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Tradition of Excellence Awards

Mark Dehler, Chairman of the GeneralPractice and Trial Section, presents the

2003 “Tradition of Excellence” awards to (r-l) Judge H. Arthur McLane,

Hugh B. McNatt, T. Hoyt Davis, Jr. andBilly Ned Jones.

Vol. VII Summer 2003 No. 3

GENERAL PRACTICE AND TRIAL SECTION STATE BAR OF GEORGIA

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Winburn, Lewis, Barrow & Stolz, P.C.Winburn, Lewis, Barrow & Stolz, P.C.279 Meigs Street

Athens, Georgia 30601706/353-6585

Congratulates the

2003

“Tradition of Excellence Award”Recipients

Thomas Wm. Malone, P.C.Thomas Wm. Malone, P.C.Two Ravina Drive

Suite #300Atlanta, Georgia 30346

Congratulations to the

2003

“Tradition of Excellence Award”Recipients

c

Joe A. Weeks, P.C.Joe A. Weeks, P.C.23 N. Avondale Road

Avondale Estates, Georgia 30002

Congratulates the

2003

“Tradition of Excellence Award”Recipients

Congratulations to the

2003

“Traditionof Excellence Award”

Recipients

2 East Bryan Street/Tenth FloorSavannah, Georgia 31401

(912) 233-9700Fax: (912) 233-2281www.epru-law.com

GAMMON AND

ANDERSONA T T O R N E Y S A T L A W

W. WRIGHT GAMMON, JR.

BRAD J. McFALL

STEFANIE E. DRAKE

OF COUNSEL:

WAYNE W. GAMMON

JOSEPH N. ANDERSON

P.O. Box 292Cedartown, Georgia 30125

Telephone (770) 748-2815Fascimile: (770) 749-1811

www.gammonanderson.com

n Chairman’s Corner 2

n 2003 Tradition of Excellence AwardsJudge H. Arthur McLane 4Introduction: Wayne Ellerbee

Billy Ned Jones 8Introduction: Noel Osteen

T. Hoyt Davis, Jr. 12Introduction: Honorable Hardy Gregory, Jr.

Hugh B. McNatt 14Introduction: U.S. District Judge Anthony A. Alaimo

n Tradition of Excellence Breakfast and Reception 18Annual Meeting, June 12-15, 2003, Amelia Island, Florida

n The Death of Juror Rehabilitation: 20Jury Selection After Kim v. WallsAdam Malone

n Trial Court’s Role as the Safeguard in Reviewing Verdicts 22D. Gary Lovell, Jr.

Cal Callier

Betty Simms

W. Wright GammonChairCatherine H. HelmsChair-ElectTBASecretary/TreasurerMark DehlerImmediate Past Chair

Jim PannellCatherine H. HelmsJefferson C. CallierStephen M. OzcomertRobin ClarkWilliam S. GoodmanW. Wright GammonVirgil AdamsDennis CatheyJames I. RobertsSusan HowickRobert W. Chasteen, Jr.Thomas Burnside, Jr.Clifton G. SpencerMiles E. EastwoodLaura AustinKellie R. Casey

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 OliverWilliam L. Lundy, Jr.Joe A. WeeksWilliam L. Lundy, Jr.John W. TimmonsSally AkinsS. Lester Tate, III

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Vol. VII Summer 2003 No. 3

Calendar Call is the official publication of the General Practice and Trial Section of the StateBar of Georgia. Statements and opinions expressed in the editorials and articles are notnecessarily those of the Section of the Bar. Calendar Call welcomes the submission of articleson topics of interest to the Section. Submissions should be doublespaced, typewritten onletter-size paper, with the article on disk together with a bio and picture of the author andforwarded to Cal Callier, Taylor, Harp & Callier, P.O. Box 2645, The Corporate Center,Columbus, Georgia 31902. Published by Appleby & Associates, Austell, Georgia

GENERAL PRACTICE AND TRIAL SECTION STATE BAR OF GEORGIA

“Georgia’s Largest Law Firm”

EDITOR ARTICLES

EXECUTIVE DIRECTOR

2003 0FFICERS

2003 BOARD

2003 TRUSTEES

The Tradition of Excellence Recipients for 2003were presented their award at the GeneralPractice and Trial Section Breakfast June 12,2003 in Amelia Island, Florida from left to right,Billy Ned Jones, T. Hoyt Davis, Jr., Hugh B.McNatt, Judge H. Arthur McLane and MarkDehler, Chairman of the General Practice andTrial Section.

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There have been relatively fewoccasions during my adult life whentears have been shed, not because ofphysical pain or the death or illnessof a loved one, but because of pridein my profession and those whopractice it. I, along with most allothers I later questioned, did indeedbecome emotional during certainparts of the Tradition of ExcellenceAwards Breakfast held at the AmeliaIsland Plantation during the June2003 Annual Meeting. Heartfeltcongratulations to the recipients ofthe 2003 Tradition of ExcellenceAward: Hugh B. McNatt of Vidalia,Georgia,Defense counsel; HonorableH. Arthur McLane of Valdosta,Georgia, the recipient from the

Bench; Billy Ned Jones of Hinesville,Georgia, as the honored Plaintiff’sattorney and T. Hoyt Davis ofVienna, Georgia, as recipient of theGeneral Practitioner Award.

To paint a better picture of why Ibecame emotional, it is important tounderstand first of all that I am theson of an old country trial lawyerwho recently began his fifty-thirdyear as a member of the Bar. I wasraised in my small town ofCedartown at a time when some ofthe older folks called lawyers“Colonel” and an especially appre-ciative client might drop off somefresh pork sausage from one of hishogs. Along with recollections suchas that came certain advice on how Ishould practice law. One of the mostmemorable has always been whenmy father told me that, “Son, takecare of your client’s business anddon’t worry about the money. Themoney will take care of itself.”

Well, when Hardy Gregory tookthe podium, all those in attendancewere treated with the most conciseand eloquent description of what ageneral practitioner should strive tobe that was ever delivered, at least inmy presence.

“...and the little town was betterfor it.” That is the refrain of Mr.Gregory’s introduction with theremaining prose colorfullyhighlighting the service to his fellowcitizens bestowed by Mr. Davis in hisover fifty years of practice in a small

town in south Georgia. By allaccounts a town much the better forMr. Davis’ presence.

I hope that you all will read Mr.Davis’ introduction and actuallywish that it had been videotaped.Thankfully, it, along with the otherfine introductions were transcribedthanks to Brown Reporting.

After reading the transcript, wecan draw an accurate picture of whatthe general practitioner should striveto accomplish during his or herlifetime. As a general practitionerand member of the Bar, we shouldstrive to involve ourselves in civicleadership and give our time tovolunteer causes. All of us, I amsure, strive to practice law at thehighest level of competenceattainable and thereby bring creditupon the Bar and effective service toour clients. All four recipients of the2003 Tradition of Excellence Awardshave been successful in reachingthese goals and are to be held out forall of us as examples of what shouldand can be done.

In beginning my year as Chair, Iwish to thank past Chair MarkDehler. Mark performed his dutieswonderfully in a time when Sectionmembership has dropped drasti-cally. Many of you may not realizebut all Sections of the Bar droppedsubstantially in membership rollsfollowing the terrorist attacks ofSeptember 11, 2001. Mark, alongwith the help of ever-able Betty

CHAIRMAN’S CORNER By Wright GammonSection Chair

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Simms, made great strides last yearin attempting to recapture some ofthe Sections prior membership. Ipledge to do the same in the future.

In closing, I hope that thetranscribed introductions of ourrecipients evoke in you some of thepassion and pride for the legalprofession as it did in me. With yourassistance and support, let this

Section do its part in encouragingdiscussion of some of the recentlegislative agenda dealing with suchissues as “tort reform” and thethreatened revamping of thecriminal sentencing laws as well asprovide the services to our membersas we have in the past. As most ofyou probably know by now, BettySimms, our executive director has

always, and continues to dowonders with the budget and timeallotted. Hopefully, we can makesome inroads to expanding theseservices in accordance withmembership increases.

Please read and enjoy this editionof Calendar Call and let us knowhow we can better serve you in thefuture. n

Join us for:

GEORGIA’SIst ANNUAL

SOLO AND SMALL FIRMINSTITUTE AND TECHNOLOGY

SHOWCASE

“Turn on the Power”September I1-13, 2003

Savannah Marriott Riverfront HotelSavannah, Georgia

(Brochures will be mailed in the next few weeks from ICLE)

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Good morning, Ladies andGentlemen, and all of those specifi-cally and especially all of those whoMark named. It is a distinctprivilege and honor to be here tointroduce the Chief Judge of theSuperior Court of the SouthernJudicial Circuit as the recipient ofthis year’s Tradition of ExcellenceAward in the judicial branch.

And I really felt honored andamazed that I was chosen, and I felthumbled by it. And this was reallybrought home when two days afterI received the notice that I would beallowed — that I was asked tointroduce Mack, I got a bill for $24for the breakfast here today. Andso, you know, I really didn’t knowhow to take it. I am a littleambivalent about it, but I did have achance to talk to Miss Betty a fewdays later whom I found out runsthis section, and I sort of brought itup, and she said, Well, Wayne, youknow, I talked to Mark and Markknows you and he knows all thepeople that are going to be here andhe was afraid that once they find outyou are going to introducesomebody, they won’t show up and

we need the money, so that’s thereason we charged you. But she didclear that up, that was just amistake, they didn’t charge me.

Mac and I go back a long way.We started off in law schooltogether, and you may wonder whyI look 10 years older than he does, isbecause he never had the oppor-tunity to sleep outdoors as much asI did. He behaves himself anddidn’t have to do that. But, Mac is atruly wonderful person and whenyou hear what I have to say abouthim that many people don’t know,you’ll understand that goingforward in life was truly an abilityof his that led him toward thisTradition of Excellence.

It didn’t just start off, and it justdidn’t arise because he’s an attorney,and it just didn’t come about becausehe’s a judge. It came about becauseof every part of his life has been aTradition of Excellence.

It began at an early age when hedid something that many of us thinkwe are going to do or want to do orgoing to try to do, and that isbecome an Eagle Scout, which issomething that Mac did and

Introduced by

Wayne Ellerbee

TRADITIONOFEXCELLENCEAWARD

Judge H. Arthur McLane

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something that set the tone for thetype of person that Mac is and thelife that he’s led, both professionallyand personally.

He was subsequently active in theScouts and has continued to beactive to the point that he receivedthe Distinguished Citizen Award ofthe Alapaha Council of the BoyScouts of America in the year 2002.Now, how many of us have had theopportunity to be that involved withscouting during our lifetime andhave taken it? That’s just one of thethings that marks this person as aworthy recipient of the Tradition ofExcellence.

Mac was born and raised inValdosta and continues to live there.He spent his whole life dedicated tothe community and to theprofession right there in southGeorgia. He graduated from Emory,Emory University, and went on tolaw school at the University ofGeorgia, which is where I met him.He was a year ahead of me and hedistinguished himself at theUniversity of Georgia as beingamong other things the ExecutiveEditor of the Student Editorial Boardfor the Georgia Bar Journal and hepublished approximately fourarticles while he was in law school.

He was a Blue Key NationalHonor Fraternity member, PhiKappa Phi, and you know in SouthGeorgia if you are not going to be aKA, you must be an SAE. That’swhat he is, he was an SAE in college.After law school is when Mac beganhis life that led him toward thishonor today. We’ll talk first abouthis professional life as an attorney.

He began shortly after leaving lawschool and being admitted to thebar. He was selected as the countyattorney for Lowndes County in thecapacity that he served for severalyears. He subsequently went on tobe the part-time state court judge inLowndes County, and was in thatcapacity as a practicing attorney andas a state court judge from 1974 or

‘75 until 1983.Now, as an attorney, Mac distin-

guished himself in many areas. Oneof the areas was in the criminal lawarea. I don’t know if any of y’allremember but back when he and Istarted practicing law, indigentdefense was the youngest lawyersthat got out of law school that gotappointed to all the criminal cases.And the judge that called you upabout two days before trial, whichwould be about one day after theindictment was entered, and hewould say, either to Mac or to me orto Wade Copeland or ConverseBright or whoever it might be, thatwas the bar, that was the indigentdefense group because we were thefour that got out of law school thesame year. So we got all theappointed cases in LowndesCounty.

Well, one year Mac got appointedto defend an escape case. Well, wehad a superior court judge and backthen a solicitor general that traveledthe circuit as a team. And by that, Imean they went around convictingeverybody they brought to trial. Itwas just a part of the judicialprocess. And I’ve heard the judgetell the solicitor on many occasions,“Now, you get your strongest casesand we are going to convict them.”Well, they did. Both of them.

And so that was what we as thecriminal defense lawyers were facedwith. Well, on one occasion, Macgot appointed to defend this escapecase. And we’d been practicing lawthree or four years and he went totrial and he won the case andimmediately got off the criminalappointed list. But now — but, now,just to show you what the case —and I mean the judge fully expectedhim to be convicted and so did thesolicitor, and of course, all of theother people that counted, such asthe chief deputy, the clerk, andeverybody else, they all knew hewas going to get convicted becausehe was charged with escape.

But it just so happened that Macused, as he says, pure logic todefend the case. The man wasstopped by the city police in aconvict uniform, picked up, and hesaid why aren’t you — youknow,where are you supposed tobe? He said, “Well, I’m in the countyprison out here,” so they chargedhim with escape. They forgot to askhim why he was standing on theside of the road.

And it turned out that he wasemployed to work on the motorgrader for the county, and so he wasriding on the back of the motorgrader and fell off. And he wastrying to get somebody to get himback to the motor grader so he couldget back on it. And he told Mac,said, “Well, if I wanted to escape, itwould have been real easy becausethe motor grader operator took themotor grader home for lunch everyday and I had to sit on the motorgrader for two hours while he ateand took a nap. He said, “You knowI wasn’t going to escape if I had hadthat time.”

“Well, that ended Mac’s career asan appointed criminal attorneywhen he won that first case. Notonly were the judge and solicitormad but so was the warden at thecounty camp because he figurednow everybody was going to usethat as an excuse when they gotcaught trying to escape.

But that was just one of the manycases that Mac distinguished himselfin as a practicing attorney. And ashe got on the bench, he reallyexcelled in his ability to listen to thecases, to be able to keep the lawyersin line as they should be. Andduring that period of time as thestate court judge, he developedseveral friends. Of course, most ofthem were the criminals that camein front of the judge charged withsomething.

But one of them was a case wherehe had had a fellow that came to

Continued on next page

court just about as often as JudgeMcLane did. He was there justabout every single court. And it wasalways a criminal case. It wasalways some petty criminal charge.And so, on one occasion the lawyerand the client came in with a newdefense. The client pled that he was— he had an insanity plea, and toldthe judge that he wasn’t competentto go to trial to answer those chargesand his lawyer agreed.

So the judge did a little inquiringand said, well, you know, hepointed to the chief deputy, and hesaid, “Well, who is this? He said,“Well, that must be the governor.”This is what the criminal defendantsaid, and Mac asked him about theclerk, and he said, “Well, she mustbe the Governor’s wife,” and it wentaround. I mean he just was notresponding to the questions like heshould trying to establish his plea ofinsanity.

And so finally Mac says, “Well,who am I?” And the man looked athim and he says, “Why you are thesupreme ruler of the universe.”Judge McLane says, “I will declarethat you are sane.” And the lawyerstood up and said, “I agree.” Andthey went to trial. So those weresome of the people that Mac had todeal with.

And of course, one of his favoriteswas a young lady named TinyEdwards. Now, Tiny doesn’t meanshe was small. Tiny was, oh, three,three-fifty, somewhere along inthere. One of the few people thatweighs more than I do. But Tinycame into court and she was badabout if you made her mad shewould just start disrobing in court orstart doing something bizarre to getout of whatever she was faced with.But she took a liking to JudgeMcLane because he treated her fairlyand he treated her nicely.

And on one occasion he hadsuspended her sentence or given her

some light sentence and she left thecourt and she turned around andsaid, “Judge, you know, you sureare pretty and I bet you make prettybabies.” So he developed him a realfriend there.

But putting all of the little warstories aside, let me tell you a littlebit about what Mac has achieved inhis professional and civic andpaternal life. Of course, in college hewas a member of the Gridiron, he islisted in Who’s Who in the southand southeast, he was a partner in asmall law firm for several years andhe got to be judged, as they used tosay at Smith Barney, the oldfashioned way, he earned it. Heworked hard as an attorney, heworked hard as a civic leader, heworked hard as the state court judgeand he was unanimously selected bythe Bar to support him in his initialattempt to be a superior court judge,and he’s never had any oppositionsince he was elected in 1983.

Now, since then, or during thisperiod of time as an attorney andjudge, he has been President of ourValdosta Bar Association; he hasbeen on the Board of Directors of theBoys Club, he was President in 1971,he has been on the Chamber ofCommerce since the 1980s, he wasPresident in 1986.

He’s been a member of theValdosta Rotary Club since 1971,and he was President of theValdosta Rotary Club in 1984, he’sbeen on the Executive Board of theGeorgia Sheriff’s Boys Ranch, andhe was Chairman in 1982 and 1983,and for four years he was onLeadership Georgia, he was thevice-president one year. He wasChairman of Leadership Lowndes.He’s been on the visiting committeeof the Schools of Arts of the ValdostaState College, now Valdosta StateUniversity. He’s been on theSymphony Board.

He’s been with the Valdosta/Lowndes County 2000 PartnershipExecutive Committee for eight

years. He’s, of course, been on theCouncil of Superior Court Judgesand he was the President in 1995and 1996. And he was on theexecutive committee from 1998 to2002, and he’s been the Adminis-trative Judge of the Second Districton two separate occasions.

Now, like most, if not all jurists,you know, you are required to bemore than just excellent in yourprofession, you look to support, andMac’s support has been in thechurch as with many leaders. Andhe is an active member at the ParkAvenue Methodist Church. He wasa lay leader from 2001 to 2003,Secretary of the Official Board. He’sbeen on the Board of Trustees. Hewas chairman of the Trustees for oneyear. He’s been a District Stewardand Sunday School teacher formany, many years.

He’s a delegate to the annualconference. He’s on the pastor/parish relations committee, and, youknow, I can’t think of a job muchworse than that when you try tokeep the preacher and the congre-gation together and going in thesame direction. He was chairmanon two separate occasions of that.He’s been Chairman of the Admin-istrative Board and he’s been on thecommittee on the Episcopacy of theSouth Georgia Conference 2000 untilpresent. He’s been on theCommittee on Resolutions, adelegate to the JurisdictionalConference, and he’s been a layleader in the Valdosta District andon the Committee of Superinten-dents. Now, to me, that’s a Traditionof Excellence. When you can lookback and you can say that this is thetype of life that I have led and this iswhat I stand for.

And during this period of time, athis side has been his wife, Jane. Ifirst met Jane at law school, also.She and Mac were married and theywere the proctors. I don’t knowhow many of you went to Georgia, Idon’t know how many remember

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H. Arthur McLaneContinued from page 5

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the days of contract/no contracts, orlet’s talk about the Flint River a-re-a,as Judge D. Lee Fielder would say,but we were all back there then andMac and his wife were the proctors

at the law school and graduateschool dorm, which was right acrossthe street from the law school. Andthey ran that for three years while hewas in law school. She’s been with

him every step of the way. Theyhave two lovely children and twograndchildren, and I submit thatthat’s a Tradition of Excellence. n

Thank you, Wayne, for that good introduction.You know, from an introduction that nice, youwould never be able to guess that he’s got threediscretionary motions pending in my court.

I do appreciate what he said about me though.We have been friends for a long time and I’vetreasured his friendship and have appreciated allthat he’s done to make things much better in theJuvenile Court in Lowndes County and in thelegal profession as a whole.

I’ve been very blessed. Oh, I want to go backand say one other thing. Wayne sat sometime onthe PPR committee at the Baptist Church, it’s yourduty to keep the congregation and the preachertogether. Actually, for any of the rest of you whomay have served in that position, sometimes youknow it is bigger job trying to keep themseparated. But that happens, too.

I have been very blessed in my life. I’ve beenblessed by a good God. I have been blessed byhaving a good and loving wife, and good parents.I have been blessed by having mostly decentrelatives, with the exception of those few whoright after I got appointed to the bench suddenlydeveloped a very strong and familial bond withme. They recognized immediately how muchthey had really treasured and trusted me

throughout the years.I have been blessed by having two wonderful

children, two wonderful grandchildren. I havebeen blessed by having good friends, supportstaff, and in the legal profession I have been veryrichly blessed by having a number of mentors androle models who shaped and molded my profes-sional career for the good, the bad things I messedup all by myself.

But some of those mentors never knew theywere mentors, and have not known that. Some ofthe role models have not known they were rolemodels. And a good many of them are peoplewho are past recipients of this award that is beingpresented here today. This is something that Iappreciate very much. I’m deeply humbled, I’mdeeply honored by the award that you have givenme today.

When you are honored by your colleagues Ithink it is always a very special and a verytreasured thing to have happen to you because, atleast in part, when your colleagues do somethinglike this for you it is in spite of who you are as wellas because of who you are.

I am grateful, I am honored, and I thank you forone of the most outstanding highlights of myprofessional career. Thank you. n

Remarks byJudge H. Arthur McLane

http://www.gabar.org/SectionDisplay.asp?ID=-1&Section=11

Good morning. It is my pleasureand distinct privilege to introducemy long time friend and lawpartner, Billy Jones, the recipient ofthis year’s Tradition of Excellenceaward to a plaintiff’s attorney.

Having served as past presidentof the Georgia Trial Lawyers Associ-ation and successfully litigatedhundreds of cases on behalf of hisclients, Billy has rightfully distin-guished himself as one of our state’spreeminent plaintiff’s lawyers. Andthough I know that Billy is proud tobe a plaintiff’s lawyer, it is not hisachievement in the courtroom alonewhich we recognize today, rather aswith this morning’s other honorees,it is Billy’s untiring efforts to enrichthe lives of those in his community,his state, and his profession we canin large measure commend.

These efforts have been notableand have had a great influence onmy life and countless others, manyof you who are in attendance heretoday. Billy, or as we say below thegnat line, Billy Ned, was born andreared in Reidsville County,Georgia. His father, Ned Jones, wasa long distance truck driver and on

many occasions Billy and hisyounger brother, Bobby, wouldjump on board that 18-wheeler andthey would take off to New York,Philadelphia, Chicago, wherever.

These experiences had a greatinfluence on Billy’s life, as they gavehim a chance to see people fromvarious backgrounds and to observethese people. And these experiencescoupled with his southern hick ruralheritage has made Billy a peopleperson. And I tried to think of abetter word than people person butI really can’t think of a better wordthan a people person.

And one cannot really be aneffective plaintiff’s lawyer withoutcaring for people, and Billy cares.Billy still loves to travel, and don’ttell him let’s take a trip unless youare deadly serious about it. Youbetter have your bags packed andready to go because Billy keeps achange of clothes and a set of golfclubs in each of his vehicles.

In 1972, Billy graduated fromMercer University and he returnedto south Georgia to practice law,where initially he was in the DA’soffice. He was an assistant DA for a

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Introduced by

Noel Osteen

TRADITIONOFEXCELLENCEAWARD

Billy Ned Jones

short period of time, for about ayear, and then he joined the firmwhich is now Jones, Osteen & Jones,and we have been practicing lawtogether for 30 years.

One of the other honorees heretoday, Hugh McNatt, and Billy wereclassmates in law school. And Iknow y’all all would agree with methat that’s an interesting twosome.In fact, if you will notice, they areboth dressed identically, evenwearing the same flower. Now,what’s the odds of that justhappening? There was someplanning going on.

It is in Liberty County where Billystill resides with his lovely wife of 27years, Mary Ann, who is seated herewith Billy, together they have raisedtwo sons, Jason, who is 25, whograduated from the University ofGeorgia, and Graham is 20, and hewill be a senior at the University ofGeorgia this year.

As with most trial lawyers, Billybegan his career by representing avariety of clients in matters of allsorts before later concentrating onwrongful death, product liability,and other significant personal injurycases. It is in this arena that Billy hasgained the esteem and respect of hiscolleagues, clients and the judgesbefore whom he has practiced.

In fact, a significant portion ofBilly’s practice comes from lawyersassociating him on their cases. AndI can’t think of a higher honor thananother lawyer asking you to helphim or her with a case.

Among his many professionalaccomplishments, Billy is a fellow ofthe American College of TrialLawyers, a member of the Interna-tional Society of Barristers, and amember of the American Board ofTrial Advocates, serving in 1996 aspresident of the Georgia Chapter.As I mentioned earlier, Billy alsoserved as President of the GeorgiaTrial Lawyers Association in 2000,and I can tell you that is one ofBilly’s personal highlights. That’s ayear that I think Billy has enjoyed

more than any other time in his lifeto be associated with people.

I don’t know a lot of you as well asBilly does. I met a lot of you lastnight. I’ve seen you today, and I canunderstand why Billy is so proud ofthat year leading Georgia TrialLawyers Association. And from ‘79to ‘85 he served as a member of theBoard of Governors for the State Bar.Importantly Billy’s efforts are notlimited to our profession but extendto his neighbors and state.

While time does not permit me tochronicle all of Billy’s contributionsto the public, his involvement in thecommunity has been and continuesto be exemplary. He served aspresident of the Liberty CountyYMCA for five years, President ofthe Liberty County United Way forfive years, and as campaignchairman for the organization in2000. President of the HinesvilleRotary Club and a member of theBoard of Directors of theLiberty/Hinesville Chamber ofCommerce as well as a member ofthe Coastal Empire Boy Scout andthe Coastal Empire Girl ScoutCouncil.

While president of the LibertyCounty YMCA, Billy successfullyled a drive to raise sufficient fundsto build a state of the art YMCAfacility that would be the envy ofany community in Georgia. Andthat YMCA facility has probablymeant more to Hinesville andLiberty County than almost anysingle thing that I can really think of.It is really utilized by thecommunity, complete withswimming pool, gymnasium, and itis really a wonderful addition to ourcommunity.

In 2002, Billy was appointed byGovernor Barnes to the State EthicsCommission, and he also serves as amember of the Board of Directors ofthe Coastal Bank of Savannah.There’s a song that all of you thatknow me know that I am a countrymusic fan. And you don’t say thatyou are a country music enthusiast

because if you are a country musicenthusiast, you are really not acountry music fan. Fan’s the word.

There’s a song by George Jonesthat talks about country musicgreats, and some of the lyrics go likethis, and I’m sure a lot of you’veheard it: “You know the heart ofcountry music still beats in Luke thedrifter, you can tell it when he sangI saw the light, ole Marty, Hank, andLefty, why I can see them right herewith me on this Silver Eagle rollingthrough the night,” and here’s thepoint I want to talk to you about,“Who’s going to fill their shoes,who’s going to stand that tall, who’sgoing to play the opry and theWabash Cannon Ball? Who’s goingto give their heart and soul to get tome and you, Lord, I wonder who’sgonna fill their shoes, yes, I wonderwho’s going to fill their shoes.”

The State Bar has always beenblessed with lawyers of excellencewho are concerned about our stateand our communities. I’m sure thatin the past when these awards werepresented, some may havewondered, who’s going to fill theirshoes. In this case, Billy and theother recipients who are beinghonored today, have steppedforward to fill those shoes. And thegood news is that in the future, othergreat Georgians will continue thisTradition of Excellence.

Billy Jones is a worthy recipient ofthe Tradition of Excellence Award. Icongratulate you, Billy, for thisrecognition by your fellow membersof the Bar. Thank you. n

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Thank you very much, Noel, and thank you forpointing out that Hugh McNatt and I are dressedexactly alike. That is sort of funny. Noel is just a greatguy to practice law with. It is great to have a lawpartner that works twice as hard as you do, that is atleast two or three times smarter than you are, andnever wants to make a draw. It is great to have thatpartner.

I really am deeply honored and deeply humbled tobe awarded the Tradition of Excellence Award, and Iwant to take just a second to thank some of the really,really important people in my life, including Noel, butcertainly the most important person in my life and theone that has meant most to me over the years has beenmy wife, Mary Anne.

She in her own right exemplifies theTradition ofExcellence. She has been a wonderful wife to me andwonderful supporter. She is one of the only ladies Iknow who has won two state championships in twodifferent disciplines. She has won a state champi-onship in tennis and a state championship inhorseback riding and operates a successful trainingstable and horseback riding stable and just awonderful lady and has been certainly the backboneand the light of my life.

Together, we’ve raised two fine sons. I’m sorry theycouldn’t be here today. One is on the plane headed forLondon for his first trip to Europe this summer and theother one is at work, couldn’t get off from work todaybut I wish they could be here.

I also want to quickly thank the judges of my circuit,and I do that out of a sense of respect for them andhonor for them because they really are the ones thathave helped me over the years and helped me getwhere I am today beginning with two guys who aredeceased, Judge Paul Caswell, who I first practicedunder quite a good bit and had a great deal of respectfor; and then my dear friend, Max Chaney, who I wentto work with when he was district attorney. I workedunder him for a while then he became a superior courtjudge and died prematurely, and if you ever havesomebody that you are that close to and really love,admire and respect and lose them, you never forgetthem. He was a great guy and a great leader.

We also have great superior court judges in mycircuit, I want to recognize them, mention them, JudgeCavender, Judge Russell, and Judge Vaughn, and lastbut certainly not least, is Judge Rose who is here todayand I appreciate Judge Rose coming. I have noticed,however, since Judge Rose went on the bench his golf

game has improved dramatically.Just this week, he had an eagle on a par 5. I played

with him. He knocked the second shot stiff about twofeet from the pin, easily knocked it in for are an eagle.Then Tuesday afternoon, he says after four butnobody can find any record of him being in court thatday, that he had a hole in one. That’s a pretty goodweek.

There’s also another judge here who has had greatinfluence in my life, and he probably didn’t know it,and didn’t realize it, he’s had a great influence and agreat impact on many young lawyers throughout thisstate, and that’s Judge Alaimo. Judge Alaimo, I havethe highest and deepest respect for you and what youhave done for the Bench and for the Bar.

And it is guys like this that I have always emulated.As Noel said, I was born in south Georgia, I had a veryearthy upbringing as Noel would describe it. But I diddo this: I had to work alongside and next to a lot ofpeople, people from all races and all creeds and allbeliefs and all backgrounds and everything else. AndI really did learn to love people and I learned to respectpeople for their own uniqueness and their ownspecialness and what attributes God gives each of usand what everybody brings to the table. And I learnedto realize that each of us have that special importanceand special uniqueness in his or her own way.

And I really learned that it’s the working man orwoman of America who has made this country such agreat country. I think I really became a lawyer becauseof my Sunday school teacher there in Reidsville, whowas a wonderful gentleman named John Raybornwho practiced law for many years in Reidsville. AndI sort of began to emulate him without knowing whatemulating meant. I wanted to live the kind of life thatI saw him lead. I saw him in the community as anactive and respected man. He was involved in thecommunity, in every aspect of the community, andwhat little success I may have attained, I attained byemulating people like him that I respected.

All of you in this room share this award from thoseof us who are receiving it today because each andeveryone of you have exemplified the ideals of whatthis award stands for. I salute more than I accept thisaward on behalf of myself. I’ve sort of followed andemulated guys like Edgar Neely, Bobby Lee Cook, andJudge Alaimo, Kirk McAlpine, Frank Jones, andCharlie Jones and Judge Gregory, who I’ve followedover the years and tried to follow this Tradition ofExcellence.

Remarks byBilly Ned Jones

11

That’s continued for the lawyers and friends ofmine who are here today and some of whom are nothere who have greatly influenced my life, AlbertRickert, Bob Brinson, Joel Wooten, Jay Cook, JimButler, Dennis Cathey, Paul Painter, and Judge Pope,all who have been people who have had a greatinfluence on my life. They are lawyers who stood forsomething, they’re lawyers who are involved in theircommunities, they’re lawyers who tried to serve thecommunity and better the community.

And I cling to a few of those tattered old virtueslike believing that you don’t get something fornothing, that you have to work for it and have todedicate yourself to the community and be involvedin the community.

On a briefly two second, two minute, serious note,I want to alert all of you of what I see as a comingcloud and a coming problem that we will have todeal with as lawyers, and I think we have a specialresponsibility as lawyers to maintain and improvethe administration of justice.

As advocates in an adversarial process, I think allof us have come to realize how important it is andhow crucial it is to have impartial justice, you musthave impartial judges. As a lawyer, I believe we allhave a special responsibility for the quality of justice.I have become recently and deeply concerned overattempts by many in our society to encroach on thenecessary and appropriate independence of ourjudges and the judicial system.

I believe all of us must be constantly aware ofefforts to make the judicial elections more partisan.If we allow that to happen, the public’s perceptionthat judges are impartial will be eroded.

I think we have been extraordinarily fortunate inGeorgia so far in that our state and our judicialsystem has largely escaped those attempts to controlour courts either through the election process orthrough media criticism.

The two recent comments in speeches by JusticeKennedy and Justice Breyer has strongly warnedthat substantial campaign contributions are corrosiveof judicial independence. Justice Kennedy hasobserved that the law commands allegiance only if itcommands respect, and it commands respect only ifthe public thinks that judges are neutral. JusticeCardozo’s view of the Bench and Bar all engaged inthe common task, great and sacred task, the admin-istration of justice is appropriate. I call on all of youin this room to become involved in the selection andappropriate retention and election of judges in thisstate.

There are approximately 25,000 federal and statecourt judges throughout this country. They rangefrom Justices of the Supreme Court and from justices

of the highest court of each of the 50 states to thosewho daily preside over trials of the criminal, civil,and family law matters.

As you know, some of those sit in majestic court-rooms surrounded by portraits of other judges whohave gone before them. Others must preside overcases involving an individual freedom and propertyin shabby surroundings in aging cities. Some ofthem conduct trials in county courthouses wherethey are well known and enjoy the respect of localcitizens. Many of these judges are overworked.Whatever the courtroom setting, the judge is a highlyvisible symbol of government under the rule of law.

Most of our judges are dedicated to work admin-istering justice, mostly for inadequate compensationand frequently with inadequate support andsurroundings. It is important. There is scarcesupport among the citizens or the legislators toremedy these inadequacies and a remarkable lack ofunderstanding as to the significance of the judicialrole.

Alexander Hamilton observed that the ordinaryadministration of justice being the immediate andvisible guardian of life and property contributesmore than any other circumstance to impressingupon the minds of the people, affection, esteem, andreverence for government. In the words of ChiefJustice Marshall, the role of the judiciary comes homein its effects to every man’s fireside. It passes on hisproperty, his reputation, his life, and his all.

All of us must recall our own roles as lawyers andas public citizens having the special responsibility forthe quality of justice and we should affirmativelyand continuously seek to defend the independenceand good reputation of our judiciary. We must allwork together to ensure for our children and ourgrandchildren that we continue this Tradition ofExcellence that we have enjoyed in this great state forso many years.

I call on all of you to engage with me and join withme in accepting the responsibility. Thank you. n

Franklin Delano Roosevelt toldthe country there was nothing tofear but fear itself. The smoke fromthe war was settling and ourhonoree began the practice of law onthe corner of Second and Union, andthe little town was the better for it.The fifties saw a touch of prosperityfor a few anyway. He helped themwith their farm loans, their landdeeds, and on occasion theirdivorces.

He worked for the prosperous, heworked for the poor, and hemeasured defeat accordingly andthe little town was the better for it.While John F. Kennedy invadedCuba, sent humans to the moon, andcalled the bluff of Nikita Kruschev,he applied his profession there onthe corner. He advised caution infinancial matters, fairness in thedistribution of estates, andcompliance with the law of the land,and the little town was the better forit.

Children were murdered inBirmingham, a whole race was fedup with it, and we got to knowabout Selma and Montgomery andAtlanta and Charlotte. Some raised

their ire and rattled their sabers, buthe advised tolerance, acceptance,and equality. If ever there was aclassic Greek in the 20th Century,believing in nothing to excess, andreasonableness in all things, it wasour honoree, and the little town wasthe better for it, a cut above some ofthe others.

So for 63 years as a lawyer in themold of Atticus Finch, he set thetone for business and life in thecommunity. He even has a grand-daughter named Scout. One whomakes the world a little better, ourhonoree has enhanced the status ofour profession and has given backmore than he got, and the little townand the whole world is better for it.

The little town is Vienna, about athird of the way from Valdosta toAtlanta, the man, T. Hoyt Davis, Jr.

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Introduced by

Honorable Hardy Gregory, Jr.

TRADITIONOFEXCELLENCEAWARD

T. Hoyt Davis, Jr.

13

I appreciate very much the intro-duction by Hardy Gregory, thefine things he said about me. Iwould rather hear them from himthan most anyone else in theworld because I know they comefrom the heart of a truly goodfriend.

This is indeed an honor to havebeen chosen by this section as oneof this year’s recipients of this fineaward. I humbly accept itknowing that there are many finelawyers in my state that are moredeserving of it than I.

I am especially pleased to

receive it at this stage of mypractice. I’m very grateful that Ihave had the privilege to practiceas a member of our honorableprofession for so many years andI thank you very much for theaward. n

Remarks byT. Hoyt Davis, Jr.

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But anyhow, I note that I am lastand I’m enjoined to be brief, and Iwill be brief, even though if I tried tomatch the physical size of thehonoree, we would be here allmorning.

Well, I say good morning to youand can’t help but note that Friday,the 13th, seems to be a propitioustime for this kind of an event. But, nomatter, because it is my own nonju-dicial lot to perform a very pleasanttask to present to you the honoree,Mr. Hugh McNatt.

Hugh Brown McNatt to be correctabout it, otherwise known as the sageof the Altamaha or the countyattorney of Uvalda. And I reallycommend you for making him arecipient of this Tradition of Excel-lence Award. It is almost, in a sense,I’ve thought oxymoronic, to say thatI can introduce him to you because hereally needs no introduction, and Ican add that particularly afterreading one of the issues last week ofthe Fulton Daily Report outliningand describing his legal performanceup there in that rather heady atmos-phere known as Fulton County.

In preparation for this event — by

the way, I’m more than 25 years olderthan Hugh so that I don’t have thewar stories that many of you havehad and have been able to relate thismorning — and as a matter of fact, Ithink I left the practice about the timehe came in or shortly after the time hecame in, so that I can’t tell you manyof the things that I’m sure most ofyou know, but I had some difficultywith preparing for this morning ingetting anybody to talk about him,believe it or not, and I couldn’tunderstand the reason why.

But, nevertheless, I assume it wasbecause they had so many goodthings to say about you, Hugh.Again, in preparation for this event, Iasked for and received a curriculumvitae on him, and as a result of it, Imust warn you never, never to askfor a CV from an associate because heor she will try to impress the boss bylisting every possible accolade,however small.

For instance, here we learn thatHugh won a spelling bee when hewas in the sixth grade. And, too,when he was 14 he received a meritbadge from the Boy Scouts forhonesty.

Introduced byU.S. District JudgeAnthony A. Alaimo.

TRADITIONOFEXCELLENCEAWARD

Hugh B. McNatt

15

But, seriously, as witness that he isdeserving of this award, let me recitesome of his significant accomplish-ments. One, of course, he married avery fine lady that you’ve all met thismorning, and actually fathered a niceyoung lady who is also a lawyerstarted out in Brunswick and endedup in Washington.

He graduated from MercerUniversity with a bachelor of artsdegree in 1969 and three years laterhe received a jurist doctorate degreefrom Walter George School of Law atMercer. And as a matter of fact, hewas articles editor of the Mercer LawReview — I don’t know whocorrected his English — and he wasadmitted to the Bar in 1972.

He is, of course, a member of theGeorgia Bar Association, theAmerican Bar Association, theFederal Bar Association, and he is afellow of the American College ofTrial Lawyers. He’s a fellow of theInternational Society of Barristers.He’s an Advocate of the AmericanBoard of Trial Advocates and was itspresident in 2000 to 2003, and he’s amember of the Defense ResearchInstitute, and the Georgia DefenseLawyers Association.

He’s a member of the uniformrules committee of the State Bar, he’sbeen a contributor and lecturer forthe Institute of Continuing LegalEducation. He’s a member of theGeorgia Code Commission, and

served as its secretary and now a vicechair. He’s a past member of theGovernor’s Workers’ CompensationCommission, and he has participated— and this is what is really signif-icant about him as being one of thegreat trial lawyers in this state — he’sparticipated in over 300 jury trials.How many more? He will tell you ina moment.

And in another vein and as aninsight to his personality, he has afull cardboard, lifesize cutout of JohnWayne in his office so that anybodygoing in, they can predict what toexpect from him. The only time thathe was known to be speechless waswhen he appeared with othercounsel at a pretrial before a visitingjudge that he did not know, and whoapparently did not know him, andwhen he stood up to say somethingthe judge asked if he was a lawyer.

And knowing he has one of themost penetrating whispers known toman, I’m told that during a trialwhen the defense counsel table wasnext to the jury box, and an opposingwitness was testifying against hisclient, he turned to an associate andcupping his mouth said, “He’s alying son-of-a-bitch.”

And he can pout. You can ruleagainst him, he can really pout likeall getout. Chief Judge WalterMcMillan wrote in the MiddleJudicial District about Hugh, and thisis what he said: “Hugh can be the

13th juror by his persuasive presen-tation, he can charm a trial judgewith a simplistic approach, and whennecessary he can be a Democrat, aRepublican, or a Liberterian, and beeither one with real conviction.”

“He charms Yankees with hissouthern demeanor. He has city folkat his feet with his country charmand Lord knows I’ve often been thevictim of these simple countrylawyers. He is the ultimate countryboy with his local friends and hewalks with kings and loses not thecommon touch as Kiplinger said.And has remade the rules of golf byrequiring his opponents to play thegame by the Uvalda rules, whateverthey are.”

He has tried some seven or eightcases before me, receiving favorableverdicts in each one of them, and he’sthe only one that has done that in my30 years on the bench. And I mustsay that obviously that thecatastrophe of success has notcorrupted him, to his credit. And Ifind him to be a person of impeccableintegrity, which in my book is thelodestar of any professional becausewe must continually remindourselves that at the end of the race,there is a fragile prize and that prizeis called reputation.

And so I commend this organi-zation again for selecting him for thisaward. All right, Hugh, come up anddefend yourself.

Back in the early seventies, I believe it was, I hadthe pleasure of loading up my good friend, Lamar(Boolebar) in Uvalda. I had just begun to practicelaw. We went up to Dublin to a fish fry for SenatorHerman Eugene Talmadge. And Lamar hadscraped up a little money. He had fives and tensand twenties, and he had them in a little paper

sack. All wrinkled up and it was $500.And we went through the receiving line and

Lamar handed to Senator Talmadge that littlepaper sack and Senator Talmadge took it out andcounted through it, he said, “LeMar, Son, I’moverwhulmed.” And I could just hear y’all, I’m

Remarks byHugh B. McNatt

Continued on next page

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overwhulmed with this.And I had the pleasure over the last few years of

introducing Judge Marion T. Pope when hereceived what my good friend, Judge Arthur MacMcLane has received this morning, and PaulPainter when he received what I have beenbestowed. And I thought if I invite Painter to saysomething about me, it would make Pope mad, andif I invite Pope it will make Painter mad, and I’ll justget Judge Alaimo to do it.

I’ll tell you, to be able to share this with myclassmate and my friend of some almost a lifetime,Billy Ned Jones, and my friend, Judge Mac McLane,both quail hunting buddies from time to time. AndBilly’s daddy and my mama literally grew up aboutthree miles apart as the crow flies down on theToombs/Appling county line. And we haveknown each other it seems all our lives. Obviously,I think a lot more of him than his brother doesbecause his brother didn’t even come to theceremony.

Bobby and I were together a few weeks ago andhe said, “I’m not going to come see you or Billyeither one.” I said, “Well, if you come to see one ofus, you got to see both of us.” He said, “I’m goingon vacation.” So it didn’t look good. It speaksvolumes about brotherly love. As Judge Alaimosaid, whatever you get in life you attribute to a lotof good luck, a little bit of hard luck — I mean alittle bit of hard work, and some hard luck to goalong with it. But you also, you look around andyou thank the people who have made your life.And I thank you, my wife, Lynn McNatt, and mydaughter, Helen B. McNatt, and most of you in thisroom whom I have known and worked with nowfor a little over 30 years. And with that, with thekind of friendships that are represented in thisroom, we can never go wrong.

I don’t have any message for you that most ofyou have not heard me preach in the past. It is asimple message, it is a message of professionalism,it is a message of civility. And one of my favoritelines in all the books that I’ve ever read and all themovies I’ve ever seen is one that I rememberWoodrow Comb in Lonesome Dove, when theYankee soldier had beaten his little illegitimate son,and Woodrow came up, played by Tommy LeeJones, came up on his horse, picked up a branding

iron and beat that Yankee soldier almost to death,until Gus McRae lassoed him and pulled him off.And Woodrow got up, brushed himself off, andvery simply said, “I cannot abide rudeness in anyman.”

I’ll tell you, when it’s all over, my client will thinkthat I’ve either — that Judge Alaimo has eithermade me pay too much money or Billy’s client willthink that Judge Alaimo made him not get enoughmoney. The jury will be mad with us, the witnesseswill be mad with us. We have taken them awayfrom their businesses, we’ve made them sit andlisten to our endless drone for hours at a time, wecalled too many expert witnesses, which I believehe says I pout, he says I pout about him not lettingme call enough expert witnesses, but when it is allover with, we ain’t got anybody but each other.

We are all that is left. And if we don’t learn to beadversaries without being contrary, then we willlose what we have, and that is the collegiality of theBar. And I agree with Billy, you don’t need to buyit. You can have relationships, but you don’t buyjustice.

It matters not whether you represent Fortune 500companies or whether you are president of theGTLA, raising hundreds of thousands of dollars, doyou realize that some races and some judicial racesin this country today costs millions of dollars. Thatis totally obscene.

The independence of the judiciary, the integrityof the judiciary, needs to have those of us, whetherwe sit at the table closest to the jury or furtherestfrom the jury, we need to come together in order —not to protect ourselves — but our profession, theindividuals that we represent, and the businesscommunity that we represent. And if we don’t dothat, if we don’t do that, we will destroy thisprofession. Maybe not in this generation, maybenot in the next generation, but there’s a timecoming when we’ve got to answer for rudeness, forincivility, and for greediness. We need to ensurethat there is a level playing field for us all and thosewhom we represent.

I cannot thank you enough, the members of thissection, for what you have bestowed upon metoday. And I, like Billy, it’s an accumulation ofwhat all of you have done for me in my life and Iam eternally grateful. Thank you. n

Remarks Continued from page 15

The 3rd Annual

General Practice and Trial InstituteApril 1-3, 2004

King and Prince HotelSt. Simons Island, Georgia

17

18

Tradition of Excellence

Annual Meeting 2003June 12-14, 2003 • Amelia Island, Florida

A packed house for the “Tradition ofExcellence Award” breakfast.

Chair Mark Dehler presents the award toJudge H. Arthur McLane.

Chair Mark Dehler presents theaward to Billy Ned Jones.

Chair Mark Dehler presents theaward to T. Hoyt Davis, Jr..

New chairman Wright Gammon presents MarkDehler with the Chairman’s plaque in appreci-

ation of his service as chair of the section.Chair Mark Dehler presents the

award to Hugh B. McNatt.

Rudolph Patterson past recipient of the “Tradition of Excellence Award”, Cathy Cox,Secretary of State and Tom Chambers enjoy a conversation after the breakfast.

19

(R-L) Judge Bonnie Oliver and her husband Andy and Wright Gammon with hiswife Alicia enjoy the reception.

New Chair Wright Gammonpresents Mark Dehler the tradi-tional bottle of champagne atthe reception.

Joel Wooten and Dennis Catheypast recipients of the “Tradition of

Excellence Award” enjoy a conver-sation after the breakfast.

Outgoing Chair Mark Dehler and his wife Cathy Cox, Secretary of State,share a light moment at the reception with new section chair, WrightGammon and Chair-elect Cathy Helms.

Judge Arthur McLane and his wife enjoy the reception with BillGoodman, past award recipient, his wife and friends.

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Like the alcoholic who vows neverto drink again is the biased jurorwho vows to be fair – both aresubject to relapse. In the landmarkcase of Kim v. Walls, 1 the SupremeCourt affirmed the Court ofAppeals’ decision2 to put to an endto the commonplace practice ofrehabilitating biased jurors withtalismanic questions from the court.Prior to Walls, biased jurors whoaffirmatively answered some formof the following question werepermitted to serve on the jury as amatter of course:

After all the facts are in and you havethe law as given you in charge, can youset aside your personal feelings andmake a decision in this case which speaksthe truth based upon the evidence thatyou’ve heard, setting aside your precon-ceived notions, and deciding this casesolely upon the evidence and the law asgiven you in charge?

Implicit in the condemnation ofjuror rehabilitation is the recognitionthat biased jurors are not stripped oftheir lifetime experiences by virtueof an extracted answer to a single“magic” question. Walls instructs usall that biased jurors should beexcused, not rehabilitated. Somemay doubt that any jury can beimpaneled if all biased jurors arereadily excused without someattempt to recondition their biasedbelief system. While it is true that allprospective jurors arrive with abelief system formed by virtue of

their own lifetime experiences, voirdire should be used as a tool todetermine which jurors have a beliefsystem so closely related to theissues in the case that they would bebetter jurors for another kind of case.The question is not whether aprospective juror can set aside his orher lifetime preconceptions, butwhether those preconceptionsoverlap with the issues in the case sothat a party would be justified inhaving a reasonable apprehensionabout their ability to be fair.3 Thisarticle demonstrates the tried andtrue method employed by our officein our experience since Wallswhereby biased jurors have been bereadily excused resulting in theexpeditious impaneling a fair jury.

Request Additional Jurorsfor Voir Dire

The Walls decisions direct trialcourts to excuse biased jurors, notrehabilitate them. When this man-date is applied to an often unappre-ciated statutory concept that eachparty is entitled to a full panel ofcompetent and impartial jurorsbefore being required to exercise thefirst peremptory strike4, for allpractical purposes, voir dire must beconducted with a sufficient numberof prospective jurors to allow thecourt remove rather than rehabilitatebiased jurors.

Since the courts are no longer inthe business of rehabilitation,conducting voir dire with some

The Death of Juror Rehabilitation:Jury Selection After Kim v. Walls

Adam Malone, Esq.Thomas Wm. Malone, P.C.

Atlanta, Georgia

Q: What is a trial by a rehabilitated jury?A: Justice - subject to a relapse.

Continued on next page

Adam Malone is a trial lawyerpracticing in Atlanta, Georgia atThomas W. Malone, P.C. Adam’spractice is limited to severe personalinjury, medical negligence and wrongfuldeath litigation.

Adam is a Summa Cum Laudegraduate of John Marshall Law Schoolwhere he graduated as valedictorian.Prior to joining Thomas W. Malone,P.C., Adam clerked for the Honorable G.Alan Blackburn, Chief Judge of theGeorgia Court of Appeals and prose-cuted with the Clayton County DistrictAttorney’s Office.

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reasonable number greater than 24when seeking a 12 person jury canproduce a full panel of 24 competentand impartial jurors expeditiously.Potential jurors who express anybias can be removed for causewithout threatening to diminish thepanel to less than the statutorilyguaranteed number. Otherwise,when the panel is reduced to anumber less than statutorilyguaranteed, any party has the rightto request the trial court fill thepanel with additional jurors and theprocess must begin anew.5 This is awaste of time and may prompt biaswhere none existed before from theoriginal remaining panel who haveto sit through another voir dire. Theonly practical solution is to beginwith a sufficient number to make itunlikely the panel will be reduced toless than the required number.

HOW IT WORKSIn our experience, a panel of 40

prospective jurors is usually suffi-cient and is ultimately more expedi-tious than conducting voir dire with asmaller and potentially insufficientpanel. The reason for this is becausethe parties are not taking unnec-essary time going back and forthwith rehabilitation questions andargument to the court. Thoseprospective jurors who do not passthe “smell test” are immediatelyexcused. For example, when seekinga jury of 12 it becomes apparent fromvoir dire that the first 24 jurorsremaining are not subject to achallenge for cause, the rest of thepanel can be excused and the partiesmay commence exercising peremp-tory strikes. In this way, a trial by afair jury is not subject to a relapse ofprior partiality. In the end, justice isthe result and even the chance ofappeal is reduced because theparties recognize the un-likelihoodof getting a better jury next time.

Beginning Voir Dire withAdditional Jurors Makes the Best

Practical Sense1. An Impartial Jury Is Obtained

When The Trial Court Is GivenBroad Latitude To StrikeProspective Jurors For Cause

In affirming the decision of theCourt of Appeals’ in Walls v. Kim,the Supreme Court held:

A trial judge should err on theside of caution by dismissing,rather than trying to rehabilitate,biased jurors because, in reality,the judge is the only person in acourtroom whose primaryconcern, indeed primary duty, isto ensure the selection of a fairand impartial jury. . . . The trialjudge, in seeking to balance theparties’ competing interests,must be guided not only by theneed for an impartial jury, butalso by the principle that noparty to any case has a right tohave any particular person ontheir jury.6

Indeed, in our justice system, theonly purpose for voir dire is to assurethat jurors are impartial and able toconsider the case solely on themerits without any bias or priorinclination7.

Prior to Walls, the practice of jurorrehabilitation was commonplace bythe court and counsel. The Wallsdecisions have illustrated that thepractice of juror rehabilitation doesnot achieve the goal of impartiality.When faced with the opportunity tosanction the commonplace practiceof rehabilitation because it was“common”, both appellate courtsannounced by their decisions that“common” practice does not equalthe correct or just practice. Insteadof sanctioning the practice ofrehabilitating biased jurors, ourappellate courts placed fairness overa commonplace fiction by soundinga trumpet call for all officers of thecourt to excuse those who are biasedand retain only those who are “sofree from either prejudice or bias asto guarantee the inviolability of animpartial trial.”8

2. Counsel Should Refrain FromEngaging In Rehabilitation9

The very attempt of rehabilitationby counsel, much less the court, is anacknowledgment that theprospective juror is in fact biased.Otherwise, why undertake torehabilitate?

In the recent case of Ivey v. State,1 1

the Court of Appeals applied theWalls mandate in reversing acriminal conviction because ofexcessive rehabilitation by theprosecutor, not just the court. Afterdescribing the prospective juror’srepeated assertions that she did notthink she could be fair andcomparing them with the extractedassertions of impartiality fromrehabilitation by the prosecutor, theCourt held:

Where a prospective juror,who has been asked whetherhe or she can be fair andimpartial in the case, answersunder oath a plain, “No,” andprovides an explanation forthe inability to be fair andimpartial, the court shouldlimit further questions toclarification of the answer.Neither the court nor theparties should incessantlyinterrogate a juror in amanner calculated only toelicit a response contrary tothe one originally given.Interrogation for that purposeis nothing more than an effortto justify finding a biasedjuror qualified. [] A trial courtmay not rely solely on aprospective juror’s extractedstatement of impartiality[.]1 1

3. Proper Method Of ExaminingJurors For BiasIvey offers a very simple instruction

to counsel and the court on theproper method to examine pros-pective jurors for bias. First, once aprospective juror answers that shecannot be fair and offers an expla-nation, the trial court must limit anyfollow-up questions to a clarificationof that answer. Second, the propermethod for clarifying the answer is toask non-leading questions. Tofollow-up with leading questions istantamount to an interrogation “in amanner calculated only to elicit aresponse contrary to the one origi-nally given.” Any answer to such aquestion would amount to an“extracted statement of impartiality”to which, the trial court can give noweight according to Ivey. Simply

Continued on page 24

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Trial courts in Georgia areprovided with several statutorilyauthorized opportunities to reviewand modify verdicts and judgmentsrendered as the result of jury trials.This paper will outline some ofthose statutory devices available totrial courts.

I. REVIEWBEFORE ENTRY

OF JUDGMENTTrial judges can reject and refuse

to enter judgment on a jury verdictas a matter of necessity where theverdict is inherently inconsistent,ambiguous, uncertain, and illegal.A verdict is void as a matter of lawand necessity where it is subject toconflicting interpretations and theresult inexplicable on the face of theverdict. O.C.G.A. §9-12-4, Bunch v.Mathieson, 220 Ga. App. 855 (1996).When a verdict is inexplicable,speculation by the court as to thejury’s intent does not change the factthat the verdict is inexplicable anddoes not change the law that abhorsambiguous, uncertain verdicts.Judgment should not be entered onthat verdict by the court. Lynas v.Williams, 216 Ga. App. 695 (1995),Zurich American v. Bruce, 193 Ga.App. 804 (1989). Thus, it is possibleto have a trial judge refuse to enterjudgment on a verdict, and remedythe erroneous verdict with a grant ofa new trial prior to entry ofjudgment.

II. POSTJUDGMENT REVIEW

A. Entry of Judgment Notwithstanding the Verdict

Judgments notwithstanding a juryverdict are proper where there is noconflict in the evidence as to anymaterial issue and the evidence

introduced, with all reasonabledeductions therefrom, demands acertain verdict. Thus, a judgmentnon obstante verdicto (n.o.v.) may begranted when, without weighing thecredibility of the evidence, there canbe but one reasonable conclusion asto the proper judgment. Ogletree v.Navistar International TransportationCorporation, 245 Ga. App. 1, 3 (2000).However, under this standard ofreview the trial court is not permittedto weigh the credibility of thewitnesses and evidence presented attrial, but simply must find that therewas no evidence to support theverdict. This is perhaps the weakestpost verdict review standard in mostjury trials.

B. Granting of New Trial

The trial judge has broaddiscretion in deciding whether togrant a new trial. Garrett v. Garrett,128 Ga. App. 594 (1973). A motionfor new trial on the general groundsset forth in O.C.G.A. § 5-5-20 or § 5-5-21 addresses the sound legaldiscretion of trial judge and the lawimposes upon him the duty ofexercising this discretion. Kendrick v.Kendrick, 218 Ga. 460 (1962); Rickettsv. Williams, 240 Ga. 148 (1977),vacated on other grounds, 438 U.S.902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145(1978). Furthermore, as seen inPerryman v. Rosenbaum, 205 Ga. App.784 (1992), under O.C.G.A. § 5-5-50the Court of Appeals will notdisturb the presiding judge’s firstgrant of a new trial absent ashowing of an abuse of discretion. Inthat case, the trial court granted anew trial in the face of a jury verdictof $500,000 compensatory damages.

The Trial Court’s Role as the Safeguardin Reviewing Verdicts

byD. Gary Lovell. Jr.

Carlock, Copeland, Semler & Stair LLP

Gary Lovell is a partner with Carlock,Copeland, Semler, and Stair in Atlanta,Georgia. He is a 1987 graduate ofMercer Law School and is admitted topractice in Georgia, Florida, and SouthCarolina. He is a member of theAmerican Board of Trial Advocates. Hispractice is devoted substantially to thedefense of medical malpractice andtrucking cases.

23

The Court of Appeals held that theywould not disturb the trial court’sexercise of discretion since theverdict was not required or demandedby the evidence.

1.NE W TRIAL BECAUSE THE VERDICT IS

CONTRARY TO THEEVIDENCE AND JUSTICE AND EQUITY.

O.C.G.A. § 5-5-20 authorizes thecourt to grant a new trial if the juryverdict is contrary to the evidenceand/or where the verdict is contraryto justice and equity:

In any case when the verdict of ajury is found contrary to evidenceand the principles of justice andequity, the judge presiding maygrant a new trial before anotherjury. O.C.G.A. § 5-5-20.

Georgia case law also establishesthat a trial court may grant a Motionfor New Trial even if the courtdenies a Motion for J.N.O.V:

Additionally, the standards forgranting motions for directedverdict and j.n.o.v. are differentfrom the standard for granting anew trial. . . .a trial judge cangrant a motion for new trial if theverdict is contrary to the evidenceor strongly against the weight ofthe evidence.

O.C.G.A. § §5-5-20, Beasley et al v.Paul, 233 Ga. App. 706, 478 S.E.2d899 (1996).

By virtue of the difference in thesestandards, it is not inconceivablethat in some cases, evidencewould support a particularposition, thereby precluding thegrant of a directed verdict orj.n.o.v., yet a new trial would stillbe permitted because the verdictultimately returned is contrary toor against the weight of theevidence when viewed as a whole.

Beasley v. Paul, 223 Ga. App. 706(1996). Thus, even if the court deniesa motion for J.N.O.V., it can exerciseits discretion and grant a new trialunder these less stringent groundsbased on consideration of the factsof the case. That includes the court

acting as the “thirteen juror” inreviewing liability facts and damageawards. If the judge, had he beenupon the jury, could not conscien-tiously acquiesce in the verdictrendered, he is not required toapprove it and the appellate courtswill not control him in refusing to doso. On the other hand, if he canconscientiously acquiesce in theverdict, though it may not exactlyaccord with his best judgment, orthough some other finding mightseem somewhat more satisfactory tohis mind, and if his sense of justice isreasonably satisfied, he should, inthe absence of some material error oflaw affecting the trial, approve it.Holland v. Williams, 3 Ga. App. 636,638, (1907). Hospital Authority ofGwinnett v. Jones, 259 Ga. 759 (1989).(See also Ga.L.1987, p. 915, whichreveals an even stronger state policyauthorizing trial judges to reduce orreject excessive verdicts not in accor-dance with the preponderance of theevidence.)

2.NE W TRIAL BECAUSE THE VERDICT ISDECIDEDLY AND STRONGLY AGAINST

THE WEIGHT OF THE EVIDENCE.

The presiding judge may exercise asound discretion in granting orrefusing new trials in cases where theverdict may be decidedly andstrongly against the weight of theevidence even though there mayappear to be some slight evidence infavor of the finding. O.C.G.A. § 5-5-21.

3.NE W TRIAL BECAUSE OF

ERRONEOUS JURY CHARGE

O.C.G.A. § 5-5-24 permits a trialcourt to grant a new trial where alegally appropriate request to chargeis not given or where an incompleteor erroneous charge of law is given bythe trial court. It is the duty of thecourt to instruct the jury as to lawapplicable to issues made by pleadingand evidence, and failure to do sowhen injurious and harmful to losingparty is reversible error. Rutland v.Jordan, 111 Ga. App. 106 (1965).O.C.G.A. §§ 5-5-24 and 5-5-25. “If aconfusing or unclear charge is givento the jury, causing harm to a party,the remedy is a new trial. Perryman v.

Rosenbaum, 205 Ga. App. 784 (1992).In that case, the Court of Appealsupheld the trial court’s grant of anew trial in a case where the verdictand instructions of the court were inopposition. The court held “therewas error in the lack of clarity, fromthe jury’s perspective, in the court’sinstructions, which carried throughto the written recordation of theverdict and so into the judgmentwhich reflected the court’s miscon-struction of the true verdict. Therewas not error in the court’s rectifi-cation of the same by the grant of anew trial on the issue of compen-satory damages, the court appar-ently having concluded that thechange would have been one ofsubstance and not of form so that theverdict could not be amended underthe authority of O.C.G.A. § 9-12-7.”Perryman, at 794.

C. Reduction or Increase ofJury Verdict

If a trial court does not grant aMotion for Judgment Notwith-standing the Verdict or Motion forNew Trial, it still has the authority togrant additur or remittitur, grant anew trial, or to condition the grant ofa new trial on damages and liabilityupon the parties’ refusal to accept anamount determined by the court.

O.C.G.A. § 51-12-12 provides inpertinent part that:

(a) A question of damages isordinarily one for the jury; andthe court should not interferewith the jury’s verdict unlessthe damages awarded by thejury are clearly so inadequateor so excessive as to be incon-sistent with the preponderanceof the evidence of the case.

(b) If the jury’s award ofdamages is clearly so inade-quate or so excessive as to anyparty as to be inconsistent withthe preponderance of theevidence, the trial court mayorder a new trial as todamages only, as to any or allparties, or may condition thegrant of such a new trial uponany parties’ refusal to acceptan amount determined by the

Continued on next page

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trial court.

O.C.G.A. § 51-12-12(a)(b).

The question of damages isordinarily one for the jury; and thecourt should not interfere with thejury’s verdict unless the damagesawarded by the jury are clearly soinadequate or so excessive as to beinconsistent with the preponderanceof the evidence in the case but, if thejury’s award of damages is clearly soinadequate or so excessive as to anyparty as to be inconsistent with thepreponderance of the evidence, thetrial court may order a new trial asto damages only, as to any or allparties, or may condition the grantof such a new trial upon any party’srefusal to accept an amount deter-mined by the trial court. Lisle v.Willis, 265 Ga. 861, 862 (1995). InMoody v. Dykes, the GeorgiaSupreme Court clarified the provi-sions of O.C.G.A § 51-12-12(b),stating:

[a]n excessive or inadequateverdict is a mistake of fact ratherthan of law and addresses itself tothe discretion of the trial judgewho, like the jury, saw thewitnesses and heard thetestimony.

Moody v. Dykes, 269 Ga. 221-222(1998). And, in Smith v. Crump, 223Ga. App. 52, 56-57 (1996), the courtfurther analyzed the trial judge’srole in implementing O.C.G.A. § 51-12-12, as follows:

O.C.G.A. § 51-12-12 empowersthe trial judge to decrease anaward, or have the trial judge toseek the parties to accept anadditur or remittitur upon thethreat of a new trial and allows thejudge to order a new trial on theissue of damages only; refusal byeither party to accept leaves thejudge with the power only togrant or to deny a new trial and to

decide what issues will be retried.Therefore, the criteria under eithera motion for remittitur rests uponthe sound exercise of discretion ingranting or denying suchmotions, as the case law provides.Thus, as a final resort the trial

court can reduce or increase ajudgment from the amount of a juryverdict as it deems appropriate.

CONCLUSIONThe rendition of a jury verdict is

not the final decision available at thetrial court level. Many times it isadvantageous to attack a verdict atthe trial court and seek to have thetrial judge exercise their discretion inremedying a verdict that is perceivedas unjust. In cases of “clean trial,”with no error for appeal, this judicialdiscretion may be the last hope forpost verdict relief.

stated, the proper method for clari-fying a statement of partiality is tofollow-up with open-endedquestions, not leading questionsdesigned to suggest the desiredanswer.

Remember that No Court Has Ever Been Reversed forExcusing a Juror for Cause

Since no party is entitled to anyparticular juror, it is never reversible

error to excuse a juror for cause.1 2

On the other hand, as the Walls casedemonstrates, a trial court can bereversed for failing to excuse a juroreven for discretionary challenges forcause.1 3 If voir dire is conducted witha sufficient panel to permit biasedjurors to be readily excused and noweight is given to any attempt torehabilitate on the part of counsel,then the opportunity for error injury selection is virtually non-

existent, the parties are given anentire panel of qualified jurors fromwhich to peremptorily strike, and inthe end, the parties receive thebenefit of a trial by the fairest jurypossible. In this way, absent anyerror on the part of the court duringtrial, a trial by jury produces pure,unadulterated Justice – not justicesubject to a relapse of injustice.

1 275 Ga. 177 (2002) 2 Walls v. Kim, 250 Ga. App. 259 (2001)3 Temples v. Central of Ga. R.R. Co., 15 Ga. App115 (1914); Mitchell v. State, 69 Ga. App. 771(1943)4 O.C.G.A. §§ 15-12-122, 15-12-133.5 See O.C.G.A. §§ 15-12-122, 15-12-123, 15-12-133.

6 Kim v. Walls, 275 Ga. at 260.7 Id.8 Id.9 The only practical way for counsel to refrainfrom engaging in rehabilitation is for the trialcourt to give no weight to a prospectivejuror’s response to rehabilitation questions.1 0 258 Ga. App. 587 (2002) (whole court

decision)1 1 Id. at 5921 2 See Hill v. Hospital Auth. of Clarke County,137 Ga. App. 633 (1976).1 3 See also Ivey v. State, 258 Ga. App. 587(2002); Powell v. Amin, 256 Ga. App. 757(2002); Cannon v. State, 250 Ga. App. 777(2001).

Footnotes

The Death of Juror Rehabilitation Continued from page 21

Trial Courts Role Continued from page 23

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