JURY TRIAL. 6 CLE Hours, Including. Friday, January 12, ICLE: Satellite Series. Sponsored By: Institute of Continuing Legal Education

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2 Friday, January 12, 2018 ICLE: Satellite Series JURY TRIAL 6 CLE Hours, Including 1 Ethics Hour 1 Professionalism Hour 6 Trial Practice Hours Sponsored By: Institute of Continuing Legal Education

3 Copyright 2018 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE. The Institute of Continuing Legal Education s publications are intended to provide current and accurate information on designated subject matter. They are offered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction. ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily reflect the opinions of the Institute of Continuing Legal Education, its officers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys. ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. Although the publisher and faculty have made every effort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause. The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are afforded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfill their responsibilities to the legal profession, the courts and the public. Printed By:

4 FOREWORD iii Dear ICLE Seminar Attendee, Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and efforts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable. We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be beneficial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you. If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a different legal interpretation/opinion from the speaker s, the appropriate way to address this is by contacting him/her directly. Your comments and suggestions are always welcome. Sincerely, Your ICLE Staff Jeffrey R. Davis Executive Director, State Bar of Georgia Tangela S. King Director, ICLE Rebecca A. Hall Associate Director, ICLE

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6 AGENDA Presiding: Robert S. Rob Register, Law Office of Robert S. Register, LLC, Atlanta Nicholas J. Pieschel, Moorman Pieschel LLC, Atlanta, GA v FRIDAY, JANUARY 12, :15 REGISTRATION (All attendees must check in upon arrival. A jacket or sweater is recommended.) 8:55 WELCOME AND PROGRAM OVERVIEW 9:00 PROVING DAMAGES AT TRIAL TRAUMATIC BRAIN INJURIES AND PTSD Robert D. Bob Cheeley, Cheeley Law Group LLC, Alpharetta, GA 9:45 PROFESSIONALISM IN TRYING COMPLEX, CATASTROPHIC INJURY OR DEATH CASES William S. Bill Stone, Law Offices of William S. Stone, Blakely, GA 10:30 BREAK 10:45 SIMPLIFYING YOUR CASE, CUTTING LOOSE DEFENDANTS AND APPORTIONMENT Paul G. Phillips, Flynn Peeler & Phillips LLC, Albany, GA 11:15 THE THIRD TIME IS THE CHARM: LESSONS LEARNED FROM TRYING A CASE 3 TIMES Katherine L. Kathy McArthur, Katherine L. McArthur LLC, Macon, GA 12:00 LUNCH 1:00 USE OF VISUAL MEDIA IN CROSS EXAMINATION James Lory J.L. King, II, Hudson King, LLC, Tifton, GA 1:45 TRYING CASES WITH DIFFICULT APPORTIONMENT ISSUES Jeffrey R. Harris, Harris Lowry Manton LLP, Savannah, GA 2:30 BREAK 2:45 CLOSING ARGUMENTS: THE DELICATE BALANCE OF EMOTION IN SEXUAL ASSAULT CASES L. Chris Stewart, Stewart Seay & Felton LLC, Atlanta, GA 3:30 ETHICS AND EXPECTATIONS FOR TRIAL IN FEDERAL COURT Hon. Leigh Martin May, United States District Judge, Northern District of Georgia, Atlanta, GA 4:30 ADJOURN

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8 TABLE OF CONTENTS vii PAGE CHAPTER Foreword... iii Agenda... v Proving Damages At Trial Traumatic Brain Injuries And PTSD Robert D. Bob Cheeley Professionalism In Trying Complex, Catastrophic Injury Or Death Cases... NO MATERIALS 2 William S. Bill Stone Simplifying Your Case, Cutting Loose Defendants And Apportionment Paul G. Phillips The Third Time Is The Charm: Lessons Learned From Trying A Case 3 Times... NO MATERIALS 4 Katherine L. Kathy McArthur Use Of Visual Media In Cross Examination James Lory J.L. King, II Trying Cases With Difficult Apportionment Issues Jeffrey R. Harris Closing Arguments: The Delicate Balance Of Emotion In Sexual Assault Cases... NO MATERIALS 7 L. Chris Stewart Ethics And Expectations For Trial In Federal Court Hon. Leigh Martin May Appendix: ICLE Board... 1 Georgia Mandatory ICLE Sheet... 2

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10 SATELLITE SERIES Proving Damages At Trial Traumatic Brain Injuries And PTSD Presented By: Robert D. Bob Cheeley Cheeley Law Group LLC Alpharetta, GA

11 Chapter 1 1 of 5

12 Chapter 1 2 of 5

13 Chapter 1 3 of 5

14 Chapter 1 4 of 5

15 Chapter 1 5 of 5

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17 SATELLITE SERIES Professionalism In Trying Complex, Catastrophic Injury Or Death Cases Presented By: William S. Bill Stone Law Offices of William S. Stone Blakely, GA

18 SATELLITE SERIES Simplifying Your Case, Cutting Loose Defendants And Apportionmen Presented By: Paul G. Phillips Flynn Peeler & Phillips LLC Albany, GA

19 Chapter 3 1 of 21

20 Chapter 3 2 of 21

21 Chapter 3 3 of 21

22 Chapter 3 4 of Reduction and apportionment of award or bar of recovery according to percentage of fault of parties and nonparties (a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault. (b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution. (c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

23 Chapter 3 5 of 21 (d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault. (2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault. (e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section. (f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties. (2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action. (g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

24 Chapter 3 6 of 21

25 Chapter 3 7 of 21

26 Chapter 3 8 of 21

27 Chapter 3 9 of 21

28 Chapter 3 10 of 21

29 Chapter 3 11 of 21

30 Chapter 3 12 of 21

31 Chapter 3 13 of 21

32 Chapter 3 14 of 21

33 Chapter 3 15 of 21

34 Chapter 3 16 of 21

35 Chapter 3 17 of 21

36 Chapter 3 18 of 21

37 Chapter 3 19 of 21

38 Chapter 3 20 of 21

39 Chapter 3 21 of 21

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41 SATELLITE SERIES The Third Time Is The Charm: Lessons Learned From Trying A Case 3 Times Presented By: Katherine L. Kathy McArthur Katherine L. McArthur LLC Macon, GA

42 SATELLITE SERIES Use Of Visual Media In Cross Examination Presented By: James Lory J.L. King, II Hudson King, LLC Tifton, GA

43 Chapter 5 1 of 38

44 Chapter 5 2 of 38 Forms of Cross Examination Why Visual Media is Important in Cross Examination

45 Chapter 5 3 of 38 How to Incorporate Visual Media into Cross Examination

46 Chapter 5 4 of 38 How Do You Prepare to Use Visual Media in Cross Examination Conclusion

47 Chapter 5 5 of 38

48 Chapter 5 6 of 38

49 Chapter 5 7 of 38

50 Chapter 5 8 of 38

51 Chapter 5 9 of 38

52 Chapter 5 10 of 38

53 Chapter 5 11 of 38

54 Chapter 5 12 of 38

55 Chapter 5 13 of 38

56 Chapter 5 14 of 38

57 Chapter 5 15 of 38

58 Chapter 5 16 of 38

59 Chapter 5 17 of 38

60 Chapter 5 18 of 38

61 Chapter 5 19 of 38

62 Chapter 5 20 of 38

63 Chapter 5 21 of 38

64 Chapter 5 22 of 38

65 Chapter 5 23 of 38

66 Chapter 5 24 of 38

67 Chapter 5 25 of 38

68 Chapter 5 26 of 38

69 Chapter 5 27 of 38

70 Chapter 5 28 of 38

71 Chapter 5 29 of 38

72 Chapter 5 30 of 38

73 Chapter 5 31 of 38

74 Chapter 5 32 of 38

75 Chapter 5 33 of 38

76 Chapter 5 34 of 38

77 Chapter 5 35 of 38

78 Chapter 5 36 of 38

79 Chapter 5 37 of 38

80 Chapter 5 38 of 38

81 SATELLITE SERIES Trying Cases With Difficult Apportionment Issues Presented By: Jeffrey R. Harris Harris Lowry Manton LLP Savannah, GA

82 Chapter 6 1 of 4 Trying Cases with Difficult Apportionment Issues Jeffrey R. Harris Yvonne S. Godfrey Harris Lowry Manton, LLP Atlanta & Savannah, GA Introduction While Georgia s statutory law allows for the apportionment of fault among defendants and non-parties, the Code itself provides limited guidance as to how the apportionment scheme should be applied at trial. Georgia s trial and appellate courts have been left to grapple with applying the concepts of apportionment to cases involving, for example, tort-immune entities, John Doe defendants and nonparties, and nonparty employer and co-employees, as well as the burden upon defending parties to demonstrate why a jury should consider apportioning fault to these entities. Statutory Framework As part of the Tort Reform Act of 2005, O.C.G.A was amended to eliminate Georgia s previous scheme of joint and several liability, instead allowing for the apportionment of fault and corresponding damages among defendants and nonparties. Specifically, Except as provided in Code Section , where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. O.C.G.A At the same time, O.C.G.A was amended to provide that each liable defendant shall only be responsible for the percentage of damages apportioned to that defendant by the jury: Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution. O.C.G.A (b) (emphasis added). The post-reform Act several liability scheme also allows apportionment of fault to nonparties: In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit. O.C.G.A (c). The assessment of fault to non-parties is used only to determine the percentage of fault of named

83 Chapter 6 2 of 4 parties, and their resulting liability for damages. O.C.G.A (f)(1). The plaintiff is barred from recovering any damages if the jury finds the plaintiff is 50 percent or more responsible for the injury or damages claimed. O.C.G.A (g). As a procedural matter, the Georgia Code requires a party seeking apportionment to a nonparty to give notice not later than 120 days prior to the date of trial. 1 O.C.G.A (d)(1). The notice is required to be filed as a pleading in the action, and must set forth the nonparty s name, last known address, or the best identification of the nonparty which is possible under the circumstances. O.C.G.A (d)(2). The notice must also set forth a brief statement of the basis for believing the nonparty to be at fault. Id. Practical Application As demonstrated above, the statutory scheme provides little guidance as to how a trial court should handle apportionment issues as a practical matter, aside from checking as to whether O.C.G.A (d) notice of apportionment has been filed. For example, once notice is filed, is a jury automatically required to consider fault of the nonparties listed in the notice? What about nonparties who are not subject to tort liability, or who have been criminally convicted for related events? What about John Doe defendants and nonparties? How is a jury to be instructed as to these concepts? In the years since the Tort Reform Act of 2005, Georgia courts have wrestled with these issues, among others. Burden of Proof In Zaldivar v. Prickett, 297 Ga. 589, 604 (2015), the Supreme Court of Georgia clarified that the defendant filing the notice of intent to seek apportionment of fault bears the burden of proof to show that the listed non-party owed a legal duty to the plaintiff, the non-party breached that duty, and the non-party s breach was a proximate cause of the plaintiff s injuries. However, Zaldivar did not provide guidance on how the jury is to be instructed as to the extent of the defendant s burden. In Six Flags Over Georgia, II, L.P., v. Martin, 335 Ga. App. 350, (2015) (en banc), aff d in part, rev d in part, Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 324 (2017), the Court of Appeals of Georgia stated, [I]t is a defendant s burden to establish a rational basis for apportioning fault to a nonparty; but whether the defendant meets that burden given the evidence at trial is an issue that should be left to the jury. 2 Ultimately, until there is further guidance as to the extent of a defendant s burden of proof to apportion fault to nonparties, and 1 However, negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty, without a notice being required from the defending party. O.C.G.A (d)(1). 2 The Supreme Court of Georgia did not grant certiorari as to this portion of the Court of Appeals decision.

84 Chapter 6 3 of 4 how a jury should be instructed on that burden, the Court of Appeals Six Flags decision, the Zaldivar decision, and the pattern instruction on the defendant s burden of proof for affirmative defenses may provide some useful guidance to the jury on this issue. Tort-Immune Defendants: Employers, Employees, and Co-employees Frequently, personal injury and wrongful death litigation outside of the worker s compensation context will nevertheless involve employer-employee relationships. For example, in Walker v. Tensor Machinery Ltd., the plaintiff was injured in the workplace while operating allegedly defective machinery manufactured by the defendant. 298 Ga. 297, 297 (2015). The defendant manufacturer sought to allocate fault to the plaintiff s employer, which was immune from tort liability via the exclusive remedy doctrine and Georgia s worker s compensation scheme. Id. at The Supreme Court of Georgia held that fault could nevertheless be apportioned to the employer or an otherwise immune defendant, because O.C.G.A is written in terms of fault, not tort liability. See id. at 304. However, it remains unclear how apportionment should play out when a defendant seeks to apportion fault to a nonparty employer and nonparty co-employees. Should a jury be permitted to allocate fault to an employer and the employer s employees, even when the theory of employer liability is respondeat superior? Logically, allowing the jury to allocate to both the employer and the co-employees would result in duplicate assignment of liability. Accordingly, it is recommended that only an employer or the individual employees be listed on a verdict form, and that the jury be instructed as to theories of respondeat superior and agency. Criminal and John Doe Nonparties In Couch v. Red Roof Inns, Inc., 291 Ga. 359, (2012), the Supreme Court of Georgia clarified that the jury must determine the degree to which each tortfeasor s actions contributed to the damages of the plaintiff, and that this requires consideration of the fault of negligent and intentional tortfeasors, such as a criminal assailant in a negligent-security case. Accordingly, when preparing for trial in a civil case involving criminal conduct, it is important to anticipate the allocation of fault to a criminally charged nonparty, and how a criminal conviction, guilty plea, or trial testimony may impact the award of damages. What about when an unidentified individual engaged in the criminal conduct? In Six Flags Over Georgia, II, L.P., v. Martin, the Court of Appeals confronted this situation. At trial, Six Flags sought to allocate fault to several unknown John Does involved in a criminal assault upon the plaintiff, including one individual referred to as Mr. Black. 335 Ga. App. at 363. At trial, Six Flags specifically mentioned Mr. Black as a nonparty who it wanted listed on the verdict form. Id. at 364. The trial court denied Six Flags request to list Mr. Black. Id. at 363. The Court of Appeals reversed the trial court and determined that the jury was authorized to apportion fault to an unknown criminal actor like Mr. Black, as there was some evidence that Mr. Black may have contributed to the plaintiff s injuries. Id. at 365; see also GFI Mgmt. Servs., Inc. v. Medina, 291 Ga. 741, 742 (2012) (finding that fault may be apportioned to a non-party and unknown assailant

85 Chapter 6 4 of 4 who was formerly named as a defendant). The Supreme Court of Georgia did not grant certiorari as to whether the trial court erred in this regard, limiting its consideration in Martin to the issue of how an apportionment error should be corrected in the trial court. 301 Ga. at Conclusion Ultimately, while Georgia s appellate decisions permit the allocation of fault to immune and even unidentified nonparties, these entities must nevertheless be named and noticed with the best identification of the nonparty which is possible under the circumstances, pursuant to O.C.G.A (d)(2). Moreover, the defendant must introduce at least some evidence that the unknown non-party owed a legal duty to the plaintiff, the non-party breached that duty, and the non-party s breach was a proximate cause of the plaintiff s injuries. See Zaldivar, 297 Ga. at 604. At trial, counsel should be vigilant in ensuring that the party seeking allocation of fault has met these requirements.

86 SATELLITE SERIES Closing Arguments: The Delicate Balance Of Emotion In Sexual Assault Cases Presented By: L. Chris Stewart Stewart Seay & Felton LLC Atlanta, GA

87 SATELLITE SERIES Ethics And Expectations For Trial In Federal Court Presented By: Hon. Leigh Martin May United States District Judge Northern District of Georgia Atlanta, GA

88 Chapter 8 1 of 32

89 Chapter 8 2 of 32

90 Chapter 8 3 of 32

91 Chapter 8 4 of 32

92 Chapter 8 5 of 32

93 Chapter 8 6 of 32

94 Chapter 8 7 of 32

95 Chapter 8 8 of 32

96 Chapter 8 9 of 32

97 Chapter 8 10 of 32

98 Chapter 8 11 of 32

99 Chapter 8 12 of 32

100 Chapter 8 13 of 32

101 Chapter 8 14 of 32

102 Chapter 8 15 of 32

103 Chapter 8 16 of 32

104 Chapter 8 17 of 32

105 Chapter 8 18 of 32

106 Chapter 8 19 of 32

107 Chapter 8 20 of 32

108 Chapter 8 21 of 32

109 Chapter 8 22 of 32

110 Chapter 8 23 of 32

111 Chapter 8 24 of 32

112 Chapter 8 25 of 32

113 Chapter 8 26 of 32

114 Chapter 8 27 of 32

115 Chapter 8 28 of 32

116 Chapter 8 29 of 32

117 Chapter 8 30 of 32

118 Chapter 8 31 of 32

119 Chapter 8 32 of 32

120 Appendix APPENDIX

121 Appendix 1 of 2 ICLE BOARD Name Position Term Expires Carol V. Clark Member 2019 Harold T. Daniel, Jr. Member 2019 Laverne Lewis Gaskins Member 2018 Allegra J. Lawrence Member 2019 C. James McCallar, Jr. Member 2018 Jennifer Campbell Mock Member 2020 Patrick T. O Connor Member 2018 Kenneth L. Shigley Member 2020 A. James Elliott Emory University 2019 Buddy M. Mears John Marshall 2019 Dean Daisy Hurst Floyd Mercer University 2019 Cassady Vaughn Brewer Georgia State University 2019 Carol Ellis Morgan University of Georgia 2019 Hon. Harold David Melton Liaison 2018 Jeffrey Reese Davis Staff Liaison 2018 Tangela Sarita King Staff Liaison 2018

122 Appendix 2 of 2 GEORGIA MANDATORY CLE FACT SHEET Every active attorney in Georgia must attend 12 approved CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an accredited provider of approved CLE instruction. Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year. A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION! ICLE will electronically transmit computerized CLE attendance records directly into the Official State Bar Membership computer records for recording on the attendee s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record. Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia. If you have any questions concerning attendance credit at ICLE seminars, please call:

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