Technological Competency: Good for Lawyers, but Bad in Court?

To lawyers, technology can be a 4-letter word, especially in the courtroom. Tech can be an amazing tool to present a case or story, but it can also be fatal. What if the tech fails – whether through system failure or operator failure? Poor implementation of technology can doom a trial – the lawyer can look buffoonish, the jury disengages, or worse, the wrong image is shown at the wrong time!

I thought of this recently when I saw a number of articles/posts/blogs commenting on the rise of technical competency as a required standard of bar associations. According one commentator, more than half of the states (56%) require some level of technology competence as part of a lawyer’s professional duties and obligations. (H/T Law Sites by Robert Ambrogi).

According to Comment 8 of Rule 1.1 of the ABA’s Model Rules of Professional Conduct:

Maintaining Competence

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Bold added).

Georgia doesn’t have similar guidance, as Rule 1.1 lacks a Comment 8. Instead, Comment 6 contemplates “Maintaining Competence,” but simply says:

“[6] To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.”

But does a duty of technology competence carry over into the courtroom? I don’t know – but I don’t think it should. There are too many technologies, too many variables in what courtrooms offer as available resources, and too much relies on the presiding judge’s acceptance or familiarity with the use of technology in courtrooms.

But this is totally different from requiring technology competence from business litigators. We deal with technology on an ever-growing scale; it has become the standard, rather than the exception. Business litigators must be familiar with tech terms, concepts, and applications. It is everywhere now – e-discovery, client interaction, and even document drafting. Settlements are swapped in various versions and it is bad form not to mark changes.

So if you don’t know basic technological terms or concepts, I suggest you look into them. And perhaps even go to a boot camp or two.

Judge Smails was Right! But there is a Limit When it Comes to Non-Competes


If you know me, you know that I do a LOT of work in the non-compete/restrictive covenant space. A recent article in The New York Times discusses the impact that restrictive covenants can have on the work place. (Link on next page.)

Employment lawyers know this, but workers are often astonished to learn that they’ve signed away their right to leave for a competitor. Timothy Gonzalez, an hourly laborer who shoveled dirt for a fast-food-level wage, was sued after leaving one environmental drilling company for another. Phillip Barone, a midlevel salesman and Air Force veteran, was let go from his job after his old company sent a cease-and-desist letter saying he had signed a noncompete.

Such an inquiry is nothing new; there have long been articles on Jimmy John’s use of covenants for sandwich makers and summer camp counselors. Continue reading

CT Corporation in Fulton Moved?

Just heard a rumor that CT Corporation relocated its offices from Fulton County to Gwinnett County last Friday (May 5, 2017). So if CT Corporation is the Registered Agent for a corporate entity – venue over that entity just moved to – and Fulton Marshal’s and Sheriffs’ offices cannot serve summonses, etc. there anymore.

You have been warned.

(h/t to the great Rob Spears


Fiduciary Duty CLE

I am honored to again have the opportunity to again present as part of Strafford Publication’s national webinar, “Fiduciary Duty Litigation in Business Disputes: Identifying Causes of Action, Key Defenses, Remedies and Proof,” on *May 23, 2017* at 1:00 pm EST.

I have a limited number of complimentary registrations that I can offer. If you are interested in attending, please let me know. or 404-348-4881.

Hey – That’s NOT Your Property! Even if you “Own” It!

Alright, so the heading is a bit misleading. But I really wanted you to read this post!

The simple fact is that  – when talking about Limited Liability Companies (LLCs) in Georgia – it is a true statement.  Kind of.

LLCs are a very popular form of incorporation. They can have one member or a hundred. And they can be created with the click of a button and payment to the Secretary of State, all without having to first create an underlying set of corporate documents.

Continue reading

Judicial Elections: They Matter

I’m not going to talk about cases, civil procedure or other actual legal issues today.  Instead, I want to remind everyone of their civil duty to vote.   While many Georgians are looking towards the national General Election in November, they are overlooking a fast-approaching election on May 24, 2016.  The Georgia Secretary of State refers to this as the “General Primary Election, Nonpartisan General Election, and Special Runoff Election.”  But it should be more well-known as the Judicial Election.

On May 24, 2016, the polls open to allow the public to vote on their Judges. (There are other elections to be sure, but we don’t care about them here).  Unfortunately, the election does not occur at a commonly understood time, and voting rates reflect this.

According to the Georgia Secretary of State’s records, only 29% of Cobb County’s Registered Voters voted in the July 2012 General Election.  And Fulton County’s rate was a similarly small 25%, with DeKalb County beating them both with 30% of registered voters casting a vote.

Continue reading

Do This NOW to Prepare for the New Federal Trade Secrets Law

H/T to Eric Ostroff and his blog for this timely post. Trade secrets claims can be strong claim in Georgia, especially if a confidentiality or non-disclosure covenant is void. But, of course, the facts must warrant and justify the claim!

Protecting Trade Secrets

The Defend Trade Secrets Act (DTSA), which creates a federal cause of action for trade-secrets misappropriation, will be signed into law by President Obama in the coming days. This new law will have a substantial effect on where, and how, trade-secrets cases are litigated. Now is the time to figure out if your company is ready for the new law.

Since the DTSA’s definitions of trade secrets and misappropriation are largely similar to those in the Uniform Trade Secrets Act adopted by most states, I’m most concerned about making sure companies are minimizing the risk that they will unexpectedly be hit with a seizure order.

As has been widely discussed and debated, the DTSA contains an ex-parte seizure provision that authorizes judges to order the seizure of property containing the plaintiff’s trade secrets. While there are substantial protections to prevent abuse of this remedy, companies need to make sure they are not at risk of having their…

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When A Business Divorce and Facebook Page Go Bad…

This week, we look at the Georgia Supreme Court’s ruling in Davis v. VCP South, LLC et al., 297 Ga. 616, 774 S.E.2d 606 (2015), reconsideration denied (July 27, 2015).  But I want to focus on two things – how to value a LLC when it’s owned 50/50 and the evolving role that Facebook and social media can play in business divorces. Continue reading

When is a Loser a Winner?

Normally, when a jury finds for a claimant, but then awards no damages, then that is viewed as a defense verdict.  After all, damages are generally a required element of a claim.

But if the jury finds for a claimant, but awards zero damages – are they a “prevailing party”?  At least one panel of the Georgia Court of Appeals says yes.

In HA&W Financial Advisors LLC v. Johnson, an employer (HA&W Financial) sued an employee (Johnson) under an employment agreement.  A15A2298 (Ga. App. April 19, 2016).  The contract had a contractual attorneys’ fees provision that entitled “the prevailing party” to recover fees if either party sought to enforce the agreement. Continue reading