I’m Blogging Again,… And Politics!

It’s been 630ish days since I last took time to post to my blog.  Since that time, a lot of things have happened.  My oldest child,Cora started pre-k; my second child, Clara was born; my partner and I officially started Cripps & Cox Attorneys, PLLC; my wife now helps part-time at the office; we had a car run through the office; I’ve represented clients in nearly every aspect of the law; I’ve made some clients very happy; I’ve gotten under the skin of a few adversaries; I’ve met wonderful people in many parts of our great State; I finally rode in an airplane; and, most recently, I got an iPhone!  

During that time, time has become scarce.  Family, business, and other responsibilities leave little room for leisurely writing.  But I do enjoy writing.  I enjoy expressing my opinions and views with others and engaging in positive discourse.  Thus, I endeavor to elucidate my thoughts and expressions as often as they may escape… at a convenient enough time to capture said thoughts and expressions by keyboard or what have you. 

For my resurrecting blog, I’ll bore thee with a thought on meaningful debate and disagreement.  I’m simultaneously watching/ listening to a televised town hall of the democratic candidates for president.  Its interesting to see the differences between the candidates and especially the parties. However, the rigid distinctions drawn between the two major political parties appear to me to be propaganda,… fuel for the proverbial fire that is the base of each party.  After all, this is America and aren’t we all Americans.  I say this to make a point about political discourse.  

No matter the issue raised, if we first box the analysis and discussion into two distinct spheres, we limit the input.  And, if the second action taken is to ridicule or otherwise question the motives of those with opposing views, then we get what we deserve… NOTHING!  No new ideas.  No creative process. No challenge.  Without a challenge to the way we think and believe, our ideas, much like the minds from which they originate may become stale. 

I can think of only a few good things that come from staleness.  For instance, I might get a search warrant suppressed because the facts supporting it are stale.  That’s good for me and my client.  But, in general, to be stale is to be unwanted.  Yet, it seems par for the political course to stifle ideas and chisel the collective into an elite few.  This is not America.  

Whether you are a Democrat, Republican, liberal, conservative or something altogether unique, you are a critical part of our society.  It may stand that any one of us could be greater than a collective of two.  Some people are very special and have great skills.  But it cannot be argued that one is greater than all of us.  For, collectively we can amass all skills and talents; all backgrounds and demographics; every niche and specialty known to mankind.  No one person, or small group can legitimately make that claim. 

So, condescendingly, I ask:  why is it that political discourse is fashioned to alienate and isolate?  To the keen observer, I think the answer is clear.  The goal in politics as we now see it is to get elected and then re-elected.  There exists no altruist in either political party.  We no longer have civil servants, laboring for the greater good.  What we have is a system built to reinforce itself from within and to castigate those outside so much so that they don’t want to participate anymore.  A man can only take so much rejection and reprimand before he changes his  behavior, i.e., stays away.  And if he stays away, those in power stay in power.  Rinse and repeat. 

Thus, when the vicious cycle of partisan politics runs its course a time or two, we are left only with those persons who chose (or were chosen) to partake in this insolent institution.  One might question the motives of persons that would be willing to partake in such a system.  That is, if one had not already changed the channel and disconnected.  It’s best summarized by the following quote attributed to Plato: 

One of the penalties of refusing to participate in politics is that you end up being governed by your inferiors.

We’ve all heard some rediculous story from Washington and thought, “what the heck are they thinking?”  Truth be told, we are at a stage where we are being governed by our inferiors.  Not because those elected are unskilled or stupid, but because they possess inferior motives, i.e., getting elected.  And sometimes, as I’m sure is a great shock to us all, the motive of getting elected conflicts with the greater good.  

Too many people pass on politics.  Not because they hate this country or hate to work at it.  They are disenfranchised by the rhetoric.  It’s depressing to think of the trouble our country is in, and that trouble is sold to us daily by way of breaking news and social media.  At the same time, it’s damn near disabling to consider the fact that there is little that we can do to fix it.  So, a great number of us retreat, and the collective gets widows down. 

So, I’ll digress back to my original point.  We should encourage debate and discussion, invite new ideas and thoughts, and foster the collective goodness of our people, all of our people.  We should encourage participation from everyone, especially those that disagree with us.  We will sharpen our minds, refresh our thoughts and reenergize our politics if we become more inclusive.  

So the next time someone disagrees with you, challenge yourself and confront the idea with the open mindedness it deserves.  Maybe you are right, and that sentiment is bolstered by this experiment.  But, every once in a wild blue moon, you may be surprised to find that your experience is not the only experience.  And, maybe just maybe you were wrong! The world is full of people and people are different.  Embrace that and accept the challenges that come with it.  

Brandon J. Cox, Esq.

The views expressed herein are my own and I’m sure my law partner has differing views.  I’ll try my best to get her to write a piece or two. 

FAPE? What’s the big IDEA?

That’s a funny title. I know. Its a pun on some legal acronyms that have to do with public education. The IDEA is the Individuals with Disabilities Education Act. Its several legislative generations in by now. Most people at least have a basic understanding of what protections that a child has in public schools under the IDEA. But it is deep. It is complicated. And parents who have children with disabilities, be they physical and debilitating or something as minor as attention deficit disorder, need to understand how to use this law to get the most out of public education.

FAPE is an acronym for ‘free and adequate public education.’ It is a phrase defined in the IDEA. The phrase seems simple enough. In its most basic form, the IDEA requires school districts to provide a FAPE to each and every child within its district. That means that the school district must partake in “child find,” or they must seek out children, even those not enrolled in their schools. (this is subject to some key exceptions as all laws are)

How does a school provide a FAPE to a child with disabilities you ask. Well, the IEP, of course. IEP is another acronym (Legislators and educators love acronyms) which stands for Individual Education Program. The IEP is the key to your child getting a proper education and having their particular needs addressed. The IEP can address the physical setting a child is in if they struggle with large class sizes, or it can simply outline a specific curriculum for a child with a learning disability. Regardless of the disability, the IEP can be suited to meet your child’s needs.

I got a chance to represent a young woman recently regarding the IDEA and FAPE. Why? Well this is simple. In our opinion, the school failed to provide a FAPE to my client by not addressing her specific needs in the IEP. The case got deeper and included bullying and the school failing to act. Yet, at its core, this case was about a young woman being denied an opportunity to learn. Her parents had attempted, without success, to work with the school to ensure their child had a safe environment in which to learn. The saddest part is, the parents did not know how to advocate for their daughter under the IDEA. Most parents don’t. I’m now going to show what it takes to successfully advocate for your child with disabilities.

You must fight! Not the kicking and screaming kind of fight, but more the pesky and busy bee type of fighting. You cannot let the school be complacent with your child’s education. If your child is struggling or not progressing, the IEP team needs to reconvene and reassess the situation. How do you make this happen? Request a meeting in person, by phone, by email and send a letter. You must have a paper trail. That’s worth repeating. You must have a paper trail showing that you have tried. The reason behind this is sad. The school will not admit that they are not doing their job. They will in fact fight tooth and nail to show that you are crazy for even suggesting that they may have fallen short. The people on the IEP team are not your friends when you start suggesting they did wrong. So keep records.

Request evaluations and re-evaluations if necessary. (Do it in writing) If you feel the school’s initial evaluations are wrong, request another or ask to have a second opinion. The schools will often not make this happen without you pushing for it. But a proper evaluation, be it a psycho-educational evaluation or psychiatric evaluation, can make all the difference. Your child’s IEP will be dependent upon these evaluations.

Insist that your child’s teachers are part of the IEP team. If they cannot attend, then ensure that they get copies of the IEP summary and that they are made aware of the action steps within it. Too many times the IEP is developed and it is a good plan, but it is not shared with those who are to implement it. This is key.

Finally, if you have done all you can, and the school is not doing their part, then you have rights. You need to understand that if you and the school disagree about something with regard to the IEP and/or its implementation, you can file for a Due Process Hearing. This is what I had to do with the family I was representing. However, one good thing about this administrative process is that the IDEA requires a Resolution Session within 30 days of a Due Process Request. It was at this Resolution Session that my client and her parents were given the support and respect that they deserved. We were able to reach a settlement in the matter. We were able to ensure that this child’s needs were going to be adequately assessed and addressed in the school. That’s a victory!

If you have a child that has an IEP and is still struggling in school, or you have a child who you suspect has a learning or attention disorder that has not been diagnosed, you have options and your child has rights. The IDEA is complicated and the process of getting the school to follow it is just as complicated. You may need the help of an attorney to get things rolling in the right direction. Sometimes all it takes is to make a little noise. Whether you need advice regarding an IEP or you have serious concerns with your child’s education, please give me a call. Consultations are free.

DISCLAIMER:
The above strategy works even if you have a great school with great teachers and administrators. You just might not need the paper trail. Also, I’m fairly certain most schools and their staff want to help your child. Sometimes they don’t know the law either.

 

Brandon J. Cox

Attorney At Law

201 West Main Street

Smithville, Tennessee 37166

(615) 597-5297

The Two-Faced Lawyer

“He is no lawyer who cannot take two sides” — Charles Lamb

As the days pass, I find that I have less and less time to fill this blog with anything meaningful. That’s a good thing. And in all hustle and bustle, I have found a new paradox in the prodigious field of ‘lawyerin.’  What I have learned is summed up best by the following idiom: 

“Talking out of both sides of your mouth.” 

I stand in court on one day and argue for a point, only to show up the next day to argue against that point. It happens often. As an advocate for my client, I must argue for their interests. I have more than one client, and their interests are often not aligned. Thus, it is necessary to be consistently inconsistent in my legal arguments. I’ll give a basic example to illustrate.

When I am representing a mother in a child custody case, I may argue that a young child’s best interest is served by spending the majority of time with that mother. It’s the “tender years” argument. It works, although, it has its flaws. But if I were representing the father in that same case, I would argue the counter to that point. For instance, that the “tender years doctrine” is no longer viable in Tennessee. In addition, I would argue that the age of the child is but one factor. It obviously gets deeper than this in actual litigation but I think that makes the point clear. 

I have wrapped my head around this and I am pretty comfortable about the two-faced nature of this business. There are unintended consequences, though. The one that I have noticed most is my incessant desire to argue. Now, my wife would say that this it not new. However, I have in the past been much more selective about my desire to quibble. But, more recently, I feel a yearning to bicker, quarrel, feud, hash, re-hash, and simply cross swords. 

This may be a good thing in my chosen profession. What I have to continue to strive for is what I like to call “civil disobedience.” Civil disobedience is that ability to fuss and fight in the heat of battle but then remain civil outside the courtroom. I think that’s key for remaining sane in the practice of law. And at the end of the day, sanity is all we can really ask for out of this crazy world. 

City of Smithville vs. DUD

— “You can’t trust water: Even a straight stick turns crooked in it.” — W.C. Fields —

I’m stepping away from the legal topics for this post and heading into the realm of local politics. I do so with an understanding that politics is divisive and this post may turn some people off. However, I was  taken aback by this subject and just needed to get it out. And local politics is not partisan, it is personal.

So, in DeKalb County, Tennessee, there is a big fight between the DeKalb Utility District (DUD) and the City of Smithville (City) regarding water. Behind all the fuss is lots of money. Apparently, DUD buys a boatload of water from the City. Well, DUD decided that it wanted to streamline services by building its own water treatment plant. That way, they would not be dependent upon the City for their water. That sounds simple enough, and maybe a little business savvy on the part of DUD. The City opposed this as DUD is the City’s biggest water customer. And that is all fine and well.

What is not all fine and well is the fact that the City of Smithville Board of Alderman apparently voted to and actually did hire a public relations firm to “educate the public.” Really, they wanted to stop this water treatment plant from being built. Here’s the kicker. The public relations group that was hired was The Calvert Street Group out of Nashville, Tennessee. This group was hired in April 2012 and paid “$5,000 per month, plus expenses.” The arrangement also included a potential $25,000 bonus if The Calvert Street Group stopped the DUD from building its water treatment plant. The City of Smithville Secretary-Treasurer, Hunter Hendrixson, testified at the Tennessee Utility Management Review Board (UMRB) that as of “March 2013, before the UMRB hearing, the City had paid the Calvert Street Group in excess of $78,000, not including legal fees to the attorneys representing ‘ratepayers’ in UMRB proceedings.”

There are still legal battles pending between the two groups. I’m not necessarily worried about the fact that they are fighting over rates or that they don’t really get along. I’m concerned with the fact that the unnecessary quibbling of these groups is costing taxpayers/ ratepayers in the City of Smithville and beyond a lot of money. And this is apparently at the behest of a few as opposed to the majority. In an article in WJLE dated April 4, 2013, the UMRB board reviewing this issues is quoted as saying, “I believe there was major bias demonstrated throughout this hearing today where the public relations firm [The Calvert Street Group] actually drummed up the people to sign the petition and even offered them prizes if they got a lot of people signed up.”  See http://www.wjle.com/news/2013/umrb-dismisses-dud-ratepayers-petition (Emphasis added)

If the public is not behind the frenzy and it is really being ginned up by this firm, what is the point? Who really wants to stop this plant from being built? These are questions that may not get answered. But I was told by a professor years ago to “follow the money” in order to get to people’s motivations about things. At this point, I haven’t found the end of the rainbow.

The Calvert Street Group certainly has. It is apparently still employed by the City as of January 2014. There was a “robo call” made per the Group’s order to all DUD members about a public hearing in January. “Only one DUD customer showed up for the hearing and he did not speak.” That’s another $5,000 of taxpayer money sent to Nashville.

The City’s opposition to this water plant by DUD stems from an argument that purchasers of water from the City will have to have a rate hike if DUD gets its own plant. The only thing that has happened thus far is that the City has spent in excess of $100,000 on a PR firm that was able to get one DUD customer to a public hearing. Money well spent.

The rate hikes behind all this is a bit fuzzy as well. The City must run its utilities and services, per statute, at cost. Meaning, they cannot profit from these entities. Yet, the City has a surplus over its operational budget according to WJLE’s reporting. (Also this information can be found at the State Comptroller’s website.) Recently, the City has voted to raise the rates to DUD to $5.00 per thousand gallons of water. That is a 144% increase. A recent study of the City’s operational expenses found that the City’s average cost is “$2.67” but could be as low as “$2.25.” (Warren Study, See WJLE.COM) Is this rate hike arbitrary? Is it retaliatory? If the goal was to stop DUD from building the treatment plant, this is not the way to go about it.

Yes, lets charge our best customer double what they have been paying… that’ll keep them coming back for more. (Maybe that was a bit overboard but I haven’t seen a good reason yet)

It is unclear what will happen with the water plant and whether DUD will get relief from the rate hikes placed upon it by the City. But there is something to be taken from this fiasco. Do not sleep on local politics. I can claim as an excuse my preparation for law school finals and the bar exam. But I live in this city, own property in this city and drink the water that this City provides. I was completely unaware that my representatives had voted to pay this amount of money to a PR firm. That’s on me. It won’t go unnoticed again.

More research is needed to see who the actual board members were at the time of the hiring. However, the agreement between the City and The Calvert Street Group is a month to month agreement. It has been renewed or allowed to continue in excess of 20 months at $5,000 per month. What have we received in return? I would argue nothing, but that’s just me. That’s on the current board members.

That’s where I stand. Please feel free to comment below. If you agree, fine. If you don’t, please tell me why. I believe in open debate and honest disagreements. But please give me something to work with, namely facts.

Full disclosure, I am not a DUD member nor am I a DUD ratepayer. I live in the City of Smithville. I understand there is pending litigation regarding these issues and this is meant only as an opinion of the issues publicly stated. There may be many more facts that have yet to be disclosed. I am open to changing my mind if and when those facts appear that warrant such an alteration. 

Information for this post came from WJLE.com articles covering this issue. All credit is given to WJLE.com for their work and coverage of this important issue. 

The Lie Shall Surely Incarcerate Ye

“If you tell the truth you don’t have to remember anything.” — Mark Twain.

That quote is simple, yet profound. And it has implications in the legal world. I think I’ve known that for some time, but I came face to face with it earlier this week while representing a client charged with making a false report to the police. (Surprisingly, that is a class D felony in the great State of Tennessee, 2-12 years. Perjury is only a class A misdemeanor… Figure that one out if you can!)

My client was charged because she allegedly gave less than honest information to the police regarding an investigation. I will spare the details as they matter little to the point of this post. But needless to say, the State had a good case.

As part of my investigation in this case, I interviewed my client. This is standard. But what I quickly came to realize was that she was forgetting to remember what she needed to remember. The longer I talked, the fuzzier the story became. It made for an interesting conversation. Almost like asking my two-year old daughter about her dreams. It starts with princesses and toys but quickly gets to unicorns and magic. My client’s story morphed into an asymmetrical fairy tale.

Yet, somewhere in the mess, she made a good point. The “false statement” was not really false. It just wasn’t completely true. How is that you ask?! Well it all depends upon the question asked. For instance, if you are asked, “Where did you get this item?” and you state “From my house.” That may very well be true, except that prior to the item being at your home it was stolen. So you didn’t lie, you just omitted portions of the truth. If that feels a little sticky, you are in good company. Parsing words to interfere with a police investigation may result in criminal charges. And for my client, it did.

But the problem with parsing words or flat out making false statements, is that you have to keep up with the fiction. And as was evident by my client’s recollection, that’s hard to do.

See, when we actually experience things we can recall them. (some people are better at this than others) However, if we are making up a story, it is hard to recall when asked to re-recite it. The reason is that you didn’t have the real world experience to go along with the story.

I’d venture to say everyone has experienced the nostalgia that comes when a familiar aroma breaches your senses. Like the smell of grilled hot dogs tossing your mind to the warm summer nights at the ball park. It is the senses, other than sight, that ease in the recollection of memories. You don’t have that with lies.

And so, there was my client, facing 2+ years incarceration, for parsing words (allegedly) in an attempt to cover up a misdemeanor theft. And the more she talked the more tangled the web become. Luckily, I was able to negotiate a plea deal, resulting in hefty fines but no incarceration.

The moral is two-fold. First, it doesn’t pay to lie or parse words with the police. You’d be better served to just shut up. And finally, if your going to lie, do so one stand under oath before a judge… Its only a misdemeanor. (That is obviously a joke, please do not commit perjury… And if the lie is about something material in the case, its a felony too.)

Below is my attempt to modernize Mr. Twain’s quote:
“In order to not have to remember what you can’t afford to forget, tell the truth.”

For a good resource on how to not lie but never tell the truth, visit Washington D.C. or any State Capital.

Brandon J. Cox, esq.
201 West Main Street
Smithville, TN 37166
(615) 597-5297

Liar Liar!

I had the pleasure of witnessing, what must truly be a singular event in the practice of law. It occurred on Friday last, in small claims court in my home town. It was a simple detainer action which my partner was hired to administer. The lease was solid, the owner kept great records, and the Defendant was Pro Se. Nothing to it, right?

That’s what we expected. The Plaintiff claimed damages in an amount equal to unpaid rent plus costs. The Defendant says “I paid rent.” Still this is in the realm of normalcy. People make these claims all the time. You see, when we say “the truth, the whole truth and nothing but the truth”, we don’t really mean it. We only want the pertinent truth and just a snapshot of that. But courts do expect the truth.

I am thoroughly convinced that some degree of perjury is committed every time the court is in session. Most of the time it occurs with things none too important. My favorite is the Defendant, appearing for driving on a suspended licence who swears to the judge he will not drive until he gets them back. That same Defendant usually walks out of court, gets in his car and drives home. But what I witnessed on this day shook me a bit.

You see, the tenant (Defendant) says she paid rent. But she went on to say, “I have proof.” Ok. At this point, my partner is perplexed. She was prepared, she had exhibits, she had witnesses, and she even had a recording of the Defendant stating that rent had not been paid since September. So obviously, this peaked my partner’s interest.

The Defendant proceeds to introduce to the court 4 photocopies of checks that had been sent by her to plaintiff. And deposited in plaintiff’s bank. Now, the Plaintiff does not have a record of these, and they kept great records. They just didn’t exist.

The judge instructs defendant to show the photocopies to Plaintiff’s counsel before presenting to the judge. My partner is 100% blind, but she has impeccable intuition. (not to mention a heightened sense of hearing, which is a topic for another post) She has an assistant who peered over these copies. It took only a brief glance for suspicion to set in. The judge was warned by plaintiff that these appeared to be altered.

Could this really be happening? I began to get nervous for the Defendant. It felt wrong just to watch. I felt that, at any moment, the judge would lay down the papers, rise from his chair, and proceed to reign down a ferocious and inflamed barrage of condemnation on this woman. Usually, in reality, this looks very similar to contempt and jail. (But I like fire and condemnation better!)

Yet, the judge, as calming as the setting sun, asked the parties to stand and be sworn in. Following the ordinary spiel about truth and whole truth came a very emphasized “under penalty of PERJURY!”

The defendant subsequently admitted under oath and on the record that she had a friend “fix up” these documents. She had no explanation as to why. And, to be honest, she did herself a favor by not laboring the court with petty excuses.

Still, I sat in amazement. First, wondering to myself what it must have felt like to knowingly present false documents to a court of law. It almost, and I stress almost, made me feel sorry for her. But second, I could not believe the reaction from the judge. It was as unexpected as the perjury. But in the end, the court may have the last laugh.

The court explained to Defendant that he was going to present this forgery issue to the D.A. and see if the general wanted to pursue criminal charges. So, it seems that Ms. Defendant may have a place to stay after she has to vacate the rental… The county clink!

If you are ever before a court for any reason, just be honest. The truth will come out, and if that happens while you are still the same room with the judge, do not expect to be treated as generously as this woman was!

Brandon J. Cox, esq.
201 West Main Street
Smithville, TN 37166
(615) 597-5297

State Ordered to Pay for Murderer’s Sex-Change Operation

This post is simply an intro into the poll question that I posed below.   The First Circuit of the United States Court of Appeals held on January 17, 2014 that a State must pay for an inmate’s sex-change operation.

See opinion here: http://media.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=12-2194P.01A

If you read through this, the Court found that the Plaintiff, Michelle Kosilek (formerly Robert) suffered from “gender identity disorder”, a disorder recognized by the American Psychiatric Association.  The Court also held that a sex-change operation was “medically necessary” to treat this disorder.  Since the plaintiff is an inmate in the Massachusetts Department of Corrections, the State of Massachusetts must pay for this procedure.

(By the way, this Plaintiff is in prison for murder of ex-wife)

The Plaintiff claimed that failure to provide this “medically necessary” procedure violated plaintiff’s eighth amendment rights.  The Eighth Amendment in this context protects against cruel and unusual punishment.  We can debate as to whether this is cruel and unusual punishment or whether it is necessary but I won’t do that here.  I only ask this simple question:

Should the state be forced to pay for an inmate’s sex-change operation?

“Young lawyers attend the courts, not because they have business there, but because they have no business.”

This quote is by Washington Irving.   He is best known as the author of such short stories as The Legend of Sleepy Hollow and Rip Van Winkle (by the way, the very Rip Van Winkle lives in Tennessee… but that is another story).

I have tried to find the context in which this quote was used, but to no avail.  Mr. Irving apparently studied law and passed the bar in the early 1800s.  That may have been the genesis of this quote.

The message behind the quote is true.  “Baby lawyers” as we are fondly called by the veterans of the legal profession, are often in court every time the door is open.  I certainly have been.  But, not because I had a case or a client to represent.  Rather, I was there soaking in the atmosphere.  You see, law school did a great deal of nothing with respect to preparing me to practice law.  Moot court was a great experience but it is called “moot” for a reason.  It is nothing like the real thing.

Sitting in General Sessions weekly has taught me much in the way of the variety of the law.  Everything that could happen in a small town does, and it finds its way into the General Sessions courtroom.  As an aside, the multiplicity of the people and the creativity of their arguments, makes for an entertaining session.  But I have picked up on other things as well.  Like, the way the Court reacts to certain types of arguments, or how other more seasoned attorneys approach difficult legal issues.  It has truly been a learning experience thus far.

As I gain experience, I find myself with less and less time to sit back and observe.  And I imagine, those days, once passed will no longer be available to me.  Yet, I must disagree with Mr. Irving, in one respect.  Young lawyers attend with no business there, but it does serve a purpose.  The best way to learn anything is to do it.  If you aren’t afforded an opportunity to do it yet, then the next best way of learning is to watch someone who knows what they are doing, do it.  So I shall continue to darken the doors of the courtrooms for as long as I can.

To be or not to be… In contempt!

Can you believe that a child would be denied contact with their parent?  It happens and it appears to happen alot.  So what can be done?  Well Contempt of course.  If you have a Permanent Parenting Plan that outlines your parenting time, and the other parent does not allow you to exercise that time, without cause, they are in contempt.  It sounds simple enough, but there’s more.

I won’t belabor the details of this subject, because it can bring on a few snoozes.  But it is important to note that there are two types of contempt: civil and criminal.  Criminal contempt is essentially treated as a crime.  That is, a person charged with such, is afforded certain constitutional rights, namely the right to be represented by counsel (appointed if necessary).  Also, it requires proof beyond a reasonable doubt.  This is a very high legal standard.  Civil contempt is much more civil, to be redundant.  The proof standard is preponderance of the evidence.  Essentially, a court must find more likely than not that it happened.  Not a very difficult threshold.

The funny thing is that both types carry the same punishment. Being found guilty of either type can result in 10 days in jail and/or a fine up to fifty dollars per count of contempt.  Now the real difference is what is sought to be accomplished by the contempt.  If the court seeks to punish the contemnor for disobedience of its Order, it must be criminal contempt.  “[c]riminal contempt is used to preserve the power and vindicate the dignity and authority of the law as well as to preserve the court as an organ of society.” Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996).  Don’t know about the organ of society part of that quote, but Courts have the power to punish you if you don’t obey.  If not, a court issuing an order would be an exercise in futility.

On the other hand, if the object of the contempt is to coerce the contemnor to comply with the Order to vindicate a private right, i.e. a parent’s right to visit their child, then it is civil contempt.  Every law student and most people have heard that, “one in civil contempt, holds the keys to the jail.”  Comply and ye shall be free. That is true, and must be true to be civil contempt.  The ability to purge oneself of contempt at the time of the hearing is a requirement.

After extensive research in the field, I have come to prefer civil contempt.  This is for three reasons.  First, the standard of proof is much lower than that of criminal contempt.  It is obvious that it is much easier to prove contempt if you don’t have a high burden.  Lower burden means more wiggle room with regard to proof.

Second, the person charged with contempt does not have the right to have counsel.  That does not mean that they cannot hire an attorney to represent them.  It simply means that the contemnor will not be appointed an attorney if indigent, and the failure to hire an attorney should not delay the proceedings.  (Although, this does bring up the issue of trying a case against a pro se litigant… post soon to follow)

The third and final reason for preferring civil contempt is the ability of the Court to award attorney fees.  If proceeding under criminal contempt, the Court is not allowed to award attorney fees, in most cases.  There are a few instances which the Court could do so, but they have to be specifically provided for in the Tennessee Code.  (It is possible when attacking or defending custody orders under Tennessee Code Annotated Section 36-5-103(c) if deemed the prevailing party).  Because civil contempt is considered remedial in nature, attorney fees are often awarded.  There’s nothing more satisfying than winning a case and then giving money back to your client.

Now apply all this to a petition for civil contempt against a parent who is failing to let their child visit the other parent.  You have to have a valid order to begin. That order must be clear, specific, and unambiguous. The person charged must have had the ability to comply with that order and wilfully failed to do so. If that can be established, vindication may be en route. In addition to the other remedies, a Court may award the parent harmed extra parenting time to make up for the lost time as much as possible.

If you find yourself in a similar situation and are being denied your parenting time, give me a call.  Consultations are free and I would be glad to help. 

Brandon J. Cox, Esq.
201 West Main Street
Smithville, Tennessee 37166
(615) 597-5297

Fighting the Good Fight

I hate to lose. That’s incompatible with the practice of law, or at least doing appointed work. By appointed work I mean cases which the Court appoints me to represent an indigent client. It is great for young attorneys to take such work because of the experience to be gained. And I, like all new attorneys, am really practicing in every sense of the word. I need the experience.

That being said, these cases often come with lousy facts. Facts that, no matter what sugary topping you put on them, are bad facts. On top of that, sort of the cherry on the fecal cake, is the client’s wishes regarding the outcome of the case.  The client is always right, even when they aren’t. It feels like this in practice at least.

My experience to date with such clients has been positive. My clients have been respectful and open to my counsel. However, part of my job is to give options and advise. Once you give a client the option of shooting for the moon, all other possibilities seem to dissipate.  Even so, often celestial goals are often out of reach in reality. But again, the client is always right, and so I fight the good fight.

Losing is not in my nature, its contrary to my very being. Years of competitive sports, namely baseball, are to blame. But I find myself in cases with tenaciously bad facts and insistent clients. The only solution in this math equation of toiletry is losing. Yet I fight the good fight.

That is what advocacy is about in the end. I put forth the best case, the best argument possible for my client. Albeit often a bad case or terrible argument.  In doing so, I stand before the Court preparing to be shot down.  It is inevitable, the barrage of flak that is soon to be heading in the direction of every ill conceived word that has come from my lips.  But, still, I fight the good fight.

Knowing my fate is inevitable does not deter me from the mission. Everyone, no matter their crime or indignation, should be afforded the opportunity to be heard. This is in fact one of the foundations of this great country. We as citizens of the United States are afforded certain rights. We are entitled to the due process of law. That’s why Courts are able to appoint attorneys to those who can’t afford them. Some things in life are so precious, it would be unjust to require an individual to attempt to protect or defend on their own.  That’s where I come in and that’s why I fight the good fight.

I would encourage everyone to read Gideon’s Trumpet by Anthony Lewis.  It’s not a very long book but covers the landmark case of Gideon v. Wainwright and the fight for legal counsel for indigent clients.

Brandon J. Cox, esq.
201 West Main Street
Smithville, TN 37166
(615) 597-5297