CLE Update

Legal Ethics - Practice Outside Georgia. Filing a pleading in another state in which a Georgia lawyer is not licensed and without first obtaining pro hac vice admittance may subject the lawyer to suspension in Georgia. In Re Schrader, 271 Ga. 601 (1999).

Legal Ethics - Conflicts. Though Formal Advisory Opinion 98-4 states that lawyers in the same firm, and lawyers of counsel with a firm, may not represent co-defendants in a criminal case, lawyers affiliated with the same public defender's office may do so. Gray v. State, 240 Ga. App. 716 (1999).

Superior Court Rule Changes. Where one attorney is substituted for another in a case, the former attorney may simply file a notice of substitution of counsel and need not file a motion to withdraw. Withdrawing attorneys for a corporate client must notify the corporation that it can only be represented in court by an attorney. Criminal defendants need no longer give notice of intent to introduce evidence of violence by the victim toward the defendant. The financial affidavit in domestic relations cases must now also be filed in actions for modification of child support.

Court of Appeals Rule Changes. The Court now has a drop box for filings after the close of business at 4:30. A separate enumeration of errors is no longer required. Letter briefs containing citations to recent decisions are no longer allowed; leave to file a supplemental brief must be sought. The 1998 change requiring an additional $80 fee upon filing an appeal after a discretionary or interlocutory appeal has been granted was removed.

Jurisdiction - Non-Resident Motorists. A person who is a resident of both Georgia and another state at the time of the accident is not subject to suit under the non-resident motorist act. An out-of-state registration and address is thus insufficient to prove that the driver is a non-resident of Georgia, and an assertion of jurisdiction on this basis may fail. Whitten v. Richards, 240 Ga. App. 719 (1999).

Depositions- Substantive Changes. A deponent may make substantive changes on the errata sheet, though the original answers remain in the record. J. H. Harvey Co. v. Reddick, 240 Ga. App. 466 (1999).

Requests to Admit - Co-Parties. The admission by one co-party of facts, by failing to respond to a request for admission, is not binding on a co-party and do not constitute evidence sufficient to support a motion for summary judgment against the co-party. Batchelor v. Stat Farm Mut. Auto. Ins. Co., 240 Ga. App. 366 (1999).

Dismissal - Sanctions. A plaintiff dismissing a suit on the morning of a scheduled trial is subject to sanctions under OCGA § 9-15-14. Hill v. Doe, 239 Ga. App. 869 (1999). Cf. USCR 12, which authorizes costs to be awarded upon a voluntary dismissal if a jury has already been empaneled.

Pro Se Motions. A trial court may deny the pro se motion for continuance of a party who is represented by a lawyer because one is not entitled to be represented and to represent oneself (Beattie v. State, 240 Ga. App. 327 (1999)), as well as the motion for continuance of an officer of a corporation that is not represented by counsel because a corporation may only be represented by a lawyer. US-1 Van Lines of Georgia, Inc. v. Ho, 240 Ga. App. 417 (1999).

Voir Dire - Written Questionnaire. Whether to allow voir dire by written questionnaire is in the discretion of the judge. Allen v. State, 239 Ga. App. 899 (1999).

Refreshing Recollection. A witness's recollection may be refreshed by a document that she prepared or that was prepared by another at her direction or in her presence. Otherwise, memory is not refreshed by such a document and testimony based on the document is inadmissible. McEntyre v. McRae, 240 Ga. App. 148 (1999).

Use of Prior Deposition. Where a witness does not remember a fact, a deposition in a prior case may be used to refresh her recollection, but it may not be used to impeach the witness. If used to refresh recollection, it is not generally admissible into evidence. Bischoff v. Payne, 239 Ga. App. 824 (1999).

Witness Statements. A trial court has authority to prevent an attorney from using the taped statement of a witness when the attorney misrepresents to the witness the purpose of his taking a statement. Parks v. Multimedia Technologies, Inc., 239 Ga. App. 282 (6) (1999).

Impeachment - Displaying Documents to Opposing Counsel. Where one party impeaches a witness by proving contradictory statements in a document, the document must be first shown or read to the witness, but need not be first shown to opposing counsel if the document is not introduced into evidence. Fulton-Fritchlee v. Douglas, 240 Ga. App. 413 (1999).

Judicial Comments - Preservation. In order to preserve a claim of error based upon the tone or demeanor of a judge while speaking in the presence of the jury, a party must call witnesses to the tone or demeanor. Williams v. Kroger Co., 240 Ga. App. 428 (1999).

Premises Liability. Placing merchandise on shelves above the customer's eye level may impose liability on the store when the merchandise is inadequately secured and falls on the plaintiff, even if it was opened by a prior customer. Rhodes v. K-Mart Corp., 240 Ga. App. 57 (1999).

Contracts - Modification. Where a contract provides that it may not be modified except in writing, may it be modified by a later oral agreement? Thompson v. Enterprise Leasing Co. of Ga., 240 Ga. App. 222 (1999) (Yes); Gerdes v. Russell Rowe Communications, Inc., 232 Ga. App. 534 (1998) (No).