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UnitedUnited StatesStates SupremeSupreme CourtCourt JusticeJustice AnthonyAnthony M.M. KennedyKennedy HeadlinesHeadlines BarBar CenterCenter DedicationDedication For English, press 1.
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A heartbeat and a pulse. Isn’t that the least you should require of your professional liability insurance provider? Aubrey Smith, president of Georgia Lawyers Insurance Company, thinks so. But then again, he remembers a time when it would have been absurd to think that a lawyer could work with people he’d never met face to face. Yet today, it happens all the time. Well, not at Georgia Lawyers. You see, we believe that if you ever have a problem, question or concern, you should be able to call a person and not a switchboard. “Please leave a message at the sound of the beep,” is no way for you to get to know the people who may one day hold your career in his hands. Currently, we have personally met over 90% of our policy holders. Our promise is to provide a level of personal service you can’t receive anywhere else, especially during the quote process. But don’t take our word for it, call our office, we’ll be happy to provide references. If you’re ready for a different kind of insurance experience and a free policy review, or a “Quick Quote,” call Aubrey Smith or any member of the Georgia Lawyers team at: 770-486-3435 or toll-free, 866-372-3435. Visit us online at: www.GaLawIC.com. State Bar of Georgia We’re here for you!
Law Practice Management Program The Law Practice Management Program is a member service to help all Georgia lawyers and their employ- ees put together the pieces of the office management puzzle. Whether you need advice on new computers or copiers, personnel issues, compensation, work- flow, file organization, tickler systems, library materi- als or software, we have the resources and training to assist you. Feel free to browse our online forms and article collections, check out a book or videotape from our library, or learn more about our on-site manage- ment consultations and training sessions. Consumer Assistance Program The Consumer Assistance Program has a dual pur- pose: assistance to the public and attorneys. CAP responds to inquiries from the public regarding State Bar members and assists the public through informal methods to resolve inquiries which may involve minor violations of disciplinary standards is by attorneys. Assistance to attorneys is of equal importance: CAP assists attorneys as much as possi- ble with referrals, educational materials, sugges- help onlya tions, solutions, advice and preventive information to help the attorney with consumer matters. The program pledges its best efforts to assist attorneys in making the practice of law more efficient, ethical and professional in nature. call, Lawyer Assistance Program This free program provides confidential assistance to Bar members whose personal problems may be or interfering with their ability to practice law. Such problems include stress, chemical dependency, fam- click ily problems and mental or emotional impairment. Fee Arbitration The Fee Arbitration program is a service to the gen- eral public and lawyers of Georgia. It provides a e-mail convenient mechanism for the resolution of fee dis- putes between attorneys and clients. The actual arbi- tration is a hearing conducted by two experienced attorneys and one non-lawyer citizen. Like judges, they hear the arguments on both sides and decide away. the outcome of the dispute. Arbitration is impartial and usually less expensive than going to court.
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Legals 12 Government Contracting in Georgia On the Cover By J. Matthew Maguire Jr. The State Bar of Georgia Bar Center Building Dedication took place Jan. 15. The Bar Center is the professional Features gathering place for all Georgia 22 Plain English Drafting attorneys. By Lenné Eidson Espenschied Cover photo by C. Tyler Jones. 30 United States Supreme Court Justice Anthony Kennedy Headlines Bar Center Dedication Ceremony By C. Tyler Jones 34 Georgia Attorneys Help Make Adoption Dreams Come True Departments By C. Tyler Jones 38 Law School Debt Can Limit Options: 4 From the President Loan Repayment Assistance Is a Valuable Tool to Promote 8 From the Executive Director Public Interest Practice By Eleanor Crosby 10 From the YLD President 42 What Can We Do About Domestic Violence in the 56 Bench & Bar Workplace? Lawyers’ Leadership is the Answer! 60 Office of the General Counsel By Georgia Attorney General Thurbert Baker and Linda T. Muir 62 Lawyer Discipline 48 Legal Humor Contest: 63 Law Practice Management Retailing the Wit and Wisdon of the Bar By George E. Butler II 66 Section News 54 The Bulloch County Courthouse at Statesboro: 70 In Memoriam The Grand Old Courthouses of Georgia 71 Book Review By Wilber W. Caldwell 74 CLE Calendar 78 Notices Publisher’s Statement 79 Classified Resources The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 80 Advertisers Index Marietta St. NW, Suite 100, Atlanta, Georgia 30303. © State Bar of Georgia 2004. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional mailing offices. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the Editorial Board, Communications Committee, Officers or Board of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an adver- tisement does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. Editorial Board Quick Dial Marcus D. Liner Attorney Discipline (800) 334-6865 Editor-in-Chief ext. 720 Scott Fain Bertschi Sarah Howard Lamar (404) 527-8720 Consumer Assistance Program (404) 527-8759 Bill Bost E. Peyton Nunez Conference Room Reservations (404) 527-8712 Donald P. Boyle Jr. Stephanie Ann Paulk Fee Arbitration (404) 527-8750 Erin Reynolds Chance Cynthia B. Smith CLE Transcripts (404) 527-8710 Charles Madden Cork III Robert R. Stubbs Diversity Program (404) 527-8754 Lynda Carney Crum Kristin H. West ETHICS Hotline (800) 682-9806 (404) 527-8741 Bridgette Elizabeth Eckerson Pamela Y. White-Colbert Georgia Bar Foundation/IOLTA (404) 588-2240 John Michael Gross Scott Wright Georgia Bar Journal (404) 527-8736 Jennifer Carpenter Kane Lawyer Assistance Program (800) 327-9631 Lawyers Foundation of Georgia (404) 659-6867 Advisors Law Practice Management (404) 527-8772 Membership Records (404) 527-8777 Theodore Harris Davis Jr. Meetings Information (404) 527-8790 Rebecca Ann Hoelting Pro Bono Project (404) 527-8763 D. Scott Murray Professionalism (404) 225-5040 Marisa Anne Pagnattaro Sections (404) 527-8774 Unauthorized Practice of Law (404) 526-8603 Editors Emeritus Young Lawyers Division (404) 527-8778 Rebecca Ann Hoelting, 02-04 Charles R. Adams III, 89-91 Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 Manuscript Submissions The Georgia Bar Journal welcomes the submission of D. Scott Murray, 00-01 Donna G. Barwick, 86-87 unsolicited legal manuscripts on topics of interest to the William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 State Bar of Georgia or written by members of the State Theodore H. Davis Jr., 97-99 Jerry B. Blackstock, 84-85 Bar of Georgia. Submissions should be 10 to 12 pages, L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 double-spaced (including endnotes) and on letter-size paper. Citations should conform to A UNIFORM SYSTEM Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 OF CITATION (17th ed. 2000). Please address unsolicited William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 articles to: Marcus David Liner, State Bar of Georgia, Communications Department, 104 Marietta St. NW, Officers of the State Bar of Georgia Suite 100, Atlanta, Ga., 30303. Authors will be notified Rob Reinhardt President of the Editorial Board’s decision regarding publication. Robert D. Ingram President-elect The Georgia Bar Journal welcomes the submission of Gerald M. Edenfield Secretary news about local and circuit bar association happen- J. Vincent Cook Treasurer ings, Bar members, law firms and topics of interest to attorneys in Georgia. Please send news releases and William D. Barwick Immediate Past President other information to: C. Tyler Jones, Director of Laurel Payne Landon YLD President Communications, 104 Marietta St. NW, Suite 100, Damon E. Elmore YLD President-elect Atlanta, Georgia 30303; phone: (404) 527-8736; Andrew W. Jones YLD Past President [email protected].
Communications Committee Disabilities S. Kendall Butterworth Chairperson If you have a disability which requires printed Aasia Mustakeem Vice-Chairperson materials in alternate formats, please contact the ADA coordinator at (404) 527-8700 or (800) 334-6865. Communications Staff C. Tyler Jones Director Headquarters Sarah I. Bartleson Assistant Director 104 Marietta St. NW, Suite 100 Daniel L. Maguire Administrative Assistant Atlanta, GA 30303 (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 Jennifer N. Riley Administrative Assistant Visit us on the Internet at www.gabar.org. South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 (800) 330-0446 (229) 387-0446 FAX (229) 382-7435 A Bar Center Salute By Rob Reinhardt
President cated to promoting the professional ne geographical association of our members. This flame was kindled by Harold truth about practic- Daniel (president 1994-95). Hal is a ing law in south visionary. He and Cliff Brashier O attended the dedication of the Georgia and serving as State Bar North Carolina Bar Center, and Hal president—plenty of road time recognized the great promise of a similar facility for Georgia lawyers. from the between Tifton and Atlanta. And if He returned to North Carolina with the Executive Committee to gener- you turn off the cell phone there is ate enthusiasm for a “home” for time for reflection. This trip I am Georgia lawyers. Hal also recruited Frank Jones to quarterback the proj- headed north for the Midyear ect. I salute him. By the time Hal passed the torch Meeting and Bar Center to Bobby Chasteen (president Dedication. 1995-96), the idea was picking up steam. President Chasteen made Jan. 15, 2005, will be a historic “Bar leaders have the concept of a Bar Center a focus day for the State Bar of Georgia. It of his presidency. In a President’s long fostered the will mark the official end of a his- Page published December 1995, toric pilgrimage taking our magnif- Bobby, with characteristic humor, ambition of a Bar icent Bar Center facility from con- laid out a compelling case for the cept to reality. The Bar Center was Center dedicated to State Bar to acquire its own build- conceived and delivered as a ing; he also appointed a Bar Center “home for all Georgia lawyers.”. promote the profes- Committee. Beyond maintaining The road has been long and often the momentum of the project, sional association of detoured around daunting obsta- Bobby galvanized support of cles. But every problem was over- our members..” lawyers out in the state for the come by Georgia lawyers equal to establishment of a Bar Center in the task and determined to deliver Atlanta. I salute him. on the promise of the Bar Center. On Ben Easterlin’s watch (presi- For most of the journey I was a dent 1996-97), the purchase of the benchwarmer, but I saw the dedica- Bar Center property was realized. tion and the generosity and the Ben came through the ranks as commitment of our leadership, and treasurer, you remember, and rec- I want to pay tribute. ognized the financial challenges of Bar leaders have long fostered acquiring or building a Bar Center. the ambition of a Bar Center dedi- In fact, Ben initially suggested that
4 Georgia Bar Journal the Bar Center Committee consider 2000 Bar year. Faced with an ease- time, we hoped to dedicate the Bar the Federal Reserve Building on ment on the back of the Bar Center during Jimmy’s year. Instead Marietta Street after noting its list- Building initially granted in the the national tragedy of Sept. 11, 2001, ing as surplus property in the mid-1800s at a “wagon’s width,” hobbled an economy already begin- Atlanta newspaper. Your Board of Rudolph diplomatically presided ning to falter (the Atlanta leasing Governors authorized the pur- over negotiations with the Atlanta market seriously deteriorated), the chase of the building at the 1997 Journal-Constitution and the Turner “dot.com” bubble burst (no more Midyear Meeting for a price that group building Philips Arena. The premium offers from switching ten- translated into $27 per square foot. result: the State Bar received an ants), and we faced litigation on the The land alone is worth that easement of improved quality and issue of tree removal from the foot- amount. Moreover, a condition of the Turner group paid the Bar print of an improved parking deck. the purchase was that the Federal $100,000 and our attorney fees for President Franklin remained steady Reserve would lease the building representation in the negotiations. at the helm and brought to bear the from the State Bar for approximate- Well done, President Patterson. I sort of seasoned and wise leadership ly four years while its new facility salute him. needed to successfully work through was constructed. Great decision, When Rudolph passed the baton these problems. The tree litigation well implemented. I salute him. to George Mundy (president 2000- was resolved. We lost before the All Georgia lawyers have a direct 01), prospects for retrofitting of the Atlanta Tree Board, but we won our stake in the Bar Center by virtue of Bar Center looked great. George’s appeal before the Fulton Superior the assessment that we have all con- year was busy gearing up for con- Court and sustained that ruling tributed to bring the Bar Center to struction, lining up financing, before the Georgia Court of Appeals. reality. Linda Klein (president selecting a general contractor, etc.. Recognizing that our basic strategy 1997-98) worked through the logis- All planning targeted ground- required rethinking, Jimmy refo- tics of arranging financing for the breaking in August 2001. cused our efforts on phased develop- project. In a climate of falling inter- Negotiations were ongoing with ment that responded to our changed est rates, Linda promoted and nego- switching tenants who were offer- circumstances. In addition, Jimmy tiated a refinancing of the purchase ing rental figures in excess of those undertook a massive campaign to money indebtedness being serviced we had projected as sufficient to raise the four million dollars neces- by these member assessments, real- drive the project. At the sunset of sary to complete our Bar Center. Bar izing significant interest savings the Mundy presidency, the issue of staff moved into the new Bar Center while beginning the process of the trees appeared on the horizon. and saved rent the Bar was paying at strategic planning for utilization of But that did not compromise the the Hurt Building. Inspired leader- the building. Good stewardship, progress crafted by President ship, President Franklin, in tough President Klein. I salute her. George. I salute him. times. I salute him. Bill Cannon (president 1998-99) President Jimmy Franklin (2001- Jim Durham (president 2002-03) overcame early reservations to 02) ascended to the leadership of our also came through the ranks as enthusiastically continue this Bar just as all hell broke loose. At one treasurer and had seen the financial strategic planning as we began to consider and refine engineering studies and cost estimates. The courtroom and Wilson exhibit were suggested and explored. The leasing market was strong and prospects promising. Much work was done under the leadership of President Cannon. I salute him. Addressing the myriad of details required by a project of this magni- tude challenged Rudolph Patterson when he took the helm in the 1999-
February 2005 5 In addition to a terrific commitment of time proud to stand with as lawyers. From the outset of the project they during the year they served as president, have addressed the myriad of poli- cy and construction decisions that each of these Past Presidents has remained have seen the Bar Center to suc- cessful completion as a facility for hands-on and actively supportive of the Bar all Georgia lawyers. They kept the vision in front of us and showed us Center project. how it would work. We owe them thunderclouds on the horizon. Jim project. Frank understood the a great debt. I salute them. invested tremendous time in study- tremendous benefits a Bar Your Board of Governors ing the Bar Center budgets and pro- Center would bring to our mem- remained diligent and supportive jections and served as an able and bers; and he has given unstint- of the project from the outset. skilled financial advisor as the Bar ingly of his formidable skill at Through the good times and the faced unattractive options. Jim marshaling support and charting bad times, the Board kept our per- orchestrated continued success with the appropriate direction. I spective on long-term benefit and fundraising. The conclusion of the salute him. refused to be frustrated by short- tree litigation and generosity of our Cliff Brashier has in reality per- term problems. The unfailing sup- friends put the project back on all formed two demanding jobs on port of the Board was crucial to our cylinders. Hard work made for behalf of the Bar for the greater leadership when hard decisions much progress, President Durham. I part of a decade. In addition to had to be made. I never saw the salute him. ensuring the smooth day-to-day Board falter in its commitment to Bill Barwick (president 2003-04) operations of our 35,000 member bring the Bar Center to completion. continued leasing space and over- organization year after year after I salute them. saw the construction of the parking year, Cliff made time to work Finally, the Bar Center would deck. Financing, leasing and build- closely with each of our have remained a cherished but ing permits—all had to be redone. Presidents, our Bar Center unfulfilled dream without the We tackled the retrofitting of the Committee, our architects and broad support of the lawyers of third floor conference center. A lot building consultants and con- Georgia. This year, as I am privi- was accomplished under the lead- tractors and leasing people. Cliff leged to represent you at meetings ership of President Barwick. I stayed on top of every construc- of the Southern Conference of Bar salute him. tion complication—large and Presidents and the National In addition to a terrific commit- small—from working through Conference of Bar Presidents, I ment of time during the year they problems with the parking deck invariably return to Georgia con- served as president, each of these (from foundations to supervis- vinced that the Georgia version of Past Presidents has remained ing construction and then opera- the practice of law is the best in the hands-on and actively supportive tion) to monitoring the place- country. Your financial support of of the Bar Center project. They ment of marble on the entry the Bar Center was critical. Your have been out front, they nurtured arch. A project of this scope pres- long-term commitment to the the vision and they provided the ents countless decisions that acquisition and retrofitting of the stability to stay the course. Again, I have to be considered and Bar Center was crucial. Georgia salute them. understood and coordinated. lawyers understood the great In addition to the leadership of Unfailingly, everyone involved promise of this Bar Center and our Past Presidents, there are two with this project recognizes the stood solidly behind it. I salute you. people whose contribution to our great work he has done on our It is a great point of undeserved Bar Center has been immeasurable: behalf and marvels at his ability pride for me to be able to participate Frank Jones was enthusiastically to keep so many balls in the air. I as your President on the occasion of and unanimously targeted as salute him. the dedication of the Bar Center. I head of the Bar Center Our Bar Center Committee is mentioned this is the second run we Committee at the outset of the composed of people that I am have taken at a dedication ceremo-
6 Georgia Bar Journal The dedication of the Bar Center is a triumph we have all had a hand in. It is an accomplishment that binds all the lawyers of Georgia, and the experience of working with the people that made it happen is something I will take away from this year and treasure. ny. When we hoped to dedicate the progress of our Bar Center project. brought me to understand the Bar Center during Jimmy Franklin’s As we got started I was serving on scope of our project. In fact, I presidency, Frank Jones invited the Finance Committee, and we remember the communication United States Supreme Court watched the Bar Center budget going something like this: “Mr. Justice Anthony Kennedy to closely, both as to the construction Reinhardt, you are correct that if keynote our ceremony; but our process and relative to the operat- you directed us to a field some- timeline was extended as we had to ing budget. During some of these where and we constructed for you a work through unanticipated prob- years I served as treasurer and plain vanilla parking deck we could lems. Now the time is right, and as was standing at alert as we were bring it in for approximately half he has done throughout this project, wrestling through cost overruns, the cost of this project. However, Frank has crafted a worthy ceremo- leasing revenues below projec- when you want that parking deck ny to mark the completion of the 10- tions due to the deterioration of constructed in the middle of down- year effort to bring the Bar Center the leasing market and other town Atlanta with the use of a sky on line. Justice Kennedy graciously unpleasant realities. To give you crane, when construction will accepted Frank’s second invitation an example of the inspired con- require that one lane of Spring and has arranged his demanding struction expertise I brought to the Street be closed for half a year and schedule to appear with us to mark table, I remember a meeting that when you want a parking deck to this great occasion. Jimmy Franklin, Jim Durham, Cliff match the character of a historic The Bar Center will stand for Brashier and myself attended dur- building, it is going to cost you decades—I hope for generations—as ing the planning phase of the more.” It was at that meeting that I an active facility to promote the pro- parking deck. We assembled at the came to understand that our Bar fessional and personal collegiality office of our architects and the Center Committee had selected that characterizes the State Bar of entire construction group was top-notch people who knew what Georgia. The building is not fully present—our building consult- they were doing, and I refrained leased. We are pursuing some excit- ants, contractors, project man- from giving further construction ing possibilities, which we hope will agers, etc. We had requested the recommendations for the remain- work out. But the promise of a Bar meeting because we were alarmed der of the project. So perhaps in Center for Georgia lawyers has been at the rising construction cost esti- some small way I may have con- fulfilled. It stands in tribute to the mates. Having done research tributed. grand profession of the law. It stands among my construction clients, I In truth, the journey has been a in tribute to our past leaders who remember bellying up to the table pleasure. The dedication of the Bar gave of their energies and talents and saying, “Gentlemen, what Center is a triumph we have all had toward the protection and improve- part of the message that this park- a hand in. It is an accomplishment ment of our grand profession. It ing deck is costing too much are that binds all the lawyers of stands in tribute to lawyers who in we not clearly communicating to Georgia, and the experience of years to come will come before the you? My information is that park- working with the people that made Bar to accept and continue that noble ing deck construction is often it happen is something I will take charge. My firm belief is that the Bar quoted by the cost per space and I away from this year and treasure. Center will bridge this heritage. understand that a parking deck All that is left to fulfill the mission While I do not claim to provide can be delivered for half of what of the Bar Center is for all lawyers leadership of the caliber of my this parking deck is costing us.” to frequently utilize its facilities predecessors, I have been in a After exchanging several glances and cherish it as a home we share unique position to observe the across the table, the group gently with our legal brethren.
February 2005 7 If You Renovate It, They Will Come By Cliff Brashier
of students, as well as the general “ f you build, it they will come.” public, regarding the judicial process and the importance of the This line, made famous in the rule of law in the United States Imovie Field of Dreams, has and Georgia. been going through my head the last Mock Courtroom The courtroom will offer a Executive Director few years. Well actually the phrase, hands-on demonstration of the fair- “If you renovate it, they will come” ness of trials and the role of public juries. It will also be used for ADR, is more accurate, as the Bar leader- mock trials, meetings, school tours ship’s decade-long vision of the Bar and other appropriate uses. Museum of Law Center came to fruition in January The museum will exhibit historic with the building dedication. Georgia and national trials, such as from the It is my hope, and the hope of the the Brown v. Board of Education case Bar Center Committee that this that established important rights “It is my hope, and space will become the professional now enjoyed by all citizens. gathering place for all Georgia attor- Authentic 19th the hope of the Bar neys for many decades to come. All members are strongly encouraged to Century Law Office Center Committee, use the Bar Center. Offices, meeting The Woodrow Wilson law office areas and conference rooms will be display will offer a visual representa- that this space will available daily on a first reservation tion of a law office found in down- become the profes- basis. In addition, all members, town Atlanta in 1882. Most of the arti- along with their families and clients, facts came from the original office. sional gathering are invited to visit and tour the Bar Center whenever possible. Conference, CLE and place for all Following are some of the high- Training Center lights of the Bar Center. The third floor will be devoted Georgia attorneys Public Educational primarily to professional meetings, Programs legal/judicial conferences, continu- for many decades ing legal, judicial, and law staff The Bar Center provides excep- education, and other professional to come.” tional facilities for the education functions for lawyers and judges.
8 Georgia Bar Journal Lawyers’ Lounge Bar Center Building The third floor conference Facts and Information center will include a lawyers’ lounge with telephones and • The State Bar of Georgia moved refreshments for the exclusive into the building in 2001. new & use of lawyers and their guests • Previously, this site was home to during normal business hours. the First Presbyterian Church of improved Receptions Atlanta (1848 to 1916) and the Federal Reserve Bank of Atlanta www.gabar.org When not in use for profes- (1916 to 2001). Both the State sional activities, members may Bar and the Federal Reserve reserve the Bar Center for Bank moved here from the Hurt receptions, dinners, weddings, Building. parties, and other private func- • The site consists of 1.73 acres tions at published overhead including approximately .4 acres charges and the direct expenses of green space and 373 feet of required by the use. frontage on Marietta Street. The This classic, historic building building has 252,067 square feet will become a symbol of the Bar of office space with a basement and the legal profession, just as and sub-basement. capitol buildings symbolize gov- • The State Bar purchased the ernment and courthouses repre- building in 1997. It was leased sent the justice system. The Bar back to the Federal Reserve Center is our legacy to future Bank for four years while its new generations of lawyers. No other building was being constructed. bar building in the United States • The new parking deck, complet- has the facilities to provide any- ed in 2004, has 500 spaces. thing comparable when it comes • The Federal Reserve Bank con- to public law-related education- structed the building in three al opportunities and profession- phases (1960, 1964 and 1968). al conferences. It is our goal to make your • The building is located on the visit to the Bar Center a pleas- eastern continental divide. ant experience. For that reason • Nearby points of interest include: there will be a staffed welcome Centennial Olympic Park, the new center located on the third floor Atlanta Aquarium, Five Points to greet you and assist you with Marta station, The Georgia World directions and information, Congress Center, The Georgia including a brochure with a Dome, Philips Arena, The map and summary of the serv- Eleventh Circuit Court of Appeals, ices available in the Bar Center. the Richard B. Russell and Sam Nunn Federal Buildings, Georgia As always, your thoughts State University, Underground and suggestions are always Atlanta, the State Judicial and welcome. My telephone num- Capitol Buildings, the Fulton bers are (800) 334-6865 (toll County Courthouse, Atlanta City free), (404) 527-8755 (direct Hall, numerous hotels, restaurants dial), (404) 527-8717 (fax) and and the proposed site of the mul- (770) 988-8080 (home). timodal transportation station.
February 2005 9 YLD Brightens the Holidays for Others By Laurel Payne Landon
phone numbers and distributed to ne of the primary those in danger of domestic violence. Truancy Intervention Committee: purposes of the YLD Each year for the past 13 years, local President is to serve the com- attorneys have brightened the holi- O day season for dozens of children by munities in which we live and work. donating gifts to the Truancy Intervention Project for their annual The committees listed below exem- Holiday Adoption program. Each child in the project and their siblings YLD plified this purpose, and the holiday fill out a wish list, which is then passed on to attorneys and legal staff spirit, by helping those less fortu- throughout the Atlanta area, who nate during the holiday season. donate clothes, toys and educational games to the children in need. This I am honored to be associated year, the YLD committee adopted a with an organization that gives so family with 12 children! much back, both during the holi- Women in the Profession: The days and throughout the year. As Women in the Profession Committee we enter a new calendar year, I am from the participated in the Grandparent/ challenged by their example to find Relative Caregiver Adoption Project ways to give back to my communi- by adopting a family in need through ty and my profession and I hope the Atlanta Legal Aid Society. The you will be too. families in the program often have Community Service Projects special needs because in many situa- Committee: On Dec. 11, 2004, the tions the grandparents are living on a Community Service Projects fixed income. The children and the Committee partnered with the Fulton grandparents give the Atlanta Legal County Department of Family and Aid Society a wish list of things they “I am honored to be Children Services to sort and wrap would like for Christmas. The com- holiday presents donated to foster mittee fills the wish lists by collecting associated with an children for Christmas. This generous contributions from members and also organization that donation of time is especially appreci- gives the family grocery store gift cer- ated during the busy holiday season. tificates. gives so much back, The committee also held its annual Minorities in the Profession: The clothing and cell phone drive in con- Minorities in the Profession both during the holi- junction with the State Bar of Committee partnered with Aid to Georgia’s Midyear meeting in Children of Imprisoned Mothers, days and throughout January. Business attire for men and Inc., (AIM) to buy holiday gifts for women who are trying to move into the year.” the children involved with the the workforce was donated at several organization. The committee hosted collection sites around the state, then a holiday party that included salsa sorted and prepared for delivery to dancing (lessons provided), net- various charities and shelters. Cell working and socializing for mem- phones were also collected at the sites bers, and an opportunity to raise and then activated to call emergency money for the AIM project.
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ith very limited exceptions, federal, state and local laws require By J. Matthew Maguire Jr. government entities to award contracts through competitive W processes, such as Requests for Quotation and Requests for Proposals. In theory, these procedures ensure that the purchaser, i.e., the government
agency, obtains the best value for the taxpayers’ money.1 In practice, these procedures
work with varying degrees of
success. Unfortunately, in many
instances the best offeror is
passed over due to the agency’s
arbitrariness or bias or the offer-
or’s simple confusion as to the
agency’s specifications. This article is written for gen- eral practitioners who represent firms that provide goods or serv- ices to government agencies in Georgia. The first section pro- vides a general overview of typi- cal procurement processes and some tips for a smooth procure- ment process. The second sec- tion of the article discusses administrative and judicial remedies for the unsuccessful offeror contemplating a chal- lenge to an adverse agency deci- sion. The article is not designed to be a “how to” litigation manu- al, rather, it provides a general overview of what to expect once the decision is made to challenge an agency’s decision regarding a government contract.
12 Georgia Bar Journal NAVIGATING THE RFQ bids are usually opened If the agency and top-ranked publicly, the lowest responsive offeror reach a meeting of the PROCUREMENT bidder is announced, and the minds, a contract is executed. If PROCESS contract is awarded on that basis. they do not reach a meeting of the Once the bid is accepted, a court minds, the agency will enter into General Overview of will not relieve a bidder who, negotiations with the second- through ignorance, submits a bid ranked offeror, and, if necessary, Procurement Process that is too low.2 Because RFPs all other qualified offerors until a The procurement process typi- usually contain more variables contract is finalized. cally begins with a Request for and require more subjective Tips for a Successful analysis, agencies typically des- Quotation (RFQ) or a Request for Procurement Proposal (RFP). The government ignate a team of staff members agency will typically use an RFQ and consultants to evaluate each 1. Read and Understand the to obtain the most competitive proposal against the selection cri- RFP and Applicable Rules teria set forth in the RFP. Most price for commodities like a fleet The importance of reading and agencies require the evaluation of previously specified automo- understanding the RFP and pro- team to complete evaluation biles. The agency will use an RFP, curement rules cannot be overem- forms for each proposal. The by contrast, for service contracts, phasized. This would seem to be an evaluation team ranks the offer- such as advertising, information obvious point, but countless offers ors in order of preference and technology consulting and engi- are rejected because the offeror then the agency notifies all offer- neering because those contracts failed to adhere to the requested ors of its intent to enter into contain more variables than just format or missed the submission negotiations with the top-ranked price and delivery date. deadline—in some cases by a mat- offeror. The negotiation phase is Before bids or proposals are ter of minutes.3 the final opportunity for the due, the agency will typically While most RFPs typically refer- agency and the top-ranked offer- allow offerors to ask questions ence the issuing agency’s rules, or to resolve any contingencies either in a formal question and other state or federal rules might and formalize the contract. The answer session or in writing. If the also apply. For example, if you are agency should not substantially latter is used, the agency will fur- bidding on a contract for “public modify the terms of the RFP dur- nish its written response to all works construction”4 in Georgia, ing the negotiation phase without questions to all offerors. Any other and the value of the contract allowing all offerors the opportu- contact with the agency by the exceeds $100,000, the competitive offeror is usually forbidden. nity to propose modified terms. SOUTH GEORGIA ADR SERVICE, LLC
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February 2005 13 award process will be governed by 3. Use the Open Records Act Enterprise (DBE) component to the Georgia Local Government Wisely them.14 DBE programs seek to Public Works Law, O.C.G.A. § 36- Many bidders and attorneys fail increase contracting opportunities 91-1, et seq. If the state or local to take full advantage of the for firms that are at least 51 percent- agency accepts federal funding, Georgia Open Records Act to owned by women or members of federal procurement regulations obtain competitors’ proposals and certain ethnic groups presumed to will apply, but you will also be the agency’s evaluations of all pro- be “socially and economically dis- required to satisfy state or local posals.11 In Georgia, those docu- advantaged.”15 Certified DBEs and rules that do not conflict with the ments become public records upon non-DBE firms that satisfy DBE federal regulations.5 In the remain- the award of the contract except to goals (by subcontracting or partner- ing cases, you should be able to the extent they contain protected ing with DBE firms) typically find the procurement rules at the trade secrets.12 receive additional points in the pro- agency’s Web site. Have your records request draft- posal scoring process or additional Failure to understand the appli- ed and ready to file before the compensation from the agency.16 cable rules could lead to missed agency announces the award so A typical program sets a DBE opportunities. For example, if a that you can file the request on the participation goal for a particular provision in the RFP unfairly ham- day of the announcement if your contract, expressed as a percentage pers your client’s ability to com- client does not win the contract. of the total contract amount, to be pete or gives another firm an unfair You will likely need these docu- performed by qualified DBE competitive advantage, most agen- ments to prepare a protest, which firms.17 Non-DBEs that are unable cies will require that a protest of will be due within days of the to satisfy the DBE goal must the RFP be filed on a very short announcement.13 Request the com- demonstrate “good faith efforts” to time frame.6 If you wait until the plete procurement file, including, do so by, for example, reaching out bid is rejected and then protest the without limitation, all offerors’ to DBE subcontractors through award to the winning bidder, you questions and agency responses, minority contracting groups or will have waived your objections to evaluation factors, agency evalua- offering assistance and even the terms of the RFP itself.7 tion forms, the winner’s proposal, financing to DBE firms.18 Your 2. Understand Rules all correspondence between the good faith efforts will be compared Pertaining to Lobbyists winner and the agency, and all against the other offerors, which might put you in the unenviable If your client decides to use a minutes, notes, and audio or video- position of having to explain why lobbyist to help secure a govern- tapes from meetings between the you were the only offeror who ment contract, remember that he is winner and the agency. You will be failed to satisfy DBE goals.19 acting as your client’s agent. A lob- surprised at what you find. In sev- Although many state and local byist cannot do anything with eral unreported cases, unsuccessful governments have formulated respect to the procurement that his offerors have learned through open their own DBE-type programs,20 if client could not otherwise do. records requests that their propos- they accept federal road, trans- Also be aware that a vendor who als received the highest score by portation or airport funding, they employs a lobbyist to lobby a the agency evaluation team. In must adhere to U.S. Department of Georgia state agency “shall cause another unreported case, an open Transportation DBE rules.21 such lobbyist to register with the records request uncovered evi- Fortunately, the U.S. D.O.T., the State Ethics Commission and to file dence suggesting that agency offi- Georgia D.O.T. and the Georgia the [appropriate] disclosures.”8 cials shared confidential pricing Department of Administrative Those disclosures include the specif- information from sealed proposals require only one application and ic contract for which the lobbyist has with another bidder in violation of one certification.22 been hired and the compensation to the applicable procurement rules. If your client is not eligible to be be paid to the lobbyist.9 Please keep 4. Disadvantaged Business a DBE, it may satisfy DBE goals by in mind that some agencies prohibit Enterprise Requirements forming a joint venture with a DBE payments to lobbyists from funds Most government contracts have or by subcontracting with DBEs.23 received from the agency.10 a Disadvantaged Business The non-DBE partner in a joint ven-
14 Georgia Bar Journal ture must be prepared to demon- is your chance to tell the agency ther explanation is not sufficient. strate that the DBE partner is a bona why you think they made the Moreover, your claims may not fide participant in the work and the wrong decision. You may protest a always be that the agency did not risks and rewards of the contract.24 provision in an RFP, the award of a properly evaluate the proposals. If a non-DBE firm chooses to sub- contract or even the decision to not You might argue, for example, that contract to DBE firms, all of the competitively bid a business oppor- an action taken by the agency is goods and services necessary to ful- tunity so long as you can show that void because it exceeds the author- fill the contract that are purchased you are harmed by that decision. ity delegated to the agency by the from DBEs will count towards the Although protests begin infor- General Assembly.28 DBE participation goal.25 mally with a letter, that letter has If you protest a provision in the some very significant conse- RFP and succeed, the agency will REMEDIES quences. First, if it is not filed on either amend the RFP or cancel it FOR THE time (usually within five to 10 days and issue another one. If you suc- of the adverse decision), the agency ceed in protesting the award of a UNSUCCESSFUL is authorized to deny your protest contract, the agency will probably BIDDER on that basis alone.26 Second, your terminate the contract with the suc- protest letter must raise all claims cessful offeror and execute a con- Protests and describe the evidence support- tract with you. As discussed below, ing those claims with some degree there are some circumstances in 1. Filing a Protest of specificity. Any claims that you which the successful protestor does do not raise or support are not win the contract. In those cases, A protest is a formal, written waived.27 Simply telling the you would be entitled to recover objection to an agency’s action in agency that you think you had a bid preparation costs, but lost prof- connection with a solicitation. This stronger proposal without any fur- its under the disputed contract
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February 2005 15 The difficulties with protests might lead one to consider avoiding that process and simply suing the agency in court. This is not advis- able. In almost all cases, an aggrieved bidder must “exhaust admin- istrative remedies” before seeking relief from a court, and a protest procedure is an administrative remedy. would not be available.29 In addi- ing that process and simply suing cult it will be to wrest it from the tion, if you are able to prove that the agency in court. This is not contractor initially selected.37 Even the agency “has acted in bad faith, advisable. In almost all cases, an if your efforts to stay the contract has been stubbornly litigious or has aggrieved bidder must “exhaust are ultimately unsuccessful, the caused [you] unnecessary trouble administrative remedies” before fact that you took all reasonable and expense,” you can recover your seeking relief from a court,33 and a steps to stay the contract should attorneys’ fees and expenses.30 protest procedure is an administra- defeat a claim that you sat on your tive remedy.34 That remedy will be rights. 2. Protest Hearings exhausted when the agency issues In some—but not all—instances, Appeals from Protest a final decision on the protest. the agency will hold an eviden- Denials and tiary hearing on your protest. The 3. Take Steps to Stay the Alternative Remedies City of Atlanta, for example, Contract allows a hearing but does not pro- When you protest a contract What do you do if the agency vide litigants with compulsory award, the agency will usually stay denies your protest? You have the process.31 The Department of the contract with the successful right to appeal, but determining Administrative Services (DOAS) offeror until your protest is adjudi- where and how to appeal can be and the Georgia Technology cated. This prevents the agency tricky. If you had the right to a hear- Authority (GTA), which together and successful contractor from ing, whether or not one was held, administer most state agency pro- expending time and money on a you must file a petition for writ of curements, give the protest deci- contract when there is still some certiorari to the superior court in the sion maker sole discretion on uncertainty as to whether it was county in which the hearing was whether to hold a hearing.32 If a awarded to the proper party. Most held.38 In a writ of certiorari, you hearing is not granted, the protest agencies have the discretion, how- are asking the court to function in will probably be decided based ever, to go forward with the con- an appellate capacity to review the upon the written documents sub- tract if doing so is determined to be record below and correct errors of mitted to the decision maker. in the agency’s interest.35 You law made by the protest decision Do not expect to win your should take every action possible maker. The court in certiorari is lim- protest at the agency stage, because to prevent the agency and contrac- ited to the evidence presented to the the agency serves as the judge, jury tor from going forward up to and agency; if you discover the smoking and litigant. In essence, you are including filing a temporary gun document that proves your asking the agency officials to find restraining order in superior court. case after your protest hearing, you that their co-workers made a mis- If you do not take these steps, a are out of luck,39 which is why it is take. If a hearing is held, your pri- court could very likely determine so important to use the Open mary goal should be to create a that you won the protest, but that Records Act effectively to develop record for appeal by asserting all you “sat on your rights” by allow- your evidence. Your burden is to arguments and tendering all sup- ing the agency and other party to prove that the agency’s decision porting witnesses and evidence perform the contract during your (i.e., the denial of your protest) is available to you. protest.36 The more money and not supported by “substantial evi- The difficulties with protests effort that is spent in the further- dence.”40 This is a difficult, but not might lead one to consider avoid- ance of the contract, the more diffi- impossible, burden.41
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If you would like to receive a comparison quote on your professional liability coverage, visit us online at www.gilsbar.com/quickquote or call 1-800-445-7227 ext. 513 GSC MK-05-1746 If you did not have the right to a tion our courts give to public offi- 392 S.E.2d 564, rev’d on other grounds hearing on your protest, your rem- cials, but they are an essential com- by 260 Ga. 658, 398 S.E.2d 369 (1990), for example, the Court of edy is to file a declaratory judg- ponent to the integrity of any solic- Appeals held that the City had no ment action in superior court seek- itation process. The most important discretion to accept a low bid that ing a declaration that the agency ingredient to a successful protest is was submitted three minutes late. exceeded its authority in rejecting preparation, which requires a thor- 4. “Public works construction” is defined as “the building, altering, your bid. As a part of that action, ough understanding of the repairing, improving, or demolish- you should request a preliminary agency’s rules, the selection criteria ing of any public structure or and permanent injunction to for the solicitation and the offers building or other public improve- restrain the agency from awarding themselves, all of which are within ments of any kind to any public 42 real property…. Such term does the contract to anyone but you. the public domain. not include the routine operation, As is the case with a certiorari pro- repair, or maintenance of existing ceeding, the court will not substi- J. Matthew Maguire structures, buildings or real prop- tute its judgment for that of the Jr. is a partner in the erty.” O.C.G.A. § 36-91-2(10). Atlanta office of Balch 5. In fact, O.C.G.A. § 36-91-22(d) agency (which is presumed to have requires state and local agencies to & Bingham LLP. His expertise in its area of operations), comply with Georgia law and fed- but it will enjoin a contract if the practice involves liti- eral law if federal funds are impli- award violates the agency’s pro- gating against government enti- cated. If state law conflicts with fed- ties, with an emphasis on the rep- eral law, then federal law will con- curement rules. resentation of government con- trol. Id. This is consistent with the To obtain preliminary or perma- constitutional doctrine of federal tractors in bid protests and related nent injunctive relief, you will have preemption, which requires that litigation. He may be reached at to show that you do not have an federal law take precedence over (404) 760-3506 or state law when: (1) the federal 43 adequate remedy at law. Because [email protected]. statute expressly pre-empts state a frustrated bidder is not entitled to law; (2) “the scheme of federal reg- recover lost profits under the con- ulation is so pervasive as to make tract,44 you should argue that you Endnotes reasonable the inference that Congress left no room for the States cannot be made whole unless the 1. City of Atlanta v. J.A. Jones to supplement it”; and (3) “compli- court uses its equitable powers to Construction Co., 260 Ga. 658, 398 ance with both federal and state award the contract to you.45 S.E.2d 369 (1990). regulations is a physical impossibil- 2. Although generally a bid is treated A court will enter a preliminary ity, or where state law stands as an as an offer that cannot be revoked obstacle to the accomplishment and injunction to maintain the status or amended once it is accepted, execution of the full purposes and quo pending a final decision on the courts will allow revocation if objectives of Congress.” Boyes v. merits if the equities weigh in favor based upon an unintentional uni- Shell Oil Products Co., 199 F.3d lateral miscalculation and (1) of the party seeking the injunction 1260, 1267 (11th Cir. 2000). enforcement of the mistake would 6. The Georgia Technology Authority, and there is no adequate remedy at be unconscionable; (2) the mistake for example, requires that any law.46 A court will enter a perma- relates to the substance of the con- protest of any aspect of the solicita- nent injunction to prevent an illegal sideration; (3) the mistake occurred tion be filed within five days of regardless of the exercise of ordi- when the grounds for the protest act that will cause irreparable nary care; and (4) the other party were discovered or should have injury to a property right or pro- has not been prejudiced. First been discovered. Ga. Comp. R. & tected interest, for which there is Baptist Church v. Barber Regs. r. 665-2-11-.07(c)(1). In con- no adequate remedy at law.47 Contracting Co., 189 Ga. App. 804, trast, the Georgia Department of 807-808, 377 S.E.2d 717 (1989). On Administrative Services (“DOAS”), the other hand, agencies enjoy which administers procurements CONCLUSION almost unfettered discretion to for most state government agen- reject any and all bids, so long as While the vast majority of gov- cies, specifies that protests to any- they do not abuse that discretion thing occurring during the solicita- ernment solicitations are adminis- by rejecting a compliant bid in tion must be filed at least two days tered fairly and efficiently, the favor of a noncompliant bid. prior to the proposal due date. See involvement of human beings in Metric Constructors, Inc. v. GEORGIA VENDOR MANUAL, § 3.8(2). Gwinnett County, 729 F. Supp. the process will always give rise to 7. GEORGIA VENDOR MANUAL, § 3.8(2). 101, 103 (N.D. Ga. 1990). 8. See Executive Order signed by some exceptions. Protests are diffi- 3. In City of Atlanta v. J. A. Jones Georgia Governor Sonny Perdue cult to win because of the discre- Constr. Co., 195 Ga. App. 72, 77-78, on October 1, 2003.
18 Georgia Bar Journal 9. Id. contract awards be filed within Application. It may be down- 10. The Georgia Department of five days of the announcement of loaded from the Georgia Community Health (“DCH”), for the award. Ga. Comp. R. & Regs. r. Department of Transportation example, has recently asked con- 665-2-11-.007(c)(1). The protest website, found at tractors to execute a contract must include “a specific detailed www.dot.state.ga.us/dot/eeo- amendment certifying that “[n]o statement of all legal and factual div/documents/pdf/dbeapplica- portion of funds paid under this grounds relied upon by the tion/dbe-application-1-13-04.pdf. Contract shall be used for lobbying Protestor in filing its Protest,” and 23. 49 C.F.R. 26.55. purposes.” While the First any grounds not asserted are irrev- 24. 49 C.F.R. 26.5 defines the term Amendment prevents a government ocably waived. Ga. Comp. R. & “joint venture” as “an association agency from banning lobbying out- Regs. r. 665-2-11-.007(b)(4)(v). of a DBE firm and one or more right, it would likely permit govern- Thus, an unsuccessful offeror con- other firms to carry out a single, ment contractors to demonstrate templating a protest does not have for-profit business enterprise, for that payments to lobbyists were not much time to obtain the relevant which the parties combine their made from the same account that supporting documents from the property, capital, efforts, skills and receives contractual payments from agency to support a protest. knowledge, and in which the DBE that agency. See generally, Rust v. 14. DBE programs have been the sub- is responsible for a distinct, clearly Sullivan, 500 U.S. 173, 197-198 ject of significant litigation because defined portion of the work of the (1991) (statute conditioning federal they treat members of one racial contract and whose share in the funds on a ban of abortion-related group or gender differently from capital contribution, control, man- activity was constitutional as long members of other groups or gen- agement, risks, and profits of the as grantees were not precluded ders. While a discussion of the con- joint venture are commensurate from engaging in abortion-related stitutional implications of DBE pro- with its ownership interest.” activities with private funds, in a grams is beyond the scope of this 25. 49 C.F.R. 26.55(e). separate capacity). DCH offers little paper, the general rule is that race- 26. For example, the Georgia guidance on how to comply with based classifications are subject to Technology Authority requires such a restriction. Compliance may strict scrutiny, which means that that any protest of any aspect of be a simple matter of accounting they must be narrowly tailored to the solicitation be filed within five that requires the maintenance of serve a compelling government days of when the grounds for the separate accounts for revenue interest. Adarand Constructors, protest were discovered or should derived from the agency and other Inc. v. Pena, 515 U.S. 200, 227, 115 have been discovered. Ga. Comp. revenue. Perhaps the safer alterna- S. Ct. 2097 (1995). General societal R. & Regs. r. 665-2-11-.07(c)(1). In tive would be to create a separate discrimination is not sufficient to contrast, the Georgia DOAS speci- legal entity that derives no revenue support a race based classification; fies that protests to anything from the agency, but that makes all there must be evidence of past dis- occurring during the solicitation payments to lobbyists. crimination by that particular gov- must be filed at least two days 11. See, e.g., O.C.G.A. § 50-18-70, et ernment entity. Wygant v. Jackson prior to the proposal due date. See seq., known as the Georgia Open Board of Education, 476 U.S. 267, GEORGIA VENDOR MANUAL, § 3.8(2). Records Act. See also McFrugal 274, 106 S. Ct. 1842 (1986). Absent 27. For example, the Georgia DOAS Rental of Riverside v. Garr, 262 Ga. such evidence, a DBE program is rule states that “[i]ssues not raised in 369, 418 S.E.2d 60 (1992) (“The unconstitutional. Id. the initial protest may at the discre- very purpose of the Open Records 15. See 49 C.F.R. 26.1 (U.S. Department tion of the State be deemed waived Act ‘is to encourage public access of Transportation’s statement of with prejudice by the protestor.” to government information and to objectives for the DBE program). GEORGIA VENDOR MANUAL, § 3.8(2). foster confidence in government 16. 49 C.F.R. 26.55. 28. A state agency or a municipality through openness to the public’”). 17. Id. has only those powers expressly 12. O.C.G.A. § 50-18-72(a)(6)(B); see 18. 49 C.F.R. Part 26, Appendix A. granted or necessarily implied by a also Georgia Department of 19. Id. statute. See Beazley v. DeKalb Human Resources v. Theragenics 20. The City of Atlanta, for example, has County, 210 Ga. 41, 43, 77 S.E.2d Corp., 273 Ga. 724, 545 S.E.2d 904 an Equal Business Opportunity pro- 740 (1953) (counties and municipal (2001) (government agency has an gram, which provides for additional corporations can exercise no power affirmative duty to prevent the dis- consideration by the City for firms except those that are expressly closure of another entity’s trade that are majority-owned and con- given or are necessarily implied secrets, even if not specifically trolled by women and members of from express grant of other pow- marked as such). certain racial groups and women. See ers, and a reasonable doubt of the 13. In Georgia, the agency has three Atlanta Procurement & Real Estate existence of a particular power is days from receipt of an open Code, § 2-1441, et seq. Certification resolved in the negative). The con- records request to locate the under this program is not contingent tours of this rule are sometimes dif- records and advise the requestor of upon a presumption or showing of ficult to determine. In Hunnicutt v. when they will be made available. economic disadvantage. Georgia Power Co., 168 Ga. App., O.C.G.A. § 50-18-70(f). Some agen- 21. 49 C.F.R. 26.3. 525, 526, 309 S.E.2d 862 (1983), the cies, like the Georgia Technology 22. The application is called the court held that the Public Service Authority, require that protests of Georgia Uniform Certification Commission had no jurisdiction to
February 2005 19 require a party to exhaust adminis- exhaust available administrative well underway, Hilton might well trative remedies prior to asserting a remedies before seeking any judi- be entitled to be awarded the con- tort claim because “[w]e find no cial review of the agency’s deci- tract under the facts of this case once statute from which it might be sion”). One exception is if the bid- the administrative appeal reached inferred that the PSC has exclusive der can prove that it would be the courts. But at this late date, equi- or even primary jurisdiction over impossible or improbable to obtain ty will not intervene where Hilton’s disputes which are premised upon adequate relief through the admin- failure to post bond and exhaust the alleged wrongful termination istrative process (e.g., if the hearing administrative remedies has ren- of utility service.” But see Floyd is before the same person or per- dered equitable relief draconian.”). County Board of Commissioners v. sons who made the decision in the 37. Id. Floyd Co. Merit System Bd., 246 first place). See Glynn County Bd. 38. O.C.G.A. § 5-4-1 and § 5-4-3. This Ga. 44, 268 S.E.2d 651 (1980) (statu- of Educ. v. Lane, 261 Ga. 544, 546, is the sole remedy available to the tory grant of authority to provide 407 S.E.2d 754 (1991). aggrieved bidder unless the bid- “necessary office space, equipment, Alternatively, if a frustrated bidder der can prove that the agency and employees to the board for can show that violation of procure- decision maker did not exercise accomplishment of its duties” nec- ment rules deprived the bidder of a “judicial functions.” See Mack II v. essarily implies the power to hire constitutional right it may, in some City of Atlanta, 227 Ga. App. 305, and fire employees). cases, circumvent the administra- 489 S.E.2d 357 (1997) (rejecting 29. City of Atlanta v. J. A. Jones tive process by filing a civil rights frustrated bidder’s equitable Constr. Co., 260 Ga. 658, 659 (1990) lawsuit under 42 U.S.C. § 1981 or § action seeking contract award (“To permit the recovery of lost 1983. Steffel v. Thompson, 415 U.S. because bidder’s sole remedy was profits would unduly punish the 452, 472-73 (1974) (Section 1983 a petition for certiorari). If the tax-paying public while compen- trumps state administrative exhaus- parties are entitled to notice and a sating the plaintiffs for effort they tion of remedy requirements). Some hearing, and they have the right did not make and risks they did bidders have argued under § 1983 to present evidence under “judi- not take. Limiting recovery to rea- that an agency’s noncompliance cial forms of procedure,” the deci- sonable bid preparation costs is in with bidding procedures deprived sion maker will be found to have keeping with the legitimate gov- the bidder of a property interest exercised a judicial function. Id.; ernmental objective of rewarding without due process of law. See Cf. What It Is, Inc. v. Jackson, 146 the lowest qualified bidder and Metric Constructors, Inc. v. Ga. App. 574, 246 S.E.2d 693 guarding against public officials Gwinnett County, 729 F. Supp. 101, (1978) (certiorari did not lie for shirking their duties while, at the 103 (N.D. Ga. 1990), aff’d, 969 F.2d party seeking to challenge board’s same time, preventing unwarrant- 1047 (11th Cir. 1992). revocation of its liquor license ed waste of taxpayers’ money.”); Other bidders have successfully because the hearing that was held Amdahl Corp. v. Georgia Dep’t of argued under § 1981 or 1983 that an was administrative rather than Admin. Servs., 260 Ga. 690, 697, agency’s award of a contract pur- judicial, and it was not available 398 S.E.2d 540 (1990). suant to a minority business pro- as a matter of right). 30. O.C.G.A. § 13-6-11 (authorizing gram violated the Equal Protection 39. Bell v. City of Valdosta, 47 Ga. recovery of litigation expenses Clause of the U.S. Constitution App. 808, 171 S.E. 572 (1933). when the defendant acts in bad because it discriminated on the 40. O.C.G.A. § 5-4-12(b). Because the faith, with stubborn litigiousness, basis of race. See generally, Webster Supreme Court has held that “in or causes plaintiff unnecessary v. Fulton County, 44 F. Supp. 2d Georgia the substantial-evidence trouble and expense); see also S & W 1359 (N.D. Ga. 1999) (white contrac- standard is effectively the same as Mechanical Co. v. Homerville, 682 tor successfully challenged Fulton the any-evidence standard,” the F. Supp. 546, 549 (M.D. Ga. 1988) County’s Minority and Female any-evidence standard is more fre- (frustrated bidder’s only means of Business Enterprise program as quently referenced in certiorari recovering litigation expenses is being racially discriminatory). In proceedings. See, e.g., City of through O.C.G.A. § 13-6-11). those cases, the adequacy of the Atlanta v. Smith, 228 Ga. App. 31. See Atlanta Procurement & Real protest procedure is not at issue, 864, 493 S.E.2d 51 (1997). Estate Code, § 2-1166(b)(2). and the bidder is not required to 41. For example, in Hilton 32. GEORGIA VENDOR MANUAL, § 3.8(2) demonstrate that it exhausted that Construction, 245 Ga. at 537, the & Ga. Comp. R. & Regs. r. 665-2- remedy. See Patsy v. Bd. of Regents, court ruled that a government enti- 11-.07(i)(2). 457 U.S. 496, 516 2557 (1982). ty had abused its discretion in 33. Georgia courts will not use equi- 34. See Hilton Construction v. selecting a higher bidder as “the table powers to award a contract to Rockdale County Bd. of Educ., 245 responsible bidder submitting the a low bidder unless the low bidder Ga. 533, 539 (1980). lowest acceptable bid” because exhausted administrative remedies. 35. See, e.g., GEORGIA VENDOR MANUAL, “[w]hatever may be meant by the See, e.g., Curelean Companies v. § 3.8(2) (DOAS); Ga. Comp. R. & word ‘responsible,’ we are certain Tiller, 271 Ga. 65, 516 S.E.2d 522 Regs. r. 665-2-11-.07(j) (GTA); and that being ‘unknown’ does not (1999) (“Long-standing Georgia law Fulton County Code of show the bidder was not ‘responsi- requires that a party aggrieved by a Ordinances, § 2-324(c). ble’”. The court also ruled that the state agency’s decision must raise 36. See, e.g., Hilton Construction, 245 Ga. board did not have discretion to all issues before that agency and at 537 (“If construction were not reject a low bid because the bidder
20 Georgia Bar Journal was late on another unrelated proj- ect without investigating whether the delay was the fault of the bid- der. Id. at 538. Consumer 42. Many unsuccessful bidders make the mistake of filing an action for mandamus to compel the agency head to award the contract to that Pamphlet Series bidder. In that context, Georgia courts have consistently denied mandamus because it “is not the proper remedy to compel ‘the The State Bar of Georgia’s Consumer Pamphlet undoing of acts already done or the correction of wrongs already Series is available at cost to Bar members, non-Bar perpetrated, and . . . this is so, members and organizations. Pamphlets are individu- even though the action taken was ally priced at 25 and 75 cents each plus shipping. clearly illegal.’” Id. at 540; Mark Smith Construction Co., Inc. v. Questions? Call (404) 527-8761. Fulton County, 248 Ga. 694, 696, 285 S.E.2d 692 (1982). 43. See, e.g., Amdahl Corp. v. Georgia Dep't of Admin. Servs., How to be a Legal Lawyers and Juror’s 260 Ga. 690, 697-98 (1990). In Good Witness Careers Legal Fees Amdahl, the court held that a Manual frustrated bidder was entitled to Patents, Selecting a seek equitable relief but remand- Auto Buying Trademarks & Nursing Home Accidents Copyrights ed the case to the trial court for a a Home determination on whether the recovery of bid costs – the sole BankruptcyState Bar How to Choose remedy to a frustrated bidder of Georgia A Lawyer under Georgia law – was an ade- quate remedy at law. Id. Legal Rights of State Bar Selecting a State Bar 44. See supra text accompanying note 29. Nursing Home ofDivorce Georgia Personal of Georgia Residents Care Home Wills 45. This argument has had some only 21 limited success in Georgia courts. In Amdahl, 260 Ga. at 697-98, for example, the Supreme Court remanded the case to the trial
State Bar State Bar State Bar State Bar court to determine whether the of Georgia of Georgia of Georgia of Georgia
recovery of bid costs was an ade- Consumer Consumer Consumer Consumer Pamphlet Pamphlet Pamphlet Pamphlet Series Series Series Series quate remedy. In Hilton 21 21 Construction, 245 Ga. at 540, the Supreme Court remanded the case back to the trial court for a finding on the appropriateness of injunc- The following pamphlets are available: tive relief. Auto Accidents Bankruptcy Buying a 46. Garden Hills Civic Association Home Divorce How to Be a Good v. MARTA, 273 Ga. 280, 281, 539 S.E.2d 811 (2000). As a part of Witness How to Choose a Lawyer the balancing of the equities, the Juror's Manual Lawyers and Legal Fees court may consider the plain- Legal Careers Legal Rights of Nursing tiff’s likelihood of success on the merits. Id. Home Residents Patents, Trademarks and 47. See Cantrell v. Henry County, 250 Copyrights Selecting a Nursing Home Ga. 822, 824, 301 S.E.2d 870 (1983) Selecting a Personal Care Home Wills (inadequate remedy at law); Clark's Valdosta, Inc. v. Valdosta, 224 Ga. 331, 161 S.E.2d 867 (1968) (injury to property right or protect- Visit www.gabar.org/cps.htm for an order form ed interest); Reeves v. Du Val, 214 and more information or e-mmail [email protected]. Ga. 630, 106 S.E.2d 797 (1959) (irreparable harm).
February 2005 21 GBJ feature
Plain English Drafting By Lenné Eidson Espenschied
good, bad or indifferent works that legal drafting may ulti- egal drafting is one of drafted by others. There are few mately be subjected to an adversar- opportunities for formal instruc- ial reading. A legal drafting scholar the most fundamental tion in legal drafting techniques, credited Oliver Wendell Holmes skills required of trans- and practicing attorneys rarely with observing that a well-drafted L have time for perusing hornbooks agreement must be precise enough actional lawyers, yet it is perhaps on legal drafting. to endure courtroom attacks by a the single skill for which lawyers highly-trained intellectual whose WHAT’S SO objective is to pervert its meaning.2 are least prepared. Although legal DIFFERENT ABOUT Under the canon of contra profer- entem, ambiguities in legal drafting writing is a required course at most LEGAL DRAFTING? are construed against the drafter 3 law schools, legal drafting is not Legal drafting (contracts, wills who selected the language. This and statutes) deals with future canon motivates us to ensure that widely offered and seldom, if ever, behavior, while legal writing the language we select is as clear and concise as possible. required. Where legal drafting is (pleadings and briefs) typically focuses on historical events. Legal The most significant difference taught, it is usually offered in a drafting may have a very long between legal drafting and legal shelf life and must anticipate a writing in a transactional setting symposium format to a handful of myriad of circumstances that may may be the intended audience. Briefs and pleadings are generally students who tackle assignments arise. Briefs and pleadings usually focus on a particular event and its intended to be read by judges and involving drafting a contract, a will known ramifications and are other lawyers from start to finish. quickly forgotten. Mistakes in Contracts are intended to be read and a statute. legal drafting can be crucial, and and used by lay persons who con- Most of us learned what we each word may have great signifi- sult specific provisions sporadically 4 know about legal drafting from the cance (e.g., “one month” or “30 throughout the term of agreement. attorneys who hired us out of law days”? “no later than” or “with- Although lawyers sometimes pride school. Our drafting styles have in”?). In pleadings, individual themselves on creating highly com- evolved based on their instruction words are less important.1 plex language that requires a J.D. and what we have absorbed as a A notable difference between degree to decipher, logic dictates result of continual exposure to the legal drafting and legal writing is that the people using the docu-
22 Georgia Bar Journal THE TREND The current shift towards plain ments English drafting requires even the should be TOWARDS PLAIN most experienced lawyers to brush able to understand ENGLISH up on and refine their drafting them. The measure of a DRAFTING techniques. This article discusses drafter’s success is the utility of the basic, hornbook drafting tech- document to its users.5 Any diffi- In 1977, President Jimmy Carter niques for organizing documents; culty in understanding legal docu- issued an executive order requiring replacing archaic customs; simpli- ments should arise from the sub- that each government regulation fying sentence structure by elimi- stance rather than the syntax.6 must be “written in plain English nating unnecessary words and Another significant difference and understandable to those who breaking bad habits; using defined between legal drafting and legal must comply with it.”8 Many state terms correctly; and shortening writing is that legal drafting is a legislatures have also passed statutes average sentence length. These collaborative process7 in at least requiring that consumer contracts be techniques can be adopted instant- two major respects. First, lawyers written in plain English.9 Over five ly to improve, clarify and simplify rarely draft documents completely years ago, the Securities and the language in most contracts, and from scratch. Most drafting begins Exchange Commission required that whenever the language is with a “standard form” or excerpt- disclosure documents must be writ- improved, the substance is neces- ed language used in previous ten in plain English. Virtually all of sarily improved as well. agreements. In drafting a “new” today’s scholars on legal drafting 1. Have a Plan for agreement, the attorney creates decree that, to the extent possible, Organizing Documents original verbiage, cuts and pastes documents should be phrased in language from other sources, adds, common, everyday language. Even Logically. deletes and revises until the form so, the call for simple language did After negotiation, the terms and fits the current transaction. Specific not begin in modern times. George conditions of a contract are put in language in most forms is com- Coode, the leading authority on writing to memorialize the promis- piled over time through the edits of drafting over 150 years ago, urged es, rights and obligations the par- many lawyers in a chain of those that most legal documents should be ties agreed to as of the date the con- who have worked with earlier vari- written in common, popular usage, tract was signed. One primary ations and permutations of the plain English.10 function of the written contract is forms. The true genealogy of most Beware that plain English draft- to serve as a reference material that language in any “standard form,” ing is not simple and requires great can be consulted from time to time and the purpose for which it was discipline. It is a much more diffi- during the term of the agreement. originally intended are seldom, if cult endeavor and therefore a high- When the contract is consulted, the ever, known. Second, legal drafting er accomplishment to craft lan- parties rarely intend to read it from is a collaborative process in the guage that is clear, concise and start to finish; rather, they consult sense that during the course of understandable to non-lawyers. specific provisions related to the negotiation, all involved parties typically contribute language to be included in the agreement. The terms of most agreements evolve as each party reviews, edits and refines the language to suit its Language Barrier? objectives. Because drafting is a Experts available in any language for translation and interpretation services collaborative effort, many docu- ments suffer from poor organiza- tion, lack of consistency, misuse or even conflicting use of defined For more information on these services, please call (770) 677-9461 terms and redundant language. www.jfcs-atlanta.org
February 2005 23 information sought at the time.11 A cross reference in the termination and agreements still contain well-drafted contract should be section. The provision in the ter- archaic language such as “witnes- arranged logically to assist the mination section should simply seth” and “in witness whereof I readers in finding the needed infor- state that upon termination, a fee have hereunto set my hand and mation.12 must be paid according to the seal.” These legal customs must Most experienced transactional provisions of Paragraph #.#. have fulfilled some purpose at the attorneys have a good understand- Avoid drafting the same informa- time they arose, but few, if any, of ing of the types of provisions that tion into multiple sections to us know now what that purpose should be included in a written eliminate the possibility of inad- was. Most attorneys believe that contract. But attorneys often fail to vertent, internal inconsistencies the word “witnesseth” is a sort of have a clear plan for organizing that can occur when one section is command, kind of like “listen up!” topics and provisions within the revised but not the other. All of In actuality, verb forms like “wit- contract, and this problem is exac- the relevant information should nesseth” were used only briefly in erbated as language is added from be grouped within the same para- a small region of England in the various sources. graph, and the cross-reference Middle Ages.20 These verb forms To the greatest extent possible, should merely direct the reader were also used by famous authors all related ideas in a contract where to find the information. such as John Donne, John Milton, should be grouped together. The Even so, strive to minimize cross- Christopher Marlowe and William ideas should then be organized references within an agreement Shakespeare to match the rhythm from the most important to the because they can be distracting and meter of certain poetry. least.13 After topics are grouped and confusing to readers.18 Hence, “rhyme” became into sections in logical order of After the topics have been “rhymeth” and the iambic pen- importance, the terms within each arranged in a logical order, imple- tameter was saved! The word section should also be organized ment a simple numbering system “witnesseth” actually means “wit- from the most important to the that is easy to follow. Avoid a con- nesses” in the third-person singu- least. The general concept should fusing, multiple decimal number- lar verb form, as in “this agree- precede specific rules, and provi- ing system, as in “1.1.1.1.2.” Use no ment witnesses that ... .” The word sions with broad applicability more than one decimal. Use sub- “witnesseth” is seldom used cor- should precede those with narrow parts only if there are at least two rectly in legal documents, but applicability.14 Exceptions should corresponding concepts. Use hang- even if it were, query whether it is appear after the concept and the ing indents to reveal the structure commonly used in everyday lan- rules are identified.15 Events clearly, like this: guage, or whether it adds any- should be ordered chronological- thing significant to the document. ly.16 Housekeeping items such as 1. Concept Instead of using “witnesseth” with a long string of “whereas” and an arbitration clause and typical 1.1 Section “boilerplate” provisions should “now, therefore” recitals, opt for a appear last.17 (A) Paragraph simpler, more concise Statement Sometimes, a contract term (1) Subparagraph of Purpose paragraph at the begin- may be applicable to more than ning of the document. Many other (2) Subparagraph one topic within the agreement. archaic customs can be eliminated For example, if a contract pro- (B) Paragraph without substitution, such as vides for a termination fee, this “know all men by these presents,” 1.2 Section information could logically or “further, affiant sayeth not.” 2. Concept appear in both the compensation 3. Avoid These Words and payment section and the ter- mination section of the agree- 2. Eliminate Archaic in Contracts. ment. In this situation, the drafter Customs. To write in plain English, to the should describe the termination The next step in plain English extent possible eliminate words fee in the compensation and pay- drafting is to eliminate archaic and phrases used only by lawyers. ment section, but also include a customs.19 Many standard forms Avoid phrases like “on the ground
24 Georgia Bar Journal Fig. 1, Eliminate words and phrases used only by lawyers. phrases just listed is preferable. Instead of this: Use this: “Therein” is equally imprecise. a large number of many Other forms of legalese also pursuant to the provisions of under should be avoided in drafting con- at this point in time now tracts. Stuffy, pompous language creates a barrier between the drafter notwithstanding the fact that even though, although and the reader.28 Save this language prior to before for communications with judges subsequent to after and other lawyers, but opt for mod- until such time as until ern, plain language in drafting con- by reason of the fact that because tracts for use by non-lawyers. Here give rise to cause are some additional words and due to the fact that because phrases to avoid in contracts: in consideration of the we agree, the parties agree n legalese not used in normal agreements herein contained, conversation—Compound the parties hereto agree words that begin with here- there- and where, such as here- that,” “notwithstanding the forego- that” is generally used in legal inabove, heretofore, thereabout, ing,” and “in the event that” and drafting to signal a limitation, thereunto, wheresoever, where- replace them with everyday and exception, or an additional upon and so on should not be English equivalents, like requirement—but which? The used in contracts except as a last “because,” “even so,” and “if.” See phrase is inherently imprecise resort to avoid unwieldy phras- Figure 1 for more examples.21 because it can be and has been ing.29 Legalese to be avoided Technical terms can be used construed by the courts to mean also includes words like afore- where necessary, but drafters “if,” “except,” and “also.”25 mentioned, behoove, forthwith, should avoid legal jargon and Provisos are also imprecise henceforth, thence, hitherto, phraseology that serves no real because it is usually unclear whence, and so on, which legal purpose. how far back in the text the pro- drafting scholars call “gob- Some commonly used words are viso applies. Legal drafting bledygook.”30 inherently imprecise and should scholars complain that use of n such, said, and same—Standup never appear in contracts. These the phrase “provided that” comedy routines and diatribes include: almost invariably signals that roasting lawyers are filled with n and/or—This phrase is consis- the drafter has failed to organ- these words. Take the hint! tently condemned by courts yet ize the sentence properly, and Replace these offending words many lawyers persist in using may have misled the reader in with “the,” “this,” “that,” or it.22 It is inherently imprecise the process.26 And most sen- “these.”31 because the reader is unable to tences that contain the words n foreign phrases—Foreign phras- determine whether all items in a “provided that” are too long by es such as ad hoc, arguendo, caveat list are required (and) or plain English drafting stan- emptor, et al, ex post facto, id, in per- whether any one of them is suf- dards. (See Drafting Technique sonam, inter alia, non sequitur, res ficient (or). Replace this taboo No. 8 below.) Replace “provid- gestae, res judicata, supra, and so phrase with “or both” as in “1 ed that” with a conditional on should not be used in con- or 2 or both.”23 phrase such as “if . . . then” or tracts.32 These phrases are unfa- n provided that—Provisos are break the sentence into subordi- miliar to non-lawyers. also regularly maligned by nate clauses. most legal drafting scholars and n herein—This word is inherent- 4. Use the Word some judges as being both ly imprecise because the reader “Shall” Consistently. inherently imprecise and prima cannot determine whether the Words that impose a duty or facie evidence of poor drafting, drafter means “in this subsec- obligation must be used consistent- yet experienced attorneys regu- tion,” “in this section,” or “in ly within the document. Within larly use them.24 “Provided this document.”27 Either of the
February 2005 25 Fig. 2, Convert hidden verbs. Fig. 3, Legal doublets and triplets. Instead of this: Use this: aid and abet Notice shall be given Licensee will notify appropriate and proper an application will be submitted Seller will apply by and between provide a response Company will respond cancel, annul and set aside the failure of any party If any party fails cease and desist require performance Licensor must perform covenant and agree deem and consider upon the occurrence of If this occurs demise and lease provide indemnification indemnify due and payable result in a violation of violates final and conclusive commencement of any action any action commences full faith and credit cessation of business business ceases give, devise, bequeath constitutes misappropriation misappropriates grant, bargain, sell impose any penalty or limitation penalize or limit have and hold indemnify and hold harmless any document, there should be one ject, such as “Defective prod- legal and valid word per meaning, and one mean- ucts shall be examined”; liens and encumbrances 33 ing per word. The risk in using n to mean “may,” as in “the dead- make and enter into more than one word per meaning line shall be further extended”; name, constitute and appoint is that using different wording will n to mean a conditional duty, as null and void create a presumption that a differ- in “changes to the proposed over and above ence in meaning is intended. specifications shall be submit- part and parcel Conversely, using the same word ted.” (If the changes are option- perform and discharge to have many different meanings al, the “shall” in this example is power and authority will confuse as to which meaning really a conditional duty.); rest, residue and remainder applies to any given usage. “Shall” n to be used as a modal verb, such right, title and interest is chronically misused in legal as “notice shall have been given sale or transfer drafting to mean many different when...”; sole and exclusive things interchangeably, often with- n to express an entitlement, as in successors and assigns in the same paragraph, by even the “Licensor shall be reimbursed terms and conditions most experienced attorneys.34 Even for expenses”; and in otherwise well-written docu- n to mean “should.” ments, it is not uncommon to find “Shall” should be used only to the word “shall” used as often as 20 impose a duty on a named party.36 If 5. Convert Hidden times per page of text, with a rate the word “shall” can be replaced Verbs. of misuse as high as 90 percent. If with “must” or “has a duty to” and the word “shall” is used when the sentence still makes sense, it is Lawyers are fond of transforming “may” is meant, the word could be probably being used correctly. Even action verbs into nominal (noun- construed to mean “may” when a so, query how often the word based) constructions with helping duty is intended. In almost any “shall” is used today in non-legal verbs, articles and prepositions,39 contract, the word “shall” can be conversation. Chronic misuse of the but we can eliminate a few words, found:35 word “shall” has led some drafters replace weaker verbs with stronger n to impose a duty on the subject to eliminate the use of the word ones, and force the text to focus on of the sentence; “shall” in its entirety.37 The word “who” is required to do “what” by n to impose a duty on an “must” is substituted where a duty converting these nouns back to verb unnamed party, such as “notice is actually intended, and other form. Noun forms of verbs often shall be given”; words are used where it is not. Most end in -tion, -sion, -ment, -ity, -ure, 40 n to impose a duty requiring fur- proponents of plain English drafting or -ance. Legal drafting scholars ther action on an unnamed sub- prefer “must” to “shall” as well.38 recommend that words like: deci-
26 Georgia Bar Journal sion, response, application, accept- bled the words the reader must thing, but all sorts of problems arise ance, occurrence, violation, cessa- read.44 Yet in interpreting con- when defined terms are not used tion, failure, performance, etc., tracts, judges endeavor to give each correctly. First of all, attorneys can should be replaced with their verb word meaning and may strain to get so carried away defining things forms, like: decide, respond, apply, find distinctions between words that they create definitions for terms accept, occur, violate, cease, fail, where none were intended. If the that are not even used within the perform, and so on. See Figure 2 for legal doublet comes from a statute document. The opposite also occurs, a few examples.41 or case law, then it may be neces- and often, capitalized terms are 45 6. Eliminate Redundant sary to use it in the same form. used in a contract as if they were Absent some compelling reason to defined terms, but there is no corre- Compound Language. include the extra words, it is better sponding definition. Sometimes, as Another source of redundancies to eliminate clutter by removing a result of cutting and pasting ver- in legal drafting arose during the the redundant language typically biage from other sources and poor Middle Ages where drafters drew included in contracts by habit. editing, a contract will include the from English, French and some- See Figure 3 for a few common same word or phrase in different times Latin words to explain a sin- legal doublets and triplets.46 sections defined to have differing, gle idea.42 From that era, legal dou- 7. Use Defined Terms inconsistent meanings. Many attor- neys “stuff” definitions with sub- blets and triplets emerged that are Correctly. still commonly used in legal draft- stantive provisions that should be ing today. Drafters use phrases like Defined terms are used in a con- included in the text of the docu- “null and void” where either word tract to minimize repetitive lan- ment.47 Many contracts include a alone would be sufficient.43 If there guage, to limit or expand meaning, glossary of defined terms, but the is no distinction between the and to ensure that the parties are list often fails to include all of the words, the drafter has merely dou- using a term to mean the same defined terms used in the contract.
February 2005 27 Careful editing will eliminate most the defined term—when the lengthy sentences, keep revising of these problems. defined term is a noun, the def- the text to: Most attorneys are surprised to inition should describe a noun, n eliminate clutter by removing learn that legal drafting scholars not a verb. unnecessary words as discussed recommend that defined terms n Unless a word is used at least in this article; should be used sparingly, if at all.48 three times in a document, it is n break long, compound sen- Do not use a defined term where usually a waste of ink to create a tences into separate sentences; the meaning is obvious. In defining defined term for it. n set off lists of items, qualifica- terms, when the stipulated mean- n Do not use defined terms where tions, or conditions with bullet ing is complete within the defini- the meaning is obvious—for points, paragraphs, or subpara- tion, use the word “means.”49 example, Congor Corporation graphs; and When the stipulated meaning with- (“Congor”),52 or first transfer n use more transitional words like in the definition is not intended to notice (“First Transfer Notice.”) “if . . . then” and “but.” be complete, use the word n Avoid using defined terms for “includes.”50 Do not use the phrase ordinary legal words that do CONCLUDING “means and includes,” because not need definition, such as “lit- COMMENTS that would indicate that the stipu- igation,” unless a specific alter- lated meaning is both complete native meaning is intended. Most legal drafting scholars and incomplete.51 n Avoid using defined terms dif- advocate the use of the basic draft- Unless the agreement contains ferentiated only by a couple of ing techniques included in this arti- more than five defined terms, the letters, such as “Employer” and cle, yet few transactional attorneys definitions should appear in the text “Employee.” have incorporated these techniques where the term is first used. When n Avoid “Alice in Wonderland” into day-to-day drafting projects. there are more than five defined type definitions, such as Many scholars interpret this as an terms, drafting scholars vary as to “‘black’ means white,” and stick indication that transactional attor- whether the glossary should be at to intuitive meanings.53 neys dispute the advisability of 58 the end or beginning of the docu- n Do not put substantive provi- simplifying contract language. In ment. The argument for putting sions in definitions.54 fact, a minority of attorneys still defined terms at the end of the doc- n Cut the clutter—use “means” as believe that documents should ument is based on organizing topics opposed to “shall mean,” “shall “sound legal” to impress clients within the document in order of have the following meaning,” and judges, despite the results of 59 importance. This author’s prefer- “shall mean and refer to,” “is studies to the contrary. It is prob- ence is to put the terms at the begin- when,” or “is where.”55 ably more likely that most transac- tional lawyers fail to incorporate ning of the document so the reader 8. Shorten Average knows where they are and is famil- these techniques simply because iar with the defined terms before Sentence Length. they are unaware of them. For those who have read this article, reading the text to which they relate. Lawyers sometimes seem to ignorance is no longer an excuse! Here are some additional tips on measure their ability on how long Lawyers who master these tech- using defined terms: a sentence they can create. niques may find themselves more n Proofread carefully to ensure Separate, shorter sentences and frustrated by language that violates that defined terms are used, are clauses state the same topics with principles of good legal drafting. used correctly and consistently, greater clarity and are much easi- Even so, these techniques should and that all terms used as er to comprehend.56 Strive for first be incorporated into docu- defined terms are, in fact, shorter sentences averaging 25 to ments we control before we under- defined. 30 words.57 Indented or bullet- take to submit them as edits to doc- n When using a list or glossary, pointed phrases ending with uments prepared by opposing make sure it contains all colons and semicolons can be counsel. Not all attorneys follow defined terms used in the text. counted as separate sentences and these techniques (though, of n Make sure that the part of should be used liberally to simpli- course, they should), and they will speech in the definition matches fy complex provisions. To shorten
28 Georgia Bar Journal not take kindly to our making all of 14. Id. DICKERSON, supra note 21, at 214. these plain English edits in a docu- 15. Id. 37. GARNER, supra note 2, at 15; ment they have created. 16. GARNER, supra note 2, at 70. CHARROW & ERHARDT, supra note 17. CHILD, supra note 1, at 90. 19, at 116. 18. GARNER, supra note 2, at 7. 38. CHARROW & ERHARDT, supra note Lenné Espenschied is a 19. LAUREL CURRIE OATES, ET AL., THE 19, at 116-17. corporate attorney LEGAL WRITING HANDBOOK 671 39. Mark Mathewson, Law Students, whose practice focuses (1993); VEDA R. CHARROW AND & Beware, 8 SCRIBES J. LEGAL WRITING on technology and MYRA K ERHARDT, CLEAR & 142 (2001-02); CHILD, supra note 1, intellectual property EFFECTIVE LEGAL WRITING 122 at 55; CHARROW & ERHARDT, supra matters. She also fre- (1986). note 19, at 109; OATES, ET AL., supra quently consults on legal drafting 20. Robert W. Benson, The End of note 19, at 642. projects. She has been practicing Legalese: The Game is Over, 13 REV. 40. CHILD, supra note 1, at 152. law since 1985 and started her own LAW & SOC. CHANGE 519, 522 41. Id. at 51; CHARROW & ERHARDT, (1984-85). supra note 19, at 109; OATES, ET AL., law firm in 1992. She earned both a 21. REED DICKERSON,THE supra note 19, at 684-85. B.B.A. in accounting and a J.D. from FUNDAMENTALS OF LEGAL DRAFTING 42. CHARROW & ERHARDT, supra note the University of Georgia. 209-13 (2d ed. 1986); OATES, ET AL., 19, at 127-28; OATES, ET AL., supra supra note 19, at 695; DICKERSON, note 19, at 689. supra note 21, at 209-13; CHARROW 43. CHARROW & ERHARDT, supra note Endnotes & ERHARDT, supra note 19, at 125. 19, at 127-28. 1. BARBARA CHILD, DRAFTING LEGAL 22. Thomas Haggard, The Ambiguous 44. OATES, ET AL., supra note 19, at 690. DOCUMENTS: MATERIALS AND And and Or, 8 SCRIBES J. LEGAL 45. Id. PROBLEMS 4 (1988). WRITING 169-71 (2001-02); CHILD, 46. For more exhaustive lists of com- 2. BRYAN A. GARNER, ADVANCED supra note 1, at 55. mon doublets and triplets, see LEGAL DRAFTING 4 (2002). 23. Haggard, supra note 23, at 169-71. GARNER, THE REDBOOK: A MANUAL 3. United States v. Seckinger, 397 U.S. 24. CHILD, supra note 1, at 173; ON LEGAL STYLE 163 (2002); 203 (1970). DICKERSON, supra note 21, at 128-29. DICKERSON, supra note 21, at 207-08; 4. GARNER, supra note 2, at 3. 25. See, e.g., Obsen v. Grosshans, 71 CHARROW & ERHARDT, supra note 5. Maurice B. Kirk, Legal Drafting: N.W. 2d. 90, 97 (Neb. 1955) (pro- 19, at 128. Curing Unexpressive Language, 3 vided means “and” or “but”); 47. DICKERSON, supra note 21, at 151. TEX. TECH L. REV. 23, 52 (1971). Burgwyn v. Whitfield, 81 N.C. 261, 48. Id. at 148. 6. Mark Mathewson, A Critic of Plain 263 (1879) (provided means 49. Id. at 147; Thomas Haggard, Language Misses the Mark, 8 SCRIBES “unless”); and Millard v. Definitions, 8 SCRIBES J. LEGAL J. LEGAL WRITING 147, 149 (2001- McFadden, 57 N.Y.S. 2d 594, 596 WRITING 165 (2001-02). 02). (1945) (provided is a limitation or 50. DICKERSON, supra note 21, at 147; 7. GARNER, supra note 2, at 3. exception). Haggard, supra note 50, at 165. 8. Exec. Order No. 12044, 43 Fed. 26. Irving Younger, Symptoms of Bad 51. DICKERSON, supra note 21, at 147; Reg. 12661 (1977), at Section Writing, 8 SCRIBES J. LEGAL WRITING CHILD, supra note 1, at 240. 1(d)(5). 121 (2001-02). 52. Note that use of a defined term 9. These include at least the follow- 27. Id. at 122; GARNER, supra note 2, at would be entirely appropriate if ing states: Arizona, Arkansas, 40. “Congor” is intended to include Connecticut, Florida, Hawaii, 28. OATES, ET AL., supra note 19, at 687. successors, assigns, subsidiaries, or Indiana, Maine, Maryland, 29. DICKERSON, supra note 21, at 217; affiliates of Congor Corporation, Massachusetts, Minnesota, GARNER, supra note 2, at 39. but the definition must so state. Montana, Nebraska, Nevada, New 30. OATES, ET AL., supra note 19, at 700. 53. CHILD, supra note 1, at 240. Jersey, New Mexico, New York, 31. Id. at 704; DICKERSON, supra note 21, 54. DICKERSON, supra note 21, at 151. North Carolina, North Dakota, at 217. 55. GARNER, supra note 2, at 85-86; Ohio, Oklahoma, Oregon, South 32. OATES, ET AL., supra note 19, at 701. CHILD, supra note 1, at 234-35. Carolina, South Dakota, Tennessee, 33. Id. at 635; DICKERSON, supra note 21, 56. CHARROW & ERHARDT, supra note Virginia, West Virginia, and at 213-216; CHILD, supra note 1, at 19, at 95; OATES, ET AL., supra note Wisconsin, which are all cited in 49-52. 19, at 604. CHILD, supra note 1, at 68-69. 34. CHILD, supra note 1, at 49-52; 57. OATES, ET AL., supra note 19, at 645. 10. G. COODE, ON LEGISLATIVE DICKERSON, supra note 21, at 213- 58. Reed Dickerson, Clear Legal EXPRESSION (1842), cited in GARNER, 216; CHARROW & ERHARDT, supra Drafting: What's Holding Us Back?, supra note 2, at 5. note 19, at 116-17. 2 ALI-ABA CLE REV., NO. 16 at 3 11. CHILD, supra note 1, at 131. 35. GARNER, supra note 2, at 13-14; (1980). 12. Id. DICKERSON, supra note 21, at 213-16. 59. OATES, ET AL., supra note 19, at 700. 13. Id. 36. CHILD, supra note 1, at 51;
February 2005 29 GBJ feature
United States Supreme Court Justice Anthony Kennedy Headlines Bar Center Dedication Ceremony By C. Tyler Jones
nited States Supreme Court Justice
Anthony M. Kennedy delivered an Uinspiring keynote address during the State Bar of Georgia’s Jan. 15 Bar Center Dedication
Ceremony. More than 400 State Bar members and their
guests were on hand to witness one of the most signifi-
cant events in the Bar’s 122-year history. Kennedy told attendees, “It’s a very special pleasure to see a State Bar deciding to put its headquarters in the middle of a city to reflect the law’s centrality.” He encouraged Bar leaders to use the Bar Center to “invite young people to come inside the law” to help them realize that “democracy is not transmitted through genes. Law must live in the consciousness of people.” Kennedy added, “We try to bring order to a disorderly reality. And kids don’t understand that... we must
explain to our young people that this nation was built Jones Photos by C. Tyler by great people who took serious risks.” U.S. Supreme Court Justice Anthony M. Kennedy Kennedy reminded Bar members that the first duty delivers the keynote address during the State Bar of of a lawyer is to counsel honesty, decency and ethical Georgia’s Jan. 15 Bar Center Dedication Ceremony. principles to all clients. He went on to commend Melton, Executive Counsel to Gov. Sonny Perdue; State lawyers for their willingness to face problems head on. Bar of Georgia President Rob Reinhardt and Bar Center Instead of running away from problems, Kennedy said Committee Co-chairs and Past Presidents Frank C. that lawyers “enter the chaos in order to bring order… Jones and Harold T. Daniel Jr. into an imperfect world.” Jones and Daniel reflected on how the concept of a Among the other speakers were: Chief Justice of the Bar Center was only a dream 10 years earlier, but Supreme Court of Georgia Norman Fletcher; City of through persistence and hard work, the dream became Atlanta Mayor Shirley Franklin; Dr. George B. Wirth, a reality. Daniel explained how he and Cliff Brashier Pastor, First Presbyterian Church of Atlanta; Harold D. approached Jones about heading up the ambitious Bar
30 Georgia Bar Journal The Bar presidents who took the Bar Center from conception to reality are: (left to right) Rob Reinhardt, William D. Barwick, James B. Durham, James B. Franklin, George E. Mundy, Rudolph N. Patterson, Linda A. Klein, Ben F. Easterlin IV, Robert W. Chasteen Jr., Harold T. Daniel Jr. Not pictured is 1998-99 Bar President William E. Cannon Jr. Center project. As a courtesy, Unified Bar Bill, which led to the has the facilities to provide any- Daniel picked up the tab for the creation of the State Bar of thing comparable when it comes to group’s lunch. When Jones Georgia, there were more than public law-related educational approached the podium to speak, 5,000 attorneys in Georgia. Since opportunities and professional he told attendees that after 10 years its founding, the State Bar of conferences.” working on the project, this rein- Georgia has grown to more than The State Bar of Georgia head- forces the saying about “there being 35,000 members. quarters was located in Macon no such thing as a free lunch.” Today, the State Bar of Georgia until 1973, when it moved to One of the highlights of the meet- is the seventh largest unified bar Atlanta. Prior to purchasing the Bar ing was when Chief Justice Fletcher association in the country, with Center, the State Bar of Georgia presented Reinhardt with a resolu- arguably the best Bar Center. leased space in three different tion honoring the Bar leadership’s Brashier contends that “no other buildings in Atlanta: The Fulton vision of creating a Bar Center. bar building in the United States National Bank Building, The State Bar Executive Director Cliff Brashier explained that the State Bar of Georgia has come a D. Jeff DeLancey, CPA, PC long way since a small group of Certified Public Accountant/Certified Fraud Examimer Georgia lawyers met on an August day in 1883 and took the first steps Forensic Accounting, Financial Investigations toward creating the Georgia Bar & Association. Litigation Support There were fewer than 1,500 lawyers in the state when the vol- Suite 250, 9 Lumpkin Street, Lawrenceville, GA 30045 untary Georgia Bar Association 770-339-9556, 404-358-1060 was created. By March 11, 1963, www.jeffdelanceycpa.com [email protected] when Gov. Carl Sanders signed the
February 2005 31 Flatiron Building and The Hurt Building. The State Bar of Georgia occupies the first and third floors, with the other floors (2, 4, 5 and 6) available for lease. Current tenants of the Bar Center include: the Prosecuting Attorneys’ Council of Georgia, the Georgia Public Defender Standards Council, Georgia Legal Services, the Georgia Bar Foundation, the Lawyers Foundation of Georgia, the Chief Justice’s Commission on Professionalism and the Georgia Members of the Supreme Court of Georgia: (left to right) Justice Robert Association of Black Women Benham, Justice Hugh P. Thompson, Justice George H. Carley, Justice P. Attorneys. Harris Hines, Justice Carol W. Hunstein and Presiding Justice Leah Ward Sears attend the ceremony.
Frank Jones, U.S. Supreme Court Justice Anthony M. Kennedy, Hal Daniel, Mayor Shirley Franklin and More than 400 attorneys and their guests participate in the dedication cer- Harold Melton sing along to America. emony.
Twenty-two of the Bar’s past presidents who attended the dedication pose for a picture in the Courtroom. (Left) President-elect Robert Ingram talks to Justice Kennedy following the ceremony.
32 Georgia Bar Journal State Bar President Rob Reinhardt watches as Supreme Court of Georgia Chief Justice Norman S. Fletcher reads a resolution signed by himself and the other justices. The Supreme Court of the State of Georgia
Whereas: the State Bar of Georgia was created by the Supreme Court of Georgia in 1963 to foster among its members the princi- ples of duty and service to the public, to improve the administration of justice, and to advance the science of law; and Frank Jones shares the story of the Whereas: in 1995 the leadership of the State Bar recognized the 10-year Bar Center odyssey with need for an adequate facility to enhance the fulfillment of those attendees. important purposes; and
Whereas: the officers, members of the Board of Governors, com- mittee members, and staff of the State Bar have enthusiastically donated their time and expertise to meet that need; and
Whereas: every Georgia lawyer has contributed financially to this important project; and
Whereas: like many other laudatory human endeavors, this has been far from easy to accomplish and required a full decade of effort; and
Whereas: today the State Bar Center is visible proof that the goal has been accomplished beyond anyone’s original hope,
Now therefore be it resolved that the Justices of the Supreme Court are pleased:
To congratulate the State Bar of Georgia for its vision and commit- ment to acquire this facility that will serve the lawyers of Georgia, and the public whose rights they protect, for many generations to come; and
To formally dedicate the State Bar Center so that it may enhance the administration of justice in the highest traditions of the legal pro- fession. Ordered this 15th day of January, 2005.
February 2005 33 GBJ feature
Georgia Attorneys Help Make Adoption Dreams Come True By C. Tyler Jones
or many of us, our fond-
est memories revolve F around time spent with family—birthdays, holidays and
vacations. Unfortunately, tens of
thousands of foster care children
awaiting adoption in the United
States do not always celebrate these
special occasions, at least not with
families they can call their own. On
Nov. 20, 2004, thanks to the efforts
of judges, attorneys and child advo-
cates in Georgia and around the
country, more than 3,000 children
found permanent homes through
National Adoption Day.
Like in other communities, Chief Cook, who has been involved tant because it honors adoptive Presiding Judge Sanford Jones of with National Adoption Day for families and the selfless nature of the Fulton County Juvenile Court the past two years, explains that parents who choose to adopt. finalized more than 60 adoptions although the special day is cele- According to Cook, most adop- that day. Among the people brated all over the United States, tion cases are heard in the privacy responsible for these successful Fulton County is the only county of a judge’s chambers, and chil- Georgia adoptions are Bar mem- in Georgia whose participation dren are not usually aware of bers Ina Johnson Cook and she is aware of. She believes what is happening. “With Saunders P. “Sandy” Jones IV. National Adoption Day is impor- National Adoption Day there are
34 Georgia Bar Journal balloons, clowns, magic shows and cake—reinforc- ing what an important day it is for them.” Debunking The Myths: The Facts Jones, who has been involved since 2002, said About Foster Care Adoption National Adoption Day gives him a chance to experi- Information courtesy of National Adoption Day Web site. ence “the other side” of his normal practice in juve- nile court. In his everyday practice, Jones usually rep- MYTH: resents parents whose children are taken by DFCS All foster care children have some kind of physical, (Department of Family and Children Services). For mental or emotional handicap; that’s why they are classified as “special needs.” Jones, part of the satisfaction of participating in National Adoption Day is that “the adoption process FACT: brings closure—happy endings to some of the The term “special needs” is somewhat misleading, tragedies seen in juvenile court.” because1 it can mean that the child is older, a minority, It also allows Jones to see “the best that people or requires placement with his/her siblings. While some children are dealing with physical or emotional can be.” He said, “I have been the attorney for a concerns, just like other children, they need the nur- particular DeKalb family who adopts extremely turing and support that a permanent family can pro- special needs kids—children who cannot walk, are vide. Many foster children are in the “system” blind and deaf, with feeding tubes, etc. Being with because their birth parents weren’t protective and them, in their home, and seeing the care the chil- nurturing caretakers—not because the children did dren receive, has had a strong impact on me—rein- anything wrong. forcing my faith in the good that can be found in MYTH: people’s hearts.” There’s too much red tape and bureaucracy involved National Adoption Day hits especially close to in adopting a child from foster care. home for Cook, who is a foster mother waiting to FACT: adopt a child of her own. Cook said that “seeing the Congress has streamlined the foster care adoption look of relief on the adoptive family members’ faces process through enactment of the Adoption and Safe when they know they have finality is amazing. There Families2 Act of 1997. This law ensures that children is a lot of fear and uncertainty for adoptive parents. in foster care, who cannot be reunited with their They love their children, but until the adoption is birth parents, are freed for adoption and placed with finalized they always think someone can take their permanent families as quickly as possible. child away. Many of them cry when they know that MYTH: the cause for worry is over.” There are not enough loving families available who According to Cook, many of her clients become want to adopt a foster child. family friends, setting up play dates and dinners. FACT: Because of National Adoption Day, Cook said she Many prospective adoptive parents may initially want has met countless individuals who have positively to adopt an infant, often because they are unaware impacted her life. She said, “I am able to serve and that3 there are older children who also need families. get to know some of the most selfless and pure- When they learn about an older child available for hearted people in the world—people who adopt adoption, they often “fall in love” and realize the children that many other people would not. That enormous impact they can have on that child’s life. encourages me.” Because of the positive experiences Older children can share their feelings about joining a new family, helping to make the adoption and transi- she has had with Adoption Day, Cook said it is her tion process successful. hope that other Georgia counties will participate in the future, to help match deserving children with Four in 10 American adults have considered adop- deserving families. tion, according to a National Adoption Attitudes The goals of National Adoption Day are to: Survey funded by the Dave Thomas Foundation for Adoption. That translates into 81.5 million Americans. n Finalize adoptions from foster care coast-to-coast If only one out of 500 Americans adopted out of the n Celebrate and honor all families who adopt foster care system, these children would have homes. n Raise awareness about the 129,000 children in fos- ter care waiting for adoption continued on page 30 n Encourage others to adopt children from foster care
February 2005 35 n Build collaboration among local Adoption, Freddie Mac 129,000 of them are available for adoption agencies, courts and Foundation and Target adoption. Since 1987, the number of advocacy organizations Corporation. In Georgia, The children in foster care has nearly n Communicate availability and Fulton County Juvenile Court, in doubled, and the average time a need for post-adoptive services collaboration with the Georgia child remains in foster care has National Adoption Day events Department of Human Resources, lengthened to nearly three years. are sponsored by a coalition dedi- Division of Family and Children Each year, approximately 20,000 cated to improving the lives of chil- Services, Fulton County DFCS, and children in foster care will age out of dren, including The Alliance for CASA, helped make National the system without ever being Children’s Rights, Casey Family Adoption Day in Georgia a reality. placed with a permanent family. Services, Children’s Action According to the National Network, The Congressional Adoption Day Web site, there are C. Tyler Jones is the director of Coalition on Adoption Institute, approximately 532,000 foster care communications for the State Bar Dave Thomas Foundation for children in the United States, and of Georgia.
MYTH: MYTH: Adoptive parents must be a 2004 version of Ozzie Families don’t receive support after the adoption is and Harriet. finalized. FACT: FACT: Prospective adoptive parents do not have to be rich, Financial assistance does not end with the child’s married, own a home, or be of a certain race or age placement or adoption. The vast majority of children to4 become an adoptive parent. (One-third of adop- adopted6 from foster care are eligible for federal or tions from foster care are by single parents.) state subsidies that help offset both short- and long- Patience, a good sense of humor, a love of children, term costs associated with post-adoption adjust- and the commitment to be a good parent are the ments. Such benefits (which vary by state) common- most important characteristics. ly include monthly cash subsidies, medical assistance and social services. More information about federal MYTH: and state subsidy programs is available from the Adopting a child from foster care is expensive. National Adoption Assistance Training, Resource, and FACT: Information Network helpline at 1-800-470-6665. Many prospective parents do not know that MYTH: adopting children from foster care is virtually Children in foster care have too much “baggage.” free, while private or international adoptions can cost5 anywhere from $4,000 to $30,000 or more. FACT: A growing number of companies and government This is perhaps the biggest myth of all. Foster chil- agencies offer adoption assistance as part of their dren—just like any children—have enormous poten- employee benefit packages, including time off for tial to thrive given love, patience, and a stable envi- maternity/paternity leave, financial incentives and ronment.7 Just ask U.S. Senator Ben “Nighthorse” other benefits. In addition, Congress has made Campbell, Minnesota Viking Dante Culpepper, federal tax credits available for foster care adop- Washington, D.C. Mayor Anthony Williams, or Miss tions to help offset required fees, court costs, USA 2000 Lynette Cole. They were all once foster legal and travel expenses. In June 2001, the children who were adopted by caring adults. President signed a revised adoption tax credit, MYTH: which took effect in January 2003, to increase the It’s too difficult to find information on how to adopt. amount of the credit to $10,000 for all adoptive families. Benefits such as these are enabling more FACT: families to adopt foster children into their homes. There are resources available to help potential parents More information is available in the IRS take the first step towards adopting out of foster care. Publication 968 “Tax Benefits for Adoption,” For more information log on to www.nationaladoption- which can be obtained by calling 1-800-829-3676 day.com,8 www.davethomasfoundation.org, or visiting www.irs.ustreas.gov. www.adoptUSkids.org, or simply call 1-800-TO-ADOPT.
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Law School Debt Can Limit Options Loan Repayment Assistance Is a Valuable Tool to Promote Public Interest Practice By Eleanor Crosby
THE PROBLEM: rose 76 percent.2 As a result, it is that enables them to make their typical for a new lawyer entering monthly loan payments. Huge stu- RISING COST OF the workforce to have loans in dent debt has begun to force law LAW SCHOOL excess of $80,000 and to have graduates to base employment monthly debt obligations of $1,000 decisions purely on economics, EDUCATION a month or more—an amount rather than on their interest in a equal to or greater than his or her particular area of law or firm. uition at our nation’s law housing costs.3 Large monthly school loan pay- schools has risen dramat- On the one hand, borrowing ments limit the ability of students money for law school is a powerful to work in the public sector in par- ically over the last two T investment in one’s future. But it ticular. Public interest salaries have decades, and so has the amount of can be frightening to begin one’s never been high, and the 1970s debt shouldered by law school career with high debt obligations. salaries for law jobs in the public A primary concern for many recent sector have not grown at the same graduates. In fact, the problem of graduates is how to live within rate as salaries in the private sector. law school debt is of such concern their means after graduation. This Of course, public interest law posi- problem is shared by both younger tions have always paid significant- that the American Bar Association graduates who may have under- ly less than private sector jobs. issued a report on the situation last graduate debt in addition to their However, over the last 30 years, law school loans, and older, non- this gap has widened. The median year.1 The study, “Lifting the traditional graduates who may starting salary for public interest Burden: Law School Debt as a have family and other responsibili- legal work was $36,000 in 2002, Barrier to Public Service,” noted ties as well as law school debt. while the corresponding figure in the private sector was $90,000.4 that in the 10-year period between A CONSEQUENCE: This is also true in Georgia, 1992 and 2002 the cost of living rose LAW SCHOOL DEBT where starting public interest salaries are typically under $40,000 28 percent, while the cost of tuition RESTRICTS CAREER a year, well under half of what is in a public law school rose 134 per- OPTIONS FOR NEW paid by large private law firms. As a result, public interest and gov- cent for residents and 100 percent LAWYERS ernment employers such as legal for non-residents. Furthermore, debt loads carried aid, legal services and indigent During the same period, the cost by recent law school graduates defense programs often find it dif- of tuition in private law schools limit options for employment, ficult to attract and retain high because students must find work quality lawyers.
38 Georgia Bar Journal A FURTHER offer partial assistance to students Without the current available with loan repayment through a law assistance, many who have made CONSEQUENCE: school-sponsored LRAP. contributions to public interest NEGATIVE IMPACT Unfortunately, both these pro- work would not be able to choose a grams are limited. According to career in the public sector. Adrienne ON PUBLIC SAFETY Emory Career Services Director Ashby, an attorney with the Atlanta AND WELFARE Carolyn Bregman, “While we are Legal Aid Society’s Senior Citizens thrilled that we have been able to Law Project, puts it this way. “In An additional result is a negative raise funds to provide some assis- college, when I decided to attend impact on the courts and on the tance to lower the debt burden for law school, I knew that I wanted to administration of justice. Former these graduates, our fundraising use my intellectual gifts to represent Gov. Roy Barnes noted that turnover efforts remain a priority. Salaries people just like the people in my old in legal positions in our crimi- neighborhood. I just needed to nal justice system can make the figure out how I could repre- public less safe, because this sent the people that I wanted system relies upon well- to represent and pay for my trained and talented prosecu- law degree at the same time. tors and public defenders. Before coming to Atlanta Legal Based on these concerns, in Aid, I was an associate at a pri- 2001 Barnes established the Georgia Legal Loan Forgiveness Task Force. The I knew that I wanted to use my task force concluded that high intellectual gifts to represent people law school debt prevents many just like the people in my old service-minded law graduates neighborhood. I just needed to figure from pursuing positions as prosecutors, defenders and out how I could represent the people with other public interest law that I wanted to represent and pay firms and that a state funded for my law degree at the same time. program to mitigate the effects of school debt was needed to Adrienne Ashby, an attorney with the Atlanta vate law firm. When I decided protect the public safety. Legal Aid Society’s Senior Citizens Law Project. to leave that position to pursue A WAY TO for new graduates in some public a career in public interest, I worried interest positions, and in, for exam- about not being able to afford to RESOLVE THE ple, state court clerkships outside repay my law school loans. PROBLEM the metropolitan Atlanta area, can However, I learned that Atlanta range from the low to mid-thirties. Legal Aid had a loan forgiveness One successful approach to miti- Educational debt burdens, without program that would help me pay gating the effect of large law school the benefit of loan repayment assis- back my loans. I then felt that I debt has been the creation of loan tance, can prevent new graduates could pursue my public interest law repayment assistance programs from taking positions for which career and remain in good standing (LRAPs), under which a new they have gotten direct work and on my loans.” lawyer is reimbursed for part of his academic experience and for which Not everyone is so fortunate, or her monthly student loan pay- they have a passion.” Georgia Legal however. Programs like those ment. Current LRAPs are available Services and Atlanta Legal Aid also offered by Atlanta Legal Aid and in a few states, from a number of offer limited loan repayment assis- Georgia Legal Services should be law schools and through some tance to employees with law school available to recent law graduates public interest employers. debt, but this benefit is paid out of interested in all aspects of public In Georgia, the University of the general budgets of these service and should not be depend- Georgia and Emory University already under-funded programs. ent on employer funding.
February 2005 39 DEN: LAW SCHOOL DEBT AS A BARRIER The Georgia Legal Loan Forgiveness Task TO PUBLIC SERVICE (2003). 2. See id. at 10. Force determined that only $3 million of 3. See id. at 9. 4. See id. at 10. state funding would have a dramatic effect 5. See ABA Task Force Final Report, and GEORGIA LEGAL LOAN FORGIVENESS TASK FORCE FINAL on the ability of students to work in the REPORT, 2003. See also NATIONAL ASSOCIATION FOR PUBLIC INTEREST public interest—hardly a great price to pay LAW, 2000 Report on Law School Loan Repayment Assistance and for such a significant problem. Public Interest Scholarship Programs. 6. See O.C.G.A 20-3-387 et. seq. Most who have studied the issue echoes that of the ABA 7. Supra note, at 5. 8. See ABA Task Force Final Report at agree that a state LRAP which Commission, which determined page 9. reimburses payments made by that state and federal government, new lawyers on their student loans bar associations, employers and law is the most comprehensive, prom- schools must do more to help new ising and effective way to allow lawyers manage debt. There are law students to choose public inter- numerous reasons to support a state Casemaker est jobs despite high student debt.5 program, and realizing access to jus- is now available! tice is one of the most important. As ADDITIONAL the ABA report puts it, “The legal Be Sure ACTION NEEDED profession cannot honor its commit- ment to the principle of access to to take advantage The Georgia Legal Loan justice if significant numbers of law Forgiveness Task Force appointed graduates are precluded from pur- Of Your by Gov. Barnes ultimately recom- suing or remaining in public servic- newest mended that Georgia create such es jobs.”8 A fully funded and opera- a state funded loan repayment tional LRAP in Georgia would Member assistance program for students strengthen our legal system and who wish to become prosecutors, therefore benefit all Georgians. Benefit defenders or legal aid lawyers. While the program has been creat- Eleanor Crosby is a ed,6 it has not been funded. The private attorney and task force determined that only $3 mediator in Athens, million of state funding would Ga. She has spent Log On At have a dramatic effect on the abil- most of her legal www.gabar.org ity of students to work in the pub- career working in the lic interest—hardly a great price public interest sector, including positions as a staff attorney at to pay for such a significant prob- For More the Georgia Legal Services lem. The Bar supports funding for Program and as a managing information and this effort. attorney for the Atlanta Legal Aid The Governor’s Task Force Society. She earned a J.D. from To Access Report concludes: “Loan Repay- Emory University School of Law in ment Assistance Programs and 1986, an M.A. from the University Georgia’s online scholarship programs are perhaps of Georgia in 1983, and a B.A. the most important means to from Vassar College in 1980. Law address educational debt burdens Endnotes faced by law school graduates Library wanting to do public interest 1. AMERICAN BAR ASSOCIATION COMMISSION ON LOAN REPAYMENT work.”7 In fact, this conclusion AND FORGIVENESS, LIFTING THE BUR-
40 Georgia Bar Journal “And Justice for All” 2004 State Bar Campaign for the Georgia Legal Services Program, Inc. (GLSP)
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What Can We Do About Domestic Violence in the Workplace? Lawyers’ Leadership is the Answer! By Georgia Attorney General Thurbert Baker and Linda T. Muir
private studies, focus groups omestic violence in and articles tell us the same story. Cross-functional the workplace is tak- teams come together to ing an increasing toll analyze the basics of D the problem and to on both employees and employers. offer creative solu- Millions of employees each year tions—guidelines, model programs, are the victims of domestic vio- policies and proce- dures—that compa- lence crimes, including harass- nies can and should ment, threats, assault, battery, adopt. These pro- posed solutions rou- rape, sexual assault, stalking and tinely focus on reduc- ing the occurrence of murder, in which either the crime domestic violence in the or its resulting fallout spills over workplace, as well as reducing the resultant dam- into the workplace. In addition to age to intended and incidental victims when it does occur. the price victimized employees While there is a general acknowl- pay, employers also incur tremen- edgement of the serious nature of the problem of domestic violence in the dous direct and indirect costs as a workplace, and a realization that pro- of domestic violence in the work- posed solutions properly implement- place and the solutions generally result. ed can work to the advantage of recommended to combat it, but it Domestic violence in the work employers and employees alike, goes beyond the facts, figures and environment continues virtually businesses by and large continue to recommendations to suggest a new unabated despite broad public con- operate without any strategy in place approach. The key ingredient miss- cern, increasing attention on the dev- for addressing the problem or for ing from the prescribed solutions astation it wreaks, and pleas from implementing the potential solu- and recommendations is the community groups for businesses to tions. LEADERSHIP that is necessary to respond to the urgency of the situa- This article summarizes the con- implement them. In our view, tion. Repeatedly, government and sensus on the frequency and costs lawyers are in a unique position to
42 Georgia Bar Journal provide that leadership. From a are battered each year. Homicide is professional as well as a practical the leading cause of death to standpoint, our profession is per- women in the workplace. fectly situated to advise both cor- Symptoms of abuse include porate and small business clients absenteeism, tardiness, leaving about how best to counter domestic work early, impaired work per- violence in the workplace. The formance, anxiety and low self- Georgia Corporate Domestic esteem. While 1 out of every 3 Violence Initiative, to be launched women will be affected by domes- in February 2005 by the Office of tic violence at some point in her the Georgia Attorney General, can life, at any given time approximate- provide lawyers the opportunity to ly 10 percent of the employees in a address this issue with their clients workplace will be dealing with and to help them avoid not only domestic violence.3 Victims use the NEW HOME future human trauma and tragedy, emergency room more often, visit CONSTRUCTION but potential corporate costs and physicians more often, and use COMPLAINTS liability as well. more prescription drugs than per- sons without violence.4 Residential Construction WHAT IS & Development Expert DOMESTIC • Code & Inspection “DOMESTIC Compliance VIOLENCE IN THE VIOLENCE IN THE • Cost/Quality Analysis • Materials & Labor WORKPLACE”? WORKPLACE Evaluation 770-922-4411 For our purposes, domestic vio- IMPOSES COSTS www.danielturnerbuilders.com lence is “violent behavior that is AND LIABILITY ON controlling, coercive, and/or abu- EMPLOYERS SENTENCING CONSULT@TION sive, including physical, sexual, & @PPE@LS psychological, and economic abuse; Domestic violence in the United WHEN IT’S TIME FOR A it is committed by one individual States costs billions of dollars every CHANGE against another in a domestic/inti- year. Employers absorb a signifi- mate relationship.”1 Domestic vio- cant part of those costs as a result of Georgia and All Federal Circuits FEDERAL CRIMINAL LAW lence does not always stay at home. domestic violence in the work- CENTER When it spills into the workplace, place. Employers’ health insurance the violent behavior and its effects premiums reflect that a domestic Voice: 404-633-3797 violence victim incurs, on average, Fax: 404-633-7980 become “domestic violence in the www.MSheinLaw.com workplace.” $1,775 more in annual medical [email protected] The American Institute on costs than a non-victim.5 It is wide- ly reported that employers lose Domestic Violence reports often- A-AA-AA cited statistics confirming the epi- between $3 and $5 billion every ATTORNEY REFERRAL SERVICE demic proportions of domestic vio- year in lower productivity, higher lence in the workplace.2 Although turnover and health and safety Is your phone ringing like it both men and women are victims costs associated with battered used to? Last month we of domestic violence, 90 percent of workers, and they incur another referred over 17,000 callers to the victims are women, and 75 per- $100 million in lost wages, sick our attorneys. Are you ready to start getting referrals? cent of them face some sort of leave and absenteeism. Call us today! harassment from intimate partners Beyond these costs, employers while at work. Domestic violence is may have contingent or actual lia- (800) 733-55342 the leading cause of injury to bility as a result of domestic vio- 24-hhour paging: women; between 3 and 4 million lence in the workplace. Domestic (888) 669-44345
February 2005 43 violence in the workplace manifests Medical Leave Act or similar state ness in 2002, although 91 percent of itself as criminal behavior that also laws that protect employees from corporate leaders believe that creates civil liability. Occupational discrimination for illness or injuries domestic violence affects both the safety laws impose a duty to main- incurred as a result of a workplace private and working lives of their tain a safe workplace.6 The domestic violence event.10 employees, only 12 percent feel “General Duty Clause” of the that businesses have a responsibili- Occupational Safety and Health Act EMPLOYERS ARE ty to address the crime and its requires employers to have a work- AWARE THAT impact on the workplace.12 place that is “free from recognized Both a coalition of corporations hazards.”7 Failure to protect a vic- DOMESTIC and certain states have promulgat- tim of domestic violence in the VIOLENCE IN THE ed model policies and programs to workplace could cause the employ- address domestic violence in the er to be found liable for the victim’s WORKPLACE IS A workplace.13 Model programs, injuries or death, especially if the BUSINESS ISSUE, policies and procedures designed employer was aware of the circum- BUT FEW TAKE by experts and practitioners in the stances of abuse and threats of vio- field have been widely disseminat- lence. Adding safety and security ACTION TO ed to enable employers to protect precautions may be necessary to ADDRESS IT employees and themselves from provide protection. An employer domestic violence in the work- who knowingly or negligently hires Surveys of corporate executives place.14 Nevertheless, most or retains an employee who is a per- in Fortune 100 companies indicate a employers do not avail themselves petrator of domestic violence may significant awareness of the inci- of these resources and do not fol- be liable for negligence in the hiring dence of and costs associated with low the recommendations for solv- or retaining of that employee; that domestic violence in the workplace: ing the problems. risk is magnified if the employer n 66 percent of senior executives It is difficult to imagine that a also employs the victim of the per- agreed that their company’s senior executive would be aware of petrator. Employees injured as financial performance would the problems but not be supportive innocent bystanders in a workplace benefit from addressing the issue; of a solution that would better pro- domestic violence incident may n 94 percent of corporate security tect employees, reduce costs to the have a gross negligence claim directors rank domestic vio- company, and limit risk of loss and against their employer, if it can be lence as a high security risk; liability. Four focus groups con- shown that the employer failed to n 78 percent of human resource ducted in Atlanta on Oct. 18, 2001, remove a perpetrator from the directors identify domestic vio- explored this issue to determine workplace even though the employ- lence as a substantial employee how to engage employers in pre- er knew or should have known that problem; vention.15 Altogether, 25 health the perpetrator-employee posed a n 49 percent of senior executives benefit managers representing threat of violence. These cases can said that domestic violence has employers from a range of regions, result in liability stretching well a harmful effect on their compa- industries, and sizes discussed over seven figures.8 ny’s productivity; domestic violence in the work- In addition to being exposed to n 47 percent acknowledge that place. The results of the focus the actual and contingent liability employee attendance is affect- groups shed some light on the associated with domestic violence in ed; and views of employers regarding their the workplace, employers also have n 40 percent of corporate leaders role in domestic violence preven- an obligation to treat employees fair- are personally aware of specific tion. Although general workplace ly and not to discriminate against an employees who are affected by safety was important to the partici- 11 employee who is the victim of domestic violence. pants, most of the companies par- domestic violence in the workplace.9 Yet, according to a Liz ticipating in the discussions did not Employers may have obligations Claiborne, Inc., study that was have a specific and defined domes- under the Americans With released at a major national confer- tic violence in the workplace pre- Disabilities Act and the Family and ence on domestic violence aware- vention policy.
44 Georgia Bar Journal These groups revealed that, while CORPORATE AND acknowledge that the solution will a better understanding of possible require a team effort within a com- solutions and the costs to implement BUSINESS pany, involving: human resources, them might be helpful, the employ- LAWYERS CAN the director of the employee assis- ers viewed domestic violence prima- tance program, inside and outside rily as a personal and private issue AND SHOULD security personnel, the safety coor- in which the employer should not be PROVIDE THE dinator, the training coordinator, involved. Participants stated that it legal, and anyone else who will be is not socially acceptable to discuss LEADERSHIP THAT involved in developing and imple- domestic violence openly in the IS MISSING menting the program.17 workplace. Most important, the par- These reports are directed to Reports abound on the signifi- ticipants said that the ultimate role “the employer” as the consumer of cance of domestic violence in the of employers depends largely on the report and the entity to devise workplace issues and problems, senior management. Although the and implement a response to and they routinely conclude with a focus groups are not scientifically domestic violence in the work- multiplicity of recommendations conclusive, they are consistent with place. Of course, “the employer,” and solutions that companies the observation of many of the com- considered generically, is actually should adopt to address and solve mentators, who note that the critical many people across many depart- the problems. Some of these are: first step is having senior manage- ments. In speaking generically, adopting policies and procedures; ment’s support, as well as aware- these reports do not speak to any- instituting training; involving com- ness, of the need to develop an one in particular. If the problems munity agencies; complying with action plan for domestic violence in belong to all of the members of the local, state and federal laws; and the workplace.16 If senior manage- multifaceted team, no member of improving safety and security ment doesn’t “get it,” then it is diffi- the team owns the problem with a measures. It is typical for the cult for anyone else in the company mandate to implement the solu- reports and recommendations to to take the lead. tion. It is easy to imagine that
February 2005 45 everyone on the team expects to potential liability, and the contin- Beyond their professional follow someone else’s lead, espe- uum of risks and costs associated responsibility, lawyers have a cially with a problem that no one with the adverse consequences practical opportunity to be the wants to talk about in the first that could flow from failure to agents of change. In most compa- place. Two key ingredients appear take precautions or to be in com- nies, all roads lead to the legal to be missing from the otherwise pliance. Providing this sort of department or to outside counsel. valid recommendations contained advice and counsel and following Lawyers routinely work with a in these definitive reports. First, a up with appropriate action has cross-section of employees clear statement that the informed always been the way that business throughout the company, partic- and committed buy-in at the most lawyers have contributed to the ularly in the various functional senior level of management is the corporate client’s bottom line. departments that need to be rep- critical, necessary first step toward As a result, the company’s resented on the domestic vio- solving domestic violence in the lawyers are in the best position to lence in the workplace team or workplace. Second, that getting educate senior management about task force. With the clear direc- that buy-in and mounting the the real costs of domestic violence tion of senior management to “team effort” to achieve a solution in the workplace and to help them proceed, the lawyer will be able will require dedicated leadership understand the full implications it to provide leadership to the imbued with the authority of sen- poses for the company, just as effort. Consequently, once the ior management. they would about any other real missing ingredients of senior Often domestic violence in the or potential harm to the company. management buy-in and team workplace is seen as a human Lawyers are the ones who can leadership are in place, commit- resources issue since employees demonstrate that the costs and lia- ted employers should be able, at are involved. Security and risk bilities associated with domestic last, to respond in greater num- management may be seen as the violence in the workplace will bers to the urgency of domestic appropriate repository of this persist if the company does noth- violence in the workplace and to “hot potato” issue. Contrary to ing in the face of the realities and, take advantage of the many help- conventional wisdom, we submit on the other hand, also demon- ful recommendations and solu- that the best and most appropriate strate the relative benefits of tions available to them. player on the cross-functional implementing well-conceived team, both to precipitate the buy- policies and programs designed ATTORNEY in of senior management and to to address the problems affecting GENERAL’S lead the team in developing and the company. It is consistent with implementing a preventive pro- the role of the company’s lawyer INITIATIVE WILL gram, is the company’s corporate to advise the client and to lead it BE A CATALYST or business lawyer. As a general to the right conclusions, regarding matter, unlike some of the other what is in its best interest and FOR LAWYERS TO leaders in the company, the com- what will promote its security and FILL THE pany’s lawyers have a profession- welfare. Lawyers have always LEADERSHIP GAP al responsibility to proactively been the leaders in this country to advise the client on all sorts of address and shape changes need- In February 2005, in association matters that could result in ed for the betterment of society. In with a consortium of agencies adverse consequences for the this proud tradition, lawyers can and non-profit resources who company, including domestic vio- and should lead the senior man- provide domestic violence servic- lence in the workplace (among agement of their corporate and es to the community,18 Attorney many others). The lawyer’s duty business clients to be more General Thurbert Baker will includes keeping the senior man- enlightened regarding domestic launch the Georgia Corporate agement of the corporate client violence in the workplace and to Domestic Violence Initiative. informed regarding the vagaries reap the benefits of being the With funds and support provided of compliance with legal require- champion of constructive change by Cox Enterprises, Inc., educa- ments, the existence of real and within their companies. tional DVDs will be sent to the
46 Georgia Bar Journal presidents and CEOs of over 400 National Association of 5. See note 1, supra, at 1. companies located throughout Attorneys General and as an 6. Workplace Violence Research Institute. S. Kaufer, Corporate Georgia. In letters individually advisor to the Harrell Center for the study of domestic violence Liability: Sharing the Blame for addressed to each corporate Workplace Violence. Accessed at the University of South leader, Attorney General Baker December 9, 2004 at Florida. Attorney General Baker will emphasize the urgency of the http://www.noworkviolence.com is an Emory School of Law grad- problems associated with domes- /articles/corporate_liability.htm. uate (J.D., 1979). 7. VIOLENCE IN THE WORK- tic violence in the workplace and PLACE: Preventing It; Managing challenge each business to help Linda T. Muir, a cor- It. Federal Bureau of Investigation. eradicate this societal problem. porate and business Accessed December 9, 2004 at http://www.fbi.gov/page2/marc Through this initiative, corporate attorney for over 20 leaders across the state will have h04/violence030104.htm. years, has served 8. See note 6, supra. valuable information about the large corporate 9. See note 7, supra, at 44. problems of and the solutions for clients in her practice 10. S.P. Dougan, Employers’ Bane: domestic violence in the work- with major law firms and corpo- Domestic Violence Often Spills place. This information will rations. Since founding The Muir into the Workplace, Nevada Journal, Vol. 8, No. 48 (November 2001). arrive complete with the listings Law Firm LLC in Atlanta in 2001, Accessed December 9, 2004 at she has served small and mid- of the service providers in their http://www.gtlaw.com/pub/arti- respective areas with whom they sized companies. A leader and cles/2001/dougans01a.asp. advocate for women, Muir has can partner to assist their employ- 11. See note 1, supra. See also, DV at served as the facilitator of the ees. Of course, whether or not Work. DVInitiative.com. Accessed Ad Hoc Committee for the December 9, 2004 at www.dvinitia- they adopt a preventive program Georgia Corporate Domestic tive.com/DV_at_Work/default.asp. will be up to the company leaders Violence Initiative. Muir is an 12. See note 3, supra. to decide. Emory School of Law graduate 13. See, e.g., the model program of the Corporate Alliance to End Partner The Georgia Corporate DV (J.D., 1982). Violence at www.caepv.org, and Initiative will open the door for the sample policy promulgated by corporate and business lawyers the Louisiana Department of across the state to assume a leader- Endnotes Justice at ship role in taking the initiative 1. Domestic Violence and the http://www.ag.state.la.us/vio- forward with their clients. As we Workplace. Partnership for lence/policy.htm. 14. See, e.g., American Bar Association have seen with so many other wor- Prevention (2002) at 3. Accessed December 9, 2004 at Commission on Domestic thy efforts to combat domestic vio- http://www.prevent.org/publica- Violence. Domestic Violence and lence in the workplace, on-the- tions/Domestic_Violence_and_the the Workplace: 10 Smart “Nuts ground leadership will be required _Workplace.pdf. and Bolts” Steps for Employers. for the initiative to succeed. The 2. American Institute on Domestic Accessed December 9, 2004 at Violence. Domestic Violence http://www.abanet.org/domvi- leadership of Georgia’s lawyers Statistics, Crime Statistics, ol/workviolence.html. can make all the difference. Workplace Violence Statistics. 15. See note 1, supra, at 3-6. Accessed December 9, 2004 at 16. J. Johnston, It’s None of Our Thurbert E. Baker http://www.aidv- Business: When Domestic Violence has served as usa.com/Statistics.htm. Comes to Work. Accessed December 9, 2004 at http://www.workrela- Georgia’s attorney 3. Altria Media Press Release, tionships.com/site/articles/vio- general since June 1, October 24, 2002. Accessed December 9, 2004 at lenceatwork.htm. 1997. As attorney http://www.altria.com/media/pr 17. See note 13, supra. general, Baker was a ess_release/03_02_pr_2002_10_24_ 18. Participants in this initiative lead sponsor of the ground- 01.asp. include the Georgia Commission breaking legislation that made it 4. National Center for Injury on Women, the Georgia a crime in Georgia to commit an Prevention and Control. Intimate Commission on Family Violence, act of domestic violence in front Partner Violence: Fact Sheet. the Partnership Against Domestic Violence, the Georgia Coalition of a child. He has served as co- Accessed December 9, 2004 at http://www.cdc.gov/ncipc/fact- Against Domestic Violence, Men chair of the Violence Against sheets/ipvfacts.htm. Stopping Violence, and the Women Committee for the Women's Resource Center.
February 2005 47 GBJ feature
Legal Humor Contest Sharing the Wit and Wisdom of the Bar By George E. Butler II
support of the proposition that Meanwhile, law schools have n an otherwise glori- humor constitutes the one “indis- largely abdicated responsibility for pensable survival tool” in the law serving in loco parentis and increas- ous morning, do you trade. Collected and bound togeth- ingly serve as glorified hiring halls sometimes find your- er into the annual Georgia Bar for the bigger firms. Arguably, no O Association Reports, these speech- one is providing the cultural glue self muttering to the mirror in uncon- es helped the lawyers of that time necessary to hold the profession scious paraphrase of Shakespeare: bond with one another “through a together. Anecdotes and shared shared literary canon of ‘war sto- personal memories are what typi- “How weary, stale, flat, and unprof- ries’”3—and encouraged them to cally hold such groups together, “pursue the Muse [themselves] by despite our own self-deprecating itable seem to me all the uses of the crafting and exchanging amusing tendency to dismiss them as “war 4 law?”1 stories of their own.” stories.” If the Law has a depressing his- Anecdotes, with their proper What’s the matter? Is the prac- torical tendency to produce earnest combination of humor, pathos, and tice just not as much fun as it used and staid professionals who see- wisdom, are an essential part of the to be or as you’d like it to be? If saw between feelings of self-impor- identity, tradition, or cultural myth so, maybe you are just out of prac- tance (or stressful exhilaration) and of any profession like the law; they tice. Seriously, cultivating a sense personal inadequacy (or tedious are supposed to make us feel better of humor or ironic detachment drudgery), the antidote offered up about being lawyers, give us mod- from the stresses of our workaday by the old Bar was cultivating a els to admire and emulate, and world takes practice. The Bard sense of humor and developing, in help us look beyond the bottom understood this: “Assume a the process, the philosophical bent line and make personal sacrifice for virtue, if you have it not,” he of mind to view the Law—as Oscar the collective good. 2 admonished. The old voluntary Wilde did life—as a thing “too To be sure, many bars are Georgia Bar Association under- important to be taken seriously.”5 attempting to redress the current stood this. The highlight of its Today, changing demographics situation by sponsoring mentoring annual meetings from 1884 to have helped exacerbate a perceived programs that provide young 1920 was a humorous address by crisis in professionalism. lawyers with personal role models, one of its more distinguished The numerical majority of most who by story and example can members, who was also known as bars are young people who do not indoctrinate them with the endur- a gifted raconteur. The honoree have lawyers for parents or role ing professional values. But given was asked to try to distill the models and who were turned loose the undeniably more hectic pace of humor out of a lifelong career that on a lawscape already dominated professional life today, a more effi- might otherwise appear too dry to by larger firms, onerous law school cient vehicle may be needed for the layman for distillation. debt, extreme specialization, high retailing simultaneously to a wider Often, these well-attended billable-hour expectations, etc. audience what used to be called the addresses amounted to essays in
48 Georgia Bar Journal “wit and wisdom” of the bar. That is why the Georgia Legal History Foundation (GLHF)6 is sponsoring the Legal Humor Contest described in the box on Page 51. Winning submissions will be publicized in the Journal of Southern Legal History and/or in the Georgia Bar Journal. What type of humor is being sought? It could be a short humor- ous essay along the lines of that penned in 1916 by one annual speaker, who noted that a sense of humor helps gird a lawyer against the not infrequent, but ever exas- perating, encounters with that “bovine, dew-lapped incumbent of the bench, who chews a cud, and after one carefully presents the results of hours of study, vaguely inquires in a far-off, detached voice, goat-like in its pathos, ‘What is the contention about?’”7 Be careful what you ask for! A fully engaged judge may not be a lawyer’s best friend. That point is made by an anecdote related by the 1915 annual speaker to the Georgia to hem the jury in; they will judge who used humor in that Bar Association. It seems that a not get away. The bailiff is fashion was Logan Bleckley, who mountain lawyer had his case here and will not allow them served as Chief Justice of the removed to U. S. district court in to escape. Proceed with your Georgia Supreme Court from 1887 Atlanta from the local superior argument.8 until 1894. court, where he was given consid- True anecdotes9 are the pre- “Often in his private conversa- erable license to operate by the ferred form that a contest submis- tion and in social intercourse,” as aforementioned passive “incum- sion may take; and the preferred one historian has noted, “Judge bents of the bench.” By contrast, format for such anecdotes can be Bleckley lauded the indulgence of the federal jurist gave the country seen in the example taken from a wholesome fun in speech and con- lawyer all the attention that he previous issue of the Journal of duct as among the best of could stand: Southern Legal History and con- virtues.”10 Not all southern judges [The lawyer] pitched in, and tained in the box on Page 50. have shared Bleckley’s philosophy, was letting off on a high key, So the GLHF is looking for but it appears to reflect both a tra- ranging and cavorting around humorous essays or anecdotes. But ditionally southern attitude and a close up in the face of the what sort of humor? Despite the key aspect of the same Anglo- jurors, when his honor inter- examples just given, the point is American tradition that gave us the vened as follows: Mr. not one-upmanship or trading licks jury-centric common law. ______, the Court is not deaf, between bench and bar. The real In the sixteenth century, nor do I believe the jury is. It is purpose is to puncture pretence “humour” denoted an unbalanced not necessary to talk so loud. wherever it exists and to humanize mental condition or mood—or a Neither is it necessary for you our entire legal enterprise. One vice or folly—and thus became the
February 2005 49 Sample Anecdote Writ in Water: test Allen’s pleadings. Allen obviously at the corner where the old Candler Anecdotes from the Practice felt confident of his pleadings, for he Hotel stood and thumbed a ride Raconteur Hamilton Lokey (1910- offered to let me, a senior in law back to Athens, the way all Georgia 1996); lawyer; Atlanta school, argue the demurrer issue students made the trip in those days. Dates of Occurrence: 1932-1934 before Judge Frank Guess, the judge Places of Occurrence: Atlanta and of the City Court of Decatur, if Judge Smith v. Candler came on for trial in Decatur, Ga. Guess agreed. Judge Guess did March of 1934. By that time I was agree, and Mr. Howard made no practicing law with the firm of Harold The Baboon objection, so I set to work to pre- Hirsch & Marion Smith, but I got per- Allen Post told me in late 1932 about pare for my maiden voyage on the mission to attend the trial in Decatur. a damage suit he had just filed for sea of litigation. The consensus of the bar was that the Mrs. M. L. Smith against Asa C. plaintiff would get a verdict, but a Candler, Jr., the Coca-Cola magnate, The principle issue in the case was small one. They reckoned without the in the City Court of Decatur the status of the baboon. Clearly, he trial ability of Allen Post. I recall to this (DeKalb County). Candler main- fit the classification of “animal ferae day Allen’s cross-examination of Mr. tained a private zoo on his estate on naturae,” a wild animal as distin- Candler, where Allen skillfully forced Briarcliff Road in the Druid Hills sec- guished from a domesticated animal from the defendant the “no win tion of Atlanta. One day a baboon such as a dog, a horse, or a cow. My answer.” escaped from the zoo and finally research took me back to the law of arrived at the premises of Mrs. the Medes and Persians, then into Mr. Howard, a great trial lawyer Smith. When she came out to get in early English law, laced with Latin himself, had called Candler as his her car, she opened the door and phraseology. I even dabbled into the only witness for the defense and had found the car was already occupied civil law of the Napoleonic Code. My him testify that he had developed the by Candler’s baboon. Mrs. Smith fled memorandum of authorities was zoo because of his great love for wild in terror, with the baboon in hot pur- replete with citations from textbooks animals and also to enrich the educa- suit. As Mrs. Smith ran to the front and from early United States tional experience of the children in door of her house, she tripped over Supreme Court cases. I even cited DeKalb County schools. On cross- the doorsill and fell, hurting her leg. Georgia authorities predating the examination Allen asked a number of Her greatest complaint, however, Georgia Supreme Court, which did gentle questions to put Mr. Candler was the mental pain and suffering not exist prior to 1846. All these at ease, then developed the theme resulting from her encounter with authorities were traced down to that Mr. Candler had traveled exten- Candler’s wild animal. Candler present-day decisions to show the sively. Next he got Mr. Candler to claimed the animal was only a mon- court an unbroken line of authorities acknowledge that he was a big-game key, but monkey or baboon, the case making Mr. Candler liable for the hunter, having hunted wild animals got a lot of newspaper publicity. actions of his “animal ferae naturae.” on three different continents. Then Allen dropped the axe. After remind- Back in those days the courts of our At the demurrer hearing Judge ing Mr. Candler of his direct testimo- state used common law pleadings, Guess patiently sat and let me trace ny that he had a great love for wild where the facts of a case had to be the law from antiquity, through the animals, Allen posed this pleaded in full, and the pleadings Middle Ages, and on down to 1933. question:”Mr. Candler, would you tell were construed against the pleader, Then, as all the lawyers in the case the jury whether you love wild ani- just the opposite of what we now knew would happen, Judge Guess mals because you hunt ‘em and kill have in Georgia under the Civil overruled the general demurrer, ‘em, or do you hunt ‘em and kill ‘em Practice Act. Allen Post, a top-flight complimenting me for my thorough because you love them?” trial lawyer, knew he had pleaded a preparation. As Allen got into his car case that would withstand a general to drive back to downtown Atlanta, I (Reprinted From The Georgia Journal of demurrer, but his opponent, William thanked him for letting me, a law Southern Legal History, Vol. 1, No. 2, Schley Howard, who represented school student, have such an exciting Fall/Winter 1991) Mr. Candler, duly filed a demurrer to experience. I then crossed the street
50 Georgia Bar Journal subject of comedy writers. England produced a wealth of such comical characters, which helped turn the Contest Rules diversity of local “humours” into a The Georgia Legal History The winning entries and those source of national pride: Foundation (GLHF), together that receive honorable mention [The English] began to claim with the Bench & Bar will be published in the Journal that this richness of the comic Committee of the State Bar of of Southern Legal History in its stage derived from the rich- Georgia, is pleased to announce “Writ in Water” section. As a ness of their national life, an annual legal humor contest to condition of submission all appli- which abounded in men of see what lawyer licensed to cants must certify that any varied humours. England had practice in Georgia can submit copyright or other protected long been known as the home the best new unpublished legal interest in the material being of individualists, peculiar anecdote, essay, or fictional submitted belongs to them and story. A $1000 prize will be that they are abandoning any men, even madmen, so that given for the best non-fiction and all such claims so that the when young Hamlet put his anecdote and a $500 prize will material may enter the public antic disposition on he was be given for the best essay or domain, assuming it is selected packed off to England where fictional story. Runners-up will for publication by the Journal of it would not be noticed.11 receive honorable mention and Southern Legal History or the As part of the Whig tradition free GLHF memberships. While Georgia Bar Journal or for use in that is synonymous with the it is recognized that any story CLE programs. Submissions Revolution of 1688, the English worth telling may be worth should not exceed 1,000 words concluded that their tradition of embellishing, in the case of anec- in length and should be desig- personal liberties and free enter- dotes entrants will be expected nated in the title as either prise had “ushered into the world to vouch for the authenticity of “Non-Fiction Anecdote” or the basic events and to identify “Essay/Fiction,” as the case may their genuine offspring, True the time and the place, assuming be. Multiple submissions are Humour.”12 Later, John Stuart Mill they participated, or to give the allowed. They should be sub- insisted that eccentricity in a socie- source and any other relevant mitted in typescript and on disc ty is proportional to genius, origi- bona fides of a story that they in either Word or Word Perfect nality, mental vigor, and moral may have heard second-hand. format and mailed to: courage.13 Judges for the contest will Humor welled up from the life include Griffin Bell, Marion George E. Butler II of a character; and unlike wit, a Pope, Bob Hicks and others, all 132 Hawkins Street mere form of intellectual quick- of whom will have been rigor- Dahlonega, GA 30533 ness, which could be sharp and ously qualified on the basis that severe, humor appealed to both the “they know humor when they All submissions must be see it” and recognize the best to postmarked by Sept. 1, head and the heart of the listener. contain wit, wisdom, and pathos 2005. Rather than a curiosity or oddity, in varying proportions. humor came to be valued as the endearing and characteristic trait of a generous nature: Likewise, humor was related to that southern lawyers can claim as Benevolence, in one of its sympathy and pathos, because it a birthright—as reflected by the forms, giving free rein to inner provided relief from the sadness lapsed traditions of the Georgia Bar impulse and trusting that and stress of life, which seem to Association and its other southern spontaneous expression of weigh heaviest on those with the counterparts. That is the kind of personal feeling was good for keenest sensibilities. humor that the best trial lawyers both the individual and socie- That is the type of humor that have always used to connect with a ty, even if it seemed excessive Mark Twain practiced and perfect- jury: “Ladies and gentlemen, that or foolish or ludicrous by cool- ed and that Judge Bleckley champi- reminds me of a story... .” headed standards, had a near oned; and it is the kind of good- That is the kind of humorous relationship with humour.14 natured, self-deprecating humor essay or “war story” that the
February 2005 51 Georgia Legal History Foundation for programs devoted to a carefully Southern Legal History, 241 (1994). seeks for publication in its Journal of selected and presented canon of 4. Id. 5. Lady Windermere's Fan, Act I (1892): Southern Legal History. It is not the such humorous stories and essays. "Life is too important a thing ever kind of canned joke or breezy one- And perhaps all attorneys need to to talk seriously about." liner that speakers often recite offer more grateful praise and 6. Founded in 1985 by a group today to break the ice at legal pre- recognition to any and all latterday appointed by the Supreme Court of sentations. That is often mere wit— judicial practitioners of Judge Georgia and the Georgia Court of Appeals, the Georgia Legal History or worse. Bleckley’s art, lest modern judges Foundation, Inc. became one of the Of course, during the 18th centu- be allowed to succumb to the obvi- first organizations in the nation to ry, philosophers noted that sponta- ous pressures to become humorless be chartered to promote the study neous humor does not tend to case administrators. and preservation of the legal histo- ry of an individual state. The flourish among well-bred, institu- Fortunately, under the heading Foundation publishes the Journal tional types, who have learned to “life imitates art,” it turns out that of Southern Legal History in con- suppress their impulses, generous the Bench & Bar Committee of the junction with the Walter F. George and otherwise; whereas, “among State Bar of Georgia is ahead of the School of Law of Mercer the lower orders . . . nature appears game. Under the capable leadership University; it sponsors seminars for which professional attendees in all its charming, unsophisticated of Co-Chairs Robert Ingram of receive continuing legal education 15 diversities.” Marietta, President-Elect of the Bar, credit; it has held a series of annual The advent of larger firms with and Judge Mel Westmoreland of the dinners featuring speeches by dis- their sophisticated billing, hiring, Fulton County Superior Court, the tinguished American lawyers and and management practices and Bench & Bar Committee has insti- legal historians; and it sustains the Nestor Awards program, which their rigid specialization has had a tuted a series of “War Stories with a seeks to honor the accomplish- pronounced cultural impact on the Point” seminars at the Annual ments of leading Georgia lawyers, practice of law in the South. Many Meeting of the State Bar, offering and other activities designed to have forgotten that the cultural CLE credits in the areas of both pro- contribute to the implementation of the innovative professionalism pro- legacy of the South is one of small- fessionalism and trial practice. grams in Georgia originated by for- er firms—and that even today solo The GLHF has now joined forces mer Chief Justices Harold G. and small firm practitioners make with the Bench & Bar Committee in Clarke and Thomas O. Marshall, up the overwhelming majority of this worthy effort to retail the accu- both of whom, along with former the state bars. But as with so much mulated Wit & Wisdom of the Bar Chief Justice Harold N. Hill, Jr., have been deeply involved in the of modern life, size has become a to the practitioner in the trenches as activities of the Foundation. The matter of prestige. And from that a seminar co-sponsor, and it is Foundation has also recreated the standpoint, bigger firms--with pleased to announce that the Bench Atlanta law office of Woodrow their more bureaucratic ways-- & Bar Committee has agreed to be Wilson and underwritten the have arguably won cultural hege- the co-sponsor of the Legal Humor preservation of Wilson memorabil- ia. mony. Fortunately, some very Contest. Accordingly, winning 7. Ellis, "Interesting and Humorous good “country lawyers” still work entries may wind up being told and Experiences," 33 Georgia Bar Assn. inside those bigger firms as a retold in seminars across the state— Reports (1916), 178, 180, quoted in potential fifth column. with proper attribution to the Neville, supra, at 247. 8. Henley, "Practice of Law in the Perhaps the new overtures by authors, of course. So roll up your Georgia Mountain," 32 Georgia Bar the institutional bar to solo and sleeves and get started! Perhaps Assn. Reports (1915), 180, 186, small firm lawyers and to young professional immortality awaits. quoted in Neville¸ supra, at 243. associates in those bigger firms Or, at worst, a little regional notori- 9. Of course, any story worth telling should include the restoration of a ety—and a collegial good time! is worth embellishing. 10. Franklin M. Garrett, II Atlanta and prominent place on its annual pro- Endnotes Its Environs, 516 (1954). grams for humorous lawyers’ sto- 11. Encyclopedia Britannica, s.v. ries of the classical variety—of the 1. Hamlet, I, ii, 133-134. "humour" (1972 ed.). 2. Id., III, iv, 160. leisurely sort told by the self-styled 12. Id. 3. J. Richard Neville, "Appreciating 13. Id. “country lawyer.” Also, perhaps Humor: Anecdotes of the Georgia 14. Id. limited CLE credit should be given Judiciary," 1884-1920, III J. 15. Id.
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The Bulloch County Courthouse at Statesboro The Grand Old Courthouses of Georgia By Wilber W. Caldwell
affair, for only three n 1904, The Statesboro News families resided in Statesboro in 1864. published a letter that In 1889, the comple- recalled the Statesboro of tion of a tiny railroad I spur from Statesboro 1890 as a town of “three or four old to Dover on the cen- dilapidated wooden stores and an tral of Georgia’s main line sparked almost old frame courthouse.” The frame immediate agitation for a new courthouse court building of this recollection at Statesboro. By the was erected shortly after the end of spring of 1894, the Bulloch County grand the Civil War to replace the crude jury had recommend- ed a new courthouse, country courthouse at Statesboro, and county officials which had been burned by Federal had completed an inspection of new forces in 1864. court buildings at There are no detailed records Vienna, Oglethorpe regarding Bulloch’s early court and “several other Caldwell Photo by Wilber W. buildings. By one account, the county seat towns.” Built in 1894, remodeled 1914. Bruce and Morgan, county’s first courthouse was a log There can be little architects; Ed C. Hosford, remodeling architect. structure, built on the square at doubt that one of Statesboro before 1806. Another these “other towns” was contractors was published in The recalls a frame court building built Talbotton, where Atlanta archi- Statesboro Star, and Bruce and in 1800 and a later antebellum brick tect Alexander Bruce’s fine 1892 Morgan’s 1894 Bulloch County courthouse. It is not known which Talbot County Courthouse had Courthouse began to rise on the building was burned by Sherman’s just been completed. In a matter square at Statesboro. The build- troops, but whatever the Yankees of only a few weeks after this ing was an almost exact copy of burned, it must have been a rude inspection tour, an invitation to the firm’s 1892 court building at
54 Georgia Bar Journal Talbotton. Bulloch’s new court- By 1910, Statesboro boasted the building retains distinction and house was complete before the 2,500 citizens. Here, as in so many power primarily through the end of 1894, and citizens mar- Georgia towns tempted by the enduring vehicle of Bruce’s grand veled at “its dimensions and mag- gleaming wares of the New South tower, which was thankfully nificence.” myth, believing made it so. untouched by Hosford’s well- In 1894, New World adaptations Bolstered by her railroads, the meaning but nonetheless brutal of Norman Shaw’s English Queen growing town reveled in shining bastardization. Anne Style were tailor-made for new symbols of New South Shinning through all of this the American South. The region progress: a new water works in architectural butchery is the clear was hesitant to embrace the exu- 1901, a new ice plant in 1902 and voice of history. In 1914, the new berant classical excesses that were the miracle of electric lights in 1904. Classicism was the well-estab- sweeping the nation after the suc- The 1907 acquisition of one of the lished bearer of the torch of cess of the buildings of the 1893 state’s regional agricultural col- American progress. Even in the Columbian Exposition at Chicago. leges would eventually prove the back eddies of the Deep South, the Nonetheless, Southerners sought city’s crowning glory. Picturesque had run its course, and modern symbols of their own in Clear testament to Statesboro’s the Queen Anne Style suddenly the quest for the riches of the myth- growth was heard in 1914 when, appeared old and out-of date. ical New South. At the same time, only 20 years after its completion, Places like Statesboro were still they fought any idiom that might Bruce and Morgan’s new court- desperately trying to grasp the ring ignore cherished references to the house proved too small for the of a fading New South myth, but past. The Queen Anne in its “free blossoming needs of Bulloch. the new century brought new classical” phase supplied the per- Architect Ed C. Hosford of architectural symbols for the same fect answer to this uniquely Eastman was commissioned to old dilemmas. Southern dilemma, for it looked enlarge the building. Great Excerpted by Wilber W. Caldwell, forward to the Neoclassical and Classical porticos obscured the author of The Courthouse and the backward to the Picturesque at the original Romanesque entrance Depot, The Architecture of Hope same time. arches; the fine Queen Anne lower in an Age of Despair, A Narrative Between 1887 and 1898, Bruce tower with its distinctive bell-like Guide to Railroad Expansion and and Morgan designed 13 dome was covered in a blocky its Impact on Public Architecture Romanesque courthouses in attempt to achieve symmetry by in Georgia, 1833-1910, (Macon: Georgia. Six of these incorporate matching the lower section of the Mercer University Press, 2001). predominantly Queen Anne detail. main tower; and altogether feature- Hardback, 624 pages, 300 photos, This building at Statesboro and its less corner pavilions were added. It 33 maps, 3 Appendices, complete Index. This book is available for almost identical sister at Talbotton was an obvious and clumsy $50 from book sellers or for $40 are arguably Bruce’s best Queen attempt not only to enlarge the from the Mercer University Press Anne court buildings. Like all of the structure, but also to bring it up-to- at www.mupress.org or call the Atlanta architect’s Queen Anne date by draping it in the popinjay’s Mercer Press at (800) 342-0841 courthouses, the building projected finery of American Beaux-Arts inside Georgia or (800) 637-2378. a rather fundamental Romanesque Classicism. The result is unfortu- form with hints of Richardsonian nate. No longer the Queen Anne Earn up to 6 CLE credits for influence. Overlaid is an array of gem of Alexander Bruce’s vision, authoring legal articles and classically inspired decoration. Most or an appealing statement of the having them published. notable are the broken based pedi- new American Classicism, the Submit articles to: ments that crown the large tower enlarged Bulloch County Marcus D. Liner and the distinctive Classical pedi- Courthouse had become an archi- Georgia Bar Journal ments in the side elevations above tectural jumble. A coat of white 104 Marietta St. NW, Suite 100 the courtroom windows. The bell paint has further obscured the orig- Atlanta, GA 30303 shaped low tower roof was also typ- inal Picturesque polychromy, Contact [email protected] for ically Queen Anne, as was the exten- masking the contrasting textures of more information or visit the Bar’s Web site, www.gabar.org/gbjsub.asp. sive use of terra cotta decoration. brick, terra cotta and stone. Today
February 2005 55 scale of 1 (low) to 5 (high) in a total of six categories: KUDOS how well they were trained; how happy they were Sixty-six Kilpatrick Stockton attorneys were with technical support; how successfully they honored by their peers in “The Best Lawyers in deployed technology on behalf of clients; how
Bar America® 2005-2006.” The Best Lawyers lists are effectively their firm blocked unsolicited e-mail; compiled through a peer review survey in which and how much they were encouraged to deploy 16,000 leading attorneys in the United States cast technology, even if it meant fewer hours billed.
& more than a half million votes on the legal abili- ties of other lawyers in their specialties. Of the 66 Attorneys Bill Needle, Greg Kirsch, Tina Kilpatrick Stockton attorneys honored, 44 are McKeon and David Perryman of Needle & Georgia Bar members: Harold E. Abrams, Miles Rosenberg P.C., an Atlanta-based intellectual J. Alexander, Anthony B. Askew, Rupert property law firm, were selected by their legal Barkoff, Joseph M. Beck, W. Stanley Blackburn, peers to be among Georgia Trend’s “Legal Elite” William H. Boice, Richard R. Boisseau (Labor for 2004. The business magazine polled thousands and Employment Law), R. Alexander Bransford of Georgia attorneys for nominations of profes- Jr. (Tax Law), William H. Brewster, Susan sionals in 10 recognized practice areas. The attor- Bench Cahoon, Tim Carssow, Raymond G. Chadwick neys at N&R were selected in the area of intellec- Jr., Richard R. Cheatham, A. Stephens Clay IV, tual property law and were featured in the maga- James H. Coil III, W. Randy Eaddy, James L. zine’s December 2004 issue. Needle, co-founder of Ewing IV, Daniel T. Falstad, Candace L. Fowler, Needle & Rosenberg, has practiced patent, trade- Jamie L. Greene, Randall F. Hafer, Richard A. mark, copyright and trade secret law exclusively Horder, James D. Johnson, Hilary P. Jordan, for 34 years and is also an adjunct professor of Wyck A. Knox Jr., Larry D. Ledbetter, Colvin T. licensing law at Emory University School of Law Leonard III, Alfred S. Lurey, Dennis S. Meir, and an adjunct professor of patent law at Georgia John S. Pratt, Diane L. Prucino, Dean W. State University College of Law. This is his second Russell, Stephen M. Schaetzel, George Anthony consecutive year to be recognized as one of Smith, James D. Steinberg, David A. Stockton, Georgia’s “Legal Elite.” As head of the firm’s soft- Phillip H. Street, Jerre B. Swann, G. Kimbrough ware, electronics and communications technology Taylor, Virginia S. Taylor, Michael H. Trotter, patent practice, Kirsch represents clients ranging William J. Vesely Jr., Craig B. Wheaton and from small start-ups to large multinational tech- David M. Zacks. nology companies, as well as a number of univer- sities across the United States. McKeon first came Fred Chaiken, a partner at Chaiken to Needle & Rosenberg as a law clerk in 1995, then Klorfein, LLC, was honored by the returned to the firm full-time in 1997, after clerk- University of Florida as its 2004 ing for the Hon. Stanley Birch at the U.S. Court of Outstanding Alumni of the Year Appeals for the Eleventh Circuit. Perryman leads from the Department of Religion. the firm’s biotechnology practice. He serves on the Chaiken has been a trial lawyer in board of directors for several biotechnology com- Atlanta for nearly 25 years. panies and is a charter member of the biotechnol- ogy committee of the American Intellectual Jennifer Morgan DelMonico has Property Law Association. been elected partner of Murtha Cullina LLP in New Haven, Conn. Kilpatrick Stockton LLP had 21 attorneys earning DelMonico joined Murtha Cullina in recognition as Georgia Trend’s “Legal Elite.” The 2000 as an associate in the litigation firm leads with the number of attorneys listed in department. Before joining Murtha both the intellectual property and bankruptcy cat- Cullina LLP, she was an associate at King & egories. Congratulations to the following Spalding in Atlanta, Ga. Kilpatrick Stockton attorneys, who were recog- nized in the December 2004 issue of the publica- The December issue of AmLaw Tech Magazine ranks tion. In business litigation: William Boice and Kilpatrick Stockton’s Technology Training Stephens Clay; in personal injury: Raymond Department No. 1 in the nation and the firm’s Chadwick Jr. and David Zacks; in labor and Information Technology Department seventh employment: Richard Boisseau, James Coil and overall, out of 148 firms ranked. This survey is Diane Prucino; in tax, trusts, estates: Lynn Fowler completed by mid-level associates at law firms and Suzanne Mason; in corporate: Stanley from all over the country and is the premier source Blackburn; in bankruptcy: Alfred Lurey, Dennis for information about big-firm technology trends. Meir, Todd Meyers and Joel Piassick; in intellec- Respondents ranked their firms’ technology on a tual property: Miles Alexander, Anthony Askew,
56 Georgia Bar Journal William Brewster, Jim Ewing, Jamie Greene and Peter G. Stathopoulos has joined the Bench John McDonald; and in pro bono: Debbie Segal. Atlanta office of McGuireWoods LLP as a partner in the firm’s taxation Cozen O’Connor member David L. Ladov pre- and employee benefits department. sented at the Pennsylvania Bar Institute’s He will focus his practice on state and Eighth Annual Family Law Update. Ladov local tax controversy, and complex served as a course planner for the CLE confer- multistate tax planning issues associated with ence, held in Philadelphia on Oct. 15, in mergers, acquisitions and business reorganiza- Pittsburgh on Oct. 19 and was simulcast live via tions. Prior to joining McGuireWoods, he led the & satellite to over 31 locations on Oct. 27. He pre- state and local tax practice of Morris, Manning & sented on equitable distribution and pending Margin, LLP, in Atlanta, Ga. Previously, legislation on divorce code changes for each in Stathopoulos was a principal consultant in the Bar the series of CLE conferences. Ladov is a fellow state and local tax consulting practice of of the American Academy of Matrimonial PricewaterhouseCoopers, LLP, also in Atlanta. The Lawyers, a member of the Montgomery and firm’s Atlanta office is located at 1170 Peachtree St. American Bar Associations, and serves as the NE, Atlanta, GA 30309; (404) 443-5500; Fax (404) first vice chairperson of the Pennsylvania Bar 443-5599; www.mcguirewoods.com. Association Family Law Section. The Law Office of Sanford A. Wallack, P.C. Supreme Court of Georgia Chief Justice Norman announced the opening of their offices in early S. Fletcher was the unanimous choice of the board 2004. The firms focus is criminal defense, trials and of directors of the Georgia First Amendment appeals, in federal and state court. The firm also Foundation to receive the 2005 Charles L. Weltner maintains a small civil trial practice in federal and Freedom of Information Award, given each year state court with an emphasis in civil rights viola- to the Georgian who has done the most for free- tions and animal law. The office is located at 729 dom of information. He was honored at GFAF’s Piedmont Ave., Atlanta, GA 30308; (404) 522-1701; Weltner Freedom of Information Banquet Jan. 29 Fax (404) 872-5340; www.wallacklaw.com. at the Westin Buckhead Hotel. Justice Fletcher put the capital letters in Georgia open government, In Camilla “…If there is the slightest doubt, or any question William F. Tyson Jr. and Patrick N. whatsoever, as to whether a matter can be the sub- Millsaps announced the formation of ject of a closed meeting, DO NOT CLOSE,” Justice a new partnership, Tyson & Millsaps, Fletcher wrote in Steele v. Honea, concurring in LLP. This firm is a general practice Clarles L. Weltner’s majority opinion in 1991. representing clients in real estate, trust “Public access protects litigants and society,” and estate, corporate and litigation Fletcher wrote. Justice Fletcher becomes the fourth matters. The new office is located at 76 E. Broad St., Weltner honoree, joining Eason Jordan, CNN P.O. Box 107, Camilla, GA 31730; (229) 336-8831l; newsgathering chair; Thurbert Baker, attorney Fax (229) 336-9105; www.camillalaw.com. general of Georgia, and Roy Barnes, former gov- ernor of Georgia. In Clayton Mitchell L. Baker Jr. has become an associate ON THE MOVE with C. Davis Bauman, P.C., a general practice firm in Clayton that focuses primarily on civil lit- In Atlanta igation. He will assist established clients in the areas of commercial litigation, local government Attorney Leigh Ann Dowden has law, personal injury, construction litigation and joined the Atlanta office of workers’ compensation. The firm is located at 89 Counsel On Call and will focus on Falcon St., Clayton, GA 30525-0041; (706) 782- candidate screening and place- 7500; Fax (706) 782-7900. ment. Dowden brings over 17 years of legal experience to the company. In Columbus She practiced with the law firm of King & The firm of Hatcher, Stubbs, Land, Hollis & Spalding LLP in Atlanta, Ga., and served as law Rothschild, LLP, announced that Sarah E. Hart clerk to Judge Mary Staley in the Cobb County has become an associate of the firm. The office is State and Superior Courts. The office is located located at 233 12th St., Suite 500 Corporate at 1230 Peachtree St. NE, Promenade II, Suite Center, Columbus, GA 31901; (706) 324-0201; 1800, Atlanta, GA 30309; (404) 942-3525; Fax Fax (706) 324-7747. (404) 942-3780.
February 2005 57 Page, Scrantom, Sprouse, Tucker & Ford, P.C. with the Lawyers’ Committee For Civil Rights announced that Blake N. Melton has become an Under Law in Boston, Mass., has become associat- associate in the firm. The firm is located at Synouvus ed with the firm. Offices are located at 2800 Zelda Centre, Third Floor, 1111 Bay Ave., Columbus, GA Road., Suite 100-5, Montgomery, AL 36106; (334)
Bar 31901; (706) 324-0251; Fax (706) 323-7519. 271-2770; Fax (334) 277-2882. In Macon In Orlando, Fla.
& Frank C. Jones, formerly of King & Spalding in Kamal Jafarnia joined CNL Financial Group, Atlanta, became of counsel to Jones, Cork & Inc., as vice president of compliance and chief Miller, LLP. Jones practiced at the firm for 27 compliance officer of its subsidiary, CNL years prior to joining King & Spalding. The office Institutional Advisors, Inc. Before taking on is located as 435 Second St., Suite 500, Macon, GA this new role, Jafarnia had worked as president 31201; (478) 745-2821; Fax (478) 743-9609. and chief compliance officer of a boutique wealth management firm providing multi-disci- In Savannah plinary financial services in Las Vegas, Nev. Robin and Weiss, P.A. and Van Reynolds, PC Jafarnia began his career as an attorney in pri- Bench announced the merging of their firms. The newly vate practice in Houston, Texas, with a focus on formed professional association is named Reynolds, civil litigation. He later transitioned his career to Robin, Smith and Weiss, P.A. The firm will main- financial services and has held meaningful posi- tain offices in Savannah, Metter and Marietta. It will tions with Prudential Financial, PFPC continue its statewide focus on retail, medical and Worldwide Inc., Merrill Lynch and Metropolitan commercial collections, creditors’ rights and creditor Life Insurance Company. The office is located at bankruptcy representation. The firm also announced CNL Center at City Commons, 450 South Orange the addition of Michael H. Smith as a member. Ave., Orlando, FL 32801-3336; (407) 650-1000; Smith is a member of the State Bar of Georgia, the (800) 522-3863. Savannah Bar Association, the Commercial Law In Waynesville, N.C. League of America and the National Association of Retail Collection Attorneys. The main office is locat- Bill Cannon was admitted to the ed at 313 W. Broughton St., P.O. Box 9541, Savannah, North Carolina State Bar and has GA 31412; (912) 236-9271; Fax (912) 236-0439. joined the firm of Brown, Ward & Haynes, P.A. located at 370 N. Main In Montgomery, Ala. St., Suite 300, Waynesville, NC 28786; Sabel & Sabel, P.C., announced that Maricia (828) 456-9436; Fax (828) 456-4069. Bennekin Woodham, former Racial Justice Fellow
Presiding Judges and Evaluators Needed for Regional Competitions Contact the mock trial office to volunteer! Regional Competition Cities and Dates: Macon (2/26) Contact the mock trial office to Canton (2/26) Brunswick (2/19) volunteer! (404) 527-8779 or toll free Marietta (2/26) (800) 334-6865 ext. 779 or e-mail: Decatur (2/26) [email protected] Atlanta (2/19 & 2/26) Lawrenceville (2/18-19) Presiding Judges and Evaluators Dalton (2/18-19) WITH PRIOR HIGH SCHOOL Athens (2/19) MOCK TRIAL Experience Needed Rome (2/26) for State Finals (Gwinnett Justice Albany (2/26) Center, Lawrenceville, March 12 & 13) Savannah (2/25-26) Jonesboro (2/18-19) Columbus (2/26) Douglasville (2/26)
58 Georgia Bar Journal Dear Members of the Bar: I am pleased to have this opportunity to tell you about the Georgia Law-Related Education (LRE) Consortium, and to invite you to consider joining our organization. The Consortium is an association of institutions, agencies, organizations, and individuals who believe law-related education is essential to the development of productive, law-abiding citizens. To that end, it: • initiates, encourages, develops, and supports LRE programs in Georgia; • promotes the inclusion of LRE in pre-K, K-12, post-secondary, and adult curricula; • promotes public awareness concerning the benefits of comprehensive law-related education programs; and • collects and disseminates information about state and national LRE programs and resources. Members of the Consortium include primary and secondary school educators; those in higher education; the legal community; the judiciary; and those in government (including law enforcement), business, and community organizations. Formally, the Consortium meets one time each year; however, most of its work is conducted through committees which meet more often. Annual projects include a newsletter, The LRE Circuit; promotion of LRE Week activities; a poster contest; awards for outstanding LRE teachers, supporters, and students; teacher training; curriculum development; and support of other LRE activities throughout the state. The Consortium also has a long-standing partnership with the Young Lawyers Division of the Bar, having collaborated on 20 annual teacher workshops and the publication of a law-based high school textbook. As you can see, the Consortium is an active, multi-faceted organization with a worthy mission, and we need your help. Please consider joining us. I believe you will be greatly rewarded.
Sincerely,
Anna Durham Boling, Executive Director Georgia LRE Consortium
I’d like to represent my firm as a member of the Georgia LRE Consortium at the following level: I’d like to join the Georgia LRE Consortium as an individual member at the following level: Regular Member [$10] Supporting Member [$20] Sustaining Member [$35] Silver Member [$50] Gold Member [$100] Platinum Member [$200] Lifetime Member [$500]
Name: Firm: Address: Phone No.: city state zip
I am available to serve as a guest speaker or resource person for a teacher/class/school in my area.
Make checks payable to: Georgia LRE Consortium. Mail to: Alicia Barton • Fanning Bldg. • Inst. of Govt. / Univ. of GA • 1240 S. Lumpkin St. / Athens, GA 30602 The Good Kind of Escrow Problem What to Do When There’s Too Much Money in Your Trust Account By Paula Frederick
“ ow could there possi- General Counsel
bly be a problem Hwith our trust account?” you squeal, your blood
pressure rising with every word.
“We’re always so careful!” “No, not that kind of a prob- lem,” your partner assures you. “We’re not overdrawn. In fact, we’ve got too much money in Office of the there. There’s $8,500 that doesn’t appear to belong to any of our clients.” After combing through years of bank statements and escrow account records, you are able to show your partner just where the problems arose. “We never paid ourselves the balance of our retainer for the work that we did for Norm Thompson,” you announce. “Looks like we put the whole $30,000 in escrow year before last, and “Nope,” you respond. “Remember, those we intended to draw it down as we earned it. fees were paid in advance. Since they I don’t see that we ever took out the last weren’t earned when Norm paid us, techni- $3,500.” cally the money wasn’t ours. Back then we “Oh, no!” your partner moans. “Didn’t we thought that it had to go into escrow, and violate Bar rules by placing fees in escrow in that we could only take it out as we earned the first place?” it. We’ve stopped doing things that way
60 Georgia Bar Journal since we discovered that the Bar Endnotes Bar rules do not require that the has a formal advisory opinion lawyer undertake an expensive 1. Formal Advisory Opinion 91-2 investigation, modern technolo- allowing lawyers to place fees— states that a lawyer “need not gy makes it easier than ever to even unearned fees—directly into place any fees into a trust find a missing person. The the operating account.1 So I think account absent special circum- Office of the General Counsel stances necessary to protect the we cure this part of the problem recommends checking tele- interest of the client.” “Special phone listings, searching the by just transferring that $3,500 circumstances” may include the Georgia Department of over to the operating account.” length of time the matter will Corrections Web site (in case “The other $5,000 is that settle- take or the amount of the fee. the client is in prison), and con- 2. Bar Rule 1.15(I)(b). ment in Mrs. Winners’ case. ducting a rudimentary online 3. What is “reasonable” will vary “name search.” Remember her? She gave us depending on the circum- 4. The Act can be found at authority to settle her accident stances. At the very least, the O.C.G.A. § 44-12-190ff. It claim but disappeared before we lawyer should attempt to reach deems “abandoned” funds that the client by telephone, regular have been unclaimed for over could disburse her share of the and certified mail, and contact five years, and provides that proceeds. That was over five years with family members or friends such funds may be delivered to ago and we’ve never heard a peep of the client (if known to the the Georgia Commissioner of lawyer, and if this can be done out of her.” Revenue for payment into the without revealing confidential general fund of the State of “Do we have to keep her money or secret information). Although Georgia. in our escrow account forever?” your partner wonders. “Maybe we can pay it to ourselves since Mrs. Winners must not want it!” A quick call to the Bar’s Ethics Hotline clarifies things. A lawyer who receives settlement funds is obliged to deliver them to the client Hardest Working Site on the Web. “promptly.”2 When the lawyer can’t find the client, Formal www.gabar.org Advisory Opinion 98-2 provides some guidance. The formal advisory opinion requires a lawyer to “exhaust all reasonable efforts”3 to locate the client. If those efforts fail, the lawyer may dispose of the funds pursuant to Georgia’s Disposition of Unclaimed Property Act.4 A lawyer may never appropriate unclaimed funds for his or her personal benefit, and the funds The must remain in the lawyer’s trust account until delivered to the winning edge NLRG state pursuant to the act. National Legal Research Group for Georgia CHARLOTTESVILLE, VIRGINIA Put us to work helping you win today. Paula Frederick is the 1-800-727-6574 or [email protected] deputy general coun- attorneys Fast, Affordable, Specialized sel for the State Bar of Research, Writing and Analysis Georgia. since For more information, and to see what your 1969 peers are saying about us: www.nlrg.com
February 2005 61 Discipline Notices (Oct. 16, 2004 through Dec. 8, 2004)
DISBARMENTS/ SUSPENSION AND VOLUNTARY PUBLIC REPRIMAND SURRENDERS Tyrone Nathaniel Haugabrook Valdosta, Ga. J. Malik Abdullah Frederick Discipline On Nov. 22, 2004, the Supreme Court of Queens Village, N.Y. Georgia suspended Tyrone Nathaniel J. Malik Abdullah Frederick (State Bar No. Haugabrook (State Bar No. 337970) for one year 225110) has been disbarred from the practice from Aug. 9, 2004, and also ordered the imposi- of law in Georgia by Supreme Court order tion of a public reprimand. Haugabrook pled dated Oct. 25, 2004. Frederick was hired to guilty to two felony counts of filing false tax represent a client for injuries she and her returns in 1993 and 1994. In mitigation of disci- daughters sustained in an automobile acci- pline, the Court noted that Respondent was pun- dent. Frederick settled the suit but failed to Lawyer ished through the criminal justice system and reimburse the clients’ medical care providers accepted responsibility for his mistakes. The from the settlement proceeds. Frederick has Court also took into consideration Haugabrook’s been suspended since July 16, 2001, awaiting extensive service to the community and the fact the outcome of his appeal from a felony that he had no disciplinary record. criminal conviction. REVIEW PANEL Elizabeth Rebecca Palmer Asheville, N.C. REPRIMAND Elizabeth Rebecca Palmer (State Bar No. Lecora Bowen 560114) has been disbarred from the prac- Fairburn, Ga. tice of law in Georgia by Supreme Court On Nov. 22, 2004, the Supreme Court of order dated Nov. 22, 2004. Palmer was Georgia accepted the Petition for Voluntary adjudged guilty on March 3, 2004, by a Discipline of Lecora Bowen (State Bar No. North Carolina jury on five felony counts of 071252) and ordered the imposition of a embezzlement and four felony counts of Review Panel reprimand. In September 2001 uttering a forged document in violation of Bowen was retained to close a real estate North Carolina law. loan. She received a check for $37,500 from the bank. The loan did not close as scheduled Jerry Wayne Frazier but she failed to return the money to the bank Riverdale, Ga. until January 2002 after a grievance was filed. On Nov. 22, 2004, the Supreme Court of Georgia accepted the Voluntary Surrender INTERIM SUSPENSIONS of License of Jerry Wayne Frazier (State Bar No. 274687). Frazier pled guilty on June 16, Under State Bar Disciplinary Rule 4- 2004, to violating 18 USC § 371 (conspiracy 204.3(d), a lawyer who receives a Notice of to commit mail fraud, wire fraud, bank Investigation and fails to file an adequate fraud and interstate transportation of response with the Investigative Panel may be money obtained by fraud) in the U.S. suspended from the practice of law until an District Court for the Northern District of adequate response is filed. Since Oct. 16, Georgia, Atlanta Division. 2004, two lawyers have been suspended for violating this Rule.
62 Georgia Bar Journal ABA TECHSHOW 2005 Why You Need to Be in Chicago Next Month By Natalie R. Thornwell
try, you will be hard pressed not to have an magine Chicago in early spring. What opportunity to meet face to face with the ven- dor whom you have wanted to ask a specific could make you go there? Well next question about their product or service. You month it’s not going to be the shopping will also be treated to learning about new Management I technology tools and services that are being or city attractions. It’s way more than that. offered to lawyers. The conference’s schedule You have to be there for a conference—but is designed to accommodate quality time for you to visit the exhibit area.3 not just any conference. Here are 10 very 4) To receive continuing legal education credit as you learn about legal technology good reasons why you just can’t miss ABA and related issues in modern law practice. TECHSHOW 2005: CLE credit is attainable by attending the top- notch educational sessions that take place at 1) To be a part of the world’s premiere TECHSHOW. Credit is attainable for every legal technology conference. TECHSHOW state in the United States. 2005 will be held at the Sheraton Chicago 5) To get a view of and discuss the future Hotel and Towers in Chicago, Ill., from 4 of technology as it will likely impact the prac-
Law Practice March 31 to April 2, 2005. The ABA tice of law. By providing access to leaders in TECHSHOW is now in its 19th 1year and is both IT and law, you can expect to see and still the number one legal technology confer- hear what developments are becoming a real- ence in the world. ity in the legal industry. TECHSHOW pro- 2) To attend over 50 educational sessions vides several venues for futuristic and fanta- presented by the country’s top legal technolo- sy legal office situations. Keynote presenta- gists. TECHSHOW’s three days are packed tions from world leaders in legal technology with programs across several tracks, which often predict what will be happening and focus on specific areas of legal technology. The 5 what challenges will be present in the law tracks are designed to address in-depth issues office of the future. in technology from the one-person law prac- 6) To lead and participate in the newly 2tice to the IT department’s concerns at the developed Technology Roundtables. These world’s mega-firms. Tracks for 2005 will small group sessions will focus on the imple- include: General Practice and Solo; Tools and mentation and feasibility of leading legal tech- Tips; e-Discovery; Family Law; Applications; nologies. The small group format will allow Internet; Tech University; Litigation; you a greater opportunity to help with the Malpractice Prevention; Advanced IT; practical aspects of technology in your law Security; Interest Group Roundtables; and Hot practice. Facilitators will guide you and other Topics. roundtable participants6 in discussions about 3) To visit over 100 Exhibitors and see first- the technology issues you are facing and reveal hand the technology tools and services that some real-world solutions to your concerns. you can use in your law office. With a laun- 7) To participate in the Technology dry list of the top vendors in the legal indus- Training Institute and learn directly from the
63 Georgia Bar Journal The World’s Premier Legal Technology Conference & Expo
MARCH 31 – APRIL 2, 2005 Twelve Exciting Sheraton Chicago Educational Tracks Hotel & Towers Advanced IT Chicago, Illinois Applications E-Discovery NEW! Family Law Special Features General Practice/Solo NEW! Hot Topics TECHSHOW Internet Training Institute Litigation NEW! Interest Group NEW! Malpractice Prevention Roundtables Security FREE! Thumb Drive NEW! Tech University and CD-ROM Tools and Tips Receive $100 off the registration fee when you use the State Bar’s Program Promoter Code: PP12.
Register at www.techshow.com Deadline Early Registration February 18, 2005 Save up to $200! vendors how to use their software some issue or concern you are fac- next year’s conference. At this very applications. You will be instructed ing in your own law firm. The rela- helpful site, you can also sign up for to bring your laptop computers to tionships that form at TECHSHOW a monthly e-update to keep you the conference so you will be able can last a lifetime and are often abreast of new information and the to participate in hands-on, vendor- thought to be the main reason peo- ongoing plans for the conference. led training. The rubber meets the ple won’t miss a single year attend- You might also want to check out road as you put into practice the ing the conference. the TECHSHOW Survival Guide. technology you just learned about 9) To obtain invaluable resources Don’t forget that the State Bar of for your law firm. This opportunity to further the technology efforts in Georgia10 is a TECHSHOW Program is perfect for helping your practice your practice when you return Promoter and you will receive $100 7analyze and even meet its techno- home. From actual technology off the registration fee when you logical needs. planning and forecasting to access use the State Bar’s Program 8) To network with some of the to the world’s best consultants, you Promoter Code: PP12. Now you world’s leading technologists and will be able to move your law office can’t say you don’t have a reason to other attorneys interested in law technology to the next level after attend. Don’t get left behind! Don’t office technology. People from all attending TECHSHOW.9 miss ABA TECHSHOW 2005! over the world will be attending 10) To start an annual trend as TECHSHOW 2005, and it will be thousands of others have done. Visit Natalie R. Thornwell is the director almost impossible not to meet the TECHSHOW Web site at of the State Bar of Georgia’s Law someone who shares an8 interest in www.techshow.com and register for Practice Management Program. Today’s malpractice insurance marketplace can be tough to navigate.
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February 2005 65 News Conference Draws Section Members to Mexican Paradise Johanna B. Merrill Section
os Cabos, Mexico is almost
Disney-like in its perfection—as if L Walt himself crafted the azure blue of the sea, the pink of the flowers that
flourish in the rocks and the green of the cacti
that fill the desert sands with spots of color. It
is as if you are in someone’s perfected idea of
what a beachside paradise should be. And so it was that Mexico and its lush landscape of color served as the backdrop when the Entertainment & Sports Law and Intellectual Property Law sections met at the Fiesta Americana Grand Resort during the weekend of Nov. 12-16 for the 16th annual
Southern Regional Entertainment & Sports Photos by Johanna B. Merrill th Law Conference/10 annual Intellectual The 16th annual Southern Regional Property Law Institute. Entertainment and Sports Law Conference The conference, which began in 1987 with and 10th annual Intellectual Property Law only a handful of sports and entertainment Institute was held at the Fiesta Americana attorneys, has grown each year. The group Grand Hotel in Los Cabos, Mexico, Nov. 12- meets every fall in locations like Puerto 16, 2004. Vallerta, Costa Rica, Jamaica and now Los approximately 250 attorneys and guests in Cabos, to earn a year’s worth of CLE credit attendance at the 2004 event. and to socialize and network with colleagues The long weekend kicked off on Friday and friends. In 2000 the conference expanded night with a welcome cocktail reception on to include the Intellectual Property Law Whales Terrace, named for the animals that Section. Darryl Cohen, organizer of the event make an annual pilgrimage to the tip of the and past chair of the Entertainment and Baja peninsula, whose waters speak of Sports Law Section, reported that there were pirates and explorers.
66 Georgia Bar Journal In his welcome letter, Cohen noted that the conference is two- sided, CLE and social, and that both keep getting “better and bet- (Left to right) ter.” Both agendas were evidence Richard Siegmeister, of this. Jodi Siegmeister, The conference began early on Markie Cohen and Darryl Cohen, Saturday morning with sessions organizer of the on applied ethics, IP litigation, conference, attend sports licensing and “trademark the farewell recep- practice for the entertainment tion and dinner on attorney.” Over the course of the the beach. three-day conference, panelists presented on topics such as case law updates in both entertain- ment and intellectual property, minors and estate representation, deals with the film, TV and video industry, negotiating contracts for television, athletes’ rights, tech- nology and IP and computer game software. The days were structured so that sessions recessed in early afternoon to allow participants time to enjoy everything Cabo had to offer, Members of the Entertainment and Sports Law Section Executive from world-class golf, to deep-sea Committee gather during the group dinner at Mi Casa del Mar in Cabo fishing, to simply relaxing by any San Lucas on Nov. 14. (Left to right) Mark Lindsay, secretary/treasurer, J. one of the property’s four pools. Martin Lett, vice-chair of entertainment, Lisa Kincheloe, chair, Bruce Group dinners were held both Siegal, vice-chair of sports, and Alan S. Clarke, immediate past chair. Sunday and Monday nights for all attendees and their guests. For the first event, attendees traveled from the resort to the Cabo San Lucas harbor where they boarded a yacht for a sunset cruise. The boat sailed around the incredible rock formations at the tip of the peninsula, where sea lions bask and flocks of pelicans gather, proving that the only wildlife in Cabo is not located on the down- town strip. After being enter- tained onboard by local salsa dancers, drummers and singers, the attendees docked and enjoyed a dinner sponsored by Morgan (Left to right) Mike Krause, Charlie Henn, Stacy Silverstone, Michael Keegan at Mi Casa Del Mar in Turton and Laura Fahey spend time together at a reception during the Cabo San Lucas. three-day conference in Los Cabos, Mexico.
February 2005 67 The annual farewell reception and banquet was held at the resort over- looking the Sea of Cortez on the final night of the conference. A cocktail hour was held on the terrace before attendees moved over to the lavish Mexican buffet set up on the beach. Michael Hobbs, chair of the Intellectual Practice Law Section, gave his opinion regarding the time spent in Cabo: “Although the semi- nars are uniformly excellent, I find the greatest relevance for me in the con- ference is the opportunity to get to know colleagues from other firms in a more relaxed setting away from the (Left to right) Art Gardner and Shane Nichols, both members of the Intellectual Property Law Section’s Executive Committee and Jewel Nichols. office, cell phones, BlackBerrys and voice mail. In Atlanta I never seem to have the time to sit down and talk, and I think the same goes for others. However, at the institute, it’s not uncommon to get just that chance at every meal. I think that really helps support the continued professional- (Left to right) Jeff Kolokoff, Claude ism and collegiality of the section.” Davis, Sasha If you have suggestions for future Coxeff and Hope locations or events, contact Darryl Demps in Cabo Cohen at [email protected]. For San Lucas, more information on past confer- Mexico, during ences, or to stay abreast of future the annual planning, visit www.selaw.org. Entertainment and Sports and IP NEWS FROM THE Law Conference. SECTIONS
Appellate Practice (Left to right) Lisa Kincheloe, chair Case Law Update of the By Christopher McFadden Entertainment The Supreme Court has extend- and Sports Law ed its domestic relations pilot proj- Section, and Alan ect through Dec. 16, 2005. Under S. Clarke, imme- diate past chair the terms of the pilot project, the of the section, Supreme Court grants all timely hang out with applications for discretionary six-time Tour de appeal filed in divorce and/or France winner alimony cases unless it finds the Lance Armstrong application to be frivolous. in Cabo San Applications filed under the pilot Lucas, Mexico. project must be accompanied by
68 Georgia Bar Journal certificates of counsel affirming a good-faith belief that the appeal has merit and that it is not filed for the purpose of delay, harassment or embarrassment. Benefield v. State, 278 Ga. 464, 466, 602 S.E.2d 631, 634 (2004). Unlock In a criminal case, when the jury your is polled to ensure that each mem- ber of the jury assented to the ver- dict in the jury room, and still assents to it, a negative response to either question imposes on the trial Potential court a duty to sua sponte return the Sign up for the Women & Minorities in the jury to the jury room for further deliberations. “[I]t was not incum- Profession Committee’s Speaker Clearinghouse bent upon counsel to move the court for further deliberations.” State v. Martin, 278 Ga. 418, 603 S.E.2d 249 (2004). On interim review in a death penalty case, the Supreme Court does not have jurisdiction to review the denial of motion to recuse filed by the state. In so holding, the Supreme Court reaffirmed “that the statutes providing for appeals by the state in criminal cases should be con- strued strictly against the state and liberally in favor of the interests, including the interest in a speedy trial, of defendants” and “explicitly About the Clearinghouse h[eld] that OCGA § 5-7-2, which The Women and Minorities in the authorizes both direct and discre- Profession Committee is committed to pro- tionary appeals by the state, does moting equal participation of minorities and not expand the list of matters women in the legal profession. The Speaker appealable by the state under OCGA § 5-7-1 but, instead, merely Clearinghouse is designed specifically for, and describes which of those matters are contains detailed information about, minority appealable by direct appeal and and women lawyers who would like to be con- which are appealable by discre- sidered as faculty members in continuing legal tionary appeal.” The Supreme Court education programs and provided with other speak- further held that the death penalty “interim review procedure was not ing opportunities. For more information and to sign up, intended to expand the scope of visit www.gabar.org/speakerbarcheck.asp. To search the matters over which the state may Speaker Clearinghouse, which provides contact informa- appeal in death penalty cases.” tion and information on the legal experience of minority
Johanna B. Merrill is the section and women lawyers participating in the program, visit liaison for the State Bar of Georgia. www.gabar.org/speakersearch.asp.
February 2005 69 he Lawyers Foundation of Georgia Inc. sponsors activities to promote charitable, scientific and educational purposes for the public, law students and lawyers. Memorial contribu- Ttions may be sent to the Lawyers Foundation of Georgia Inc., 104 Marietta St. NW, Suite 630, Atlanta, GA 30303, stating in whose memory they are made. The Foundation will notify the family of the deceased of the gift and the name of the donor. Contributions are tax deductible.
William M. Coolidge III Preston Nickerson Rawlins Jr. tively. In 1966, he was Buford, Ga. McRae, Ga. appointed regional director Admitted 1982 Admitted 1964 of the United States Equal Died October 2004 Died February 2004 Employment Opportunity Commission by its first chairman, Franklin Delano Adcus L. Crawley Jr. Eva L. Sloan Roosevelt Jr. Hollowell Memoriam Smyrna, Ga. Milledgeville, Ga. transferred to the position of Admitted 1959 Admitted 1952 regional attorney 10 years Died May 2003 Died October 2004 later, which he held until his In retirement in April 1985. He John Vinson Harper Timothy Sweeney served most recently as a Americus Ga. Atlanta, Ga. retired partner of the law Admitted 1985 Admitted 1969 firm of Hollowell, Foster & Died December 2004 Died November 2004 Gepp, PC, in Atlanta. Hollowell has been a noted Kenneth R. Hilyer Robert S. Whitelaw civic and church leader, Tifton, Ga. Hiawassee, Ga. serving on numerous insti- Admitted 1970 Admitted 1950 tutional boards and com- missions for such organiza- Died November 2004 Died November 2004 tions as Spelman College, the Interdenominational Donald Lee Hollowell Donald Lee Theological Center and the Hollowell, 87, of Atlanta,Ga. Atlanta University Center. Atlanta, died Admitted 1952 At Butler Street CME Dec. 31, 2004. Died December 2004 Church, he was a steward, Hollowell was trustee and former superin- born in Wichita, Harold Karp tendent of Sunday School. Kan., and attended Lane Atlanta, Ga. He was the recipient of over College before serving two 100 awards for his legal and Admitted 1935 tours of duty in the Army. community service. Died November 2004 After completing his military Hollowell is survived by his duty, he returned to Lane wife, Miss Louise E. Brince H. Manning III College and graduated with Thornton. Decatur, Ga. honors. He then earned a Admitted 1973 juris doctorate degree from Died November 2004 Loyola University. In 1952 Hollowell opened his law Nancy Pat Phillips practice in Georgia. He repre- Atlanta, Ga. sented such notables as Horace T. Ward, Charlayne Admitted 1955 For information regarding the Hunter and Hamilton Died December 2004 placement of a memorial, Holmes in their respective please contact the Lawyers lawsuits seeking admission Foundation of Georgia at Helen H. Porter to the University of Georgia (404) 659-6867 or 104 Carterville, Ga. Law School and the Marietta St. NW, Suite 630, Admitted 1982 University of Georgia under- Atlanta, GA 30303. Died December 2004 graduate program, respec-
70 Georgia Bar Journal One Man’s Castle Clarence Darrow in Defense of the American Dream By Phyllis Vine, Amistad (2004), 337 pages Review Reviewed by Kristin H. West
ew events embody the ideal of the
American dream as much as the Book Fpurchase of a home. Saving for a down payment, searching for the right home in
the perfect neighborhood, and carefully select-
ing new home furnishings are events that are
deeply ingrained in many Americans’ life
experiences. When the home in question is in an all- white Detroit neighborhood in 1925, a time of increased Ku Klux Klan activity, and the home buyers are a young African-American couple, the stage is set for the American Dream to turn into a deadly nightmare. This moving-day tragedy and the legal drama it engendered is vividly recounted by American historian Phyllis Vine in her recent Sweet’s life exemplified the rise of the book, One Man’s Castle: Clarence Darrow in African-American middle-class that took Defense of the American Dream. place during the years after World War I, and One Man’s Castle tells the story of Dr. the migration of African-Americans from the Ossian Sweet and the events that linked his rural south to the urban north. Vine also fate as the accused in a murder case to cele- describes how this trend in black migration brated trial attorney Clarence Darrow and the parallels a concurrent rise in the popularity NAACP’s legal strategy for challenging and prevalence of the Ku Klux Klan organiz- racially restricted housing. Phyllis Vine ers and activities in the northern cities into describes Sweet’s middle-class roots in a which African-Americans were moving. small segregated town in central Florida, In the first half of the book, Vine suspense- including his witnessing of a lynching when fully recounts the events leading up to Sweet’s he was only seven years old. She then chron- move in September 1925 into a house in the icles his tenure at the best African-American Waterworks Park area of Detroit’s East Side, a educational institutions in the United States, neighborhood that had seen little, if any, his medical training in Europe, and his suc- African-American homeowners. African- cessful establishment of a medical practice in American professionals like Dr. Sweet often Detroit. In doing so, she demonstrates how had difficulty finding quality housing in
February 2005 71 Detroit in the 1920s because many crowd began yelling slurs and pelt- izens, who were prevented from liv- of the homes carried racially restric- ing the Sweets’ house with rocks. ing peacefully in a home they had tive covenants in their deeds. White Police who were positioned purchased just because of their race, homeowners, urged on by the Ku throughout the neighborhood would focus Americans’ attention Klux Klan, formed “neighborhood offered no assistance to the Sweets. on the insidious nature of residential improvement associations” to Seeing the intensity of the crowd, segregation. The NAACP leadership enforce these covenants through the Ossian and Henry Sweet gathered thought it was essential that the use of intimidation and violence the guns and ammunition and went defendants be represented by white directed at any African-Americans to the second story of the house. counsel. Vine recounts the difficul- who tried to move into white neigh- There, shortly after a rock crashed ties that the NAACP encountered borhoods. During the summer through a window into the house, among African-American attorneys months of 1925, mobs of white citi- Henry Sweet grabbed a rifle and in pursuing this strategy, as well as zens had attacked African- fired from a window. More shooting in recruiting a white attorney. Americans who had moved into from inside and outside the house Darrow, 69 years old and weary other non-integrated Detroit neigh- followed, along with breaking glass from his recent appearance in the borhoods. The Sweets were well and a hailstorm of rocks. Outside of famous Scopes trial, initially hesitat- aware of these events and of the for- the Sweet home, one person was ed when the NAACP asked him to mation of the Waterworks wounded by a gunshot and another take the case. Vine reports that Improvement Association, which was killed, but the actual source of Darrow agreed to assume the held meetings to rally property the shots was never accurately defense only after he learned that owners against integration of the determined. The Detroit police con- the Sweets had fired their weapons, Waterworks Park neighborhood. verged upon the Sweet home and, stating, “[i]f they had not had the With the threat of mob violence denying that any crowd or commo- courage to shoot back in defense of being all too real, Dr. Sweet and his tion had even existed, arrested Dr. their own lives, I wouldn’t think wife planned the timing and circum- Sweet, his wife and the other nine they were worth defending.” stances of their move in a way that persons who were in the house. The The remainder of the book is a they hoped would not attract atten- defendants were charged with “con- riveting account of the trial itself. tion. Fearing, however, that the all- spiracy, ‘malice aforethought’ and Vine’s detailed accounts of white Detroit police force would pro- murder in the first degree.” Darrow’s questioning of witnesses; vide little protection in the event of After portraying the events of this his interactions with the prosecu- an attack, Dr. Sweet prepared for the fateful evening, Vine presents a tion and judge; and the publicity worst by buying guns and ammuni- well-researched narrative of the that his presence at the trial engen- tion with which to defend his family. NAACP’s defense of the Sweets, dered leaves the reader with an Unfortunately, the worst did hap- which began by recruiting Clarence excellent sense of just what a legal pen. Despite the stationing of police Darrow to represent all of the defen- superstar he was. Readers who like near the Sweet home in anticipation dants in the murder trial. Vine pro- to jump to the end of murder mys- of possible violence, a crowd began vides an outstanding analysis of the teries to see “whodunit” may simi- to gather around the Sweet’s home way in which legal strategy deci- larly find themselves wanting to on their first night of occupancy. The sions in the case were heavily influ- peek ahead to the verdict. Don’t do next day the Sweets heard rumors enced by the public perception of it! One of the great pleasures of this that the crowd was going to “take the case that the NAACP was trying wonderful book is its page-turning care” of the black family later that to create. Though the press had prose that will keep you reading night. That evening, Dr. Sweet’s depicted the Sweets as starting the until the jury comes back. brother Henry and other family violence, the NAACP believed that friends came to the house for dinner. if the case was handled correctly, the Kristin H. West is the director of As the night progressed, the group Sweets’ actions would be viewed as the Office of Research Compliance noticed the thickening crowd self defense in the face of an angry for Emory University and a mem- around the house, followed by the mob. The NAACP further believed ber of the Editorial Board for the Georgia Bar Journal. gathering of a few hundred people that the Sweets’ status as upstand- at the school across the street. The ing, hardworking, well-educated cit-
72 Georgia Bar Journal Order Additional Copies of the State Bar of Georgia 2004-05 Handbook & Directory
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February 2005 LORMAN BUSINESS CENTER, INC. Police Indiscretion: Litigation and 3 Claims Avoidance Strategies Atlanta, Ga. ICLE 6.7 CLE with 6.7 Trial Meet the Judges Atlanta, Ga. Calendar 16 3 CLE LORMAN BUSINESS CENTER, INC. ICLE Revised Article 9 of the Uniform Commercial Code Advanced Debt Collection Atlanta, Ga. Atlanta, Ga. 6.7 CLE 6 CLE
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ICLE ICLE Georgia Foundations and Objections Elder Law Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE 4 ICLE ICLE Handling License Revocations and Suspensions Residential Real Estate Atlanta, Ga. Atlanta, Ga., and GPTV Statewide 6 CLE 6 CLE ICLE ICLE Georgia Automobile Insurance Law Antitrust Law Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE ALI-ABA 10 Advanced Estate Planning Update—Winter 2005 Atlanta, Ga. ICLE 3 CLE Abusive Litigation Atlanta, Ga. EMORY UNIVERSITY SCHOOL OF LAW 6 CLE Families in the 21st Century: Changing Dynamics Atlanta, Ga. ICLE 5 CLE Zoning Columbus, Ga. LORMAN BUSINESS CENTER, INC. 6 CLE Lender Liability 11 Atlanta, Ga. 6.7 CLE with 1 Trial ICLE Georgia Automobile Insurance Law 18 Columbus, Ga. ICLE 6 CLE Successful Trial Practice Atlanta, Ga. ICLE 6 CLE Plaintiff’s Medical Malpractice Atlanta, Ga. ICLE 6 CLE Nuts and Bolts of Business Law Atlanta, Ga., and GPTV Statewide LORMAN BUSINESS CENTER, INC. 6 CLE Understanding Individuals with Asperger Syndrome or High Functioning Savannah, Ga. 6 CLE 74 Georgia Bar Journal 18-19 ICLE CLE Georgia Appellate Practice ICLE Atlanta, Ga. Estate Planning Institute 6 CLE Athens, Ga. 12 CLE ICLE
Internet Legal Research Calendar 24 Atlanta, Ga. ICLE 6 CLE Advanced Criminal Practice Marietta, Ga. LORMAN BUSINESS CENTER, INC. 6 CLE Fundamentals of Real Estate Law Atlanta, Ga. ICLE 6 CLE Dealing With the IRS Atlanta, Ga. LORMAN BUSINESS CENTER 6 CLE Advanced Judgment Enforcement Atlanta, Ga. 24-25 6 CLE ICLE 4 Social Security Law Atlanta, Ga. ICLE 12 CLE Technology Show and Tell Atlanta, Ga. 25 6 CLE ICLE ICLE Bridge the Gap Handling Soft Tissue Injury Cases Atlanta, Ga. Atlanta, Ga. 25-26 6 CLE
ICLE ICLE Estate Planning Institute Employment Rights Law Athens, Ga. Atlanta, Ga. 9 CLE 6 CLE 25 7
ICLE NBI, INC. Entertainment Law Institute Essentials of Section 1031 Exchanges in Georgia Atlanta, Ga. Atlanta, Ga. 6 CLE 6.7 CLE including 0.5 Ethics
LORMAN BUSINESS CENTER, INC. 8 Fair Labor Standards Act ICLE Albany, Ga. Bridge the Gap (video replay) 6.7 CLE Atlanta, Ga. 9
March 2005 LORMAN BUSINESS CENTER, INC. 1 Finance: The Basics—Learn to Read and Understand Balance Sheets NBI, INC. Atlanta, Ga. Real Estate Litigation in Georgia 6.7 CLE Atlanta, Ga. 6.0 including 0.5 Ethics 10 3 ICLE Fundamentals of Health Care Law ICLE Atlanta, Ga. Arbitration Law 6 CLE Atlanta, Ga. 6 CLE
February 2005 75 ICLE 18 Legally Speaking Atlanta, Ga. ICLE 4 CLE Working Smarter…Not Harder Atlanta, Ga. 11 6 CLE ICLE ICLE Post Judgment Collection Professionalism and Ethics Update Atlanta, Ga. Atlanta, Ga., and GPTV Statewide 6 CLE 2 CLE ICLE ICLE Calendar Proving Damages International Law Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE LORMAN BUSINESS CENTER, INC. 21-22 Summary Judgment & Other Pretrial Practices Atlanta, Ga. ICLE CLE 6 CLE Selected Video Replays Atlanta, Ga. LORMAN BUSINESS CENTER, INC. 6 CLE Georgia DUI Cases: Analysis Cases for Trial Atlanta, Ga. 23 6.0 CLE NBI, INC. 15 Nursing Home Malpractice in Georgia Atlanta, Ga. LORMAN BUSINESS CENTER, INC. 6. CLE with 0.5 Ethics Commercial and Residential Real Estate Appraisals Atlanta, Ga. 24 6.7 CLE ICLE 16 Milich on Georgia Evidence 6 CLE LORMAN BUSINESS CENTER, INC. Atlanta, Ga. Zoning and Land Use Macon, Ga. ICLE 6 CLE Long-Term Disability Law Atlanta, Ga. LORMAN BUSINESS CENTER, INC. 6 CLE Management of Medical Records Atlanta, Ga. ICLE 6 CLE Professionalism and Ethics Update GPTV Video Replay 17 2 CLE ICLE NBI, INC. Toxic Torts Fundamentals of Probate Procedures Atlanta, Ga. and Practice in Georgia 6 CLE Atlanta, Ga. 6 CLE with 0.5 Ethics ICLE Bare Knuckles With the Judges 25 Atlanta, Ga. 3 CLE ICLE Winning Numbers ICLE Atlanta, Ga. Metro Attorneys 6 CLE Atlanta, Ga. 6 CLE ICLE Worker’s Compensation Law for the GP Atlanta, Ga. 6 CLE
76 Georgia Bar Journal ICLE ICLE CLE Advanced Securities Law PowerPoint in the Courtroom Atlanta, Ga. Atlanta, Ga. 6 CLE 3 CLE 31 18
ICLE NBI, INC. Calendar Handling Brain Damage Cases Practical Guide to Zoning and Land Use Atlanta, Ga. Law in Georgia 6 CLE Atlanta, Ga. 6 CLE with 0.5 Ethics ICLE Trials of the Century 21 Atlanta, Ga. NBI, INC. 6 CLE The Probate Process From Start to Finish in Georgia Various Dates & Locations, Ga. ICLE 6.7 CLE with 0.5 Ethics Laying Evidentiary Foundations (Video Replay) Atlanta, Ga., and GPTV Statewide 22 6 CLE ICLE Civil Litigation April 2005 Atlanta, Ga. 6 CLE 1 28
NBI, INC. ICLE Georgia Wage and Hour Regulations Special Needs Trusts and Recent Developments Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE with 0.5 Ethics 29 7 ICLE ICLE Building on the Foundations Health Care Fraud Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE 8 May 2005 ICLE Federal Appellate Practice 3 Atlanta, Ga. NBI, INC. 6 CLE Overcoming Your Fears: Utilizing Technology 14 in Litigation Atlanta, Ga. ICLE 6 CLE with 0.5 Ethics Writing to Persuade Atlanta, Ga. 12 6 CLE ICLE Business Immigration Law SOUTHEASTERN BANKRUPTCY LAW INSTITUTE Atlanta, Ga. 31st Annual Southeastern Bankruptcy Law Institute 6 CLE Atlanta, Ga. 18 CLE including 1 Ethics, NBI, INC. 3 Trial and 1 Professionalism Comparison of Entity Choice in Georgia Estate 15 Planning Atlanta, Ga. ICLE 6.7 CLE with 0.5 Ethics Aviation Law Atlanta, Ga. 6 CLE
February 2005 77 Court of Appeals of Georgia
Notices Effective Jan. 1, 2005, the following fees will be increased from $1.25 to $5: Certificate of Good Standing and Clerk’s Certification of a Document. Special thanks to the following sponsors For further information, contact William L. who supported the 7th Annual Law-Related Martin, III, Clerk/Court Administrator either Education golf tournament, hosted by the at [email protected] or by telephone Young Lawyers Division of the State Bar of 404-657-8352. Georgia. Gold Sponsors Earn up to 6 CLE Bird & Mabrey, P.C. credits for authoring Brown Reporting, Inc. Butler, Wooten, Fryhofer, Daughtery & Crawford, LLP legal articles and Georgia Civil Justice Foundation, Inc. Georgia Power Company having them published. Hall, Booth, Smith & Slover, P.C. Henry, Spiegel, Fried & Milling, LLP Huff, Powell & Bailey, LLC Submit articles to: Law Office of Josh Sacks Marcus D. Liner Pope, McGlamry, Kilpatrick, Morrison & Norwood, LLP Randy Hynote/Lehman Brothers - San Francisco, CA Georgia Bar Journal Slappey & Sadd 104 Marietta St. NW, Suite 100 Sutherland, Asbill & Brennan LLP Atlanta, GA 30303
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