of which concerned issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of class actions, civil procedure, subject matter jurisdiction, statutory interpretation, and other issues of interest to trial practitioners.

Appellate Practice And Procedure, Roland F.L. Hall

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia appellate courts between June 1, 2006 and May 31, 2007. The cases discussed fall into the following categories: (1) appellate jurisdiction, (2) preserving the record, (3) timeliness of appeal, and (4) miscellaneous cases of interest.

Trial Practice And Procedure, Kate S. Cook, Alan J. Hamilton, Brandon L. Peak, John C. Morrison Iii

Mercer Law Review

The Georgia Appellate Courts continue to consider and clarify the impact of the Tort Reform Act of 2005 on trial practice and procedure while addressing other legislation and case law similarly imperative to litigation in Georgia courts. Although the Georgia General Assembly enacted less legislation related to trial practice and procedure during this survey period than in recent years, the few laws passed are noteworthy.

Class Actions, Thomas M. Byrne

Mercer Law Review

In terms of significant class action decisions, 2006 was one of the Eleventh Circuit's busiest years in recent memory. Among other rulings, the court established the ground rules for Federal Rule of Civil Procedure 23(b)(2) classes. The year also presented the court with its first opportunity to address some of the many interpretative questions posed by the Class Action Fairness Act of 2005 ("CAFA").

Appellate Practice And Procedure, K. Todd Butler

Mercer Law Review

This Article reviews federal appellate procedure decisions in the Eleventh Circuit during the 2006 calendar year. Questions considered this year include the role of the notice of appeal in federal appellate jurisdiction, which is addressed in the first section below. The second section addresses the necessity of a final order for appeal, with emphasis on conditional final orders and when they are subject to appeal. The third section addresses the necessity of raising issues before the district court in order to preserve them for appeal.

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

Mercer Law Review

The 2006 survey period yielded several noteworthy decisions in the Eleventh Circuit Court of Appeals relating to federal trial practice and procedure, many of which involved issues of first impression. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of class actions, subject matter jurisdiction, statutory interpretation, judicial estoppel, civil procedure, and other issues of interest to the trial practitioner.

Crawford V. Washington And Davis V. Washington'S Originalism: Historical Arguments Showing Child Abuse Victims' Statements To Physicians Are Nontestimonial And Admissible As An Exception To The Confrontation Clause, Tom Harbinson

Mercer Law Review

Under Crawford v. Washington and Davis v. Washington, the Supreme Court has created a new interpretation of the right of confrontation that holds out-of-court testimonial statements inadmissible without cross-examination. In order to determine if statements for purposes of medical diagnosis and treatment should continue to be an exception to confrontation, this Article reviews the historical evidence cited by the Court. The Court's originalist analysis holds that the only exception for what the Court refers to as "testimonial statements" is the exception for dying declarations. This Article establishes that a significant number of confrontation exceptions existed for testimonial statements in …

Definitely Not Harmless: The Supreme Court Holds That The Erroneous Disqualification Of Retained Counsel Warrants Automatic Reversal In United States V. Gonzalez-Lopez, James A. Robson

Mercer Law Review

In United States v. Gonzalez-Lopez, the United States Supreme Court held that the erroneous disqualification of a criminal defendant's retained choice of counsel violates the Sixth Amendment to the United States Constitution and must result in the automatic reversal of the defendant's conviction. In reaching this conclusion, the Court rejected the Government's argument that a defendant who is denied his choice of counsel must prove prejudice by showing the defendant's substitute counsel was ineffective within the meaning of Strickland v. Washington. Instead, the Court concluded that because a complete violation of the Sixth Amendment's Counsel Clause occurs when …

Trial Practice And Procedure, Bruce P. Brown, Jonathan R. Friedman, Michael R. Boorman, Benjamin J. Vinson

Mercer Law Review

This Article surveys noteworthy cases in the field of civil trial practice during the survey period1 by the Georgia Supreme Court and the Georgia Court of Appeals and relevant enactments by the Georgia General Assembly. This Article does not address the related and important topic of evidence, which is addressed in a separate survey. After describing relevant legislation, this Article surveys developments in trial practice in the order that they would be encountered in the typical case: pleadings, discovery, motions practice, juries and jury selection, statements and arguments of counsel, trial motions, jury instructions, and verdict forms.

Appellate Practice And Procedure, Roland F.L. Hall

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia appellate courts between June 1, 2005 and May 31, 2006. The cases discussed fall within three categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.

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

Mercer Law Review

The 2005 survey period yielded several noteworthy decisions relating to federal trial practice and procedure, many of which concerned issues of first impression in the Eleventh Circuit Court of Appeals. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, civil procedure, statutory interpretation, personal jurisdiction, subject matter jurisdiction, and other issues of interest to the trial practitioner.

Class Actions, Thomas M. Byrne

Mercer Law Review

After an eventful 2004, in which the Eleventh Circuit Court of Appeals explored in depth the class certification requirements of Rule 23 of the Federal Rules of Civil Procedure, the court's 2005 docket presented more threshold questions concerning whether or not putative class actions could proceed past the pleading stage. The court's most important class action decisions during the year addressed the efficacy of contract provisions designed to preclude class actions in favor of individual arbitration proceedings. This issue is among the most controversial in class action law, as many businesses have turned to using standard arbitration provisions to curtail …