n Chairman’s Corner

n Mid-Year Meeting Luncheon 6

n 2001 Tradition of Excellence AwardsRobert M. BrinsonRemarks: J. Anderson Harp 7Judge Robert E. Flournoy, Jr.Remarks: Judge Conley Ingram 7J. Vincent CookRemarks: Mark Dehler and John Timmons 7Hon. Thomas B. MurphyRemarks: Cathy Cox, Secretary of State 7

n The Good Old Daysby Alex Sanders 8

n Georgia Rules of Progessional Conduct 10

n Legal Technology in the 21st Century 14by Natalie Thornwell, Director of Law Practice Management Program

n Discovery of Electronic Evidence: Strategies and Guidelinesfor Litigators, Corporate Council and Their Clients 14by Hilary Harp

n Personal Liability for State Fund Taxes in Georgia 14by Richard C. Litwin

n Pictures from the Annual Meeting in Kiawah Island 19

n Audio/Video Tape Library 21

Susan Howick

Betty Simms

Sarah B. AkinsChairS. Lester Tate, IIIChair ElectMark F. Dehler,Secretary/TreasurerJohn W. Timmons, Immediate Past Chair

Sarah B. AkinsJim PannellJames L. ElliottJason CrawfordMark F. DehlerWilliam R. JohnsonWilliam S. GoodmanW. Wright GammonVirgil AdamsDennis T. CatheyJames I. RobertsSusan HowickLaura AustinThomas Burnside, Jr.Paula FrederickClifton G. SpencerMyles E. EastwoodLester S. Tate, III

William L. Lundy, Jr.Albert Fendig, Jr.Paul M. HawkinsJohn C. Bell, Jr.John T. Laney, IIIRobert P. WilsonThomas WM. MaloneWilliam F. Underwood, Jr.Paul D, HermannRudolph PattersonJames B. PilcherJohn E. JamesVerlyn C. BakerPaul W. Painter, Jr.Joel O. Wooten, Jr.J. Sherrod TaylorJohn M. HyattJames H. Webb, Jr.Judge Bonnie OliverJoe A. Weeks

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Vol. V Summer 2001 No. 2

Calendar Call is the official publication of the General Practice and Trial Section of the State of Georgia. Statements and opin-ions expressed in the editorials and articles are not necessarily those of the Section or the Bar. Calendar Call welcomes the sub-mission of articles on topics of interest to the Section. Submissions should be double-spaced, typewritten and on letter-sizepaper and addressed to Susan L. Howick, Macey, Wilensky, Cohen, Wittner & Kessler, LLP, Marquis Two Tower, Suite 600,285 Peachtree Center Avenue, NE, Atlanta, Georgia 30303. Published by Appleby & Associates, Austell, Georgia.

GENERAL PRACTICE AND TRIAL SECTION STATE BAR OF GEORGIA

“Georgia’s Largest Law Firm”

EDITORS

ARTICLESEXECUTIVE DIRECTOR

2001 0FFICERS

2001 BOARD

The Tradition of Excellence Recipientsfor 2001 were presented their award atthe General Practice andTrial Sectionbreakfast June 14th in Kiawah Island,South Carolina, (from left to right)Robert M. Brinson, Rome, Judge RobertE. Flournoy, Jr„ Marietta, Hon. ThomasB. Murphy, Bremen, J. Vincent Cook,Athens, and Section Chairman Sarah(Sally)B. Akins, of Savannah presentedthe awards.

2001 TRUSTEES

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This bar year the General Practiceand Trial Section celebrated its thir-tieth anniversary. The section wasfounded in 1970. We began cele-brating in January at the mid-yearmeeting in Atlanta with an excel-lent luncheon program put togetherby Lester Tate. Ben Weinberg andMorgan Akin, son of Warren Akin,hosted a round table discussionabout “the way things were” whenthey began their law practices. Inaddition to sharing some wonder-ful stories of his own, Morganshared some interesting andhumorous anecdotes that herecalled about his father’s law prac-tice. Mr. Warren Akin is eightyseven years old and still comes tothe office every day after over sixtyfive years practicing law.

The next part of our celebrationwas held during the AnnualMeeting on Kiawah Island, SouthCarolina with “General Practice andTrial Section Thursday”. We beganwith our annual Tradition ofExcellence Awards Breakfast onThursday morning June 14, 2001 at7:30 a.m.. These awards are present-ed each year to four lawyers in thefollowing categories: Plaintiff’sattorney, Defense attorney, GeneralPractitioner and Judge. The criteriais the recipient must be 1) a Georgiaresident 2) have at least twentyyears of outstanding achievement asa Trial Lawyer (Plaintiff or Defense),General Practitioner or Judge 3) beat least fifty years old 4) have madesignificant contribution to CLE orBar activities 5) have a record ofcommunity service and 6) have apersonal commitment to excellence.

CHAIRMAN’S CORNER

General Practice and Trial Section Celebrates itsThirtieth Anniversary

Edgar A. Neely, Jr.Hamilton LokeyBobby Lee CookJack HelmsJudge J. Robert ElliottPaul M. HawkinsJames Charles WatkinsJudge Anthony A. AlaimoJ.R. “Jake” CullensKirk McAlpinHugh G. Head, Jr.Judge Asa D. Kelley, Jr.G. Conley IngramOgden DoremusWill Ed SmithJudge William W. DanielDonald L. HollowellJudge A. Richard Ken;yonAlton D. KitchingsFrank Love, Jr.Justice George T. SmithGene Mac WinburnJudge Curtis V. TillmanFrank JonesCharles H. HyattHardy Gregory, Jr.Judge James BarrowH. Holcombe Perry, Jr.James I. ParkerBob Reinhardt

Judge Marvin H. ShoobSidney O. Smith, Jr.Warren AikenHarry L. Cashin, Jr.Edward T.M. GarlandJustice Harold G. ClarkeIrwin StolzJohn MarshallRudolph PattersonJudge Harold MurphyDennis T. CatheyAlbert G. NormanNickolas P. ChilivisJudge Dorothy Toth BeasleyManley F. BrownH. Sol ClarkJohn DenneyJudge Marion I. Pope, Jr.Thomas R. Burnside, Jr.Judge A.W. Birdson, Jr.Paul W. Painter, Jr.Scott Walters, Jr.Justice George H. CarleyAlbert P. ReichertWilliam S. GoodmanThomas Wm. MaloneJudge Faye Sanders MartinCubbedge Snow, Jr.Denmark Groover, Jr.Joel O. Wooten, Jr.

The past Tradition of Excellence:

Plaintiff:Vincent Cookintroduced by John Timmons andMark Dehler

Defense:Robert M. Brinsonintroduced by J. Anderson Harp

General Practitioner:Honorable Thomas B. MurphySpeaker of the House of Representatives,introduced by Cathy Cox, Secretary of State.

Judge:Judge Robert E. Flournoy, Jrintroduced by Judge Conley Ingram

This year’s recipients were:

As usual, the introductions andcomments by the recipients wereinspirational and laced with humor.If you have never attended aTradition of Excellence AwardsBreakfast, I encourage to join usnext year. It is a very moving anddelightful time each year.

At noon on Thursday we had aluncheon with Alexander Sandersas the keynote speaker. Mr. Sanderscurrently serves as the President ofthe College of Charleston. Prior toaccepting that position, he served asthe first Chief Judge of the Court ofAppeals of South Carolina, heserved in the South Carolina StateHouse and began his career as asuccessful trial lawyer. PresidentSanders speech was worth the driveto Kiawah Island. You can read hisspeech at page 9 of this edition ofCalendar Call.We concluded “General Practiceand Trial Thursday” with a recep-tion honoring our Tradition ofExcellence Award winners. Thiswas truly a day to remember, madeeven more enjoyable by such anoutstanding and prominent groupof award winners.As we look back over the last thirty

years of the section’s history, weshould be proud of what we haveaccomplished, thanks to the finelawyers who founded this sectionand those who have led it.

The past chairs of the section are as follows:

Albert Fendig, Jr.Paul M. HawkinsHamilton LokeyHugh G. HeadEdgar Neeley

Jack HelmsJohn C. Bell, Jr.John Laney, IIITommy Malone

William F. UnderwoodPaul D. Hermann

Rudolph PattersonJim PilcherJohn James

Verlyn BakerPaul W. Painter, Jr.Joel O. Wooten, Jr.

Sherrod TaylorJim Webb

Bonnie OliverKathleen Kessler

Joe WeeksBill Lundy

John Timmons

One of my favorite quotes is fromJohn Quincy Adams in the movieAmistad, “Who we are is who wewere.” Let us hold this close to ourhearts and be proud that “who wewere” is personified by such finelawyers as the past recipients of theTradition of Excellence Awards, thefounding members of our sectionand the past chairs of the section.These attorneys have given gener-ously of their time and talents toenable those that come after themto carry on with the work of thesection and to make our generaland trial practices successful andmore rewarding due to their lead-ership and example.

If you would like any additionalinformation on the section or itsactivities or if you have an idea forsomething the section can do foryou, please feel free to contact me.If you have an e-mail address thatyou have not provided to the sec-tion or The State Bar, please for-ward it to Betty Simms at bettyg-pt@mindspring.com.

Sally AkinsChairman

June 2000 - 2001

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MID YEAR MEETING LUNCHEON

Guest speakers (L-R) William Akin and Ben Weinberg participatedon a panel discussing “How the Practice of Law has changed in thelast 20 years”.

Lauren Barrett, Director of Development forthe Lawyers Foundation of Georgia presents acheck to Chairman Sally Akins for matchinggrant funds to benefit the Mock Trial Program.

Chairman Sally Akins presents John Timmonswith the Chairman’s plaque for his leadershipfrom January 99 to June 2000.

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It is truly an honor and pleasure tointroduce Bob Brinson as a Recipientof the Tradition of Excellence Award.Bob needs no introduction; he is alegend in his own mind, actually, heis a legend. I have had the privilege topractice with Bob for 17 years. WhenI was interviewing for the job, I wasimpressed that Bob had learned somerather revealing details about my col-lege career. He must have believedwe were kindred spirits or that Iknew about the spirits. One of myclosest friends in law school played alarge role in my practicing with Bob.My friend had been offered the jobwith Bob, but chose instead to join anolder more established firm. Thankgoodness he did.

Of course the phrase most com-monly used to describe the firm was“work hard, but play hard.” I did nottruly understand that phrase until Ibegan working with Bob, and for 17

years I have watched him work hard-er than most and play harder than all.I quit trying to keep up years ago.

Bob Brinson was born May 4, 1940.He grew up in Summerville, Georgiaand moved to Rome after his father, alawyer, died. Rome is where he haslived and practiced law for thirty-eight (3 8) years. From Rome, BobBrinson’s name and reputation havespread far and wide across the Stateof Georgia, and other parts of theUnited States..

After graduating from college andlaw school at Emory, Bob began hislegal career with Wright, Rogers, &Magruder in Rome. In 1975, he andKing Askew formed Brinson &Askew. Their first announcementstated that “The King and I” wasopen for business. Six months later,Bob Berry joined Bob and King toform Brinson, Askew & Berry, now inits 26th year.

A consummate trial lawyer, Bobhas always been held in highestregard by trial judges, appellatejudges, plaintiffs’ lawyers, defenselawyers, city lawyers, countrylawyers and, most importantly, hisclients. For example, after winning acase against the City of Rome, Bobwas hired as City Attorney in 1968.He has served in that capacity eversince, making his tenure one of thelongest in the State. In 1980, Bobargued before the United StatesSupreme Court, on behalf of Rome inCity of Rome vs. U.S.. 446 U. S. 156(1980). He has since representednumerous governmental entities andpublic officials in voting rights, civilrights, and zoning cases.

Apart from being City Attorney,

Bob has handled cases involvingpatent infringement, products liabil-ity, medical malpractice, businessand commercial disputes, torts, pro-fessional malpractice, premises liabil-ity and toxic torts. Most recently, heserved as lead attorney for a Fortune20 corporation in a complex classaction which he resolved, not sur-prisingly, in a favorable way for hisclient. He currently is involved inover half the class action cases pend-ing before the Honorable Harold L.Murphy, United States DistrictCourt, Rome Division.

In 1986-87, Bob served as Presidentof the State Bar of Georgia. He hadpreviously been President of theYounger Lawyer Section of the StateBar. His contributions to the Bar aremyriad, and his service record hasalways been impeccable. His peersand friends have often wonderedhow he managed to build a success-ful practice and law firm while at thesame time doing so much for the Bar.

The answer is simple: Bob knowsthe art of enjoying his commitmentsand obligations. He has a knack forrelishing what he does, and he isalways “holding court” with his sto-ries and humor. No one has everaccused Bob Brinson of being one-dimensional. To that end, he repre-sents the very best in our profession.

He is a member of the AmericanCollege of Trial Lawyers and hasserved as Master of the Bleckley Innof Court. Throughout his career, hehas written and spoken extensively atlegal education seminars. He is amember of the Defense Research

Introduction ofRobert M. Brinson

By J. Anderson Harp

continued on page 17

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Big Bobby, as his wife Linda affec-tionately refers to him, is one of thefunniest people you’ll ever meet.He doesn’t make a special effort tobe funny, but he is just naturallyfunny. I should know because wehave been friends for over 50 yearsand I have been around him in allkinds of circumstances. He isunflappable and unpredictable, butyou can count on him - he is honest,loyal, smart and will give his bestto whatever he undertakes. JudgeFlournoy, and I mean the elderwhom we honor this morning, andI were both born in September 1930and are getting a little long in thetooth. I first met him at Emorywhen he was one of those loud rab-ble rousing KAs living next door tous genteel folks at the ATO House.He was active on the campus andin a lot of leadership roles and

close friends with lawyers-to-beCubbedge Snow and his old highschool buddy, C. B. Rogers. Here ishow Big Bobby and C B Rogerslooked during their big debatedays some 50 years ago (showslide). They brought people likeprotestant preacher Billy Grahamand Rep. Roy Harris to the campusjust to stir up controversy. BigBobby had been a Boy Governor ofGeorgia when he was in highschool, so politics has been in hisblood a long time - and I guess stillis despite his non- partisan judicialmantle in later years.

Judge Flournoy went on toGeorgia to law school and likemany of us, in that era was a JAG officer during the Korean War.After clerking for the late RalphPharr, Superior Court Judge inAtlanta, and practicing for a shorttime with Hop Dunaway, he cameto Marietta to practice law withUncle Raymond Reed and me. Andwe haven’t been able to run him offsince then. He has been a huge suc-cess. We persuaded Mr. Reed to getrid of our linoleum floors for goodcarpets, swap out our aluminumfurniture for fine wood and tradeour pot belly stove and window airconditioners for central heat andair. Our clients liked it and webegan to make more money. Later,Bob and I had a law firm calledIngram, Flournoy, Downey &Cleveland and we were doing wellwhen I left to go on the SupremeCourt. Bob continued successfullyin the practice and also served inthe Georgia legislature and subse-

quently as Mayor of Mariettabefore being appointed SuperiorCourt Judge by Governor Joe FrankHarris, whom Bob calls our great-est governor at that time. Bob hasjust retired as Chief Judge and isnow the junior Senior Judge in ourcircuit. I am pleased to recognizehis beautiful and patient wife,Linda, who is here along with his 2sons. Judge Robert E. Flournoy, IIIand plaintiff’s lawyer, MattFlournoy. He also has two daugh-ters and six grandchildren, all byhis former wife, Pam.

I wish I had time to tell you someof the many true funny storiesabout Big Bobby, but I don’t. Letme leave you with a simplevignette that demonstrates his legalcreativity. This happened severalyears ago when I was practicinglaw in Atlanta with Alston & Birdand Bob was still in private prac-tice in Marietta. I was representinga big developer who had pur -chased a trailer park in Cobb withplans to build a huge apartmentproject on it and get rid of the sub-standard and somewhat undesir-able trailers and the tenants inthem. I had everything lined up toget the zoning smoothly I thoughtby giving a little moving money toeach of the trailer park residents.Everything seemed fine until theday of the zoning hearing when Ilearned they had hired Bob tooppose the rezoning. Bob came upwith the idea of comparing thissimple rezoning to the infamousCherokee Indian Trail of Tears

Introduction ofJudge Robert E. Flournoy, Jr.

By Judge Conley Ingram

continued on page 17

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Mark Dehler and I have the honor topresent Jay Cook as the Recipient ofthis year’s Tradition of ExcellenceAward to a Plaintiff’s Lawyer. TheAward is based upon a career ofachievement in the profession and thecommunity, and is aspirational to allmembers of the Bar. Jay is an out-standing recipient. I was chosen togive the serious side of Jay, and Markwill follow to lighten up the proceed-ings. It’s just as well, because as I triedto extract some levity from Cook,Noell, Tolley, Bates & Michael, LLP,the well was dry. Perhaps it is coinci-dental that Jay’s office is down the hallfrom Ed Tolley’s. They stay abreast ofwhat is happening in the GeneralAssembly, and the ever present fear ofyet another extension of the statutes oflimitation may be responsible for theclosed lips. At least everyone mademe understand that the really bad

stuff did happen a long time ago.Whatever that means...

Jay was raised in Savannah, gradu-ating from Savannah High School in1958. He attended Armstrong JuniorCollege and trasferred to theUniversity of Georgia, graduating in1962. While in law school, he support-ed himself through graduate assist-antships teaching business communi-cations and economics. He graduatedfrom the University of Georgia Schoolof Law in 1964 and was admitted tothe Bar the same year. He has prac-ticed law in Athens ever since, havingfounded what is his present firm in1970 with John Noell.

Jay’s practice was initially general,taking everthing that walked in. Hedid criminal law, collections, divorce,general business and corporate andpersonal injury. Over the years hedeveloped a specialty representingplaintiffs in personal injury work,taking on the difficult medical negli-gence and product liability cases. Hiswork has taken him to courts all overthe state, both state and federal. Hehas excelled and his efforts have beennoted. But they have been notedbecause he is a hard, dedicated, andeffective worker.

He has worked for the professionand for the citizens who need repre-sentation. His memberships in pro-fessional organizations are numer-ous, and I will not metion them all. Hehas been president of the WesternCircuit Bar Association. He has beenPresident of the Georgia Trial LawyersAssociation. He has been selected tobe an ATLA Governor. He has beenPresident of the Georgia Civil Justice

Foundation, American Board of TrialAdvocates.

He has shared his knowledge as anauthor, writing chapters on negli-gence, nuisance, privacy and trespassfor Lawyers Cooperative Publishing’sseries on Georgia Jurisprudence. Hehas been Editor of The Verdict. He hasbeen on the Speaker’s Bureau forGTLA for over fifteen years. He wasCLE Chairman for five years.

A purpose of this Award is to rec-ognize not just the professional sideof the recipient, but also the commu-nity side. A lawyer’s non-profession-al interaction with the larger commu-nity contributes to society’s well-being by the application of time andtalent, and brings credit to the profes-sion. Jay has certainly given the legalprofession credit with his numerouscommunity activities. He is a pastpresident and member of the Boardof Directors of Athens Rotary. Hewas recognized as Athens YoungMan of the Year. (You must know themost thrilling thing about receivingthis award to Jay was when Bettycalled him to be sure he was over 50.We usually don’t tell recipients that isSOP to boost their egos.) He is a pastpresident of Athens Jaycees. TheAmerican Red Cross has awardedhim the Medal for Humanity for hisvolunteer activities. He has coordi-nated community fund raising for theAmerican Heart Association and theEmpty Stocking Fund. He has beencounty campaign chairman for theBoy Scouts.

He has been a member of theboards of directors of the Athens

Introduction ofJ. Vincent Cook

By John Timmons and Mark Dehler

continued on page 33

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The recipient of the GeneralPractitioner’s Tradition of ExcellenceAward is probably the most deserv-ing—and most unassuming—lawyerI’ve ever known.n.

He probably knows Georgia lawbetter than any other lawyer or judgein this state—because he’s presidedover most of the writing of that bodyof law, as well as a couple of Georgiaconstitutions!

Thomas B. Murphy graduated fromNorth Georgia college and theUniversity of Georgia School of Law,and was admitted to the practice oflaw here in 1949. He hasn’t sloweddown since. He holds a record in hishome circuit for trying cases for fivestraight weeks. During that time, thejudges changed out, new juries werepicked, and opposing counsel rotatedin and out—but Mr. Murphy stayedput, as his associates brought in a newcrop of witnesses and clients every

few days—for five consecutive weeks.That included a murder trial and anassortment of other criminal and civilcases. Just think about that!

He has handled cases of every kindimaginable. From serious murder tri-als to car wreck cases to cow cases. Heeven tried a $425 cow case twiceagainst the railroads, who were repre-sented by the distinguished (and nodoubt expensive) Griffin Bell. Mr.Murphy won twice, too.

Tom Murphy started practicing lawwhen it was a lot more fun than it istoday. Although “fun” is a relativeterm, his colleagues vividly rememberthat as a young lawyer (back whensome judges used to refer to him as“Little Tommy”) he was appointed torepresent a fellow charged with acrime. Mr. Murphy’s cousin HaroldMurphy, who is now a federal judge,also got involved (and I’m not quitesure whether he was on the same sideor not). But during this trial, the twoMurphys almost came to blows, liter-ally, in a bare knuckles fight. Now,some compared it to the world’s greatmis-match, the Dempsey-Tunneyprize fight, but lots of onlookers neversaw anything like it. In those days,you would duke it out in the court-room, then everyone went to the onerestaurant in Buchanan, the countyseat, for lunch. Opposing attorneyswould stare each other down acrossthe tables at lunch for a little extradrama—then they would all shakehands at the end of the day. All agree-ments in those days were by hand-shake—writing was rarely necessary.

Tom Murphy has always beenknown by his peers as a zealous advo-

cate—one who absolutely becamefurious when he saw an injustice—and he would do whatever it took toright a wrong.

His longtime friend, Judge DonaldHowe, said about Tom Murphy, “Hecould cut your throat in court, butnever out of court. He would fight tohis last breath over every wrong hesaw.”

As strong and as passionate anadvocate as Tom Murphy has alwaysbeen, you need to know more tounderstand the full measure of thisman.

He started practicing law in 1949with his brother James, who has beenconfined to a wheelchair and crutchesbecause of severe arthritis. For years,Tom picked up his brother at hishouse in the morning, loaded hiswheelchair onto the top of their stationwagon, lifted his brother into the carand then into his office. If they had atrial, he carried his brother up thesteep old courthouse stairs, thenbrought the wheelchair up. He thenrepeated this scenario afterwards backto the car. He took him home to lunchevery day. For years and years, TomMurphy carried out this routine everyday.

He worshipped his brother James,and often referred to him as thesmartest person he ever knew.

Perhaps because of his brother’s dif-ficulties, perhaps because of his “rais-ing,” Tom Murphy has always had ahuge soft spot for the weak, theoppressed, the disabled, the needy,the mistreated, the elderly, the quin-tessential “little man.” Over and over

Introduction ofHonorable Thomas B. Murphy

By Cathy Cox, Secretary of State

continued on page 28

Welcome to South Carolina. I havealways thought Georgia lawyersand South Carolina lawyers have aspecial relationship. We are sepa-rated by the Savannah River andnot much else. Stonewall Jackson’slast words were: “Let us cross overthe river and rest in the shade ofthe trees.” My grandfather - not mygreat-grandfather, my father’sfather-scouted for StonewallJackson in Northern Virginia.

Poet-songwriter Robin Williamsexpanded on his last words toreflect his final thoughts:

I leave this world surroundedBy friends and kindred dear.I leave this world in victoryWith the sound of the battle near.

From misery and temptationI’ll be forever freed.Let us cross over the riverAnd rest in the shade of the trees.

I think about Georgia lawyers asmy brothers and sisters, and today,at this elegant venue, I feel like Iam surrounded today by friendsand kindred dear. Thank you forcoming to visit us in SouthCarolina, although I sometimes feellike Kiawah Island is not quiteSouth Carolina. Somebody saidKiawah and Hilton Head are what250,000 Confederates died to pre-vent. Of course. I don’t feel thatway about these beautiful places.Still, there are a !ot of Yankees. sup-pose they improve our gene pool.

The College of Charleston - whereI have been safely ensconced for thepast nine years - was founded twohundred and thirty-one years ago bythree men who signed theDeclaration of Independence andthree other men who were authorsof America’s first Constitution. Allsix were lawyers. One of them wasJohn Rutledge, Chief Justice of theUnited States when GeorgeWashington was President. He diedin the President’s House at theCollege of Charleston.

The Spoleto tourists comethrough the house every Saturdaymorning, and sometimes my bedisn’t made up. We tell them,“That’s the bed John Rutledge diedin. We leave it like that in his mem-ory.” Yankees will believe any-thing. They present us with thegrand opportunity, in the words ofLincoln, to “fool some of the peopleall of the time.”

I hope you have a chance to visitthe College of Charleston some-time. The faculty is brilliant, the

administration is efficient, and likethe children of Lake Woebegone,all the students are above average.Without a doubt, the College is themost elegant institution of higherlearning since the 12th century. Isent my daughter to the Universityof Virginia. I thought I should. TheFirst President of UVA wasThomas Jefferson. He sent his chil-dren to the College of Charleston -at least some of his children.

When my daughter was at theUniversity of Virginia, she had anunusual roommate, a member ofthe Royal Family of Hungary inexile. She was a beautiful girl. Shelooked just like Grace Kelly. Hername was “Viva.” “Viva,” inHungarian, means “paper towel.”Do you believe that? That’s a joke.But the rest of the story is true.

Needless to say, I was mightilyimpressed. And, I was even moreimpressed when, at parents week-end. I had the opportunity to meether mother, a bona fide Hungarianprincess. Frankly, I was somewhatat a loss for words. I didn’t knowwhat to say. What do you say to aHungarian princess?

In the South, when we meetsomebody, we always say, “Whereare you from?” You can’t say thatto a Hungarian princess. “Whereare you from?” So I said what peo-ple in the North say when theymeet somebody for the first time. Isaid, “What do you do?” Thatturned out to be an even worsequestion “What do you do?”

“That is an embarrassing ques-tion,” she replied. “I don’t do any-

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The Good Old DaysBy Alex Sanders

President, College of CharlestonGeneral Practice & Trial Section Luncheon

Kiawah, South Carolina

thing. I am a princess. Princessesdon’t do anything. But, no oneunderstands that in a democraticsociety. So, ever since we havelived in America, that has been avery embarrassing question for me- a question with no good answer.At least it doesn’t have an answeranyone in America can under-stand.”

In a desperate effort to redeemmyself, I gave her some advice.“The next time anyone in Americaasks you what you do, say ‘I playthe harp.’ That is my advice. Noone will ever have a harp. If, bychance, they do have one, someonewill be playing it. So, I promiseyou will be safe. And the answerwill be perfectly acceptable, even inso egalitarian a society as a democ-racy. And, what’s more - if I maypresume to say so - the answer isalso entirely suitable for aHungarian princess.”

She thanked me - a little perfunc-torily I thought - and terminatedour conversation. I never saw heragain. That was in 1988. That cir-cumstance - not knowing what tosay to somebody - only happenedone other time to me. Almost exact-ly five years later, there was a con-ference at the College of a distin-guished group of nuclear scientistsfrom all over the world.

I had a reception for them at thePresident’s House. One of the bestthings about the job I have is thechance to meet so many interestingpeople, but on this occasion I foundmyself, once again, at a loss forwords. What do you say to anuclear scientist from a foreigncountry?

So, I was delighted to find thatone of the nuclear scientists camefrom Hungary. I had something tosay. “You might be interested toknow,” I said, “I once had the greatprivilege of meeting a Hungarianprincess.”

His eyes lit up. “Oh,” he said,“the Royal Family, for many yearsin exile, has just returned to

Hungary. And, the people arethrilled,” he said. “National pridehas returned,” he said. “And, theprincess is so beautiful,” he said.“And so brilliant,” he said. And hesaid, “she plays the harp”

What has that got to do with any-thing? I tell you what lawyers likeyou were always telling me when Iwas a judge: “Bear with me yourhonor, I’ll connect it up eventual-ly.” Okay?

The name of this speech is “TheGood Old Days.” Of all the severalthings I have done in my life, beinga lawyer is the only one I miss, andI am greatly looking forward toresuming the practice of law againsoon. Whenever I say that, some-body always pipes up with the tire-some complaint that the practice oflaw has changed. I hear that drearylament repeated, over and overwherever I go: The practice of lawhas changed. The practice of lawhas changed.

Of course, the practice of law haschanged. Times change. When Ifirst became a lawyer, Jane Fondawas leading sit-ins and demonstra-tions against the war in Vietnam.Then she became an exercise guru,swapped sit-ins for sit-ups, joggingfor protest marches, and marriedan Atlanta boy. Now she’s left himand apologized for opposing thewar in Vietnam. As I say, timeschange. The law shapes the futurethrough change.

New occasions teach new duties,Time makes ancient good uncouth:

[We] must upward still and onwardWho would keep abreast of truth.

Perhaps, it’s necessary to step backfor a while to appreciate thechanges that have occurred. Believeme, I have had the chance to stepback. When I began practicing lawalmost forty years ago, criminaldefendants were almost never rep-resented by lawyers. Gideon’strumpet had not sounded. On thecivil side, discovery in the statecourts was virtually nonexistent.

Interrogatories were unheard of,and depositions were rarelyallowed. Trial was by ambush.

There was no such thing in SouthCarolina or Georgia as rape by ahusband of his wife. Husbands hada property right in their wives, butnot vice versa. The custody of achild could he transferred by adeed. Attempted murder was amisdemeanor in South Carolina.

Admission to the only law schoolin South Carolina was based inlarge part on the family back-ground of the applicant. The Deanof the University of South CarolinaLaw School had never attendedlaw school himself. Very fewwomen had ever attended any lawschool, and there were no womenjudges in South Carolina. Womenwere excluded from South Carolinajuries.

The anti-lynching law had beendefeated in Congress as a result ofa filibuster by a South Carolina sen-ator - with the help of a Georgiasenator. Blacks were not allowed touse the bathrooms in the court-houses where I practiced. Thewater fountains were segregated,and even the plaques in the court-houses memorializing Worid WarII veterans, who died fighting fortheir country, listed their names inseparate columns, one labeled“White” and the other “Colored.”Only three black lawyers practicedin Columbia, South Carolina, thecapitol of the state. They were notallowed to join the county BarAssociation or the state BarAssociation.

One of them, his name wasMatthew Perry - remember thatname - told me about returningfrom World War II and being madeto eat in the kitchen of a restaurantin North Carolina, while Germanprisoners of war were served in themain diningroom. You can’t tellme things were better then. Betterfor whom? Those who complainabout change in the practice of laware nostalgic for a grand era in the

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law that never was.Today, a woman is Chief Justice

of the South Carolina SupremeCourt, and a woman is Chief Judgeof the South Carolina Court ofAppeals. An African American hasbeen elected President of the StateBar, and a woman will becomePresident of the State Bar next year.Matthew Perry remember him - isa senior federal judge, and the newfederal courthouse in Columbia isnamed for him. The federal court-house in Columbia was previouslynamed for Strom Thurmond.Indeed, times have changed.

In the dreadful Civil War prisoncamp, named Andersonville, theConfederates did one thing verywell: They kept good records. Thecause of death of each of the thou-sands who perished there wasmeticulously recorded. One causerecorded was “nostalgia.” The onlything they know is what they don’tlike. “Died of nostalgia,” therecords say. There are lawyerstoday who are dying of nostalgia.They long for a grand time in thelaw that never was. They want alife of unrelenting sameness. Theywant to live life in a rut. Life iscomfortable there for some people,but that is a hopeless ambition.

Change almost always representsprogress to the human condition.Constancy almost always repre-sents stagnation. In any event,change is certain. There’s no pointin complaining about it. Naturalhistory teaches that survival in achanging world does not dependon physical strength or on highintelligence. Survival depends onthe ability to change.

The search for static security ismisguided. Security can only beachieved through adapting oldideas to current facts. Life is underno obligation to give us what weexpect, and expecting the world totreat you fairly because you are agood person is like expecting a bullnot to charge you because you are avegetarian.

Now the strange-sounding year2001 is here, a new millennium isupon us, and in South Carolina andin Georgia, we tenaciously adhereto the faith of our fathers - andmothers. Old times here are notforgotten. That is not always such abad thing. At the same time, wemust recognize that we have a!ong, long way to go, and wisheswill not make us improve.

The human condition is not “onedamn thing after another.” We arenot sleep walkers. Free will givesus both choice and responsibility.The law is not an independentbranch of thought, static like math-ematics or physics. The felt neces-sities of the time, the prevalentmoral and political theories, insti-tutions of public policy, avowed orunconscious, even the prejudiceslawyers and judges share with theirfellow human beings have a gooddeal more to do than precedent indetermining the rules by whichmen and women are governed.

Properly practiced, the lawstands against any winds thatblow, as havens of refuge for thosewho suffer because they are help-less, weak, outnumbered, orbecause they are nonconformingvictims of prejudice and publicexcitement. Properly practiced, thelaw is a tool for the alleviation ofhuman misery and human suffer-ing. Properly practiced, the lawmakes possible the processes ofcommerce that bring realization tothe twin goals of prosperity andpeace in the world. Properly prac-ticed, the law is the most noble pur-suit of humankind. I look forwardto re joining you in that grandendeavor.

As lawyers, we are a part of arich heritage - the profession of thefounders of the College ofCharleston. We are each the sumtotal of generations of growing,yearning, of planning and failing,of building and destroying andbuilding again, unrelenting change.If we look back far enough - to our

founders and beyond - within eachof us is the entire history of theWestern World. Nobody - not gen-erals or admirals, not preachers,not journalists, not legislators, notgovernors, not even presidents -have shaped America as profound-ly as lawyers. The path of the law,like the path of life, has few sign-posts but many footprints.

We contain within each of us thepotential, the energy, the dreams ofall who have gone before; and if weare to discover our own uniquerole on earth, we must look back atthose dreams and try to under-stand why they failed and howthey succeeded, so that we maydream more clearly and act morenobly in our own lives.

We can’t be like the HungarianPrincess. We have to actually dosomething. (See, I told you I wouldconnect it up.)

Thank you.

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12

On June 12, 2000, the SupremeCourt of Georgia entered an orderadopting new Georgia Rules ofProfessional Conduct (“GRPC”).When the rules go into effect onJanuary 1, 2001, they will replacethe existing disciplinary Standards[Bar Rule 4-102(d)] as well as theaspirational Georgia Code ofProfessional Responsibility current-ly found at Part 3 of the Bar Rules.

The new rules are based on theAmerican Bar Association ModelRules of Professional Conduct.Since at least 45 states and theDistrict of Columbia use some ver-sion of the ABA Model Rules, therewill now be a body of relevant caselaw to use when you researchethics issues. There are also ethicsopinions from the ABA and fromother states which Georgia lawyersmay find helpful in situationswhere there is no other guidance.

The Bar’s Disciplinary Rules andProcedures Committee worked fortwo years to develop the GRPC.The Committee included a diversegroup of lawyers from all practiceareas and all parts of the state.There were three non-lawyer com-mittee members representing thepublic. The Committee went ruleby rule through the ABA Modeland compared its provisions to thecurrent Georgia rules. In manyinstances the Committee decided toadopt the ABA rule with few, ifany, revisions. In a few cases theCommittee substituted the current

Georgia rule for the ABA model, orchanged the ABA version.

Format--Table of ContentsThe new document is organized

into nine “parts.” Each part dealswith a different subject matter.

n Part One i s cal led “Client/Lawyer Relationship.” It dealswith just that–the lawyer’s oblig-ation to communicate with theclient, to represent the clientcompetently, to keep the client’ssecrets, to be free from conflictswhich would compromise thelawyer’s loyalty, and to safe-guard the client’s property.

n Part Two deals with the lawyer’srole as a counselor. The rules inPart Two provide guidance for alawyer serving as an advisor oran intermediary.

n Part Three is titled “Advocate.”It covers the lawyer’s dutieswhen litigating a case, or whenrepresenting a client before a leg-islative or other nonajudicativebody. The rules in Part Threeinclude the obligation to betruthful with a tribunal, to expe-dite litigation, and to refrainfrom bringing groundlessclaims. Part Three also includesrules regarding trial publicity,the special duties of prosecutorsand the role of a lawyer who iscalled as a witness in a case.

n Part Four, “Transactions withPersons Other Than Clients,”

includes rules requiring thelawyer to be truthful in state-ments to others, and rules gov-erning the lawyer’s dealingswith adverse parties.

n Part Five deals with law firmsand associations. Those rules setforth the ethical obligations ofsupervisory and subordinatelawyers within a firm or organi-zation, responsibilities regardingnon-lawyer staff, and thelawyer’s obligations when ren-dering law-related services aswell as legal services.

n Part Six is titled “Public Service.”The rules in Part Six set forth thelawyer’s obligation to render probono service and to engage inother activity designed toimprove our system of justice.

n Part Seven, “Information aboutLegal Services,” is the sectionregarding advertising and solici-tation. These rules are the sameas the current Georgia rules.The Discipl inary Rules andProcedures Committee substitut-ed Georgia’s rules for the ABAModel since the current Georgiarules survived a federal constitu-tional challenged.

n Part Eight is called “Maintainingthe Integrity of the Profession.”It includes rules requiring truth-fulness in the bar admissionsprocess and prohibiting unethi-cal conduct by candidates for

A Brief Introduction toThe Georgia Rules of Professional Conduct

Office of the General CounselState Bar of Georgia

50 Hurt Plaza800 The Hurt BuildingAtlanta, Georgia 30303

(404) 527-8720 (in Atlanta)1-800-682-9806 (toll-free Ethics Helpline)

THE NEW RULES

13

judicial office. The rule govern-ing criminal conduct by lawyersand the aspirational rule whichencourages a lawyer to reportunethical conduct to disciplinaryauthorities are also in Part Eight.

n Part Nine is called “Miscell-aneous.” The Georgia Committeecreated Part Nine as a catchall.There were several Georgia rulesthat did not have a counterpart inthe ABA model. Part Nineincludes rules about reciprocaldiscipline and the requirementthat a lawyer respond todiscipli-nary authorities investigating agrievance.

As the Georgia Supreme Courtamends these rules, they will beplaced in the appropriate “part,”ensuring the document remainsorganized in a logical way.

Format-Preamble, Scope andTerminology

The new rules contain a prelimi-nary section titled “Preamble,Scope and Terminology.” The sec-tion serves as a useful orientationto the entire document. ThePreamble includes language sug-gesting these rules are not intendedto form the basis for civil liability;i.e., there is no presumption that aviolation of a rule means a lawyerhas breached a legal duty.

Paragraph 13 of the Scope sectionclarifies that the new documentcombines aspirational and manda-tory rules. As you recall, the cur-rent Georgia rules contain the aspi-rational Code of ProfessionalResponsibility at Part 3, while themandatory disciplinary Standardsare contained in Bar Rule 4-102 atPart 4. Currently there is no disci-plinary penalty for violating anaspirational rule; disciplinarypenalties only apply when a lawyerhas violated one of the 74 mandato-ry Standards. Paragraph 13 makesit clear that some of the rules, castin terms of “shall” or “shall not,”are imperatives. Those rules define

proper conduct for purposes of pro-fessional discipline. Others, general-ly cast in the term “may,” are per-missive and define areas under theRules in which the lawyer has pro-fessional discretion. No disciplinaryaction should be taken when thelawyer chooses not to act or actswithin the bounds of such discre-tion.” (emphasis added)

The “Terminology” sectionattempts to define some of the legalterms found in the rules.

Format–The Rules and Comments

The rules are printed in a formatwhich the Disciplinary Rules andProcedures Committee hopes willbe user-friendly. The text of eachrule is printed in boldface. At theend of the rule is a statement of themaximum penalty for a violation ofthe rule. If an entire rule is aspira-tional, there is a statement at theend of that rule that there is no dis-ciplinary penalty for a violation ofthat rule.

Following each rule is a sectiontitled “Comment.” The purpose ofthe comment is to explain the rule.The comment cannot change themeaning of the rule, and there is nodisciplinary penalty for acting con-trary to the advice of a comment.For ease in conducting research,Georgia has numbered the com-ments to track the comments in theABA Model Rules. In instanceswhere the Georgia committeeadded comments or decided not toadopt an ABA comment, they dis-tinguished their variations by label-ing the comments A and B. See ruleI.I, Comments I A (Georgia lan-guage) and IB (ABA language) asan example. When the Georgiacommittee chose not to adopt theABA comment, it used the label“reserved” in order to preserve thenumbering system. See Paragraph20 of the Scope section, or com-ments 2 and 3 of Rule 3.8 as exam-ples.

ImplementationThe new rules go into effect

January 1, 2001. They will appear inthe 2000-’01 edition of the State Barof Georgia Directory and Handbook,which every Bar member willreceive. In the meantime, you canobtain a copy of the rules from theState Bar of Georgia’s web site,www.gabar.org.

Lawyer conduct can only be gov-erned by the rules in effect whenthe conduct occurred. In screeninggrievances the Office of the GeneralCounsel will use the new rules forconduct which occurs after January1, 2001. Conduct occurring prior toJanuary 1, 2001 will still be gov-erned by the 74 disciplinaryStandards. The 2000-’01 BarDirectory and Handbook will notcontain the Standards, but they willcontinue to be available on theBar’s web site. Since there is afour-year statute of limitations forfiling a disciplinary grievance, theOffice of the General Counsel rec-ommends that lawyers keep bothsets of rules on hand through 2004.

The Office of the General Counseldoes not anticipate that these sub-stantive changes to the disciplinaryrules will have much impact onother bar rules. The proceduralrules governing disciplinary caseswill not change. The FormalAdvisory Opinion Board is review-ing its opinions to see whether anyshould be rewritten based upon thenew rules. Any necessary changeswill be brought before the Bar’sBoard of Governors in keeping withthe regular procedure for amendingthe Bar Rules.

Where to Get HelpThe Ethics Helpline is available

to lawyers who have questionsabout the new rules. The Helplineoperates 9:00 a.m.-5:00 p.m.Monday through Friday and isstaffed by lawyers in the Office ofGeneral Counsel. The lawyers canprovide guidance in dealing with

14

ethical quandaries; however, theiradvice is informal only and is notbinding on the Office of GeneralCounsel, the State DisciplinaryBoard, the State Bar of Georgia, orthe Supreme Court of Georgia if adisciplinary investigation results

from a given situation. The callsare kept confidential, and the Bardoes not take action against anylawyer based upon informationlearned in a Helpline call. Bar Rule4-401 describes the scope of theinformal ethics advice offered by

the Office of the General Counsel.To reach the Ethics Helpline, call(404) 527-8741 in Atlanta or 1-800-682-9806 toll free.

Standard-to-Rule Comparison Chart

This chart was prepared by the Office of the General Counsel and is not part of the Supreme Court Order adopting the newrules. The new Georgia Rules of Professional Conduct are far more comprehensive than the old rules. For this reason, thischart is only a very basic guide. Please be aware that certain concepts are discussed in several different Rules.

Standard Rule Standard Rule Standard Rule1 8.12 8.1 31 (d) 1.5 (c) 62 1.15 (1) (a)3 8.4(a)(3) 32 1.8 (e) 63 1.15 (1) (a)4 8.4(a)(4) 33 1.8 (a) 64 8.4(a)(5)5 7.1 (a) 34 1.8(d) 65(a) 1.15 (1) (a)6(a) 7.2(a) 35 1.7 65(b) 1.15(l)(a) and6(b) 7.3 (b) 36 1.7 1.15(11)(c)6(c) 7.2(b) 37 1.7 65(c) none6(d) 7.3 (a) 38 1.10 65(d) 1.15(ll)(a), (b)7 7.1 (b) 39 1.8 (g) 65.1 1.15(ll1)(a)8 7.5(a) 40 1.8 (f) 65.2 1.15(lll)(b)9(a) 7.5(e) 41 5.4(c) 65.3 1.15(Ill)(c),(d)9(b) 7.5(c) 42 5.4(d) 65.4 1.15(111)(e)10 7.5 (d) 43 1.1 66 8.411 7.5(b) 44 1.3 67 9.412 7.3 (d) 45(a) 3.3(a)(4); (c) 68 9.313 7.3(c)(1) 45(b) 3.3(a)(1) & 4.1 (a) 69 1.914 7.3 (c) (2) 45(c) 14(b)(1) &3.3(a)(4) 70 4.2(b)15 none 45(d) 1.2(d) 71 5.116 7.3 (e) 45(e) 8.4(a)(1) 72 5.217 7.3 (e) 45(f) 1.2(a) 73 5.3 (d)18 7.4 46 3.4(a) 74 8.219 7.4 47 4.2(a)20 1.5(e) 48 4.3 (a) and (b)21 1.16(a) 49 3.4(h)22 1.16 50 3.5(c)23 1.16(d) 51 3.524 5.5(b) 52 3.525 5.5(a) 53 4.426 5.4 54 3.527 5.4(b) 55 none28 1.6 56 3.4(a)29 5.3 57 3.4(f)30 1.7(a) 58 3.4(b)(3)31 (a) 1.5 (a) 59 15(a)31 (b) 1.5 (a) 60 3.5 (b)31 (c) 1.80) 61 1.15(1)(b)

15

Natalie R. Thornwell is the Director ofthe State Bar of Georgia’s Law PracticeManagement Program, which assistslaw firms with office management andtechnology concerns. She is a certifiedconsultant on several legal-specificsoftware packages. She is also aPractice Management Advisor for theABA’s Law Practice ManagementSection. A graduate of SpelmanCollege, she has attended law school atthe University of Miami and GeorgiaState University.

A good friend of mine declares,“It’s not your great-grandfather’slaw practice.” In his great wisdom,Jim Calloway, Director of theOklahoma Bar Association’sManagement Assistance Program,has with this statement paved theway for understanding the tremen-dous amount of change that hastaken place in the legal industryover the past 100 or so years.

A major factor contributing to the

change in the lives of lawyers hasbeen and will continue to be theadvancements made in computertechnology, and more specifically,those changes occurring in the areaof legal-specific computer technolo-gy. We need only look to the 21stCentury Lawyer and the tools sheuses to handle her clients’ affairs.Who is this 21st Century Lawyer?

Before identifying the 21stCentury Lawyer, it is necessary toreview the key technologicaladvancements that have had amajor impact on the legal industrythus far. The advancements thatcome immediately to mind are thosethat deal with managing informa-tion. Because lawyers process infor-mation, it stands to reason that anyadvancement in the systems used tomanage information will have animpact on the way lawyers practicelaw. Manual systems aside, theinvention or introduction of the fol-lowing items into the legal work-place has made the 21st CenturyLawyer what he is today.

n Telephonesn Typewritersn Keyboardsn Carbon Papern VCRsn Fax Machinesn Voice Mailn Personal Computersn Computer Networksn Scannersn Legal Softwaren The Internetn Laptop Computersn E-mailn Digital Camerasn Palm Devicesn Cellular Phones

With all of these advancements, thelawyer is now a very flexible,accessible, and efficient being. Butexactly how is this accomplishedyou ask? Why is there still a greatnumber of attorneys who only wishto one day reach the level of effi-ciency that the 21st CenturyLawyer has attained? Is it theirlack of understanding the purposeof technology? Or, is it their failingto fully utilize the technologicaladvancements outlined here?

How can she be so smart? Howcan he be so efficient? Simply put,the 21st Century Lawyer keeps up.As the technology changes, sheevaluates her current position andmoves when the technology provesitself to be of benefit to the expedi-tion of completing tasks, savingtime, and making money. In thelong run, she can’t afford not tokeep up.

So, exactly how does this work?Well, first she begins with an hon-est assessment of her current tech-nological state. This takes time andthe ability to be critical of oneself,but it is necessary. The assessmentinvolves noting any breakdowns orweaknesses in the systems and pro-cedures she uses. In the assess-ment, she covers not only the tech-nology, but the way she uses thetechnology as well. Her reviewlooks at what she has in place forcase management, documentassembly, l it igation support,knowledge management, time andbilling, trust accounting, generalledger accounting, and practice-specific tasks. If these systems areautomated, she looks to see if theyneed to be upgraded. If they are

Legal Technology and the 21st Century LawyerBy Natalie R. Thornwell

16

not, she asks whether automatingthe systems will make her workeasier, faster, and more profitable.Of course, she knows if and whenshe will need to work with a con-sulting professional, and includesthis in her strategy. She devises animplementation plan that includeseverything from purchasing totraining, and then makes her moveforward.

The 21st Century Lawyer under-stands the impact of networks andcapitalizes on the technology. Sheknows the Internet, intranets, andextranets were all created from thisbasic technological concept of link-ing computers and devices togetherto make the flow of informationmore efficient.

He takes advantage of the con-nected communities that can bedeveloped over computer net-works. He includes access to hisco-workers via an intranet, andthen opens up the network furtherand includes outside parties on anextranet. He is a master at the uti-lization of e-mail, document man-agement, and knowledge manage-ment solutions. His collaborationskills are the best. He even under-stands the need to be continuallyconnected to the networked com-munities and the information onthe networks. So, he is the ultimatemobile lawyer as well.

The PC itself was so important tomoving along the mechanization ofthe delivery of legal documentsthat one rarely speaks of typewriterribbons, carbon paper, white out,or the first electronic word proces-sors anymore. Oh, the horror sto-ries about how long it took to cre-ate and deliver a clean document!To understand the network is justas vital. The impact of being ableto immediately share informationand resources has been phenome-nal. Being able to access docu-ments, messages, faxes, printers,and copiers, via a computer net-work has transformed many coreelements of law practice.

The lawyer seeking to be like the21st Century Lawyer fails to graspthe importance of networks andcontinues to try and compete withpen and pad. “I can do the samething,” or “I have always done itlike this,” are heard as the initialexcuses. Followed by, “I don’thave time to be bothered withthat.” Then, augmented with thecomments of unmotivated,untrained staff looking to continueto operate in the same old way –“He’s not going to use that,” thepitiful firm continues to use oldsystems and inefficient procedures.They “blindly” remain slower, lessefficient, and inaccessible.

Beyond technology, the 21stCentury Lawyer is shrewd in hermarketing and managementefforts. The 21st Century Lawyertakes advantage, once again, of anetwork, but this time the networkis human in form. Clients and theirneeds are the priority. She buildsnetworks both inside and outsideof the office focusing on the client.

In the 21st Century Lawyer’soffice, the staff operates under writ-ten policies and procedures thatmake them feel they are part of ateam. The firm’s purpose is carriedout as solutions are found for theproblems of clients. This internalnetwork is constantly tested andmonitored. The 21st CenturyLawyer knows this network shouldnever break down. To ensuresmooth operation, the policies andprocedures are implemented andfollowed consistently. Whenchanges need to be made, they aremade and evaluations for successare regularly conducted. The officenetwork for the 21st CenturyLawyer runs smoothly.

Using innovative marketingstrategies focused on the client, the21st Century Lawyer meticulouslymaintains the network external tothe office network. Starting withclients, he makes sure they knowwho is working for them. They tooare encouraged to belong to the

“network” that will help solve theirlegal problems. Via ethical andprofessional counseling, the 21stCentury Lawyer’s clients areinformed and educated about keydecisions regarding their legalwoes. The process is revealed, andthey are invited to take an activepart in it. They then become a partof the network.

Further along the network, the21st Century Lawyer addsprospects, former clients, and col-leagues, and works to constantlydemonstrate expertise in the area oflaw in which he specializes. He is“well-connected,” and stays thatway by staying in constant touch.Participation in civic activities andconcern for the community are justa part of marketing for the 21stCentury Lawyer. He does probono work. You can find him atlocal bar association meetings orinvolved in Continuing LegalEducation programs.

You will hear of him via newslet-ters, radio and television appear-ances, office brochures, and othermarketing packages. He is not like-ly to blend into the background.Instead, he will stand out as aleader looking for yet anothercause to make a benefactor of hisefforts.

Many lawyers fail miserablywhen it comes to office and com-munity networking. You knowthem because of the reputation thatprecedes them. They are not goodbosses. Their office is in shambles.Internal distress and disorganiza-tion is the norm. They often findthemselves in trouble and involvedin unethical situations. They arenot concerned about their clients,and fail to keep them abreast oftheir matters. They don’t returnphone calls, and they don’t treatother attorneys with civility. Theycan not be counted on for activeparticipation in any civic or localconcern. Their failure to properly“network” haunts the profession.

Well, this is certainly not the case

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of the 21st Century Lawyer! The21st Century Lawyer looks enthusi-astically to the future for even bet-ter ways to deliver quality legalservices. She looks to technology,marketing, and office managementadvancements for ways of makingher law practice more productiveand more profitable.

What solutions are on the hori-zon? What legal technology willlead the industry next? Will it bethe 2nd version of the Internet cur-rently being tested by several uni-versities that is said to be ten timesfaster than the current Internet?

Or will it be the continuation of thedigital revolution being led by thefurther development of digitalmobile text messaging? Have youchecked your e-mail on your pageryet? Or the next wave of handhelddevices? Did you “beam” yourbusiness card to other attendees ata recent conference? What aboutsoftware? Can your staff now enterinformation into one software pro-gram, and have it “seamlessly”appear in the case management, lit-igation support, time and billing,and general ledger accountingapplications too?

What revolution will spark theway for lawyers next? The 21stCentury Lawyer does not know forsure, but she keeps a close watchover her office, over her client base,and over her outside connections.She looks ahead already knowingthat the practice of law, whilemuch different than that of hergreat-grandfather’s, will be evenmore different for her great-grand-daughter. So, she continues to leadthe way. Next destination – 22ndCentury Lawyering.

Institute, Georgia Defense LawyersAssociation, American Board of TrialAdvocates, and numerous other asso-ciations.

Outside his profession, he hasserved a seven year term on the Stateof Georgia Board of Education. He isa member of the Exchange Club ofRome, where he is a fixture at theAnnual Fall Coosa Valley Fair, and amember of the Georgia Chamber ofCommerce and the Greater RomeChamber of Commerce. He is an avidGeorgia Bulldog and member ofGridiron Secret Society.

What makes Bob Brinson a deserv-

ing recipient of this prestigiousaward was recently displayed in anunfortunate matter presently pend-ing. Basically one of the firm’s clientscame by the office one afternoon tomeet with one of our partners to dis-cuss the status of his cases when theclient received a call to learn that theDistrict Attorney had filed a CivilRICO forfeiture action against him,freezing all accounts and seizing hisassets, including his home, while hiswife and children were home. Afterwe learned of this tragedy, Bob beganto look into the case, reviewing theComplaint and the ex parte Order.

He researched for hours on end. Forfour days straight he worked almostaround the clock. I would wake up tohis phone calls and go to sleep withhis calls, as we bounced strategy andideas back and forth, or mostly fromhim. At age 60, he outworked everylawyer in our office. Bob is an excel-lent, hard working, dedicated, deter-mined and dependable lawyer.

So, it gives me great pleasure tointroduce and congratulate my men-tor, my partner, and my friend BobBrinson to receive the Tradition ofExcellence Award.

Rogert M. Brinson continuation

relocation to Oklahoma. You recallwhen literally thousands of Indianswere lost to starvation, exhaustionand disease. Well, Bob had the resi-dents hold up homemade signsreading “Not another trail of tears”and “We will not be forced from ourhomes at gunpoint” and “It’s ourhomes this time, next time it couldbe yours”. Bob had the residentssoftly humming religious hymns. Itbecame so emotional that I askedthe Commissioner’s to continue thehearing so that I could resolve the

controversy. It’s really amazingwhat a little green back poultice cando for a problem. I just had thedeveloper pay the residents a littlemore money to cover their reloca-tion expenses and miraculously thetrail of tears became a trail of oppor-tunity. Only Bob Flournoy couldhave turned a simple rezoning intoa major and fundamental assault onthe American way of life.

Big Bobby is one of the very fewpeople I know who has served suc-cessfully in all three branches of our

government - the State Legislature,the Executive Branch as Mayor ofMarietta and as an exemplarySuperior Court Judge in the CobbCircuit. Thank you Judge Flournoyfor your many years of service andleadership in this great profession ofthe law. You are a very worthyrecipient of the award you receivetoday embodying a tradition ofexcellence as an outstandingSuperior Court Judge. I congratulateyou.

Robert Flournoy, Jr. continuation

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Hilary Harp is a Partner in theLitigation Department in the Atlantaoffice of Powell, Goldstein, Frazer &Murphy, LLP. Ms. Harp concentratesin commercial litigation and corporatecounseling, with an emphasis in intel-lectual property. Ms. Harp has repre-sented clients at both the trial andappellate level in cases involvingpatents, trademarks, copyrights,domain names, trade secrets, unfaircompetition, false advertising, restric-tive covenants, and general commer-cial disputes. Ms. Harp received bothher B.A. degree and her J.D. degreefrom the University of Georgia.

I. Overview Over the last severalyears, courts around the countryhave confirmed that computerizeddata is discoverable if the informa-tion is relevant. Laptops, fileservers, backup tapes, optical disks,hard disks, and floppy disks areconsidered discoverable electronicmedia and email and voice mailmessages are considered legal doc-uments. As businesses becomeincreasingly dependent on elec-tronic communication and datastorage, it is essential for litigatorsand their clients to understand andappreciate the advantages and pit-falls of offensive and defensive dis-covery of electronic evidence. II. Prevalence and Permanence ofElectronic Evidence in the WorkPlaceBecause routine discovery of elec-tronic evidence is a fairly recentdevelopment, many litigators andtheir clients often fail to recognizethe relative permanence of emailand other electronic documents.Pressing the delete button, in mostcases, does not result in the actualdeletion of the document.

For example, in most corporationswith computer networks, when auser sends an email, the originaldocument is stored in the user’scomputer and a copy is sent to a fileserver. The file server stores thecopy it receives and makes anothercopy to send to the recipient. Theemail message may go throughmore than one server, and each

server will store a copy and make anew copy, thus generating and stor-ing several copies. Even if the recip-ient deletes the message, only therecipient’s copy will be deletedwhile the other copies will continueto reside on other recipients’ serversand may ultimately be saved in thebackup files.

Moreover, when a user deleteselectronic media from a computer,the document is not actuallyremoved. Instead, only the index-ing for the document is removed,and the file is marked as reusable.The document will remainunchanged on the computer until itis written over or until a softwareprogram is used to permanentlydiscard old messages. However,by the time this occurs, multiplecopies of the message may exist onthe mainframe, other PCs, laptops,or floppy disks, making the mes-sage retrievable and discoverable.

Moreover, every document creat-ed, received, or opened on a com-puter terminal is typically saved onthe hard drive without the user’sknowledge in order to protect theuser from a system failure.Archival programs automaticallydownload copies of everything offof the mainframe at certain timeintervals (usually daily) with addi-tional monthly backup protocols.Therefore, not only is there usuallya copy of the document on theuser’s terminal hardware, but thereis also a version on a backup tape.

Discovery of Electronic Evidence:Strategies and Guidelines For

Litigators, Corporate Counsel and Their ClientsHilary Harp

Powell, Goldstein, Frazer & Murphy LLPAtlanta, Georgia

19

As a result, the documents savedon the mainframe server may notbe exactly what the user intendedto become the permanent recordsince changing a document the nextday will not erase what has alreadybeen backed up.

III. Significance of ElectronicEvidence

A. Email

Although there are many typesof electronic evidence, email hasprobably received the most atten-tion in recent years. Email played aprominent role in the JusticeDepartment’s antitrust case againstMicrosoft, with Bill Gates eating hisown words regarding his efforts topersuade Intuit’s CEO from distrib-uting Netscape’s browser: “I wasquite frank with him that if he hada favor we could do for him thatwould cost us something like $1Mto do that in return for switchingbrowsers in the next few months Iwould be open to doing that.”1

Email also played a role in therecent proposed $3.75 billion settle-ment of the class action againstAmerican Home Products Corp.arising from the diet drug Fen-phen. According to a recent articlein the Wall Street Journal, one ofthe emails uncovered by the plain-tiffs’ computer consultantsrevealed a less than sympatheticview of one of AHP’s employeeswho was “concerned about spend-ing the rest of her career paying off‘fat people who are a little afraid ofsome silly lung problem.’”2

Email has also developed into apowerful tool for plaintiff’s lawyersin discrimination cases. The spon-taneity of email typically causesemployees to be more cavalier withthe emails they send as comparedto the memos they write. As aresult, email has proved to be fer-tile ground for evidence supportingclaims of discrimination or sexualharassment. For example, in awidely reported sexual discrimina-tion case filed against Chevron, an

email describing “25 reasons whybeer is better than women,” whichwas circulated by Chevron employ-ees, was uncovered during discov-ery.3 The case later settled.

Given the prevalence of email inthe workplace, it will play anincreasing role in all types of casesand should be a component ofmost discovery plans.

B. Other Electronic Records WithIndependent EvidentiarySignificance or Other Relevance

In addition to email, other elec-tronic records, including hard dri-ves, back up files, file histories ofdocuments, electronic copies ofhard copies of documents pro-duced, may have independent evi-dentiary significance or other rele-vance and should therefore be apotential target for discovery.Depending on the type of case,counsel should consider the desir-ability or necessity of pursuing dis-covery of other types of electronicevidence. For example, hard dri-ves, back up tapes, and file histo-ries of a given document mayreveal:1. Access to a document by a givenindividual. This may be important,for example, in a case where anofficer or employee of the opposingparty denies having seen or beeninvolved in the drafting of a con-tract or other document. In othertypes of cases, counsel should con-sider whether his or her ownclient’s electronic files should bereviewed for evidence to supportthe client’s claims. For example, ina theft of trade secrets case againsta former employee, the client’s ownfile histories may reveal that theformer employee accessed propri-etary customer lists or technicalplans on the eve of his departure.2. Timing of Access: Electronic filehistories and other records will alsoreveal WHEN a given individualaccessed a document. Again, thetiming of access may be criticaldepending on the type of claim

involved.3. Evolution of Documents :Electronic backup files may revealthe evolution of a document, thenature of the revisions made, thetiming of the revisions, etc. Theserecords may be useful in a varietyof settings. For example, the elec-tronic files of an opposing expertwitness may reveal drafts ofreports and other work productthat undermines the expert’s finalconclusions. Archival tapes con-taining backup files of drafts of acontract may shed light on the evo-lution of the contract and the mean-ing of any ambiguous provisions.4. Document Tampering: Electron-ic files may also reveal whetherdocuments have been altered ortampered with. For example, inMomah v. Albert Einstein MedicalCenter, 164 F.R.D. 412 (E.D. Pa.1996), a discrimination case, thecourt allowed discovery into thedefendant’s file histories based onthe plaintiff’s argument that certaindocuments supporting the dis -charge had been intentionally back-dated.In addition, the following othertypes of electronic files may be use-ful and therefore the subject of dis-covery: 1. Electronic Versions of HardCopies of Documents Produced orWhere No Hard Copy Exists :Electronic documents have the ben-efit of being subject to manipula-tion without re-inputting the data.For example, obtaining the elec-tronic version of an Excel spread-sheet or other accounting modelmay save a significant amount oftime if the data is voluminous andcounsel or an expert needs tomanipulate it. In addition, elec-tronic files have the obvious benefitof supplying data where no hardcopy exists or can be found in adesk file.2. Litigation Databases: Documentdatabases and other types of data-bases generally constitute workproduct and therefore have some

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protection from discovery. Inrecent years, however, some courtshave allowed discovery of suchmaterials where one party canshow a substantial need for thematerials and where any “opinion”work product can be redacted. See,e.g., Minnesota v. Philip Morris,Inc., 10.7 Tobacco Prod. Litig. Rep.2.275 (1995); WashingtonBancorporation v. Said, 145 F.R.D.274 (D.D.C. 1992); but see Shipes v.Bic Corp., 154 F.R.D. 301 (M.D. Ga.1994).IV. What Electronic Evidence IsDiscoverable and Who Pays for theDiscovery

A. Rules 26 and 34

Courts have uniformly held thatemail, as well as other forms ofelectronic evidence, is discoverableso long as it meets the standards ofFed. R. Civ. P. 26(b) and 34. Fed. R.Civ. P. 26(b)(1) provides for the dis-covery of “any matter . . . which isrelevant to the subject matterinvolved in the pending action . . .including the existence, descrip-tion, nature, custody, condition andlocation of any books, documents,or other tangible things . . ..” Rule34(a) further specifies that a partymay request the production of “anydesignated documents (including .. . other data compilations fromwhich information can be obtained,translated, if necessary, by therespondent through detectiondevices into reasonably usableform).” The Advisory CommitteeNotes to the 1970 amendment toRule 34 confirm that the definitionof document was revised to includeelectronic data, including printoutsand the electronic source itself.

Since the 1970 amendment toRule 34, courts have uniformlyheld that computerized data maybe a proper subject for discovery.See, e.g., Bills v. Kennecott Corp.,108 F.R.D. 459, 461 (D. Utah) (“It isnow axiomatic that electronicallystored information is discoverableunder Rule 34 of the Federal Rules

of Civil Procedure . . .”); In reBrand Name Prescription DrugsAntitrust Litigation, 1 9 9 5 W L360526 (N.D. Ill. June 15, 1995);Crown Life Ins. Co. v. Craig, 995F.2d 1376, 1382 (7th Cir. 1993).Electronic evidence, like any othertype of documentation, must stillsatisfy the relevancy standard ofRule 26(b)(1), and courts have thepower and discretion under Rule26(c) to impose reasonable limita-tions and protections against over-ly intrusive or burdensome discov-ery. See Fed. R. Civ. P. 34(b)(1)Advisory Committee Note (“courtshave ample power under Rule 26(c)to protect respondent againstundue burden and expense, eitherby restricting discovery or requir-ing that the discovering party paycosts”); Murlas Living Trust v.Mobil Oil Corp., 1995 WL 124186(N.D. Ill. 1995).

B. Guidelines GoverningAllocation of Burden and Cost

The production, reconstructionand analysis of electronic evidencepotentially involves a significantlygreater burden on the producingparty as compared to the produc-tion of conventional paper docu-ments. Printing emails offline froma few personal computers is a rela-tively easy task. Reviewing backuptapes and restoring “destroyed” or“deleted” records is not. As aresult, courts have typically ana-lyzed discovery disputes involvingelectronic evidence within the tra-ditional framework of Rule 26 andRule 34, with an eye toward bal-ancing the respective benefits andburdens of obtaining discovery ofthe information at issue. The fol-lowing case summaries provide anoverview of some of the issuesraised and results obtained inrecent years:1. In re Air Crash Disaster atDetroit Metropolitan Airport onAugust 16, 1987 , 130 F.R.D. 634(E.D. Mich. 1989).Responding party required to pro-

duce computer tape in order toreduce unnecessary costs anddelays that would result if therequesting party were required tomanually load the program anddata. However, since the materialdid not previously exist, discover-ing party was required to pay allreasonable and necessary costsassociated with the manufacture ofcomputer tape. 2. Anti-Monopoly, Inc. v. Hasbro,Inc., 94 Civ. 2120, 1995 U.S. Dist.LEXIS 16355 (S.D. N.Y. Nov. 3,1995).

According to the court, comput-erized data is discoverable even ifpaper copies have been produced.The producing party can berequired to design a computer pro-gram to extract data from its com-puterized business records,although the court may allocatecosts in its discretion. The courtwill examine the burden on theresponding party of collecting all ofthe electronic data against the ben-efit to the requesting party.3. Bills v. Kennecott Corp. , 108F.R.D. 459 (C.D. Utah 1985).

The requesting party may discov-er data in both traditional and elec-tronic form. Although the respond-ing party is usually in the best andmost economical position to accessits computer data, the court mayconsider the following factors todetermine who has the burden topay for the production: 1) the cost ofdiscovery (excessive or inordinate);2) the relative expense and burdenin obtaining the data (whether theburden is greater for the requester orthe responder); 3) whether the cost isa substantial burden; and 4) whetherthe responder is benefited by thediscovery.4. In re: Brand Name PrescriptionDrugs Antitrust Litigation, 94 C897, MDL 997, 1995 U.S. Dist.LEXIS 8281 (N.D. Ill. June 13, 1995).The court ordered the producingparty to locate and produce emailat its own expense, but that the dis-covering party should pay copying

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charges and should narrow thescope of the request. According tothe court, the substantial expense ofproducing computerized data is nota sufficient justification for impos-ing the costs of production on therequesting party. Courts shouldconsider whether the cost is inordi-nate or excessive and whether theexpense and burden in obtainingthe data is greater for the requestingparty than the responding party andwhether the responding party willbenefit to some degree in producingthe data. The Court reasoned that aparty should not be forced to bearthe burden caused by the opposingparty’s choice of electronic storage.5. Daewoo Elec. Co. v. UnitedStates , 10 Court. Int’l Trade 754(1986).

The court ordered theDepartment of Commerce to pro-vide the discovering party withcopies of computer tapes used inan administrative proceeding. TheDepartment refused to provide cer-tain data sets, claiming that theoriginal order did not specificallyinclude the sets. The court foundthat the government erroneouslytook the most literal reading possi-ble of the court’s order to produce“computer tapes” because the courtintended to include all forms ofdata subject to computer manipula-tion. The court concluded that anorder to disclose computer tapesshould be understood to includedisclosure of all further refinedforms of electronic storage of data.The normal and reasonable transla-tion of electronic data into a formusable by the discovering partyshould be the burden of the respon-dent unless the respondent is ableto show an extraordinary hardship. 6. Fennell v. First Step Designs ,Ltd., 83 F.3d 526 (1st Cir. 1996).Title VII suit where an employeerequested inspection of employer’shard drive to determine when amemo was written. The employerproduced a disk indicating that thememo had been “autodated.” The

employee’s expert proposed thatthe original date of creation couldbe determined by reviewing the fileon the hard drive rather than onthe diskette that had been provid-ed. The expert, however, did notclaim that the memo was created ormodified, only that it was possiblethat it may have been. Theemployer’s computer consultantstated that the system could notreveal the date that the documentwas created or modified. The dis-trict court directed both parties tosubmit a protocol for accessing thehard drive. The district court rec-ognized the employer’s concernsregarding the scope of the harddrive analysis, confidentiality, andthe increase in legal and expertfees. After the district courtreviewed the protocols, the courtdetermined that further discoverywould involve a “fishing expedi-tion” and would involve “substan-tial risks and costs” and subse-quently denied further discovery. 7. Playboy Enterprises v. Welles, 60F.Supp.2d 1050 (S.D.Cal. 1999).

Plaintiff sought access to defen-dant’s hard drive to recover elec-tronic versions of emails that hadbeen “deleted.” The court recog-nized the need to protect the pro-ducing party “against undue bur-den and expense and/or invasionof privileged matter” and orderedthat a special protocol be followedin accessing information throughthe appointment of a special com-puter expert as an “Officer of theCourt” to create a mirror image ofthe hard drive. The copy wouldthen be reviewed by the defen-dant’s attorney who could screendocuments for responsiveness andprivilege. The plaintiff would berequired to pay all costs associatedwith the information recovery. 8. Strasser v. Yalamanchi, 669 So.2d. 1142 (Fl. 1996).

Appeal of an order allowingunrestricted access to defendant’scomputer system to retrieve“purged” data. The court held that

a computer data search may beappropriate if there is not a lessintrusive way to obtain informa-tion. However, the order allowinginspection must place sufficientaccess restrictions to prevent com-promising confidentiality and toavoid harm to the computer anddatabases. 9. Strauss v. Microsoft Corp., 856F.Supp. 821 (S.D. N.Y. 1994).

Gender discrimination suit wherethe email messages of the supervi-sor who was responsible for mak-ing promotion decisions weredeemed discoverable and admissi-ble to show discriminatorymotives.10. Zapata v. IBP, 93-2366-EEO WL649322 (Kan., Nov. 10 1994).

Discrimination suit whereemployees sought discovery ofcomputer data containing person-nel information. The court foundthe information relevant and over-ruled the objection that productionof the data was unduly burden-some. The court noted that all dis-covery is burdensome to someextent.

C. Summary of ABA Standards

The American Bar Associationrecently adopted the black letter ofthe Civil Discovery Standardsdated August 1999, relating to thediscovery of electronic evidence.To a large extent, these standardsmirror the standards that haveevolved through the case law andinclude the following:1. When a lawyer who has beenretained to handle a case learnsthat litigation is probable or hascommenced, the lawyer shouldinform the client of the duty to pre-serve potentially relevant docu-ments, including information con-tained or stored in an electronicmedium, and the possible conse-quences of failing to preserve suchdocuments.2. A request for “documents”should be construed to includeinformation contained or stored in

an electronic medium or format.3. A party does not have a duty torestore electronic information thathas been deleted or discarded inthe ordinary course of businessunless the requesting party candemonstrate a “substantial need”for such information.4. A party may request the produc-tion of electronic information inhard copy, in electronic form, or inboth forms as well as the produc-tion of ancillary electronic informa-tion. 5. A party may request the softwarenecessary to retrieve, read, or inter-pret electronic information.6. Courts shall consider the follow-ing factors when resolving motionsto compel or to protect against theproduction of electronic informa-tion:a. the burden and expense of thediscovery;b. the need for the discovery;c. the complexity of the case;d.the attorney-client or attorneywork product privilege;e. the confidentiality of the infor-mation;f. the breadth of the discoveryrequest; andg. the resources of each party.7. The discovering party generallyshould bear “any special expenses”incurred by the responding party,including the cost of acquiring orcreating software to retrieveresponsive information.8. The court should determinewhich party bears the cost of pro-duction by considering the follow-ing factors:a. whether the cost of producingthe information is disproportionalto the potential benefit of the infor-mation;b. the relative expense and burdenon each side;c. the relative benefit to the partiesof producing it; andd.whether the responding partyhas a special system for storing orretrieving the information.

V. Beware the Risk of Sanction andSpoliation Claims

The routine destruction or recy-cling of electronic media may ren-der your client vulnerable to sanc-t ions, c laims of spoliat ion andadverse inferences if litigation ispending or likely. The risk of sanc-tions is obviously greater if thereare outstanding discovery requestsor court orders that cover the data.In Shaw v. Hughes Aircraft Co.,U.S. Dist. LEXIS 14053 (E.D. Pa.Sept. 17, 1996), a discriminationsuit, the plaintiff’s lawyer faxed aletter to defense counsel on the daythe suit was filed instructing thedefendant to preserve all docu-ments, including email and otherelectronic materials, relating to theplaintiff. The defendant failed toproduce any responsive emails. Attrial, the defendant’s informationmanager testified that all email wasoverwritten after 90 days pursuantto the Company’s retention policy.The court instructed the jury todraw an adverse inference that evi-dence favorable to the plaintiff hadbeen destroyed, and the juryawarded the Plaintiff $10,000 fornegligent spoliation of evidence,$20,000 for intentional spoliation ofevidence, and $60,000 in punitivedamages.

Similarly, in Applied Telematics,Inc. v. Sprint Communications Co.,L.P., 1996 U.S. Dist. LEXIS 14053(E.D. Pa. 1996), a patent infringe-ment suit relating to a telephonerouting system, ATI sought histori-cal records relating to the system,which were maintained only onSprint’s back-up tapes. These tapeswere routinely rotated on a weeklybasis, and the majority of respon-sive records were destroyed. Thecourt held that Sprint had an affir-mative duty to preserve the back-up files after having been servedwith a document request andgranted ATI’s motion for anadverse inference of spoliation,

sanctions and attorney’s fees.The Court reached a similar

result in Linnen v. A. H. RobinsCompany, Inc. 1999 W.L. 462015(Mass. Super. Ct. July 16, 1999). InLinnen, the plaintiff obtained an exparte order requiring the preserva-tion of documents, which was latervacated. During the pendency ofthe order and for three monthsafter service of document requests,the defendant continued to recycleits back-up tapes every threemonths. The court held that boththe preservation order and the out-standing document requestsimposed an affirmative obligationon the defendant to preserve theback-up takes and granted sanc-tions for spoliation. See alsoProctor & Gamble Co. v. Haugen,179 F.R.D. 622 (D. Utah 1998) (mon-etary sanctions appropriate forplaintiff’s failure to preserve itscorporate email communicationsparticularly given plaintiff’s insis-tence that defendant preserve itsemails).

This area of the law is continuingto evolve, and courts differ as towhen the duty to preserve evi-dence arises and whether sanctionscan be imposed for mere negligent,as opposed to intentional, destruc-tion of documents. See, e.g. Turnerv. Hudson Transit Lines, Inc., 142F.R.D. 68, 72 (S.D.N.Y 1991);William T. Thompson Co. v.General Nutrition Corp., 593 F.Supp. 1443, 1455 (C.D. Cal 1984);Barkovich v. Hicks, 922 F. 2d 1018,1023-24 (2d Cir. 1991); Quaker StateOil Refining Corp., 72 F. 3d 326, 332-34 (3d Cir. 1995). Courts generallyconsider four factors in determin-ing whether sanctions are appro-priate for spoliation of evidence:(1) whether the party had a duty topreserve the evidence; (2) the cul-pability of the destroying party; (3)the relevance of the destroyed evi-dence; and (4) the prejudice result-ing from the destruction. TheEleventh Circuit has typically

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required a finding of bad faithbefore adverse inferences can bedrawn from a party’s failure to pre-serve evidence. See, e.g., Bashir v.Amtrak, 119 F.3d 929 (11t h Cir.1997); ABC Home Health Services,Inc. v. IBM Corp., 158 F.R.D. 180(S.D. Ga. 1994) (deletion of elec-tronic files in anticipation of litiga-tion but prior to receipt of discov-ery requests might warrant juryinstruction of adverse inferenceupon showing of bad faith).Georgia has rejected the adoptionof an independent tort of spolia-tion, but had long recognized thatsanctions, including adverse infer-ences, may be appropriate forintentional destruction or alterationof evidence. See, e.g., Sharpnack v.Hoffinger Industries, Inc., 499S.E.2d 363 (Ga. App. 1998);Chapman v. Auto OwnersInsurance Co., 469 S.E.2d 783 (Ga.App. 1996). VI. Guidelines for EffectiveDocument Retention Policies

A document retention/destruc-tion policy which provides for theroutine destruction of data mayhelp parties avoid sanctions andadverse evidentiary inferences,particularly with regard to the rou-tine destruction of electronic mate-rials before notice of potential liti-gation and receipt of a documentrequest. See, e .g ., Tritchler v.Consolidation Coal Co., 1996 U.S.App. LEXIS 15600 (4th Cir. June 28,1996); Vodusek v. Bayliner MarineCorp., 71 F. 3d 148, 156 (4th Cir.1996).

Document retention policies,however, must be reasonable inorder for a company to minimizethe l ikelihood of sanctions andadverse evidentiary inferences aris-ing from the destruction of docu-ments. See , e.g. , Lewy v.Remington Arms Co., 836 F.2d 1104(8th Cir. 1988). A policy adoptedwith the stated purpose of “elimi-nation of documents that might bedetrimental [in a lawsuit]” is not

deemed to be reasonable. Carlucciv. Piper Aircraft Corp., 102 F.R.D.472 (S.D. Fla. 1984). Generally, indetermining reasonableness courtsconsider: (1) the facts and circum-stances surrounding the relevantdocuments; (2) the extent to whichthe destroyed documents are rele-vant to potential or pending law-suits; (3) the frequency and magni-tude of similar lawsuits against thecompany; and (4) whether theretention policy was instituted inbad faith. Lewy v. RemingtonArms, 836 F.2d at 112.

The following guidelines are use-ful in designing an effective reten-tion policy which balances the needfor the corporation to streamlineand reduce the volume of its busi-ness records with the potentialneed for the documents at a futuredate:1. The policy should address bothprocedural aspects of retention anda specific retention schedule forcategories of documents.2. Companies should consult withinternal and/or outside technologyconsultants to assess and analyzethe company’s hardware, softwareand electronic data, develop rea-sonable procedures for handlingelectronic documents, e-mail, rota-tion of back-up tapes and otherissues raised by storage and use ofelectronic media.3. Companies should retain recordsfor at least the minimum periodrequired in any applicable statute orregulation – e.g., employ-ment/per-sonnel records, tax records, environ-mental records.4. Records substantiating corporatecompliance with relevant lawsshould be maintained for so long asmay be relevant.5. All records affecting obligationsof the company should be retainedfor a period of time assuring theiravailability when needed.6. Companies should assess whatmust and should be retained, whilediscarding older data that is other-

wise unnecessary.7. The policy must provide for a reli-able mechanism that enables man-agement to suspend the destructionof documents upon notice of poten-tial litigation, receipt of subpoenas,or an existing or potential govern-ment inquiry.8. The policy should incorporateappropriate control and manage-ment provisions to insure that it isbeing followed or adapted as nec-essary to address any new develop-ments.9. Companies should requireappropriate written approvals forall record retention schedules.10. Companies should retain alldocumentation relating to thedevelopment and implementationof the policy.11. Companies should conductperiodic audits to assess compli-ance with the policy.

Finally, corporations should con-sider adopting separate policiesregarding both the use and reten-tion of e-mail. Employees shouldbe educated regarding the appro-priate and inappropriate use of e-mail, and corporations should takeappropriate action against employ-ees who violate the policy and usee-mail for inappropriate purposes.VII. Guidelines for EffectiveDiscovery of Electronic informationNot every case will justify anexhaustive search and review ofelectronic records. The potentialbenefits of far-ranging electronicdiscovery must obviously beweighed against the costs and bur-dens to both parties. The followinggeneral guidelines and recommen-dations should be considered indeveloping strategy:A. Request information promptlyafter action commences to avoidthe loss or destruction of relevantinformation.B. Advise opposing counsel inwriting of the duty to preserve spe-cific records, such as email andbackup tapes. If necessary, request

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a court order for the preservationof all computer files.C. Be specific in the documentrequests since broad discoveryrequests will generate more objec-tions and disputes than narrowlytailored requests.D. Include a definition of “docu-ment” in your request such as thefollowing: “As used in this request,‘document’ means all writings andother tangible things from whichinformation may be obtained orderived, and also includes electron-ic, magnetic, or machine-readablemedia, information on such media,and computer-stored information.” E. Discover your opponent’s hard-ware configurations, operatingsoftware, storage locations, andbackup protocols by taking deposi-tions of the Systems Administratorand employees, by seeing the sys-tems, and by hiring an expert, ifnecessary.F. Ask all witnesses about homeuse, remote access, how informa-tion is saved and stored, their levelof computer knowledge, andwhether there are any privileged,password protected, and/orencrypted files. G. Draft interrogatories when deal-ing with large amounts of technicaldata, since a well-drafted interroga-tory may produce a better resultthan a document request for com-puter records. H.If the case justifies the cost, con-sider hiring a computer expert toretrieve or restore information fromarchived tapes.I. Request a copy of the documentretention/deletion policy. J. Request directory informationand file histories where access, tim-ing, and document evolution issuesare relevant.K.Pursue protective orders and/orsanctions if you believe that data isbeing or has been destroyed. L.Carefully preserve the collecteddata. M.Ensure that your client’s materi-

als can comply readily with therequests you are making of youropponent. VIII. Suggestions forResponding to Discovery Requestsfor Electronic Information andAvoiding Problems BeforeLitigation ArisesA.If litigation is likely or has beenfiled, advise your client of the dutyto preserve evidence and the conse-quences for failure to do so.B.Submit a written response to let-ters from opposing counseldemanding preservation of evi-dence and make objections whereappropriate.C.Learn your client’s computer sys-tem in the same manner you wouldlearn an opponent’s, includingtouring the system and talking tothe users of the system. D.When producing information,retain a backup copy that is proper-ly marked and secured to ensurethe integrity of the data. E.Apply for a protective order toprotect the confidentiality of infor-mation. F. Avoid producing data on disks,drives, or any other form that theopposing party may alter. If youproduce data in machine-readableform, code the data so that it is“read-only.”G.Instruct clients to exercise thesame level of caution with emailmessages that they use with formalpaper documents. H.Have your clients educate theiremployees of the confidentiality,longevity, and potential liabilityregarding electronic documents. I. Assist clients in establishing andimplementing a detailed email pol-icy, or describing examples ofimproper communications.J. To avoid charges of destroyingdiscoverable evidence, urge yourclients to create and implement aperiodic retention and destructionpolicy before they are forced intoli t igation. Procedures shouldinclude creating, storing, locating,

retrieving, and purging electronicdocuments. K.Instruct your clients to physicallydestroy backup files and other doc-uments that have exceeded theiruseful life.

Bibliography and AdditionalSources of Information· Kenneth R. Berman, David A.Brown, Practical Issues in Framingand Responding to DiscoveryRequests for Electronic Informa-tion, A.B.A. Center for ContinuingLegal Educ. Nat’l Inst. (1998).• Christopher V. Cotton,Document Retention Programs forElectronic Records: Applying AReasonableness Standard to theElectronic Era, 24 Corp. 417 (Winter1999).• Timothy Q. Delaney, E-MailDiscovery: The Duties, Danger andExpense, 46-Jan. Fed. Law. 42(1999).· Anthony J. Dreyer, When thePostman Beeps Twice: TheAdmissibility of Electronic MailUnder the Business RecordsException of the Federal Rules ofEvidence, 64 Fordham L. Rev. 2285(1996).• Jay E. Grenig, ElectronicDiscovery: Making Your Oppo-nent’s Computer A Vital Part ofYour Legal Team, 21 Am. J. TrialAdvoc. 293 (1997).• Debra S. Katz, Alan R. Kabat,Electronic Discovery in Employ-ment Discrimination Cases, 34-Dec.Trial 28 (1998).· Heidi L. McNeil, Robert M. Kort,Discovery of E-Mail, ElectronicMail and Other Computer Informa-tion Shouldn’t Be Overlooked, 56-Dec. Or. St. B. Bull. 21 (1995).• Heidi L. McNeil, Robert M. Kort,Discovery of E-Mail and OtherComputerized Information, 31-Apr. Ariz. Att’y 16 (1995).• Betty Ann Olmsted, ElectronicMedia: Management and LitigationIssues When “Delete” Doesn’tMean Delete, 63 Def. Couns. J. 523

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(1996).• James H.A. Pooley, David M.Shaw, Finding What’s There:Technical and Legal Aspects ofDiscovery, 4 Tex. Intell. Prop. L.J.57 (1995).• Mark D. Robins, Computers andthe Discovery of Evidence – A NewDimension to Civil Procedure, 17 J.Marshall J. Computer & Info. L. 411(1999).• Richard A. Rosen, Drafting andResponding to Written DiscoveryUnder the New Federal Rules:Document Requests,Interrogatories, and Requests toAdmit, CA27 A.L.I.-A.B.A. Courseof Study (1995).• Susan J. Silvernail, ElectronicEvidence: Discovery in theComputer Age, 58 Ala. Law. 176(1997).• J. Gregory Whitehair, KimberlyKoontz, Discoverability ofElectronic Data, 27-Oct. Colo. Law.45 (1998).

Sample Letter RequestingPreservation of ElectronicEvidence

Smith & Jones, P.A.

October 30, 2000

ABC Corporationc/o Jane Doe, Senior Vice-President501 Ocean BoulevardMiami, Florida

RE: Davis v. ABC CorporationA. Our File No.: 0759-0000

Dear Ms. Doe:

This firm represents John Davis,who has filed charges of age dis-crimination against ABC Corpora-tion.

In the event that this matter is notresolved pre-suit, I will serve withthe complaint a request for the fol-lowing documents, among others:

1. Mr. Davis’ complete personneland payroll files, including any andall fi les kept by individuals ordepartments;

2. Copies of all EEOC or otheragency charges of age discrimina-tion made against the company, aswell as the pleadings and final dis-positive order in any litigationinvolving such charges, and thepersonnel files of the person mak-ing the charge and each personnamed as a decision-maker.

In order to avoid a problem, withrecord retention, I would like toremind you of the provisions of 29C.F.R. § 1602.14, which provides asfollows:

Any personnel or employmentrecord made or kept by an employ-er (including but not necessarilylimited to requests for reasonableaccommodation, application formssubmitted by applicants and otherrecords having to do with hiring,promotion, demotion, transfer, lay-off or termination, rates of pay orother terms of compensation, andselection for training or apprentice-ship) shall be preserved by theemployer for a period of one yearfrom the date of the making of therecord or the personnel actioninvolved, whichever occurs later.

In the case of involuntary termina-tion of an employee, the personnelrecords of the individual termina-tion shall be kept for a period of oneyear from the date of termination.

Where a charge of discriminationhas been filed, or an action broughtby the Commission or the AttorneyGeneral against an employer underTitle VII or the ADA, the respon-dent employer shall preserve allpersonnel records relevant to thecharge or the action. The term“personnel records relevant to the

charge,” for example, wouldinclude personnel or employmentrecords relating to the aggrievedperson and to all other employeesholding positions similar to thatheld or sought by the aggrievedperson and application forms ortest papers completed by an unsuc-cessful applicant and by all othercandidates for the same position asthat which the aggrieved personapplied and was rejected. The dateof the final disposition of thecharge or the action means the dateof expiration of the statutory peri-od within which the aggrieved per-son may bring an action in a U.S.District Court, or where an action isbrought against an employer eitherby the aggrieved person, theCommission, or by the AttorneyGeneral, the date on which such lit-igation terminated.

(Emphasis added.) Please ensurethat your company keeps all docu-ments, including “electronic datacompilations” (computer data) pur-suant to Federal Rule of CivilProcedure 34(a), as required by thisprovision.

We consider electronic data to bea valuable and irreplaceable sourceof discovery and/or evidence inthis matter. The laws and rulesprohibiting the destruction of evi-dence apply to electronic data withthe same force as they apply toother kids of evidence. Printouts topaper form of text from an elec-tronic file do not preserve the total-ity of information which is in theelectronic file and therefore do nosuffice to fully preserve evidence.

Pending resolution of this matter,further agreement of the parties asto the preservation of electronicevidence, or formal discovery con-cerning the layout and configura-tion of your computer system, thefollowing safeguards against thedestruction of evidence should be

25

maintained.

1. Electronic Data to be Pre-served: The following types of elec-tronic data should be preserved, inaccordance with the steps set forthin paragraphs 2-8 below:

a. All electronic mail and informa-tion about electronic mail (includ-ing message contents, header infor-mation and logs of electronic mailsystem usage) sent or received byJohn Davis, Maria Fuentes, MaryYates, Candy Snider, RichardCunningham, Angel Young andCharles Graham from 1997 to date.

b. All other electronic mail andinformation about electronic mail(including message contents, head-er information and logs of electron-ic mail system usage) containinginformation about the hiring andplacement of Candy Snider, andMaria Fuentes, including anyemployment decisions regardingJohn Davis.

c. All data bases (including allrecords and fields and structuralinformation in such databases),containing any reference to and/orinformation about that the defen-dant maintains or has maintainedfrom 1993 to the date of yourresponse that contain informationon any present or former employee(hourly, salaried, management,professional, operative, etc.)(including applicants) concerningany employment data such asname, current or last knownaddress, race and sex, social securi-ty number, seniority dates, date ofhire for each time the employeewas hired, jobs held, rates of pay,gross earnings, identification,clock, or badge number, any disci-plinary actions against the employ-ee.

d. Any and all documents andother sources of information thatare necessary in order to interpret

all coded fields within each database referred to in the previousitem. (A coded field contains anabbreviated entry representingother information and cannot beused or understood without a keyto the translation or meaning of theentry. An example would be afield for sex, with possible codedentries, “1” and “2,” etc., represent-ing “white,” “black,” etc.)

e. All logs of activity on comput-er systems which may have beenused to process or store electronicdata containing information aboutthe matters described in items athrough d above.

f. For the period from 1997 todate, all word processing files andfile fragments containing informa-tion about:

i. the elimination of Mr. Davis’position as Vice-President ofOperations;

ii. the replacement of Mr. Daviswith Candy Snider;

iii . the placement of MariaFuentes as Vice-President;

iv. the elimination of AngelYoung’s position as Manager ofFacilities; and

v. the resignation of CharlesGraham.

g. With regard to electronic data cre-ated by application programs whichprocess financial, accounting andbilling information, all electronicdata files and file fragment contain-ing information relating to the elim-ination of Mr. Davis’ position asVice-President of Opera-tions, andthe hiring and placement of CandySnider and Maria Fuentes.

h. All electronic data files andfragments created or used by elec-tronic spreadsheet programs,

where such data files contain infor-mation relating to the eliminationof Mr. Davis’ position as Vice-President of Operations, and thehiring and placement of CandySnider and Maria Fuentes.

i. All electronic data files and filefragments created or used by elec-tronic calendaring or schedulingprograms relating to the elimina-tion of Mr. Davis’ position as Vice-President of Operations, and thehiring and placement of CandySnider and Maria Fuentes.

j. All electronic data files and filefragments created by electronic cal-endaring or scheduling used byand/or reflecting the appointmentsand/or “to do” list of John Davis,Candy Snider, Maria Fuentes,Richard Cunningham, AngelYoung and Charles Graham.

k. All other electronic data con-taining information relating to theelimination of Mr. Davis’ positionas Vice-President of Operations,and the hiring and placement ofCandy Snider and Maria Fuentes.

2. On-Line Data Storage onMainframes and Minicomputers:With regard to on-line storageand/or direct access storagedevices attached to defendants’mainframe computers and/orminicomputers: do not modify ordelete any electronic data filesexisting at the time of this letter’sdelivery, which meet criteria setforth in paragraph 1 above, unlessa true and correct copy of eachsuch electronic data file has beenmade and steps have been taken toassure that such a copy will be pre-served and accessible for purposesof litigation.

3. Off-Line Data Storage,Backups and Archives, FloppyDiskettes, Tapes and OtherRemovable Electronic Media:

26

With regard to all electronic mediaused for off-line storage, includingmagnetic tapes and cartridges andother media, which, at the time ofthis letter’s delivery, contained anyelectronic data meeting the criterialisted in paragraph 1 above: stopany activity which may result inthe loss of such electronic data,including rotation, destruction,overwriting and/or erasure of suchmedia in whole or in part. Thisrequest is intended to cover allremovable electronic media usedfor data storage in connection withdefendants’ computer systems,including magnetic tapes and car-tridges, magneto-optical disks,floppy diskettes, and all othermedia, whether used with personalcomputers, minicomputers ormainframes or other computers,and whether containing backupand/or archive data sets and otherelectronic data, for all of defen-dants’ computer systems.

4. Replacement of Data StorageDevices: Do not dispose of anyelectronic data storage devisesand/or media which may bereplaced due to failure and/orupgrade and/or other reasons thatmay contain electronic data meet-ing the criteria listed in paragraph1 above.

5. Fixed Drives on standalonePersonal Computers and NetworkWorkstations: With regard to elec-tronic data meeting the criteria list-ed in paragraph 1 above, whichexisted on fixed drives attached tostand-alone microcomputersand/or network workstations atthe time of this letter’s delivery: donot alter or erase such electronicdata, and do not perform other pro-cedures (such as data compressionand disk de-fragmentation or opti-mization routines) which mayimpact such data, unless a true andcorrect copy has been made of suchactive files and of completely

restored versions of such deletedelectronic files and file fragments,copies have been made of all direc-tory listings (including hiddenfiles) for all directories and subdi-rectories containing such files, andarrangements have been made topreserve copies during the penden-cy of this litigation.

6. Programs and Utilities:Preserve copies of all applicationprograms and utilities which maybe used to process electronic datacovered by this letter.

7. Log of system Modifications:Maintain an activity log to documentmodifications made to any electronicdata processing system that mayaffect the system’s capability toprocess any electronic data meetingthe criteria listed in paragraph 1above, regardless of whether suchmodifications were made byemployees, contractors, vendorsand/or any other third-parties.

8. Personal Computers used by allManagement Personnel

a. As to fixed drives attached tosuch computers: (1) a true and cor-rect copy should be made of allelectronic data on such fixed drivesrelating to the matters specified initem 8 including all active files andcompletely restored versions of alldeleted electronic files and file frag-ments, (ii) full directory listings(including hidden files) for alldirectories and subdirectories(including hidden directories) onsuch fixed drivers should be writ-ten; and (iii) such copies and list-ings should be preserved until thismatter reaches its final resolution.

b. All floppy diskettes, magnetictapes and cartridges, CD-romdisks, and other media used in con-nection with such computers priorto the date of delivery of this lettercontaining any electronic data

relating to matters specified in item8 should be collected and put intostorage for the duration of this law-suit.

9. Evidence Created Subsequentto this Letter: With regard to elec-tronic data created subsequent to thedate of delivery of this letter, rele-vant evidence should not bedestroyed and defendants shouldtake whatever steps are appropriateto avoid destruction of evidence.

I specifically bring the require-ment to retain records pursuant to29 C.F.R. § 1602.14 and FederalRules of Civil Procedure to yourattention not only because it is yourcompany’s legal obligation, butalso because Florida law recognizesthe tort of spoliation of evidencewhere such a legal duty exists andis breached. Please understandthat we consider that this notice ofour claim gives rise to a legal dutyon your part to preserve the evi-dence listed above and any other ofwhich you may be aware.

Please do not hesitate to contactme if you have questions.

Very truly yours,

MARY SMITHFor the Firm

1 United States v. Microsoft Corp.,Civ. Action No. 98-1232 (D.D.C.May 18, 1998).2 Richard B. Schmitt, The Cybersuit:How Computers Aided Lawyers InDiet Pill Case, The Wall StreetJournal, October 8, 1999, art. B1. 3 Alex Markels, Management:Managers Aren’t Always Able toGet the Right Message Across WithEmail , The Wall Street Journal,August 6, 1996, art B1.

Copyright 2000 Hilary Harp All rights reserved

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28

in conversations I’ve had with hisfriends, they told stories of how hehelped those ordinary people that noone else would help.

He took their cases, even when theycouldn’t pay.

He represented them when insur-ance companies were clearly abusingpeople, knowing that a lawyer could-n’t make money on the case and there-fore would never fight for their posi-tion. It’s like a recent case I know hetook to fight an inadequate propertydamage offer in an automobile wreckcase. It was a case he couldn’t makeany money on, but he knew the peo-ple were being wronged and hestepped in to make it right.

U.S. District Court Judge HaroldMurphy said, “Tom would representpeople for 10 percent of what heshould have gotten if he believed theyhad been wronged. Their color, reli-gion or social status didn’t matter tohim. He is an extraordinary man, anextraordinary person, an extraordi-

nary lawyer.”Judge Donald Howe said simply,

“He practices law to help people, notto make money.”

And he has carried the same per-spective into his unique roll as a law-maker and as Speaker of the House ofRepresentatives. Over and over, I’veseen with my own eyes his focus onmaking sure that the laws writtenunder his watch did not overreach tohurt the little guy—the average unso-phisticated Georgian. He has stoodbeside me to fight for issues that werenot “politically correct,” like thewarped child abuse registry that theSupreme Court ultimately struckdown, because he knew there was awrong to be righted..

There is not an area of law practicetoday—no section of the GeorgiaCode—that has not been molded byhis influence. And we are all the bene-ficiaries of his wise leadership in theGeorgia General Assembly, where henow stands as the longest serving

Speaker of the House in the entireUnited States.

Tom Murphy is a zealous advocate,a consummate professional, a pru-dent and caring lawyer, a defender ofthe common man—but more thananything, he is a family man..

You cannot be in a room with himfor more than 15 minutes withouthearing a story about his children orgrandchildren. He raised four chil-dren with his wife of 37 years beforeher death, and he now dotes on fivegrandchildren. He is here today withthe person he calls his very best friend,his son Mike, Superior court Judge ofthe Tallapoosa Circuit.

Please join me in congratulating therecipient of the Traditions ofExcellence Award, a man who hastruly practiced law as a profession andas a public servant. For 52 years ofexcellence in practice, I give you mydear friend Thomas B. Murphy.

Thomas B. Murphy. continuation

SIGN UP A NEW MEMBER TODAY

Help your Section grow by signing up a newmember. Copy the membership form from the

back of this magazine and give it out at your localBar Meetings.

29

Mr. Litwin is a partner at Macey,Wilensky, Cohen, Wittner & Kessler,LLP, in Atlanta. He represents busi-nesses and individuals in StateDepartment of Revenue matters. Priorto joining Macey, Wilensky, Mr.Litwin served as an AssistantAttorney General, in the Tax Divisionof the Georgia Attorney General'sOffice and represented the StateDepartment of Revenue, in tax contro-versies. Currently, Mr. Litwin isChair of the Section of Taxation of theState Bar of Georgia and a BoardMember of the Section of Taxation ofthe Atlanta Bar Association. Mr.Litwin speaks frequently throughoutthe state on state and local tax issues.He received his B.S., cum laude, inEconomics, from the University ofSouth Carolina, and his J.D. fromEmory University.

Personal Liability for State Trust FundTaxes in Georgia

By Richard C. Litwin

I. IntroductionBusinesses that experience finan-

cial instability typically include theState Department of Revenue as amajor creditor. Surrogates and own-ers, as well as most attorneys whorepresent such entities, may notrealize that the State Department ofRevenue can seek payment fromresponsible individuals, employeesand owners despite the existence ofthe limited liability commonly asso-ciated with corporations and limitedliability companies.

In times of financial unrest,deciding what creditors to paydepends upon which creditors aredemanding payment and whetherthe particular creditor's goods orservices are vital to the health ofthe business. A landlord or the tele-phone company, or an importantsupplier, may take priority overother creditors, such as the StateDepartment of Revenue.

Corporations and LLC’s, theiremployees, and their advisors musthave insight into the StateDepartment of Revenue's rightswith regard to collection of unpaidstate sales and use taxes and stateemployer withholding taxes. Suchinsight is helpful both before adecision is made regarding pay-ment to creditors and after thebusiness fails.

II. Responsible Person LiabilityStatute

Advantages of limited liability.Lawyers learn early in their careerthat the corporate form of businessshields the officers and directorsfrom liability for the entity's debts.1

Within the past several years,lawyers have also found similarprotections using the "limited liabili-ty company.''2 Thus, where a credi-tor has not obtained a personalguaranty from the individual owner,the creditor cannot seek payment ofthe business’ debts from the individ-ual owner, officer or member.

State law imposing personal liabil-ity for trust fund taxes. By statestatute, an individual can be liablefor certain unpaid taxes owed by thebusiness to the State Department ofRevenue. In particular,

any officer or employee of any cor-poration, any member, manager,or employee of any limited liabili-ty company, or any partner oremployee of any limited liabilitypartnership who has control orsupervision of collecting frompurchasers or others amountsrequired under [the GeorgiaRevenue Code] or of collectingfrom employees any taxesrequired under [the GeorgiaRevenue Code] and of accountingfor and paying over the amountsor taxes to the [State Revenue]commissioner, and who willfullyfails to collect the amounts ortaxes or truthfully to account forand pay over the amounts or taxesto the commissioner, or who will-fully attempts to evade or defeatany obligation imposed under [theGeorgia Revenue Code], shall bepersonally liable for an amountequal to the amount evaded, notcollected, not accounted for, ornot paid over.

O.C.G.A. § 48-2-52.3

30

Often referred to as the responsi-ble party liability statute, O.C.G.A.§ 48-2-52 allows the State Depart-ment of Revenue to collect statetrust fund taxes directly fromsomeone other than the business,namely the individual(s) responsi-ble for the entity’s failure to paysuch taxes.

Trust fund taxes. As indicated bythe statute's language, personal lia-bility arises only where the tax debtis for unpaid "trust fund taxes."These are taxes collected or with-held by a business as an agent ofthe State Department of Revenue.They include sales taxes - taxes thatare required to be collected frompurchasers. See O.C.G.A. § 48-8-30(b)(1). They do not include "usetaxes" accrued for out-ofstate pur-chases.4

Employer withholding taxes, too,are trust fund taxes. Georgia lawrequires an employer to deduct andwithhold state income taxes fromemployee wages. O.C.G.A. § 48-7-101(c). The amount of tax deductedand withheld by an employer froman employee's wages is held to be aspecial fund in trust for the state,and the employer's liability is dis-charged only by payment of the taxto the state revenue commissioner.O.C.G.A. § 48-7-108(b). Theemployer remits withholdingsquarterly, via Department ofRevenue Form GA-V.

III. Establishing Liability

The State Department of Revenuecan impose personal liability onlyon corporate officers or employees,LLC members, managers oremployees, or LLP partners oremployees who are responsiblepersons within the business enter-prise. The responsible person is notliable, unless he willfully failed tocollect, withhold, or remit thetaxes.5 In determining whether aperson is "responsible," and "will-ful," case law addressing theFederal responsible party statute,

I.R.C. § 6672 applies. See Blackmonv. Mazo, 125 Ga. App. 193, 196, 186S.E.2d 889, 891 (1971).

Responsible Person Element. Theperson assessed must be a "respon-sible" person within the business.This term is given broad meaning.Denbo v. U.S., 988 F.2d 1029, 1032(10th Cir. 1993); Williams v. U.S.,931 F.2d 805, 810 (11th Cir. 1991).Indeed, "person" includes an officeror employee of a corporation or amember or employee of a partner-ship who, as such, is under a dutyto perform the act in respect ofwhich the violation occurs. I.R.C. §6671(b).

Typically, a responsible person isan official charged with the generalcontrol over business affairs andwho participates in decisions con-cerning payment of creditors anddisbursals of funds. See Monday v.U.S., 421 F.2d 1210, 1214-1215 (7thCir.), cert. denied, 400 U.S. 821(1970). A responsible person is one"with ultimate authority overexpenditure of funds, since such aperson can fairly be said to beresponsible for the entity’s failureto pay over its taxes" or, moreexplicitly, one who has "authorityto direct payment of creditors."Gephart v. U.S., 818 F.2d 469, 473(6th Cir. 1987)(per curium) (cita -tions omitted) (quoting Barrett v. U.S., 217 Ct. Cl. 617, 580 F.2d 449, 452(1978)).

Liability depends upon the exis-tence of significant, as opposed toabsolute, control of the business’finances. Determining the responsi-ble person requires a factualinquiry. The crucial question iswhether the person against whomliability is asserted had effectivepower to pay the taxes. Turnbull v.U.S., 929 F.2d 173, 178 (5th Cir.1991).

Check signing authority, alone, isnot sufficient for determiningresponsible person status. Barrett v.U.S., 217 Ct. Cl. 617, 580 F.2d 449,453-454 (Ct. Cl. 1978) (mere check

signing authority did not support afinding of liability, where taxpayerhad no authority to allocate fundsto creditors and had no other indi-cia of a responsible person, includ-ing shareholder or executive officerstatus, authority over payment ofsalaries or the ability to hire andfire employees and where, at times,the taxpayer was beaten into fol-lowing instructions by her hus-band, the controlling shareholderand executive officer of the compa-ny and had never signed a compa-ny check without prior authoriza-tion). The right to sign corporatechecks is, however, a strong indica-tor of responsible person status.

Holding corporate office, alone,does not result in responsible per-son status. Graunke v. U. S., 711 F.Supp. 388 (N.D.Ill.1989) (the tax-payer was merely an accountant,despite his position as treasurer,and he did not have sufficientauthority over corporate decisionmaking to be held responsible, ashe had no financial interest in thebusiness and was not involved inits day-to-day operations orresponsible for issuing payrollchecks, and, moreover, was anemployee for only a brief time).Schwinger v. U. S., 652 F. Supp. 464,467 (E.D.N.Y. 1987). See Monday v.U.S., 421 F.2d 1210, 1214 (7th Cir.1970) ("Corporate office does not,per se, impose the duty to collect,account for and pay over the with-held taxes. On the other hand, anofficer may have such a duty eventhough he is not the disbursingofficer").

To the extent that a responsibleperson delegates the responsibilityto pay withheld income taxes, hedoes so at his own risk, where theresponsible person has had clearnotice that the person delegatedwith responsibility has wrongfullyfailed to pay taxes in the past.Thomsen v. U.S., 887 F.2d 12, 19 (1stCir. 1989). Thus, a responsible per-son may not escape liability by

31

pointing to an assistant or book-keeper.6

A secured creditor may getpower of attorney to operate abusiness and may exercise signifi-cant control (hire and fire; checksigning authority; ability to becomeowner by exercising stock option;close business down by simplyforeclosing on debt owed) over thebusiness. When this happens, thesecured creditor can be held liableas a responsible party.

In sum, several factors determinewhether a person is a "responsible"person. They include (1) holdingcorporate office, (2) control overfinancial affairs, (3) having authori-ty to disburse funds, (4) stock own-ership and (5) ability to hire/fireemployees. Denbo v. U.S., 988 F.2d1029, 1032 (10th Cir. 1993);Thibodeau v. U.S., 828 F.2d 1499,1503 (11th Cir. 1987); Causey v. U.S.,683 F. Supp. 1381, 1383 (M.D. Ga.1988). Moreover, the StateDepartment of Revenue is not lim-ited to assessing only one person.Indeed, more than one person maybe assessed as a "responsible" per-son of a business. Denbo v. U.S., 988F.2d 1029, 1032 (10th Cir.1993)(Cits. omitted); Gephart v. U.S.,818 F.2d 469, 473 (6th Cir. 1987);Roth v. U.S., 779 F.2d 1567, 1571(11th Cir. 1986); Peterson v. U.S., 758F. Supp. 1209, 1215 (N.D.Ill. 1990).Each responsible person is jointlyand severally liable for the trustfund taxes due. Brown v. U.S., 591F.2d 1136, 1142 (5th Cir. 1979).7

Willfulness Element. Although aperson may be "responsible," he isnot liable, unless he acted willful infailing to pay over the trust fundtaxes. Willfulness, in this context, isa voluntary, conscious and inten-tional decision to prefer other cred-itors over the government. Denbo v.U.S., 988 F.2d 1029, 1033 (10th Cir.1993). Establishing "willfulness"does not require showing of badmotive, fraud, or intent to deprivetaxing authority of taxes. Williams

v. U.S., 931 F.2d 805, 810 (11th Cir.1991); Blackmon v. Mazo, 125 Ga.App. 193, 196, 186 S.E.2d 889, 891(1971). Rather, it is shown by thevoluntary preference of other credi-tors over the taxing authority, withknowledge of the unpaid tax claim.Denbo v. U.S., 988 F.2d 1029, 1033(10th Cir. 1993); Collins v. U.S., 848F.2d 740, 742 (6th Cir. 1988);Blackmon v. Mazo, 125 Ga. App. 193,196, 186 S.E.2d 889, 891 (1971). SeeSchwinger v. U. S., 652 F.Supp. 464,468 (E.D.N.Y. 1987); U.S. v. Hill, 368F.2d 617, 621 (5th Cir. 1966)(Evenwhere the expenditures were nec-essary to stay in business). Finally,a responsible person's failure toinvestigate or correct mismanage-ment after being informed thattaxes have not been paid satisfiesthe willfulness requirement.

IV. Issuance of Tax Assessmentsunder O.C.G.A. § 48-2-52

Who and When. The StateDepartment of Revenue uses avariety of information to identifypersons from whom to collectunpaid trust fund taxes. TheDepartment of Revenue agentreviews business records, such asarticles of incorporation, bylaws,LLC operating agreements andminute books. The revenue agentmay also examine bank accountsignature cards and cancel ledchecks, to find out who has author-ity to sign, and who actually signs,the checks. Further, the agent maytry to identify the person withresponsibility for the business’other financial affairs, to wit: whoapplied for business loans, whoprepares and/or signs financialstatements, who signs tax returns(income, sales and use tax, with-holding).8

Statute of Limitations. The periodwithin which the assessment mustbe issued depends upon the statusof the returns. By statute, the liabil-ity must "be assessed and collectedin the same manner as the [under-

lying] tax." O.C.G.A. § 48-2-52(b).Thus, where a sales tax return hasbeen filed by the entity, the Depart-ment of Revenue may not issue aresponsible person assessment forliability stemming from the returnafter the limitations period hasexpired for assessment of the enti-ty. In Georgia, the Department ofRevenue must issue an assessment(against the entity) within threeyears of the fil ing date of thereturn. O.C.G.A. § 48-2-49(b).9

Burden in Challenging Respon-sible Person Assessments. Unlikemost civil cases, where the burdenof proof is on the creditor to estab-lish the debt, challenging a respon-sible person assessment in courtrequires a showing of the impropri-ety of the assessment. Specifically,in superior court, a responsible per-son assessment is deemed primafacie correct. See Hawes v. LeCraw,121 Ga. App. 532, 174 S.E.2d 382(1970); Blackmon v. Ross, 123 Ga.App. 89, 179 S.E.2d 548 (1970).Thus, where the assessed personpursues the appeal procedure tosuperior court, he has the burdenof proof. Blackmon v. Ross, 123 Ga.App. at 90; Hawes v. LeCraw, 121Ga. App. at 533.1 0

V. Criminal Liability for Failureto Pay Trust Fund Taxes

A person who fails to account foror to pay over trust fund taxes issubject to criminal l iability inGeorgia. Specifically, it is unlawfulfor any person knowingly and will-fully to convert funds collected forbenefit of state (under Title 48,Georgia Revenue Code) to his ownuse or to any other person's use,with the intention to deprive thestate of the funds. O.C.G.A. § 48-1-5. A person found guilty of such anoffense shall be guilty of theft byconversion, punishable as providedin O.C.G.A. § 16-8-12.1 1

VI. Advising Clients

Several planning points should be

32

considered when counseling aclient who is vulnerable to assess-ment under O.C.G.A. § 48-2-52.Using the standards set out in thisarticle, conduct your own analysis,to confirm whether the client is a"responsible" person within thebusiness, and always identify anyother person who may be liable.Where your client resigns or sells

his/her portion of a business,remove your client’s name from theentitiy’s l isting at the GeorgiaSecretary of State's Office. Requestfrom the business a resolution thatyour client is no longer an officer,owner or member of the business.Write to the Georgia Department ofRevenue, referencing all tax identi-fication numbers and notifying the

Department of your client's resig-nation from company or business.Have the letter hand-delivered,with a copy stamped "received."Otherwise, if the business fails andhas a sufficient trust fund liability,your client is certain to be assessedas a responsible party.

1 See, e.g., Commonwealth Financial Corp. v.Sherrill, 197 Ga. App. 403, 398 S.E.2d 438(1990). See US. v. Fidelity Capital Corp., 920F.2d 827 (11th Cir. 1991)(even where individ-ual owner directs every corporate decision).

2 O.C.G.A. § 14?11?303 limits liability fordebts, obligations or liability of the LLC, andsuch limitation applies to a member, manag-er, agent or employee of the LLC.

3 House Bill 582, passed during the 2001Georgia General Assembly, and effectiveApril 27, 2001, amended O.C.G.A. § 48-2-52,to include a member, manager, or employeeof any limited liability company, or anypartner or employee of any limited liabilitypartnership. House Bill 582 also amendedO.C.G.A. § 14-8-15, relating to the liability ofa partner in a limited liability partnership,for debts and other obligations of the part-nership, by adding that a partner may bepersonally liable for tax liabilities of the lim-ited liability partnership as provided inO.C.G.A. § 48-2-52, and O.C.G.A. §14?11?303, relating to the liability of a mem-ber, manager, agent or employee of a limit-ed liability company, for debts or obliga-tions of the LLC (whether in tort or con-tract), by adding that a member, manager,or employee may be personally liable for taxliabilities of the LLC as provided inO.C.G.A.§ 48-2-52.

4 For example, a business may buy machin-ery and equipment or other tangible person-

al property from an out-of-state supplierthat does not collect the Georgia sales taxfrom the business. Georgia law requires thebusiness to accrue and remit the tax, whichis known as a use tax. See O.C.G.A. §48-8-30(a), (c); Law Lincoln Mercury, Inc. v.Strickland, 246 Ga. 237, 271 S.E.2d 152(1980)(section imposes a tax on a Georgiapurchaser who purchases personal propertyoutside the state from an out-of-state seller,where the seller is not required to collectand remit a sales tax on the purchase to thisstate); Independent Publishing Co. v.Hawes, 119 Ga. App. 858, 168 S.E.2d 904(1969)(ultimate liability for use tax is uponpurchaser).

5 In order to be liable for the taxes, the personassessed must be an individual (2) responsi-ble for collecting and paying over the tax (2)who willfully failed to perform the duty tocollect, account for; or pay over the taxes.George v. U.S., 819 F.2d 1008, 101 l (11th Cir.1987); Mazo v. U.S., 591 F.2d 1151, 1153 (5thCir.), cert. denied, 444 U.S. 842 (1979).

6 On occasion, however, the principal of abusiness may argue successfully that the abookkeeper embezzled money that was des-ignated as payments to the State Departmentof Revenue and, in that vein, the StateDepartment of Revenue may opt to withdrawthe assessment against the responsible per-son. Typically, pursuit of the bookkeeperthrough a criminal action is required.7 Where more than one person pays the trust

f und tax, each has the right of contributionfrom the other, for the amount in excess ofthe person's proportionate share of thetaxes; must be filed as a separate civil action.See I.R.C. § 6672(d).

8 If necessary, the revenue agent can use theState Department of Revenue's subpoenapower to obtain such information. SeeO.C.G.A. § 48-2-8(a).

9 In case of a fraudulent or false return, filedwith intent to evade tax, tax may be assessedat any time, and if no return is filed, tax maybe assessed at any time.

1 0 Where the assessed party chooses to chal-lenge the assessment by demanding a hear-ing under the Georgia AdministrativeProcedures Act, O.C.G.A. § 50-13-12, then,arguably, the Department bears the burdento show liability. State Reg. 616-1-2-.07(1)("[t]he Referring Agency shall bear theburdens of persuasion and going forwardwith the evidence in all matters [before theOffice of State Administrative Hearings]").

1 1 Amounts less than $500.00, punished as amisdemeanor. Amounts exceeding $500.00,punished by imprisonment for between 1and 10 years, or, in the discretion of judge,as for a misdemeanor.

ENDNOTES

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Community Council on Aging, theAthens Symphony, the AthensEmergency Food Bank, the SandyCreek Nature Center, and the AthensArea Chamber of Commerce. He hasalso been Past Master of the Mt.Vernon Masonic Lodge #22.

None of this is yet to mention hisspiritual side. He is active in St.Gregory’s Episcopal Church, havingserved as Youth Coordinator. He is agraduate of the University of theSouth’s EFM Program.

I trust this demonstrates he is wellqualified by his life’s accomplish-ments to receive this award. Butremember this is only part of the pic-ture. Before Mark begins I must tellyou that Jay has had some difficultykeeping up with the technology. Hisstaff denies he can turn on the com-puter, but they are proud that he hasmastered the cell phone. They onlywish he would learn that he does notneed to move the phone from his earto his mouth when he wants to speak.But I have spoken enough, and I nowgive you Mark Dehler who will tellhow Jay has really contributed to thepractice of law in our state.

John Timmons

Participating in the introduction of JayCook is quite an honor. While itis obvious from what John has had tosay that Jay has served his communityand his profession with tireless work,it is his investment of time and talent inthe development of at least a genera-tion of lawyers that makes him deserv-ing of this Tradition of ExcellenceAward. In addition to winning multi-million dollar medical malpractice ver-dicts. Jay has taken the time to invest ina great number of younger lawyers.These days the word “mentor” getsused a lot and, I am afraid, its meaninghas eroded. But being a mentor, in thefullest sense of the word is what Jaydoes. It is the reason he is being hon-ored here today. More than a genera-tion of lawyers have been trained at the

University of Georgia since Jay set uppractice in Athens. From the beginninghe has worked with law students, asstudents and clerks at Cook NoelTolley Bates & Michael, youngerlawyers just starting out in practice,and more experienced lawyers in tran-sition. What people learn from work-ing with Jay is a tireless work ethic, apassionate belief in the representationof injured people, and uncompro-mised personal and professional ethic.He doesn’t teach theses qualities bylecturing about them, he teaches themby doing them, by showing youngerlawyers and students how those qual-ities are integrated into, and are thebasic foundation, of the practice of law.I am fortunate to be able to countmyself among those who have benefit-ed by working with Jay Cook.

Jay is not, however, without hislighter side. Jay recognizes that lifeand the practice of law need to includea certain level of frivolity. His antics atfirm parties, fishing and boating trips,and Georgia football games are thestuff of legend. Unfortunately, thedetails are sketchy and often cloudedby the effects of the beverages con-sumed and the fear of self-incrimina-tion of the witnesses. In fact, theunavailability and professed lack ofrecollection of a number of the wit-nesses made me wonder if Ed Tolleydidn’t get to them first. The physicalevidence is equally missing. Except fora picture of Jay jogging throughdowntown Athens in skimpy runningshorts, nothing appears to remain ofwhat everyone who would talkassured me were some really greatand funny times.

Jay is also not without his vain side.As John mentioned, Jay was muchmore impressed with the report thatsome members of the selection com-mittee for this award doubted that hehad attained the requisite age of 50.(Jay, those who doubted your agewere all men, so don’t get toopumped up. All the women knewyou were older.) Jay’s frequent after-

noon work-out sessions leave hisoffice speculating: “What is Jay hav-ing done today?” Rumor is they evenhave an occasional office pool wherethe options range from a massagewith manicure and pedicure to a lightwork out and steam bath.

Finally, no one could introduce Jaywithout including his family. He andhis wife Frankie have been married 38years. She was obviously a child bride.Ask Jay about his son, Jay, his daugh-ter, Lea Anne, and her children andyou will see his face light-up and hiswhole demeanor brighten. They arewith him today and are always withhim in spirit.

On behalf of all of the members ofthe Bar who have benefited from hisleadership, his friendship, and his pro-fessionalism, it is an honor to intro-duce to you Jay Cook, the 2001Recipient of the General Practice andTrial Sections Traditions of ExcellenceAward for Plaintiffs Attorneys.

Mark Dehler

J. Vincent Cook continuation

PLEASE NOTEWe can reach youfast by broadcast

e-mail but we needyour e-mail

address. You cango to the State Bar

website atgabar.org and click

on membershipthen on the address

change form andregister your e-mail

address.

34

From Our Annual Meeting...

Keynote speaker, Alex Sanders, President of the College ofCharleston, is congratulated after his speech by SectionChairman Sally Akins and Chairman Elect Lester Tate.

Over 100 people attended the“Tradition of Excellence” breakfast tohear the introduction of the awardrecipients and their acceptancespeeches.

35

The Tradition of Excellence reception was a big hit and fun was had by all.

36

The Lawyers Advisory Committee of theEleventh Circuit invites you to attend

Inside the Eleventh Circuit:A Dialogue with the Clerk of Court

or

“How to Get Your Case Through the AppealsProcess Without Losing Sleep”

featuring

Thomas K. KahnClerk of Court

Wednesday, October 24, 20018:30 a.m. to 10:00 a.m.

En Banc Courtroom, Eleventh Circuit Court of AppealsComplimentary pasteries and coffee beginning at 8:00 a.m.

CLE credit may be available

37

1) APPELATE ADVOCACYPurpose, Preparation, Introduction, Argument, Rebuttal,Problems and Court Conference.Section Member $15 Non-Member $30.3 tapes and handbook 2 CLE Hours

2) BASIC CONCEPTS IN THE LAW OF EVIDENCEIrving Younger Lectures by Robert Oliphant .Section Member $20. Non-Member $40.3) CROSS-EXAMINATIONHenry RothblattSection Member $10. Non Member $20.3 tapes and handbook 3 CLE Hours

4) DEMONSTRATION SERIESSection Member $15. Non Member $30.12 tapes 12 CLE hours

5) DEPOSITION SERIESSection Member $20. Non-Member $40.5 tapes and handbook 5 CLE hours

6) DISCOVERY TECHNIQUESSection Member $10. Non-Member $20.3 tapes and handbook 3 CLE hours

7) EFFECTIVE COMMUNICATION IN THE COURTROOMSection Member $15. Non-Member $30.3 tapes and handbook 3 CLE hours

8) EFFECTIVE NEGOTIATION TECHNIQUESPreparing for negotiations, strategy and tactics in negotia-tions, psychological factors and ethical considerations in nego-tiations.Section Member $15. Non-Member $303 tapes and handbook 3 CLE hours

9) EFFECTIVE TRIAL STRATEGIESPsychology of trial, discovery, jury selection and voir dire,motions practice, opening statements, demonstrative evidence,direct examinations, cross examination, jury instructions andsummation.Section Member $15. Non Member $30.4 tapes 4 CLE hours

10) ESSAYS IN ADVOCACYPsychology of persuasion, cross-examination, crisis in thecourtroom and summation.Section Member $15. Non-Member $30.4 tapes 4 CLE hours

11) EXCELLENCE IN ADVOCACYSection Member $20. Non-Member $40.6 tapes and handbook 6 CLE hours

12) EXPERT WITNESSSection Member $10. Non Member $20.3 tapes 3 CLE hours

TAPE RENTAL AGREEMENT

CLE Credit is now available on all of the tapes listed below. As of January 1, 2001 you can get six CLE hours throughhome study audio/video tapes. You may also carry over 6 hours to the next year. A CLE credit form and instructionwill be enclosed with each order. CLE credit hours are listed after each tape title and paid for by separate check madepayable to the State Bar of Georgia.

1) A letter to request tapes must be submitted with a check in the appropriate amount (cost listed aftereach title) made payable to the State Bar of Georgia and sent to 1250 The Hurt Building, 50 Hurt Plaza,Atlanta, Georgia 30303.

2) Only one tape request will be honored per letter.3) The renter will be notified if the tape requested is not available and at that time a new request can be

made or the renter may wish to go on a waiting list.4) No telephone requests will be honored.5) The rental time is 10 days, tapes not received after the 10 day period will accrue a late charge of $1.00

per day. After 30 days, the tapes will be considered lost and the user will be charged the cost of replac-ing the tape/tapes plus late fees.

6) Please be sure to rewind each tape after use in consideration of the next person.

GENERAL PRACTICE AND TRIAL SECTION AUDIO/VIDEO TAPE LIBRARY

AUDIO TAPE LIBRARY

38

13) EXPERT WITNESSESSection Member $20. Non–Member $40.8 tapes and handbook 8 CLE hours

14) JURY SELECTIONSection Members $15. Non-Members $30.5 tapes 5 CLE hours

15) LISTENING AND MEMORY SKILLS FOR JUDGESAND LAWYERSSection Members $20. Non-Members $40.6 tapes and handbook 6 CLE hours

16) MASTER ADVOCATES’ HANDBOOK VOLUMN #1Section Members $20. Non-Members $40.8 tapes 8 CLE hours

17) MASTER ADVOCATES’ HANDBOOK VOLUMN #2Section Members $20. Non-Members $40.8 tapes 8 CLE hours

18) MASTER ADVOCATES’ HANDBOOK VOLUMN #3Section Members $20. Non-Members $40.8 tapes 8 CLE hours

19) MASTERING THE CRAFT OF TRIAL ADVOCACYSection Members $20. Non-Members $40.12 tapes and handbook 12 CLE hours

20) OPENING AND CLOSING STATEMENTS IN A CRIMINAL CASESection Members $10. Non-Members $20.3 tapes 3 CLE hours

21) OPENING STATEMENTSSection Members $15. Non-Members $30.3 tapes 3 CLE hours

22) RESOLVING MODERN EVIDENCE PROBLEMSSection Members $15. Non-Members $30.3 tapes 3 CLE hours

23) SOFT TISSUE INJURYDamages in the small case, demonstrative evidence in thesmall case, opening arguments and final argument.Section Member $10. Non-Member $20.2 tapes 2 CLE hours

24) SPECIAL LECTURES AND PROBLEMS ON EVIDENCE AND TRIALSection Member $15. Non Member $30.5 tapes 5 CLE hours

25) THE ART OF EFFECTIVE COMMUNICATIONSection Member $15. Non-Member $30.4 tapes and handbook 4 CLE hours

26) THE SUCCESSFUL OPERATION OF A SMALL TOMEDIUM SIZE LAW FIRM FROM A-Z.Section Member $10. Non-Member $20.

27) IN PRAISE OF SIMPLICITY AND THE TRIAL OF ALGER HISSSection Member $15. Non-Member $30.4 tapes 4 CLE hours

28) TRIAL ADVOCACYSection Member $15. Non-Member $30.

29) TRIAL TECHNIQUESSection Member $15. Non-Member $30.6 tapes and handbook 6 CLE hours

30) UNIFYING THE MIND – THE WHOLE BRAINAPPROACHSection Member $15. Non-Member $30.4 tapes and handbook 4 CLE hours

31) WINNING BEFORE TRIAL – PRACTICAL PRE-TRIAL PRACTICESection Member $20. Non-Member $40.6 tapes and handbook 6 CLE hours

SPECIAL MEDICAL/LEGAL SERIES – AUDIO

TAPES MAY ONLY BE RENTED BY THE “SEGMENT INTHE SERIES”. DUE TO THE EXTENSIVE NATURE OF THEWRITTEN MATERIALS AND THE COST TO REPLACETHEM, THEY MUST BE SENT AND RETURNED BY UPS ORIN PERSON AND INSURED FOR THE AMOUNT OF $250.EACH SEGMENT HAS 7 TAPES AND HANDBOOK WITH ATOTAL OF 10 1/2 CLE HOURS.

SEGMENTS AVAILABLE

1) ASBESTOSIS AND RELATED LUNG DISORDERS2) ANATOMY FOR ATTORNEYS – PART I3) ANATOMY FOR ATTORNEYS – PART II4) OB/GYN AND PEDIATRIC INJURIES5) PSYCOLOGICAL DISORDERS EVALUATION AND DIS-ABILITY6) HOW TO READ MEDICAL RECORDS7) ORTHOPEDIC INJURIES AND DISABILITY8) THE TMJ INJURY AND DENTAL MALPRACTICE9) LITIGATING PSYCHOLOGICAL INJURIES10) NEUROLOGICAL INJURIES AND DISABILITY11) SOFT TISSUE INJURIES AND DISABILITY12) CARDIOVASCULAR INJURIES AND DISABILITY

Section Members $50. Non-Members $100.7 tapes and handbook 101/2 CLE hours

1) APPELATE ADVOCACYPurpose, Preparation, introduction, rebuttal, problems, andcourt conference.Section Members $15. Non-Members $30.3 tapes and handbook 2 CLE hours

2) THE ART OF ADVACACY – SKILLS IN ACTION – APPEALSSection Members $10. Non-Members $20.3 tapes and handbook 2 CLE hours

3) BANKRUPTCYNew client educationSection Members $10. Non-Members $20.

4) BELLI ON DEMONSTRATIVE EVIDENCESection Members $15. Non-Members $30.2 tapes 2 CLE hours

5) THE BIO-MECHANICAL ENGINEER – WINNING ANADEQUATE AWARDSection Members $15. Non-Members $30.2 tapes 2 CLE hours

6) BUILDING A WINNING MEDICAL CASESection Members $15. Non-Members $30.4 tapes 4 CLE hours

VIDEO TAPE LIBRARY

39

7) CROSS EXAMINING MEDICAL EXPERTS.Section Members $10. Non-Members $20.2 tapes 2 CLE hours

8) CROSS EXAMINATION OF NON-MEDICAL EXPERTSSection Members $10. Non-Members $20.

8A) DEALING WITH THE S.O.B. LITIGATORSection Members $10. Non-Members $20.2 tapes and handbook 3 CLE hours

9) THE ECONOMIST IN WRONGFUL DEATH CASES Section Members $10. Non-Members $202 tapes 2 CLE hours

10) EFFECTIVE COMMUNICATION IN THE COURTROOMVerbal communication in the trial, non-verbal communicationin the trial and selected communication tasks during trialSection Members $15. Non-Members $30.3 tapes 2 ½ CLE hours

11) EVIDENCE ON TRIAL ILaying foundations for exhibits, photographs, charts, dia-grams and conversationsSection Members $10. Non-Members $20.2 tapes and handbook 2 ½ CLE hours

12) EVIDENCE ON TRIAL IIMotions in Limine and voir dire of witnessSection Members $10. Non-Members $20.1 tape and handbook 1 ¼ CLE hours

13) FIVE COMPUTER APPLICATIONS FOR THEBUSY LAWYERSection Members $10. Non-Member $20.1 tape and handbook ½ CLE hour

14) GETTING AND KEEPING THE CLIENT YOU WANTSection Members $10. Non-Members $20.1 tape and handout 1 CLE hour

15) GETTING YOUR NAME OUT IN THE COMMUNITYSection Members $10. Non-Members $20.1 tape ¾ CLE hour

16) HOW TO SET A FAIR FEE – J. HARRIS MORGAN’SFOOLPROOF FORMULASection Members $10. Non-Members $20.1 tape 1 CLE hour

17) HOW TO TAKE A VIDEO DEPOSITIONSection Members $10. Non-Members $20.1 tape 1 ¾ CLE hours

18) IN PRAISE OF SIMPLICITYSection Members $10. Non-Members $20.1 tape ½ CLE hour

19) JURY SELECTIONSection Members $10. Non-Members $20.2 tapes 2 ¾ CLE hours

20) NEGOTIATIONS – CAN YOU TRUST YOURINSTINCTSSection Members $20 Non-Members $40.4 tapes and handbook 3 ½ CLE hours

21) NEGOTIATIONS – DEMONSTRATION SERIESSection Members $15. Non-Members $30.3 tapes and handbook 2 CLE hours

22) PROVING DIMINISHED EARNING POWERSection Members $10. Non-Members $20.2 tapes 1 ¾ hours

23) PUNITIVE DAMAGES IN COMMERCIAL CASESSection Members $15. Non-Members $30.3 tapes and handbook 3 ½ CLE hour

24) SUMMATIONSection Members $10. Non-Members $20.2 tapes 1 ¾ CLE hours

25) SUMMATION AND ARGUMENT – WINNING THEADEQUATE AWARDSection Members $15. Non-Members $30.2 tapes 1 CLE hour

26) THE SUCCESSFUL OPENING STATEMENTSection Members $10. Non-Members $20.2 tapes 1 CLE hour

27) THE SUCCESSFUL OPERATION OF A SMALL TOMEDIUM LAW OFFICE FROM A-ZSection Members $10. Non-Members $20.1 tape 2 CLE hours

28) THE TOUCHSTONES OF WINNING ADVOCACYSection Members $10. Non-Members $20.1 tape 1 CLE hour

29) TRIAL EVIDENCE – MAKING AND MEETINGOBJECTIONS – VINGNETTES 1-50Section Members $10. Non-Members $20.2 tapes and handbook 2CLE hours

30) UNDERSTANDING AND HANDLING BACK ANDNECK INJURY CASESAnatomy, sprains, strains, whiplash and the ruptured discinjurySection Members $15. Non-Members $30.3 tapes and handbook 2 ½ CLE hours

31) UNDERSTANDING ORTHOPEDIC EVALATIONSSection Members $15. Non-Members $30.2 tapes and handbook 1 CLE hour

32) WHAT EVERY BUSINESS LITIGATOR NEEDS TOKNOW ABOUT FEDERAL CRIMINAL INVESTIGATIONSSection Members $10. Non-Members $20.2 tapes and handbook 4 hours

33) YOUR DEPOSITION – CLIENT EDUCATIONSection Members $10. Non-Members $20.

TRIAL ADVOCACY SERIES

34) CASE PREPARATIONSection Members $10. Non-Members $20.1 tape ¾ CLE hour

35) TRIAL PRESENTATIONSection Members $10. Non-Members $20.1 tape ¾ CLE hour

36) DIRECT EXAMINATIONSection Members $10. Non-Members $20.1 tape ¾ CLE hour

37) CROSS EXAMINATIONSection Members $10. Non-Members $20.1 tape ¾ CLE hour

40

38) CLOSING ARGUMENTSection Members $10. Non-Members $20.1 tape ½ CLE hour

DEPOSITION SERIES

39) DISCOVERY DEPOSITIONSection Members $10. Non-Members $20.1 tape ¾ CLE hour

40) DEPOSITION PREPARATIONSection Members $10. Non-Members $20.1 tape ¾ CLE hour

41) DEPOSITION TECHNIQUESSection Members $10. Non-Members $20.1 tape ¾ CLE hour

42) DEPOSITION PROBLEMSSection Members $10. Non-Members $20.1 tape ¾ CLE hour

43) DEPOSITION PROCEDURESection Members $10. Non-Members $20.1 tape ½ CLE hour

EXPERT WITNESS SERIES

44) DIRECT AND CROSS EXAMINATION OF AN EXPERTWITNESSSection Members $10. Non-Members $20.1 tape ½ CLE hour

45) DIRECT EXAMINATION OF AN EXPERT ECONO-MIST IN A CIVIL DEATH CASESection Members $10. Non-Members $20.1 tape ½ CLE hour

46) DIRECT AND CROSS EXAMINATION OF AN EXPERTWITNESS – PATHOLOGISTSection Members $10. Non-Members $20.1 tape ¾ CLE hour

47) COMPARATIVE CROSS EXAMINATION OF AN ECONOMISTSection Members $10. Non-Members $20.1 tape ¾ CLE hour

48) DIRECT AND CROSS EXAMINATION OF A MED-ICAL RECORDS CUSTODIANSection Members $10. Non-Members $20.1 tape ½ CLE hour

49) DIRECT AND CROSS EXAMINATION OF AN EXPERTWITNESS – PSYCHIATRISTSection Members $10. Non-Members $20.1 tape and handbook ¾ CLE hour

50) EXPERT I – LECTURESection Members $10. Non-Members $20.1 tape ¾ CLE hour

51) EXPERT II – LECTURESection Members $10. Non-Members $20.1 tape ½ CLE hour

EXHIBITS SERIES

52) LITURGY OF FOUNDATIONSSection Members $10. Non-Members $20.1 tape and handbook ¾ CLE hour

53) THE INTRODUCTION AND USE OF EXHIBITSSection Members $10. Non-Members $20.1 tape and handbook ¾ CLE hour

54) PROBLEM WITNESS TACTICSSection Members $10. Non-Members $20.1 tape and handbook ½ CLE hour

55) DEMONSTRATIVE EVIDENCESection Members $10. Non-Members $20.1 tape ½ CLE hour

SPECIAL MEDICAL/LEGAL INSTITUTE SERIES – VIDEOTAPES MAY ONLY BE RENTED BY THE “SEGMENT INTHE SERIES”. DUE TO THE EXTENSIVE NATURE OFTHE WRITTEN MATERIAL AND THE COST TOREPLACE THEM, THEY MUST BE SENT ANDRETURNED BY UPS OR IN PERSON AND INSURED FORTHE AMOUNT OF $250.

SEGMENTS AVAILABLEALL SEGMENTS HAVE 5 VIDEO TAPES AND HAND-

BOOK

1) ANATOMY FOR THE LEGAL AND INSURANCEPROFESSIONAL PART I5 tapes and handout 3 CLE hoursPART 2

ANATOMY FOR THE LEGAL AND INSURANCE PROFES-SIONAL PART II PART 3ORTHOPEDIC INJURIES AND DISABILITYPART 4TRAUMA TO THE SPINEPART 5SOFT TISSUE INJURIES AND DISABILITIES

SEGMENTS 2 – 5 EACH CONTAIN 5 - 2 HOUR VIDEOTAPES WITH A TOTAL CREDIT OF 10 CLE HOURS

Section Members $50. Non-Members $100.

NEED CLE HOURS?

You can now get CLE hours through theGeneral Practice and Trial Section tape library.You are allowed to get 6 CLE hours throughhome study of audio/video tapes. We havemany tapes to choose from and they are listedin Calendar Call and the section website. Youcan access our website by going towww.gabar.org and clicking on Sections andfollow the instructions. All the information onrental is found there.

APPLICATION FOR MEMBERSHIP IN THE GENERAL PRACTICE & TRIALSECTION OF THE STATE BAR OF GEORGIA

For members of the State Bar of Georgia:

Name __________________________________________________________ State Bar # ____________

Address ____________________________________________________________________________

City, State & Zip ______________________________________________________________________

E-Mail: ______________________________________________________________________________

Application date __________________________

Cost: $25, payable by check to the State Bar of Georgia, 50 Hurt Plaza, 80 The Hurt Building,Atlanta, GA 30303

Signature

Susan L. HowickEditor, Calendar CallMacey, Wilensky, Cohen, Wittner & Kessler, LLPMarquis Two Tower, Suite 600285 Peachtree Center Aveue, NEAtlanta, Georgia 30303

GENERALPRACTICE& TRIAL SECTION

PRESORTEDSTANDARD

U.S. POSTAGEPAID

Atlanta, GeorgiaPermit No. 1447

GENERAL PRACTICE AND TRIAL SECTION STATE BAR OF GEORGIA

Georgia’s Largest Law Firm”

Vol. V Summer 2001 No. 2

Tradition of Excellence

GENERAL PRACTICE AND TRIAL SECTION STATE BAR OF GEORGIA