Multi-Million Dollar Lawsuit Dismissal from Train Derailment

Hull Barrett obtains multi-million dollar lawsuit lawsuit dismissal from train derailment.

Hull Barrett attorneys George Hall and Shannon Lanier successfully defended a Class I Railroad in a multi-million dollar property damages lawsuit. George Hall and Shannon Lanier were able to convince the trial court to grant summary judgment on the liability damages claims asserted by a commercial landowner after a derailment in Burke County, Georgia in 2010. The landowner alleged that he planned to develop the 900 acre tract of land as a mitigation and stream credit bank and projected 15 million dollars in potential revenue.

Hall and Lanier convinced the trial court to grant summary judgment based on federal preemption defenses and the speculative nature of the Plaintiff’s claim for lost profits. An appeal is expected.

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Fair Use of Photographs: Using Photos Found On Google Images

U.S. Court of Appeals Decides “Fair Use” of Photographs

The United States Court of Appeals for the Eleventh Circuit (Georgia, Florida and Alabama) decided a case on September 17 involving the “fair use” of a photograph obtained over the internet. Katz v. Google, 2015 U. S. Appeal LEXIS 16546 (11th Cir. 2015).

Raanan Katz is a minority owner of the Miami Heat basketball team and a commercial real estate tycoon. On a visit to Israel, a newspaper there took a candid photograph of Katz that showed his face contorted and his tongue sticking out.

A tenant in one of Katz’s shopping centers started a blog campaign critical of Katz’s business practices. She found the unflattering photograph through a Google search, and started including it as a part of her blogs criticizing Mr. Katz.

Mr. Katz contacted the newspaper in Israel and purchased the copyright to the photograph, and sued the tenant for copyright infringement for posting the photograph without permission. She defended on the basis of fair use.

The Court of Appeals held that the tenant’s use of the photograph was in fact “fair use” and upheld the dismissal of Katz’s copyright claims.

The facts supporting fair use were these:

  • The use of the photograph in the blogs was primarily educational rather than commercial – a part of criticism and commentary.
  • The use of the photograph was transformative in that it was in conjunction with a new meaning, message or expression compared to its original use. The use by the tenant in the blogs was for purposes of ridicule and satire.
  • The original use and publication of the photograph occurred prior to the tenant’s posting on the blogs.
  • While photographs are entitled to copyright protection, this photograph was primarily a factual work and not one that involved subjective and artistic judgment.
  • The use of the photograph did not materially impact the market that Katz would have had for the photograph in question.

This opinion by the Eleventh Circuit supports the practice of blogs, newspapers and publications that locate and use photographs of individuals for purposes of illustrating news and commentary. For example, while Herschel Walker has the exclusive right to promote and market his name, image and likeness, and while a photographer of a picture of Walker would hold a copyright to the photograph, a blog or newspaper could as “fair use” publish a photograph of Walker in conjunction with a news article or commentary concerning Mr. Walker.

But, fair use of a photograph in conjunction with commentary, satire or reporting does not extend to an unauthorized commercial use for advertising, marketing or merchandising.

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Four Tips to Start-Up Companies for Avoiding Trademark Pitfalls

In the early stages of start-up companies, generally protection of intellectual property rights is not a priority—whether it be from oversight or as a result of tight finances. Understandably, the leadership of start-ups primarily focuses on funding, organization, strategy, growth, talent, and marketing. Whatever the reason, neglecting to protect a start-up’s intellectual property at the inception of the company can be devastating in the long run.

Fortunately, with a little research and a reasonable cash outlay, companies can avoid many intellectual property pitfalls. Here are four tips that start-up companies should follow:

Tip 1: Not Already in Use

The business name is a critical factor in establishing and maintaining a brand to be protected by state and federal trademark law throughout the life of the business. One major stumbling block to a successful start-up is selecting a company name that is identical or similar to a name that is already in use. Remember, someone in a neighboring city, county, or state may have come up with a similar name. This problem can be avoided entirely with some preliminary research.

From the onset, the business should also decide if it will operate under a trade name. A trade name is the official name under which a company does business. It is also known as a “doing business as” name, assumed name, or fictitious name. For example, the name of a start-up company might be Robertson, Inc., but the company may decide to open all of its offices under the name “Robertson’s Rentals.”   As with the business name, it is important to select a trade name that is not already in use in order to receive maximum protection under federal and state trademark laws.

Start by researching the business name AND the trade name with the Secretary of State. The Secretary of State holds a database of registered domestic and foreign businesses and most can be searched online (Georgia and South Carolina). It is recommended to search the databases of all states in which the new company plans to do business. After searching the Secretary of State database for registered names, the start-up will need to search for registered trade names (not business names) in the records of the Clerk of the Court of General Jurisdiction in the county containing the principal place of business. While this type of search is not online, it can still be performed with relative ease.

Note: In your business formation process, contact a trademark attorney to register the trade name or fictitious name should you decide to utilize one. Luckily, registering a trade name is generally an inexpensive pursuit, especially in Georgia or South Carolina.

Tip 2: Does Not Run Afoul of Existing State or Federal Trademarks

Another consideration in choosing how to name the business is selecting a company name that is not identical or similar to a registered state or federal trademark. This is separate from a Secretary of State search or a county trade name search. A start-up should also exercise the same caution when naming products or services. Trademark rights are generally based on the principle that the first person or entity to use a mark has priority, whether trademarked or not. A trademark does not necessarily need to be registered in order to have priority. Therefore, if a start-up chooses a company name, product name, service name, or slogan that is already in use by another company, the start-up runs the risk of exposing itself to costly litigation, otherwise known as infringement.

Search the Trademark Electronic Search System (“TESS”) on the website for the United States Patent and Trademark Office (“USPTO”). Also, some Secretary of State websites have the capacity to search registered state trademarks. Finally, searching Google, Bing and Yahoo will also help a start-up in deciding a name.

Tip 3: Not Already an Existing URL

When choosing a company name, product name, service name, or slogan, a start-up should perform an online search to find out what URLs have been secured. Companies often overlook that website addresses are a form of intellectual property. Registering a domain name costs merely a few dollars, so a start-up should be sure to register a domain name that would not be easily confused with other businesses. Searching Google, Bing, and Yahoo is generally all that is needed to be sure that no identical or similar domain names are already in existence.

Tip 4: Plan in the Early Stages of the Start-up

While intellectual property registration should be sought as soon as the start-up can afford it, companies justifiably spend their limited budgets on strategy, growth, talent, and marketing. Thus, it is important that a start-up strategically plan to protect its intellectual property. As the company generates revenue, funds should be earmarked for intellectual property protections. A start-up should retain a trademark attorney for help in performing a full trademark search, filing a trademark, and executing other necessary legal actions to protect its intellectual property. A start-up should also police its intellectual property—meaning that the company should ensure that others are not making use of its marks without permission. If someone steals intellectual property, the start-up should retain counsel to send cease-and-desist letters and file infringement suits if need be. After the start-up has worked so hard to foster and hone its intellectual property, it should protect it.

Why Start-Ups Should Follow These Steps?

Following these four tips will provide a start-up with protection against the copying, theft, and illegal use of its marks. Additionally, the start-up will be protected from infringement litigation from other established businesses for intentional or unintentional use of their marks. Finally, seeking financing for the start-up will be easier because a start-up with protected intellectual property rights will gain improved attractiveness to investors. Starting a business with an intellectual property strategy is key to the success of the business.

Check out our other links for more information about copyrights and trademarks.

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Drug Trafficking – Reduced and Retroactive Prison Sentencing

Our Prison System: Overcrowded and Expensive

Over the past few decades, prison overcrowding has become a growing national concern. As of August 29, 2015, there were more than 94,000 individuals serving time in federal facilities for drug related offenses.[1] This figure is an increase from around five thousand inmates in 1980 when Ronald Reagen took office. In addition, the federal prison system currently costs taxpayers approximately 6.7 billion dollars a year to house these inmates. [2] A Congressional Budget Office analysis in September of 2014 found that passing a bipartisan bill in Congress to reform mandatory minimum sentences, the Smarter Sentencing Act, would reduce prison costs by $4 billion in just the first decade. The Justice Department projected savings of at least an additional $7.8 billion in the second decade. [3]

 “War on Drugs:” Reagan’s Assault on Drug Trafficking

These dramatic increases in prison populations are a direct result of the Reagan administration’s “War on Drugs.” Under the Reagan administration, federal sentencing guidelines were enacted that led to lengthy sentences for drug traffickers which was the intended goal of the revisions. However, the guideline changes also had the unintended result of placing offenders who only played minor roles in these drug operations, like couriers or “mules,” into lengthy sentences as well. In addition, the tougher laws have done little to slow down the drug trade or curb recidivism, both unfulfilled goals of the tougher criminal laws.

Reduction in Federal Sentencing Guidelines for Drug Trafficking Offenses

All of the factors above led to the revision of the Guidelines which will take effect next month.  In July of 2014, the United States Sentencing Commission voted to apply a reduction in the federal sentencing guideline levels to most federal drug trafficking offenses retroactively, to take effect in November of 2015. The Federal Sentencing Guidelines are criminal law rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious (Class A) misdemeanors in the United States federal courts system.

The Result

The result of this decision is that many offenders currently serving time in the federal penal system could now be eligible to have their sentences reduced. Defendants sentenced in drug cases now have the ability to elect to have their sentence reviewed by the Court and judges now have the ability to review old cases to determine if a sentence reduction is warranted. Judges will review each case independently and determine if a sentence reduction poses a risk to public safety and is otherwise appropriate. The hope is that this long-overdue change will continue to allow the government to prevent and punish narcotics trafficking, allow minor offenders an opportunity to reform and be contributing members of society, and cut costs to the everyday taxpayer.

If you or someone you know thinks you may be eligible for a reduced sentence under the new guidelines, please contact a criminal law attorney or you can email our firm at  clientrelations@hullbarrett.com.

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__________

The author of this piece, Brooks K. Hudson, is a criminal defense lawyer focusing on felony and white collar charges.  Prior to practice at Hull Barrett, Brooks worked at the District Attorney’s Office as an Assistant District Attorney.

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[1] Inmate Statistics – Offenses,” Federal Bureau of Prisons, accessed August 29, 2015,http://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp.

[2] Office of Management and Budget, “Public Budget Database: Outlays,” http://www.whitehouse.gov/omb/budget/Supplemental.

[3] http://thinkprogress.org/justice/2014/09/17/3568232/the-united-states-had-even-more-prisoners-in-2013

Image Credit: rook76/shutterstock.com

What Beats Employment Attorney Jim Ellington?

Do you know your attorney outside of the legal realm?  What do you get when you push away the motions and legal research?  Attorney Jim Ellington is keeping it PG and confesses to Augusta CEO what beats him outside of the office.

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Gearing Up For Year End Tax Planning

This is Part I in a two part series that discusses charitable giving in conjunction with taxes and estate planning.

Tax Planning to Decrease Income Tax Liability

As we approach the end of the calendar year, many people begin thinking about year-end tax strategies and tax planning that can reduce the income tax bite when filing their tax returns next spring. Those individuals who are inclined to support their favorite charities may find it advantageous to make year-end gifts that not only provide vital support to the organization but help reduce the donor’s income tax liability.

Traditional Giving Patterns

Past giving patterns suggest that religious and educational institutions are the primary recipients of support from donors but other types of organizations, including animal welfare, conservation, and health and medical research, are frequent beneficiaries of tax planning donations. Cash is the easiest way to make a gift and will be welcomed by any organization relying on gifts to keep it operating.

Other Methods of Giving

The gifting of appreciated securities can be very advantageous to both donor and recipient as the donor receives a charitable income tax deduction based on the current fair market value of the assets being donated and escapes the capital gains tax that would otherwise be levied if the assets were sold and the cash proceeds from the sale donated to the charity. The charity can elect to keep the securities or can immediately sell them at current market value and realize the cash proceeds for the organization. Occasionally, more unusual types of gifts are offered to a charity, such as a parcel of real estate. However, a donor cannot expect a charitable organization to blindly accept such a gift without exercising due diligence to determine whether there are environmental issues or whether the real estate is easily marketable for the organization to obtain the cash proceeds from an eventual sale.

Communication with Charitable Organization

Donors are well advised to communicate with their intended charity about their intended gift, especially if a non-cash donation, and work through any issues which may cause the charity to politely decline the opportunity to receive the gift. Charities also like to know about the donor’s intended use of the gift when received by the charity, such as a particular department or program within the organization. As a donor, please engage in a dialogue with the charitable beneficiary if your gift is anything more than a nominal annual donation in support of the charity’s operations.

Making Sure Your Charitable Contribution is Advantageous for Tax Planning Purposes

Your tax, financial and legal advisers are important partners in making sure that the gifts meet both the intent of the donor and the expectations of the recipient. Making both sides of the gifting process satisfied is one of the most rewarding aspects of our practice. We welcome the opportunity to discuss your charitable gifting ideas and provide counsel and advice on the best approach for you and your family.

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Don’t Lose Your Lien Rights Provided By Lien Laws

Don’t lose your lien rights thereby forfeiting your claim of owed payment because of the pitfalls of lien laws.

Picture this. Your company has just completed work on a construction project. Your paid application has been submitted and thirty days have passed without payment. The general contractor has finished the job and has promised a check just as soon as the owner pays. He tells you to be patient; this should all be worked out in a month or two. What do you do?

In Georgia, construction lien laws were enacted to protect construction companies and material suppliers performing work on credit to secure their rights to payment through their right to record and file a claim of lien. When one provides labor, materials, equipment or services to a construction project and they are not paid, the mechanics and materialmen’s lien laws allow them to place a lien on the property improved, thereby providing a secured interest in the property to help ensure payment of the amounts owed. However, lien laws contain numerous pitfalls, any one of which can lead to a lien being deemed invalid and a construction company losing its protection from non-payment. A seemingly harmless mistake in the name of a company or owner involved in the project, a miscalculation of the total amount owed, or an inaccurate description of the property can result in the loss of lien rights and the leverage it provides.

To avoid the hazards associated with the strict requirements of the lien laws, confirm the date that work was completed and calendar 90 days out as the date lien rights expire. If payment is not received within 60 days of completion of work, contact your attorney to ensure they have enough time to obtain and confirm the necessary information and properly prepare and file the lien in the Superior Court Real Estate Records where the job was located. Specific requirements mandating the filing of a lien within 90 days, providing notice to the owner via certified or overnight mail, and commencement of a lawsuit within 365 days of filing all must be strictly complied with in order to avoid having your lien deemed invalid.

Construction liens are an invaluable weapon in a construction company’s arsenal. However, each case varies depending on the facts and different actions are required for different situations. To protect your company’s assets, rely upon an experienced attorney who can assist you in navigating the perils associated with the Georgia lien law statutes.

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“Know Before You Owe” Will Likely Cost Home Buyers More Money

By now, presumably everyone in the residential real estate industry is gearing up for the implementation of TILA-RESPA Integrated Disclosure (“TRID”) and its new disclosure forms – the Loan Estimate and the Closing Disclosure.  The newly adopted bureaucratic regimen is set to take effect October 3 and most in the industry believe the new TRID rules will meet the overall goals of providing home buyers with clearer “know before you owe” information, and do so in a more timely fashion than with current disclosures.

But be forewarned the new requirements may prove costly to borrowers – in both time and money. This is mainly due to the requirement for the Closing Disclosure to be provided to borrowers no later than three business days prior to closing.  The new rules no longer allow for last-minute changes to the settlement statement just prior to and at the closing table.  Rather, any adjustment to the Closing Disclosure would trigger a new three-day waiting period before closing can occur.  The practical effect of this and other TRID rules is that closing dates will be delayed until lenders adjust to the new rules.

Due to these inevitable delays, many believe that the typical 30-day purchase and sale contracts and 30-day rate locks from lenders should be replaced with, at least temporarily, 45-day contracts and 45-day rate locks.  Insofar as purchase contracts are concerned, real estate practitioners on the buy-side should negotiate a closing date that is 45 days from the contract date.  They should also schedule the closing with the title agent or attorney to occur at least 10 days prior to the drop-dead closing date.

As it pertains to rate lock extensions, the answer is not as straightforward.  The standard time provided by Lenders in order to lock in their interest rate on a mortgage loan is 30 days.  In order to extend the rate lock beyond the standard 30-day window, borrowers will be charged a premium.  Some borrowers will resist the urge to pay extra for such protection.  However, in the context of a rising interest rate environment (which seems likely given the Federal Reserve’s recent position on interest rates), it seems prudent to advise buyers to pay a bit more for a 45-day rate lock.  The premium charged for an extended rate lock will ultimately be cheaper than the alternative of paying a higher interest rate over the life of the loan.

More will be known after next week when TRID goes into effect, but be prepared for extended purchase and sale contracts and changes in rate lock timing.

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A Viral Marketplace: Social Medias’ Rights to Use Original Content of Others

The practice of sharing photos, videos, and ideas via social media outlets has become habitual, if not expected. The realm of social media has seen exponential growth in the number of companies and users alike in the last ten years. However, many (and probably most) users, eager to use the most recent and/or popular social networks, do not stop to read the terms of service of these social media services. These eager social media users do not realize that, in expeditiously agreeing to the terms of service of these networks, they are assigning the copyrights to their intellectual property and likenesses to these companies.

The Terms of Service of Social Media Networks Strip Users of Valuable Rights.

Under United States copyright law, the creator of a work such as a photograph, video, design, sculpture, painting, choreography, and so on generally retains an exclusive bundle of rights to reproduce, distribute, perform, and display the work. The creator has these rights unless he or she made the work pursuant to an agreement, or it was made in the course of the creator’s employment. As a result, generally any original photograph or video a user posts to a social network begins as the exclusive property of that user.

Many prominent social media companies, however, have included in their terms of use language retaining licenses to the content that users post. For example, the current Terms of Service or Use of Facebook, Instagram, and Snapchat all include language which grants royalty-free licenses to the content that users post. A portion of the current Snapchat Terms of Use are as follows:

“You retain all ownership rights in your User Content. However, by submitting User Content to Snapchat, you hereby grant us an irrevocable, nonexclusive, worldwide, perpetual, royalty-free, sublicensable, and transferable license to use, reproduce, modify, adapt, edit, publish, create derivative works from, distribute, perform, promote, exhibit, and display such User Content in any and all media or distribution methods, now known or later developed.” [1]

Similarly, Facebook retains a license in user content. Unlike Snapchat, however, the licenses terminate when the user deletes his or her account unless the licensed content also appears on another’s profile. The specific language is included below:

“You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition: For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.” [2]

Finally, Instagram—which was acquired by Facebook in 2012—also retains a license to users’ content in its present Terms of Use, stating:

“Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service . . . .” [3]

But, it should be noted that, like Snapchat, the licenses Instagram retains do not terminate in the event the user deletes his or her account.

The problem is, while the terms of service or use are readily available online to any user, the terms of service do very little to educate the average user of what the verbiage actually means. It would be absurd to think that a user must consult a copyright attorney every time he or she decides to open an account on a social network. Not surprisingly, in implementing these click-through terms of use, social networks have effectuated perhaps the largest continuing waiver of copyrights in history..

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What Rights do Facebook, Snapchat, Instagram, and Other Similar Social Networks Have to Exploit User Content?

When the users enter into licensing agreements with social networks by agreeing to their terms of use, they waive their rights to control the content as they are entitled under copyright law. Upon a waiver of these rights, social networks can use and disseminate a user’s name, likeness, original photos, original videos, and so on for lawful purposes, such as for advertising, without the user’s consent.

For example, imagine that a user posts a picture on social media of a mother and her healthy infant child right after the child’s birth. Subsequently, the social media provider sublicenses the picture to a hospital advertising the adverse effects of alcohol use on infants during the gestation period. The picture then appears on a banner advertisement on search engines every time someone searches “fetal alcohol syndrome,” or something similar. Because the terms of service of major social media networks retains rights in what users post, the mother and the child would endure the implications that the mother was irresponsible and drank alcohol during gestation, and the child suffers from the associated complications. The mother and the child would have no recourse against this sublicense.

Some social network users have brought legal actions in attempts to curtail social networks’ use of their content for advertising purposes. For example, in Fraley v. Facebook, Inc., [4] the plaintiffs alleged that Facebook unlawfully misappropriated their names, photographs, likenesses, and identities for use in paid advertisements without obtaining the plaintiffs’ consent. In that case, the named plaintiff, for example, visited Rosetta Stone’s Facebook profile page and clicked the “Like” button in order to access a free software demonstration. Subsequently, her Facebook user name and profile picture, which bears her likeness, appeared on her Friends’ Facebook pages in a “Sponsored Story” advertisement consisting of the Rosetta Stone logo and the sentence, “Angel Frolicker likes Rosetta Stone.” The Northern District of California denied Facebook’s motion to dismiss [5], but the parties ultimately settled before trial.[6] Unfortunately, cases such as these are currently few and far between and do not represent an entirely feasible vehicle through which the average social network user can combat the use of his or her intellectual property—especially in light of the language involved in the terms of use or service.

It is imperative, therefore, that social network users address this problem with a two-part solution: education and restraint. In the event the language is unclear or the user has questions, a quick Google search may generate summaries of the terms in plain English as well as articles explaining the legal jargon. The more educated users are about their rights, the more they can protect their intellectual property and likenesses. Second, users should exercise restraint in the amount and types of content they post to social networking sites. It would be prudent for users to refrain from posting embarrassing or otherwise unbecoming content due to the fact that it immediately becomes licensed to social networks for their use.

Artists, sculptors, dancers, painters, photographers, and companies that create and author copyrightable material must be especially wary of posting photographs and videos on social networking sites. The fact that the creators of these works have exclusive rights to reproduce, distribute, perform, and display these works is the primary reason those works have monetary value. While posting copyrightable material on social networks indubitably provides for nearly an infinite amount of exposure to the public, the artists, sculptors, dancers, painters, photographers, and companies are giving up the rights to the monetary value of the works. Consequently, it is important for creators of copyrightable works to protect their rights. They must take time to understand the rights they have in their works, to consult legal counsel if necessary, and to exercise restraint when posting.

When social network users enter into licensing agreements with social media outlets through click-through terms of use or service, they waive their copyrights to the content that they post. Although some controversies result in lawsuits, cases are relatively rare and do not afford users with a reasonable means of protecting themselves. Therefore, all users must educate themselves—including hiring legal counsel—and practice restraint in order to protect their copyrights in their works.
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[1]               Snapchat Terms of Use as of July 22, 2015.

[2]               Facebook Terms of Service as of July 22, 2015.

[3]               Instagram Terms of Use as of July 22, 2015.

[4]               Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011).

[5]               This is true for all of the plaintiffs’ claims except for an unjust enrichment claim as to which Facebook’s motion to dismiss was granted.

[6]           See Fraley v. Facebook, Inc., 966 F. Supp. 2d 939, 941-44 (N.D. Cal. 2013) (approving settlement agreement).

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Meet Aimee Pickett Sanders

Aimee Sanders is Hull Barrett’s newest associate.

Aimee graduated from the University of Georgia, School of Law in 2008 and worked in Atlanta, Columbia and Augusta before joining the firm.  Hull Barrett posted her professional bio here, and the announcement may be viewed here, but thought it would be good for the community get to know her on a personal level.  Here is what Aimee had to say in a recent interview:

What fascinates you about the legal industry?

Its expansiveness. The legal field is an integral part of nearly all other industries. Whether you want to construct a plant in Augusta, Georgia or release a new doll in China, there are legal questions and/or issues that have to be addressed.

What do you believe is the most urgent legal issue in Georgia?

Access to legal services continues to be a serious issue in Georgia. There are many people who have limited access to attorneys for various reasons including location in rural areas and financial means. The State Bar of Georgia and other entities have made great strides, but we must continue to try to find ways to connect Georgians to the services they need.

What do you value in leadership?

Passion and competence.

What are you passionate about?

I am passionate about developing the potential in children. People are our greatest asset and the failure to invest in them early and consistently is a missed opportunity.

What is your favorite thing about the CSRA?

All of the untapped potential! The CSRA is a great place with a bright future. I look forward to being a part of that growth.

What is your favorite sport/team?

I’m not a big sports fan, but I cheer for my home teams, the Elon Phoenix and my Georgia Bulldogs!!!

What is your favorite candy?

Gummy Bears

What is something interesting about you?

I studied in Belgium and received certification in European Union Law.

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The Best Lawyers in America® includes 12 Hull Barrett Attorneys with 1 Named as 2016 Lawyer of the Year

12 lawyers at Hull Barrett, PC were selected by their peers for inclusion in The Best Lawyers in America® 2016.

Best LawyersBest Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. “The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.”  The process includes nomination, peer review, analysis of feedback and eligibility check. The lawyers being honored as “Best Lawyers” have received particularly high ratings in their surveys by earning a high level of respect among their peers for their abilities, professionalism and integrity.

The values of Best Lawyers in America align with the values of Hull Barrett: Experience, Quality and Community.

Not only are 12 lawyers included in the upcoming list, George Hall is named as 2016’s Lawyer of the Year for Personal Injury Litigation – Defendants.

George Hall

 

The Hull Barrett attorneys selected for inclusion in The Best Lawyers in America® 2016:


Douglas D. Batchelor, Jr.

  • Government Relations Practice
  • Health Care Law

Mark S. Burgreen

  • Tax Law

Neal W. Dickert

  • Mediation

Davis A. Dunaway

  • Insurance Law

James B. Ellington

  • Employment Law – Management
  • Litigation – First Amendment
  • Litigation – Labor and Employment

George R. Hall

  • Legal Malpractice Law – Defendants
  • Litigation – Insurance
  • Personal Injury Litigation – Defendants
  • Professional Malpractice Law – Defendants

R.E. (“Rand”) Hanna III

  • Public Finance Law
  • Real Estate Law

David E. Hudson

  • Bet-the-Company Litigation
  • Commercial Litigation
  • First Amendment Law
  • Litigation – Construction
  • Litigation – First Amendment
  • Personal Injury Litigation – Defendants

William J. Keogh

  • Commercial Litigation
  • Litigation – Construction

Darren G. Meadows

  • Environmental Law

Patrick J. Rice

  • Bet-the-Company Litigation
  • Commercial Litigation
  • Medical Malpractice – Defendants
  • Personal Injury Litigation – Defendants

William H. Tucker

  • Real Estate Law

“Best Lawyers is the oldest and most respected peer-review publication in the legal profession.”

For more information about the inclusion process or credit for direct quotes, please check out the history of Best Lawyers.

Small Things that Make a Big Difference in Mediation

My wife constantly tells me, “It’s not what you said; it’s how you said it.” Nothing is truer in mediations. Whether an attorney or a client, the statements you make before the mediation and in the opening statement often set the tone for a successful or unsuccessful mediation. Body language is also important. The genesis of this presentation of mediation advice is my observations over the last 16 years of small things that attorneys and their parties have done or not done during a mediation which seemed relatively insignificant, but turned out to be major factors in determining whether the mediation was successful. Many times, the parties and their attorneys do not realize how some relatively small factors can have a huge impact on the mediation. Some of those points are obvious, but they bear repeating.

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A.   Before the Mediation

  • Know the process before arrival – too often, plaintiffs arrive with the explanation that they are going to a meeting to settle the case. If you are an attorney, walking the client through the entirety of the process puts the client at ease and helps him/her prepare. If you are the client, and don’t know the process, ask. It is a simple point, but it happens often.
  • Speak to the other side before mediation begins – it is common courtesy and sets the right tone. I once spent hours calming down a plaintiff who was a long-time policy holder when the adjuster did not speak to him before the mediation began.
  • Don’t dump new damages on Defendants at the beginning of the mediation – it is an absolute recipe for failure. Despite court orders, no person has unlimited settlement authority.

B.   Opening Remarks – “where the most problems occur”

  • Listen to other side’s opening – appear genuinely interested, even if you are not. Don’t check your phone constantly, and turn your phone off if you are able. Look at the other side. This is where your body language can impact the mediation.
  • A 45-minute Power Point is not needed – in a minor case, you will not enhance the value of your case or strength of your defenses with a lengthy Power Point.
  • Treat everyone with respect – don’t ridicule corporate parties in openings. The corporate representative is a person just like you. Many big companies are very safety conscious and lack of respect can really set the wrong tone. Be very careful in your comments about a Decedent if you represent the defense.
  • Don’t disparage the other side or their attorney in opening – Once, in opening, I heard a lawyer say, “I have tried this case a hundred times and your lawyer has never tried one.” Do you think that helped?
  • Don’t say “I am only here because it is court-ordered” – and you have no case or no defense.  If you want to settle, it sets the wrong tone.
  • Don’t overstate the strength of case in opening unless you really believe it – in 3-4 hours, if you are pressuring you client to settle, they will remind you of your fighting words.
    • Be especially careful about statements about venue, for example, “there has never been a big verdict in this county” or “defendants never win here.” Big settlements are paid everywhere and defense verdicts happen in unlikely places.
  • In opening statement as defendant, don’t’ just say I am here to settle your case – look at the plaintiff, and say “this is the other side and I need to give you some perspective as to my offers.” There is a fine line and many disagree with me, but it is very important in cases with a liability defense.
  • Know the basic facts and names of key players – nothing tells the other side you are not serious about the case quicker than botching the most basic facts.

C.   The Actual Mediation

  • Be patient – especially on the defense side. It can take a while to get to know the plaintiff and bring down expectations if it is needed. As attorneys have grown accustomed to mediations, it is important to remember that many clients are new to the procedure. Also, manage expectations as most want mediations to be complete within a few hours.
  • Make realistic opening offers and demands – demanding $200,000 to settle a $25,000 case only makes the mediator money. Offering $5,000 initially to settle a $100,000 case is also not productive. I have never seen unrealistic demands or offers procure a better deal.
  • Don’t say “I will impeach the other party within an inch of his/her life, but I am not going to tell you how” – unless you are a legendary trial lawyer, empty threats don’t work and have ethical problems. Share the smoking gun or keep it in the holster.
  • Don’t threaten to walk out unless you mean it – if you keep saying I will leave unless the other side does X and keep staying, you lose all credibility.
  • An apology can go a long way to settle a case – in professional negligence cases or a really sensitive case, the Defendant saying “I am sorry” can seal the deal.
  • Shake hands when it is over – it is professional and sets the tone for the next time you deal with the parties.

 

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Implications to the Public of Denying Access to GBI Records

GEORGIA SUPREME COURT DENIES FORMER SUSPECT ACCESS TO GBI RECORDS

Open-Records-for-Web

A recent decision by the Georgia Supreme Court denying access to records has an impact outside of the criminal justice system and extends to individuals, businesses and the public as a whole.

In Evans v. Georgia Bureau of Investigation, decided June 15, 2015, a unanimous Supreme Court denied access to records sought in a lawsuit filed by Christopher Evans. Evans was a Director of Operations for the Georgia Electronic Design Center at Georgia Tech. In 2010, he was arrested and charged with RICO violations. Two other persons were also arrested.

Ultimately the arrest warrants against Evans were dismissed and no indictment was returned against him. At that time, pursuant to an open records request, he requested copies of the GBI records that had been assembled insofar as they related to him. The GBI objected to the open records request on the ground that the investigation was still pending against the other two individuals.

Under Georgia law, there is no dispute that the GBI records concerning the arrest warrants taken out against Evans in September of 2010 are “public records.” However, the Supreme Court agreed with the GBI that there was still a pending investigation and therefore the requested records were exempt from disclosure under O.C.G.A § 50-18-72(a)(4) – the “pending investigation and prosecution” exemption, which reads as follows:

Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports; provided, however, that an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated; and provided, further, that this paragraph shall not apply to records in the possession of an agency that is the subject of the pending investigation or prosecution; and provided, further, that the release of booking photographs shall only be permissible in accordance with Code Section 35.

And while information regarding the other individuals might be redacted from the records, the Supreme Court has previously held that where (a)(4) applies, it exempts from disclosure the “entirety” of such records. The Court noted, but did not decide, that the pending investigation might be concluded after the expiration of the five-year statute of limitations for prosecution of any racketeering charges against those who were arrested.

The effect of denying the open records request is as follows:

1.     It prohibits the public from having access to law enforcement records.

2.     It restricts the ability of an individual wrongfully accused of a crime from timely accessing the necessary documentation to receive an expungement of the underlying arrest.

3.     It impacts business from a human resources standpoint, as companies require details of an investigation to determine an employee’s continued status with the company.  Being unable to access records pertaining to the investigation may paralyze human resource department’s ability to conduct its own inquiry.  Even though Georgia is an at-will employment state, most employers have reasonable standards for dismissal.  This could have a negative impact on the employer’s operations and can lead to potential litigation.

 

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