Legal News & Updates

Remembering “Old Ironsides” on Memorial Day Weekend

As we are beginning the Memorial Day weekend, we wanted to share with everyone the history behind Oliver Wendell Homes, Sr.’s famous poem “Old Ironsides,” which was written on September 16, 1830:

Aye tear her tattered ensign down

Long has it waved on high,

And many an eye has danced to see

That banner in the sky;

Beneath it rung the battle shout,

And burst the cannon’s roar;—

The meteor of the ocean air

Shall sweep the clouds no more.

Her deck, once red with heroes’ blood,

Where knelt the vanquished foe,

When winds were hurrying o’er the flood,

And waves were white below,

No more shall feel the victor’s tread,

Or know the conquered knee;—

The harpies of the shore shall pluck

The eagle of the sea!

Oh, better that her shattered hulk

Should sink beneath the wave;

Her thunders shook the mighty deep,

And there should be her grave;

Nail to the mast her holy flag,

Set every threadbare sail,

And give her to the god of storms,

The lightning and the gale!

The USS Constitution earned the nickname “Old Ironsides” during the War of 1812. This frigate with 44 guns defeated the British ship, HMS Guerriere, which interestingly was commissioned by the French, but later stolen by the British.  In any event, the Constitution was one of the original six frigates in the United States Navy. This ship was commissioned by the Naval Act of 1974.  After the Revolutionary War, the United States was heavily in debt and had actually disbanded the Continental Navy. Our first president George Washington gave the ship the name the Constitution for obvious reasons.

Turing now to the poem and author, Oliver Wendell Holmes chose for a moment to abandon his studies of law. He began to pursue poetry. During this time, he came across an article in the Boston Daily Advertise about plans to scrap this ship in September 1830. Holmes’ poem was published the following day and garnered attention throughout many cities, like New York and Washington.  As a result of his poem, the plans to scrap “Old Ironsides” were scrapped by the Navy, and now, it’s the oldest commissioned ship still floating in the world!


Discovery, Depositions, and Trial Considerations in Daycare Cases

As in most personal injury cases, the Georgia Civil Practice Act and the Rules of Evidence govern daycare negligence cases. There are, however, a number of special considerations for these types of cases.

  1. Confidentiality

Judges and their staff attorneys appreciate being informed of the sensitive nature of discovery before an actual discovery dispute arises. The most egregious cases, such as those involving sexual abuse and molestation, may require the entry of a protective order.[i] A protective order may offer some peace of mind for parents deciding whether to move forward with a lawsuit. While some information—such as communication between a psychologist and a patient[ii]—is never discoverable, a protective order can further ensure that a permanent public record of the intimate factual allegations will not haunt a child. Another occasionally overlooked step to ensure privacy in these types of cases is simply referring to a child by his or her initials.

If there is a companion criminal case, the prosecutor’s investigative file may contain critical details about the incident. A pending investigation is not subject to an open records request.[iii] Similarly, records from the Department of Family and Children Services are usually confidential and exempt from disclosure.[iv] For pending investigations, the parties may be able to serve a subpoena duces tecum for these documents without having to wait for a final disposition of the criminal case. The government and the parties usually recognize that information about a child victim needs to limited to the respective cases. If there is an agreement, they can enter a stipulation in the civil case. Provisions in the stipulation oftentimes mirror language in a protective order, like agreeing not to release documents to the media or hold a press conference.

  1. Child Witnesses

The United States Supreme Court wrestled with issues surrounding a child’s competency to testify as far back as 1895.[v] Georgia follows the general presumption that children who understand the nature of an oath are considered competent witnesses.[vi] An actual oath is not needed in Georgia.[vii] Assuming that a child is competent to testify, there are practical ways to ensure credible testimony in a relaxed environment. A deposition, for example, can take place in a ‘safe location,’ such as an interview room at a clinic, as opposed to a sterile office environment. Depositions are not endurance contests, especially with children, so taking breaks for a snack will help to alleviate stress during the deposition.

Along with these considerations, the questions themselves during a deposition or a trial are important for addressing memory issues. A useful strategy starts with exploring basic topic about the child’s home, school, and family. These questions lay the foundation for a compelling testimony. Questions then can transition into more specific aspects about the daycare facility. For example, typical questions include the names of teachers and friends, which can be easily compared with the true facts. Eventually, the questions will flow into the incident itself, like “Did you see Ms. Smith in the room when it happened?” or “Were the big and little kids all playing together?” Courts may allow a more conversational and relaxed approach in contrast to an adult deposition.

  1. Parents’ Participation

Since a parent or natural guardian brings daycare negligence claims on behalf of their child, they have a right to attend the deposition.[viii] An attorney as a counselor needs to weigh the dynamics in the individual case. In some situations, the presence of a parent helps a child feel comfortable and safe during a deposition. In other situations, a child may feel compelled by the parent to give the “right” answer to avoid getting into trouble. Additionally, a parent may feel offended by certain questions or topics, which will unnecessarily interject even more emotion into an already emotional case, potentially driving a wedge into meaningful future settlement discussions.

A concerted effort to move a case expeditiously to trial takes on particular importance in a daycare negligence case given the emotional implications coupled with the capabilities of young witnesses.

  1. Current and Former Employees of the Daycare

An important category of witnesses is the current and former employees. They are likely to possess crucial knowledge about the common practices and procedures at the facility. A successful theme for the cross-examination of daycare employees can be rooted in a statement that everyone must agree with, for example: The safety of the child is the most important duty for a facility. .

An employee will agree with this statement, of course. Along with general safety standards, DECAL’s regulations are meant to protect a child from harm. The failure to follow these standards needlessly exposes children to harm. Former employees can bolster this theme by offering testimony about a pattern of substandard care by the facility. In the end, the employees’ testimony may reveal that children and families in the community at-large face mounting danger by virtue of the facility’s mistakes and omissions.

[i] O.C.G.A. § 9-11-26(c).

[ii] O.C.G.A. § 24-5-501(a)(5)-(8).

[iii] O.C.G.A. § 50-18-72(a)(4).

[iv] O.C.G.A. § 49-5-40(b).

[v] See Wheeler v. U.S., 159 U.S. 523, 524 (1895)(determining a child was competent to testify when he acknowledged that if he told a lie, then the ‘bad man’ was going to get him, and furthermore, if he told a lie to the court, then he would go to jail).

[vi] O.C.G.A. § 24-6-601 et seq.

[vii] See, e.g., Smallwood v. State, 165 Ga. App. 473, 473 (1983) (holding that a four-year-old child’s statement that “Jesus don’t like it [if] you don’t tell the truth” was sufficient to establish competency).

[viii] O.C.G.A. § 24-6-615.

Reflections on the 20th Anniversary of the Atlanta Olympics

July 19th will mark the 20th anniversary of the Atlanta Olympic games. An attorney, Mr. William “Billy” Payne, championed the effort to bring the games to Georgia. Last month, Mr. Payne graciously took the time to share with us his memories from the Olympics. The lessons underscoring them serve as fine examples for attorneys throughout our state.


Legal Background

Mr. Payne earned his undergraduate degree from the University of Georgia in 1969. As the son of a No. 1 NFL draft pick, Mr. Payne also played for the football team. His football skills led to a post-graduate scholarship to the law school. Mr. Payne graduated from law school in 1973 and entered into private with a firm in Atlanta that represented MARTA. Mr. Payne then transitioned to a larger law firm. After spending approximately five years with that firm, Mr. Payne opened a practice with six other lawyers. Mr. Payne, like many other attorneys starting a practice, remembers the humble beginnings, such as running titles at the various courthouses throughout Georgia. Mr. Payne later built the firm into a successful commercial real estate practice with large national clients.


A Dare to Dream

After several years of practice, Mr. Payne wanted to do more good than to simply earn a living for his family. Mr. Payne was inspired by his faith. When he was returning home from a dedication of a new church at his parish on Sunday, February 8, 1987, Mr. Payne recalled all of the wonderful smiles and began thinking about his other dreams. Mr. Payne happened to pencil down bringing the Olympics to Atlanta early the following morning. He notably gets up every morning at 5:30 to begin the workday. Mr. Payne’s dream certainly seemed improbable, if not impossible, ever to come to fruition at the time. Despite the myriad of obvious challenges, Mr. Payne dared to dream, and dreams do come true.


Importance of Friends

After Mr. Payne shared his dream with his wife, who is without question his best friend, she told him to contact his friends about actually pursuing an Olympic bid. Mr. Payne began reaching out to a number of his colleagues practicing at King & Spalding among other firms. His first telephone call went to his most conservative friend. At first, Mr. Payne recalls a profound silence when he broached his idea, but then his friend responded, “That’s a great idea. How much money can I give?” Mr. Payne’s wife, unbeknownst to him, listed to the conversation to ensure that he would accurately recount it later to her. Mr. Payne’s friends all supported him. In sum, Mr. Payne knew that the collective efforts of friends were immensely more valuable than any single individual effort.


Overcoming Challenges

Since the 1996 Olympics marked the centennial anniversary of the games, Athens, Greece initially appeared to be the most compelling location for them. Mr. Payne recounted that the international community had a very limited knowledge of Atlanta, Georgia beyond the Civil War and the struggle for civil rights. In fact, one person even asked Mr. Payne whether gambling was permitted near the games because that person confused Atlanta with Atlantic City in New Jersey. Mr. Payne, nevertheless, continued to persevere with his quest. He stressed the community spirit, as well as volunteerism in Atlanta with the Olympic committee. These common values made the difference because Atlanta was officially announced as the site for the games on September 18, 1990.


Best Memory of the Games

While Mr. Payne holds many fond memories of the Olympic games, his finest memory involves Mr. Mohammad Ali lighting the Olympic flame. Mr. Ali’s role was kept as a secret until the very last moment. To this end, Mr. Payne remembers standing in tunnel in the stadium, which was already full of the athletes, and telling Ms. Janet Evans, who is widely considered the best female distance swimmer, “Now give the torch to Mohammed Ali.” Her knees buckled at the news. Mr. Payne recalls being overcome with profound emotion at the historical significance of the lighting of the Olympic flame by Mr. Ali. Simply put, it was the greatest single moment of the games.


At the conclusion of our conversation with Mr. Payne, he reminded us that the story of the Olympic games ended where it began. “[A]chieving the improbable and impossible is beyond the talent of any one person, and accordingly, we as individuals must turn to friends.” The bonds of trust from friendships brought the Olympics to Atlanta. Most importantly, these values are the central component to leading a fulfilling life.