*1 of establishing burden her fitness to In we practice law.”6 record conclude that the conclusion that has supports Allen demonstrated a lack of candor with to regard the Florida disciplinary lack of to willingness responsibility and a take for his actions led that Moreover, factor, to that we disciplinary. conclude that that coupled Allen’s with actions led to the in the Flor- disciplinary State of ida, demonstrate that Allen has failed to establish that he is fit law in this State. practice
Decision All the Justices concur. affirmed. 2002.
Decided November Jr., James E. for Spence, Allen. Baker, General, Mick,
Thurhert E. S. Attorney Rebecca Assistant General, Attorney Askew, Hulett H. for appellee.
S01G1647. BALLARD v. al. MEYERS et (572 572) SE2d Justice. Carley,
Appellees
Robert and Kerri
brought
against
suit
Kath-
Sneed,
leen
to recover
an
seeking
injuries
for
sustained in
allegedly
automobile collision. Ms. Sneed
during
pendency
died
of the
action,
estate,
Ballard,
and the personal
representative
of her
W.A.
cross-examination,
was substituted as the defendant. On
Mr. Meyers
questioned
was
he and
had
in
damages
about
his wife
claimed
connection with a
lawsuit
prior
involving
different collision. When
he testified that he
not
damages
did
remember
amount of
sought
action,
in
previous
Ballard
sought
impeaching
to introduce
copy
evidence
certified
of the
filed therein. The trial
reasons,
court refused to admit
for
including
document
several
failure
pretrial
Ballard’s
listed it
order. The jury
returned a verdict
in favor of
Court
Appeals
Appellees,
officially
affirmed
opinion
reported.
was
Ballard
(2001).
XXV
granted
250 Ga.
We
certiorari
Meyers,
address
a party
the issue of whether
a witness with a document
impeach
is not
listed
order.
OCGA
and Uniform
Rule 7 are the
Superior
9-11-16
Court
con-
trolling
involving
By
on matters
orders.
their
authority
terms, neither
expressly
excludes
disclosure documents
However,
in civil
it
impeachment purposes
equally
used
cases.
(481
(1997).
W.,
re C. R.
In
Rule 7.2 and does not one favor over another. The distinction drawn between the disclosure of rebuttal wit- documentary wording nesses and evidence is based on the actual nothing itself, the Rule and there is that is unfair in the unfettered any credibility subject witness whose to attack. A contrary interpretation simply impose would rewrite Rule 7.2 requirement party may of broad disclosure of all documents that a possibly holding actually promote, introduce, and such a discourage, party’s rather than ambush. A witnesses could lie object any on the stand and then that to the introduction of impeaching expressly pre- documents which were not listed in the trial order.
Although Appellees’ prior separate action involved a incident, it pre- nevertheless was relevant to whether their claim was for existing injuries. Georgia long recognized has that all will witnesses presumed speak possible, and, the truth if no false statement any should be attributed to Holeman, of them. See Durham v. (5) (1860). principle, 619, 626 In accordance with this counsel for Bal- *3 Meyers lard was entitled to assume before trial that Mr. would questions previous truthfully answer about the and, thus, case that documentary proffered. no evidence related thereto would have to be Meyers However, because Mr. testified that he could not remember damages pleading prior the amount of claimed, earlier the in the case probative impeachment purposes. became and admissible for The apparently complaint trial court was concerned that admission of the prevented would be harmful because the lack of disclosure Appellees obtaining calling substitute trial counsel and their attorney apportionment damages current trial to about the of entirely possible However, between the two collisions. it was for their present precisely by ques- trial counsel to elicit the same information tioning Appellees, Mr. on re-direct examination. The lawyer, their were the to the former lawsuit and the pleading legal case. The relevance of the did not involve a issue required expert opinion, which and the drafter was not the sole indispensable recovery witness as to whether their former was for injuries they alleged they the same now that sustained in the subsequent crash. object legal investigation discovery
“The of all is the of truth.” statutory policy “[t]he OCGA 24-1-2. Consistent with mandate, this Georgia admissibility evidence, of law is to admit even if its is doubt- dangerous suppress ful, because it is more to the truth than to allow loophole Maryland [Cits.]” a for falsehood. Co., Gibbons v. Cas. (3) (152 ruling Ga. The trial court’s it authorizes since principle, odds with
in this case is at credibility and allows the evidence impeaching relevant exclusion of this subordination unchallenged. Clearly, go of a crucial witness device is erroneous. mere procedural truth to a discovery of the (1). trial, credibility of In a Lee, at 184 supra Minnick v. who by jurors resolved which should be is a matter witnesses evidence, pre- and not the text of by all of the relevant have heard 24-9-80. order. OCGA § trial that the one, only it provides a narrow holding is
Our documentary extend to does not requirement disclosure rely defensively may possibly which a upon rely upon intends litigant documents that Those purposes. her case still must his or proving meet the burden affirmatively to lawyer did Before Ballard’s in the order. disclosed It is urged in the action. prior of the copy a certified obtain it circumstances, using reasonably anticipated that, under these pre-trial to list it in the and, therefore, should be required at trial is noted, however, controlling presumption previously order. As Holeman, As a supra. Durham v. the truth. speak that all witnesses reasonably anticipate thereof, in this state attorneys result However, arise. evidence will not to introduce impeaching the need reasonable, not an irrebut- veracity presumption to rebut con- should be table, one, lawyer prepared and a good Thus, counsel for Bal- that is false. testimony or other evidence trary not need to assuming that he would reasonably justified lard was obligated he was also professionally but complaint, introduce in the event a certified of that document copy obtain Therefore, to list the docu- the failure incorrect. assumption proved ambush, instance of adher- intentional act of but an ment was not an To hold otherwise concepts. legal professional ence to applicable on its lawyer which Ballard’s acted turn the presumption upon would anticipate for counsel not to head, it be unreasonable so may testify falsely thereby those called the other side that all that would constitute a Because subject impeachment. themselves law, the of the judgment principles from settled departure *4 remand this case for with direction to is reversed Appeals Court retrial. concur, except the Justices with direction. All
Judgment reversed Sears, J., Fletcher, J., who dissent. C. and P. Justice, dissenting. Chief
Fletcher, to the trial Georgia practice has returned majority Because the parties days by by requiring Act of trial ambush Practice pre-Civil order, I dissent. in the pretrial few of their trial exhibits very disclose that a that, if a trial court finds Instead, I would hold
823 reasonably anticipated tendering at trial a document that was omitted from order, then it has the discretion to exclude doing that document from trial, unless so would result in a mani- injustice. fest
1. Pretrial orders are claims, “intended to limit the contentions, jury.”1 defenses, and evidence that will be submitted to the With indisputable policy reading mind, that form the most sensible of Uni- (14) Superior Court Rule 7.2 is that orders must list all parties reasonably anticipate exhibits that the “will be tendered” at Requiring party reasonably trial. disclosure of all documents that a anticipates using jury at trial aids the in its search for the truth parties develop because both are better able to all relevant evidence jury’s Allowing parties and it for the consideration.2 to with- thorough hold documents hinders full and examination of the truth encouraged they because will be to hide evidence until spring unsuspecting opponent, thereby leaving it on their with one side’s view of events. day sought
On the first of trial in case, this Ballard to introduce copy Meyers’s a certified lawsuit, amended in a different which Ballard had obtained a month actions, earlier. As shown his anticipated Ballard that he would need this document at origi- he therefore should have order, listed it on the either nally through Accordingly, or an amendment. the trial court had the document, discretion to exclude the unless exclusion would have injustice.3 caused manifest
2. To decide whether exclusion of a document would be mani- festly unjust, require weigh following I trial courts to four (1) offering party’s failing factors: intent in document, to list the (2) (3) prejudice non-offering party, ability preju- to cure the orderly dice, and the court’s efficient of the case as well as its other cases. This test is based on the criteria that several fed- appeals4 Appeals5 eral courts of and the Court of have used in similar circumstances.
Applying this
four-factor test
I would hold that the
1
(486
851) (1997)
Department
Phillips,
316,
Human
v.
Res.
268 Ga.
318
SE2d
(emphasis supplied).
2
(“The
generally
object
legal investigation
discovery
OCGA 24-1-2
§
of all
is the
truth”).
3
(pretrial
subsequent
See OCGA 9-11-16
order “controls the
course of the action
prevent
injustice”)-, Phillips,
unless modified at the trial to
trial court from evidence.6 intentionally from disclosure withheld First, Ballard possession he should in his that a document in the order reasonably anticipated Intention- introduce at trial. he would have ally withholding order disclosure a document from ability party’s weigh heavily against it at trial.7 to use that complaint permitting trial would Second, Ballard to use complaint previously Meyers. unfairly prejudiced The had Meyers litigation appeared Ballard, and it between in the the accident with that was unrelated to a different lawsuit involved anticipate appearance Meyers the sudden reason to had no Sneed. opportu- and, therefore, had no in the middle of trial this document Meyers claiming charges nity prepare was Ballard’s to answer damages claimed in the other lawsuit. at trial that he had the same Meyers’s recognized, trial counsel was needed As the trial court Meyers’s damage apparent explain between contradiction complaint in the other the amended in the current trial and claims Responsi- prohibited the Code of Professional lawsuit, bility he was but Meyers already testifying had testified that as a witness.8 from damages anything regarding in the claimed he could not recall complaint Therefore, he would it was shown to him. amended when regarding re-direct the exact docu- have been able to on not ment that he had testified remember.
only a few minutes earlier he could not conveniently ignores majority fact The this established indispensable Meyers’s trial counsel was not the “sole when it asserts charges double-dipping. given fact, In Ballard’s witness” rebut Meyers’s Meyers’s counsel, author of the recall, lack of only explain why complaint, was the witness who could amended complaint damages were similar to in the amended had listed By withholding damages being sought the amended in this case. Meyers effectively prevented began, until trial Ballard explanation, being proffered present his trial counsel’s able to 6 186, Huff, 274 Cook v. See, e.g., Dunlap Ga. 189 7 (10th 2001) City, 831, City Fed.Appx. 12 835 Cir. v. Oklahoma (“Where any neglect party other than its own to warrant relief fails to show circumstances exists.”); order, modify pretrial [to order] from a no reason reverse refusal (3rd 1995) (no 1269, 1287 Jersey Operations, Rail 57 F.3d Cir. abuse Fashauer v.New Transit reasonably testimony anticipated”); “could have been of discretion where need for rebuttal (7th 1995) (no Ineichen, 425, to exclude rebuttal Bronk v. 54 F.3d 432 Cir. abuse discretion Trading Corp. might significant); v. knew American Int'l Petroleos witness that (not (5th Mexicanos, manifestly unjust F.2d 539 Cir. to exclude witnesses Keyes Lauga, necessary”); . . . were 635 F.2d “knew or should have known (5th 1981) (no witnesses whose use “could Cir. Unit A abuse of discretion to exclude rebuttal reasonably anticipated”). have been 5-9, 5-10, 5-102, generally Georgia Responsibility DR Code of Professional EC by Georgia superseded Conduct 3.7. Rule of Professional persuasive jury, sug- which, if would have countered Ballard’s gestion seeking recovery. was a double Admission of the Meyers’s attorney’s explanation, document, without would have unfairly prejudiced Meyers because he would have been unable to story, his side of the and the would have heard Bal- lard’s slant on the document. appears
Third, no reasonable curative measure the record. As recognized, way prejudice the trial court the best to cure the *6 Meyers’s testify regarding have been for trial counsel to the circum- surrounding drafting why complaint stances the of the amended complaint Meyers’s did not contradict contention that Sneed had injuries. However, caused most of his because Ballard until waited the trial had started to reveal his intention to use the document from Meyers’s lawyer longer lawsuit, the other could no withdraw and severely trial, have co-counsel conduct the entire at least not without prejudicing Meyers’s Having Meyers’s lawyer testify case. on substantive matters before the able solution.9 would not have been a reason- Finally, regarding the record is silent the effect the admission of the document would have had on the trial of this case and the court’s outweigh any factors, however, docket. The first three more than con- regarding disposition siderations court’s efficient assuming even this action were the trial the court had on its cal- endar and there would have been no cost to the court or the retrying withholding it. Based on Ballard’s intentional docu- of the inability prejudice Meyers, ment and the to cure the the trial court’s exclusion of from the trial did not result in a injustice, appeals. I manifest and would affirm the court of majority unsupportable premises 3. The relies on at least three pretrial required impeachment to hold that order disclosure is not for majority Superior First, documents. Court Rules contends that the Uniform require parties to disclose fewer trial exhibits than wit- testimony witnesses, however, nesses. Oral is entitled to the evidentiary weight juries throughout Georgia same as documents. As testimony instructed, are the evidence consists of both oral and the Reading require documents introduced at trial.10 the uniform rules to greater a disclosure for one kind of evidence than another makes no sense. (Rule (19)) governing simply
The uniform rule trial witnesses 7.2 requires party distinguish that a between those that the witnesses opposing party being and, therefore, can count on at trial does not Rule of Professional Conduct 3.7. (3d Jury Instructions, I, ed.), Suggested Pattern Vol. Civil Cases I.B. may appear subpoena but and those witnesses question subpoena opposing party if it wants jury.11 person The rationale for this additional
them before documents, course, witnesses, unlike are detail, is that amount of easily brought always to trial. treating impeachment majority’s evi- Second, the rationale for differently of exhibits than other evidence renders disclosure dence meaningless. According majority’s logic, in “there is no ment] orders possible justification requiring [impeach- disclosure of impossible “it is for counsel to know evidence” because will even be relevant and admissible whether opposing party testify at trial.” The same until the witnesses for rationale the defendant’s evidence.12 applies much, all, if not to all rebuttal evidence and for
Basing order disclosure attorney requirements party’s opposed on what a “knows” as to “rea- very sonably anticipates” results in the disclosure of few documents. plaintiff Other than the documents that a needs to avoid directed truly verdict, “know”whether a document will be rele- no until it tenders that document at trial. From vant and admissible on, now no document will have to be disclosed long order so truthfully can claim it was uncertain as to whether it would tender that document until the middle of trial. discovery, every party later than the close of to a civil action
No *7 anticipate should be able to which documents will be needed trial. By using depositions, interrogatories, requests produc- for document investigations, party generally tion, and its own a should be to able support and determine documents its case which documents opposing party’s Requiring par- undermine ties to list the documents case witnesses. reasonably
they anticipate will used at task, not a in a is burdensome even case with voluminous docu- ments. majority’s
Third, mantra that disclosure of discovery simply will harm the documents truth is incorrect. As Meyers here, shown testified that he did not in a what dam- remember ages Nothing had claimed different lawsuit. in the amended complaint suggested falsely testified about his lack of damages Meyers recollection. It showed what had claimed in the Meyers’s lawsuit, other not that lack of recall was untruthful. There- majority’s presumed fore, the refrain that witnesses are 11 may Sup. (“Opposing rely representation Unif. Ct. R. 7.2 counsel on that the des ignated party given] [sufficient will have a witness unless . . . notice is ... to allow means.”). testimony by subpoena the other the witness or obtain his other (442 748) (1994) State, 234, (may impeach by Vincent v. dis witness). proving testified to a facts statement, truthfully, nothing while accurate has to do with the facts in case.
Furthermore, the entire disclosure process designed discovery of the truth. to disclose doc- promote Requiring uments it should reasonably anticipate it will tender at trial enables both all the relevant evidence develop fully more and, thereby, lying reduces as well as ambush trial all of practices, jury’s which aids the search for the truth. Permitting party to intro- document, duce a without placing opposing party on notice that it will need to muster its own relevant regarding that docu- ment, hinders, advances, rather than the search for truth by with leaving only one version of the facts.
Fundamental fairness is the essence of our adversarial system justice.13 Adherence to fair fundamentally procedures our guides truth, search for the truth. Rather than promote discovery of however, the majority promotes gámesmanship litiga- evasive tion tactics by rendering meaningless the rule requiring disclosure trial exhibits in pretrial orders.
I am authorized to state that Presiding joins Justice Sears this dissent.
Decided November
Reconsideration denied December 2002. Castilla, Waldon & V. Harper, Craig, Hilliard appellant. Mrosek, Winburn, Lewis, Stolz, John W. Barrow & W. Irwin Stolz, Jr., Stolz, Purdom, & Gambrell Seaton D. for appellees.
Smith, Gilliam, Miles, Gilliam, Williams & Steven P. Robert A. Weber, McClelland, McClelland, Bovis, & Mabry Kyle Walter B. & Burch, James E. Singer, amici curiae. PFEIFFER
S01G1656. v. GEORGIA DEPARTMENT OF
TRANSPORTATION. Chief Justice.
Fletcher, *8 granted We certiorari in this death case wrongful to examine whether the Court of Appeals Georgia, affirming grant summary judgment Department Transportation, in failing erred to address contentions raised Karen Pfeiffer California, See, e.g., Lisenba v. 314 U. S. SC 86 LE