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

Ab Initio

“In the beginning…” This famous opener, kicks off the Good Book and as such is good enough to ignite my first ever blog.  I’m new to this and the practice of law. But everyone was new to everything at some point. As I venture out into my legal career in a small town firm with two lawyers, I endeavor to make a difference. What kind of difference I dare not speculate.

This blog will serve as a notebook of all the legal issues I encounter. I seek to pass on the knowledge of my failures and hopefully some successes. In addition I will attempt to describe life as an attorney. But more specifically, a solo practitioner in a tiny town. One that encounters a plethora of legal questions on a daily basis ranging from alimony to workers compensation. Jack-of-all-trades trades is a requirement.

I will also pass along stories from the office and comment on pressing legal news. I like to debate and encourage disagreement.

If you are reading this you are probably a friend or family member, but thank you nonetheless. I look forward to posting and receiving your feedback. Thank you!