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

A New Look at an Old Problem – Spoliation of Evidence

Spoliation.  A lawyer’s four letter word.  Spoliation occurs when evidence that is necessary to contemplated or pending litigation is either destroyed or otherwise of not preserved.   Piedmont Newnan Hospital, Inc. v. Barbour, 333 Ga App. 620, 629-30, 774 S.E.2d 822 (2015).  And it is then presumed that the lost evidence would be harmful to the “losing” party.

For a long time, this standard was acknowledged to be that a party was under an obligation to preserve evidence once they were on notice that there would be or was active litigation.  This was frequently believed to require actual notice, i.e., a written demand letter or physical receipt of a Complaint. Continue reading