I filed the "Bounty Hunter" case today. It's Priebe v. Tidwell, et al, No. 3:08-CV-652 in the U.S. District Court for the Middle District of Tennessee. One interesting wrinkle - under Rule 26(d), Federal Rules of Civil Procedure, discovery can't commence until after the Rule 269f) conference. Yet, in this case there are two John Doe defendants and one other defendant that we don't have a solid address on. That information is in the hands of the fourth defendant.
That means that some discovery is necessary to learn the names and addresses of the John Doe defendants before the Rule 26 conference can be held. I made a motion today, which should be heard ex parte, to permit me to serve one defendant with an interrogatory that requires him t disclose the names and addresses of the other defendants.
I posted the motion out on my JD Supra page (http://www.jdsupra.com/profile/lawyerhatton) for anyone who is interested.
~Tim
Monday, June 30, 2008
Thursday, June 26, 2008
Legal Writing
I had an opportunity, thanks to Les Thompson and Thompson & DeVeny in Dayton, Ohio, to attend a fascinating CLE titled "What Judges Want." At the conference, a panel of judges walked through the pre-trial, trial and appellate process and explained how judges like to see attorneys present their cases.
One of the judges on the panel was Mark Painter Of the Ohio Court of Appeals for the First District. Judge Painter is the author of "The Legal Writer - 40 Rules for the Art of Legal Writing." His book is a must read for anyone who regularly writes briefs or motions. It details the things that attorneys most often do wrong and tells us how to do them correctly.
You can find Judge Painter, and his book, at http://www.judgepainter.org.
One of the rules is to avoid the use of Latin. I had to laugh when I read it. Recently, I made a motion over in Nashville for temporary child support. Attempting to follow Judge Painter's rule, I styled it as a "Motion for Temporary Child Support." When I arrived at motion day, much to my chagrin, the judge told me that he would grant my motion and sign an order as soon as I presented him one styled "Motion for Pendente Lite Support." In that court, you are required to use the Latin. I recall laughing with the judge, who ran a good court in my opinion, telling him that I decided to try the English version since I found that using the Latin just required me to answer client phone calls and explain what it meant, but he didn't buy it. I am still required to use the Latin.
Perhaps I should send the judge a copy of Judge Painter's book.
~Tim
One of the judges on the panel was Mark Painter Of the Ohio Court of Appeals for the First District. Judge Painter is the author of "The Legal Writer - 40 Rules for the Art of Legal Writing." His book is a must read for anyone who regularly writes briefs or motions. It details the things that attorneys most often do wrong and tells us how to do them correctly.
You can find Judge Painter, and his book, at http://www.judgepainter.org.
One of the rules is to avoid the use of Latin. I had to laugh when I read it. Recently, I made a motion over in Nashville for temporary child support. Attempting to follow Judge Painter's rule, I styled it as a "Motion for Temporary Child Support." When I arrived at motion day, much to my chagrin, the judge told me that he would grant my motion and sign an order as soon as I presented him one styled "Motion for Pendente Lite Support." In that court, you are required to use the Latin. I recall laughing with the judge, who ran a good court in my opinion, telling him that I decided to try the English version since I found that using the Latin just required me to answer client phone calls and explain what it meant, but he didn't buy it. I am still required to use the Latin.
Perhaps I should send the judge a copy of Judge Painter's book.
~Tim
Wednesday, June 25, 2008
New Layout
Readers will notice that I changed the layout of the blog somewhat. I picked a different template to see if it enhanced readability. After looking at the new design for most of the day, I think I like it.
Comments?
~Tim
Comments?
~Tim
Discovery in Criminal Cases
Recently I was retained to represent a young lady charged with conspiracy to commit murder. Its a case that was, before I got involved, featured on Nancy Grace and 20/20. I took the case after the prior lawyer had handled the preliminary hearing and before the case went to the grand jury. Indictment is on July 24, 2008 in the Wilson County, Tennessee, Criminal Court.
As soon as I was retained, I had the clerk make me a copy of the tape of the preliminary hearing. During that hearing, the District Attorney played tape recordings that had been made of the alleged conspirators. Since it is very difficult to hear the recordings being played into the courtrooms recording system, I sent a letter to the District Attorney asking for copies of the tapes.
Having not heard anything from him, I called over yesterday and was told that they never give out discovery prior to the arraignment. My reaction was that such a policy was all well and good, but they sure didn't have any trouble playing them for Nancy Grace and 20/20. In retrospect, it probably wasn't the District Attorney's office that released the tapes to the media. Likely it was the Sheriff's Department, who appeared on both shows.
In any event, my issue with the District Attorney's position is that there ought to be a little fundamental fairness injected into the system. No matter who loosed the tapes into the wild, it had to come from state law enforcement. That being the case, would it not be fair to let the defense have access to them earlier in the process? Shouldn't a District Attorney be at least a little concerned with being fair? Or is it all about getting whatever advantage he can get in the quest for a conviction?
I haven't decided yet whether to make a motion to get early access. The next motion day is July 15, which means that I would only gain a week. Given that, it is likely not worth it.
Maybe someday the people in law enforcement and prosecution will start realizing that how they do their job is just as important as the results that they get.
~Tim
As soon as I was retained, I had the clerk make me a copy of the tape of the preliminary hearing. During that hearing, the District Attorney played tape recordings that had been made of the alleged conspirators. Since it is very difficult to hear the recordings being played into the courtrooms recording system, I sent a letter to the District Attorney asking for copies of the tapes.
Having not heard anything from him, I called over yesterday and was told that they never give out discovery prior to the arraignment. My reaction was that such a policy was all well and good, but they sure didn't have any trouble playing them for Nancy Grace and 20/20. In retrospect, it probably wasn't the District Attorney's office that released the tapes to the media. Likely it was the Sheriff's Department, who appeared on both shows.
In any event, my issue with the District Attorney's position is that there ought to be a little fundamental fairness injected into the system. No matter who loosed the tapes into the wild, it had to come from state law enforcement. That being the case, would it not be fair to let the defense have access to them earlier in the process? Shouldn't a District Attorney be at least a little concerned with being fair? Or is it all about getting whatever advantage he can get in the quest for a conviction?
I haven't decided yet whether to make a motion to get early access. The next motion day is July 15, which means that I would only gain a week. Given that, it is likely not worth it.
Maybe someday the people in law enforcement and prosecution will start realizing that how they do their job is just as important as the results that they get.
~Tim
Monday, June 23, 2008
Bounty Hunter Complaint
I posted a rough draft of the complaint in the "bounty hunter" case on my JDSupra site (http://www.jdsupra.com/profile/lawyerhatton).
Comments are welcome.
~Tim
Comments are welcome.
~Tim
Bounty Hunters
Last week I took in a new civil case relating to bounty hunters. This case flows from a criminal case that I disposed of last week (getting my client out of jail and taking care of a simple possession and resisting arrest charge, together with two failure to appears). Basically, what happened in this case is that the client moved from Tennessee to Mississippi while the underlying possession and resisting charges, together with a couple others that were dismissed, were pending and for one reason or another didn't come back to Tennessee for his court dates. The Tennessee court ordered bond forfeited and issued a capias for his arrest.
Flash forward a few months and bounty hunters, agents of the Tennessee bondsman, kicked open the door to his Mississippi apartment, pointed a shotgun at his head and dragged him to a car for the trip back to Tennessee. Mississippi law permits a bondsman licensed in Mississippi to make an arrest, but it doesn't appear that the bondsman here was licensed in Mississippi. Mississippi law doesn't provide for bounty hunters, but does permit the "agent" of a bondsman to make the arrest. Mississippi does have a statutory process for arresting fugitives on out of state warrants but that procedure was not followed here.
Tennessee law permits bounty hunters. But before a bounty hunter can make an arrest, he must first provide local law enforcement with copies of certain paperwork. Even if Tennessee law applied to this case, they failed to provide the paperwork.
It also appears that one of the "agents" effecting the arrest "was just released from jail." There is a prohibition in Mississippi for anyone being a bondsman (and presumably a bondsman's agent) if he has been convicted of a felony. Tennessee prohibits anyone convicted of a felony from being a bounty hunter.
In investigating the filing of this case, I found it amazing the latitude that is given to bounty hunters and bondsmen to make arrests. We should keep in mind that bondsmen or bounty hunters are not police. They have little, or no, training in how to make safe arrests. They aren't bound by niceties like probable cause, etc. The proscription regarding felony convictions appears to be often overlooked.
It will be interesting to play this one out. There are some very real damages here, to property as well as to my client's business and reputation. I sent a letter to the bondsman today inquiring as to the possibility of settling, but figure that this one is headed to the Middle District of Tennessee.
~Tim
Flash forward a few months and bounty hunters, agents of the Tennessee bondsman, kicked open the door to his Mississippi apartment, pointed a shotgun at his head and dragged him to a car for the trip back to Tennessee. Mississippi law permits a bondsman licensed in Mississippi to make an arrest, but it doesn't appear that the bondsman here was licensed in Mississippi. Mississippi law doesn't provide for bounty hunters, but does permit the "agent" of a bondsman to make the arrest. Mississippi does have a statutory process for arresting fugitives on out of state warrants but that procedure was not followed here.
Tennessee law permits bounty hunters. But before a bounty hunter can make an arrest, he must first provide local law enforcement with copies of certain paperwork. Even if Tennessee law applied to this case, they failed to provide the paperwork.
It also appears that one of the "agents" effecting the arrest "was just released from jail." There is a prohibition in Mississippi for anyone being a bondsman (and presumably a bondsman's agent) if he has been convicted of a felony. Tennessee prohibits anyone convicted of a felony from being a bounty hunter.
In investigating the filing of this case, I found it amazing the latitude that is given to bounty hunters and bondsmen to make arrests. We should keep in mind that bondsmen or bounty hunters are not police. They have little, or no, training in how to make safe arrests. They aren't bound by niceties like probable cause, etc. The proscription regarding felony convictions appears to be often overlooked.
It will be interesting to play this one out. There are some very real damages here, to property as well as to my client's business and reputation. I sent a letter to the bondsman today inquiring as to the possibility of settling, but figure that this one is headed to the Middle District of Tennessee.
~Tim
Sunday, June 22, 2008
JD Supra
I finally got around to configuring my JDSupra page (http://www.jdsupra.com/profile/lawyerhatton). In case you haven't heard, JDSupra is a web site intended for document sharing between lawyers. Last week, I posted my first document - a motion to suppress a search based on Tennessee constitutional law.
It seems that most of the players on JDSupra are the big, public interest, firms. And what they post seems to be more documents designed to garner publicity. The site even has a Hot Docs feature that lets you flag documents for the media.
My plans for JDSupra are rather simple. I am going to post any document that I think would be of interest to a small, general practice, law firm. Things that they can actually use.
Time will tell whether the site proves useful to me or other lawyers like me.
~Tim
It seems that most of the players on JDSupra are the big, public interest, firms. And what they post seems to be more documents designed to garner publicity. The site even has a Hot Docs feature that lets you flag documents for the media.
My plans for JDSupra are rather simple. I am going to post any document that I think would be of interest to a small, general practice, law firm. Things that they can actually use.
Time will tell whether the site proves useful to me or other lawyers like me.
~Tim
Thursday, June 19, 2008
Fourth Amendment
This week I filed a motion to suppress in a simple possession case. The police stopped a man alleging as basis for the stop that his car had a loud muffler (I compared his with the one on my 1994 Mustang Cobra and think mine is a little louder with neither being all that loud). Then they asked him to step out of the vehicle and, based on the fact that he seemed 'nervous' they asked for consent to search his person and his vehicle. They found 3.4 grams of marijuana and some rolling papers.
This is a situation where the police obviously manufactured a reason to stop the vehicle and then obtained 'consent' to search. It happens all the time. Why do people say yes?
The reason is simple - they don't think they have the right to refuse. There they are on the side of the road with lights flashing and a couple of armed police officers asking them questions and they simply think they have to say yes.
The question in my mind is - why don't we require the police to advise them that they have the right to refuse? The United States Supreme Court, in Ohio v. Robinette, held that advising a motor vehicle detainee that they can refuse consent to search is not required by the Fourth Amendment. Why not, I ask?
The famous Miranda warnings protect our Fifth Amendment rights ("You have the right to remain silent"). And they protect our Sixth Amendment rights ("You have the right to an attorney..."). Why is the Fourth Amendment less important? It seems to me that it is more important. What is more fundamental than the right to be secure in you own person?
Fortunately for my case, the Tennessee Supreme Court has held that Article 1, Section 7 of the Tennessee Constitution provides our citizens with more protection than the Fourth Amendment. And in Tennessee v. Berrios, they indicated that courts should look critically at traffic stop searches.
In my motion, which you can read on my JD Supra page (http://www.jdsupra.com/profile/lawyerhatton), I argue both that the search should be declared invalid under Berrios and that it is time that the Tennessee courts adopted a rule like the one the United States Supreme Court struck down in Robinette.
This client is willing, for personal reasons, to take this as far as he must. It will be an interesting trip through the court system. Perhaps we can effect a change in the law.
~Tim
This is a situation where the police obviously manufactured a reason to stop the vehicle and then obtained 'consent' to search. It happens all the time. Why do people say yes?
The reason is simple - they don't think they have the right to refuse. There they are on the side of the road with lights flashing and a couple of armed police officers asking them questions and they simply think they have to say yes.
The question in my mind is - why don't we require the police to advise them that they have the right to refuse? The United States Supreme Court, in Ohio v. Robinette, held that advising a motor vehicle detainee that they can refuse consent to search is not required by the Fourth Amendment. Why not, I ask?
The famous Miranda warnings protect our Fifth Amendment rights ("You have the right to remain silent"). And they protect our Sixth Amendment rights ("You have the right to an attorney..."). Why is the Fourth Amendment less important? It seems to me that it is more important. What is more fundamental than the right to be secure in you own person?
Fortunately for my case, the Tennessee Supreme Court has held that Article 1, Section 7 of the Tennessee Constitution provides our citizens with more protection than the Fourth Amendment. And in Tennessee v. Berrios, they indicated that courts should look critically at traffic stop searches.
In my motion, which you can read on my JD Supra page (http://www.jdsupra.com/profile/lawyerhatton), I argue both that the search should be declared invalid under Berrios and that it is time that the Tennessee courts adopted a rule like the one the United States Supreme Court struck down in Robinette.
This client is willing, for personal reasons, to take this as far as he must. It will be an interesting trip through the court system. Perhaps we can effect a change in the law.
~Tim
Monday, June 16, 2008
Bill4Time
One of the things that I recently accomplished is changing the office case management software away from DoingTime to a web-based application called Bill4Time. Bill4Time seems to do everything that I need - track client information, track time spent on hourly clients, do simple accounting and document storage and management.
It's not a perfect system. One flaw is in the document management piece as there seems to be no way to edit an uploaded document in place, you have to download it, edit it and upload it as a new document. I would prefer some type of built in version control and perhaps they will roll that out in a future version.
The cost is quite reasonable - only about $40 per month for my office. The best thing is that it is a web based, hosted application, meaning that I can log on and get my case and client information from any computer on the internet anywhere I happen to be. And, since my paralegal, Tara Whitacre, spends most of her time in Ohio it is easy for her to get assignments, do the work and upload the resulting document.
Anyone looking for a simple case management package for a small law office should give it a look. It can be found at http://www.bill4time.com. There is a 30 day, fully functional, free trial.
~Tim
It's not a perfect system. One flaw is in the document management piece as there seems to be no way to edit an uploaded document in place, you have to download it, edit it and upload it as a new document. I would prefer some type of built in version control and perhaps they will roll that out in a future version.
The cost is quite reasonable - only about $40 per month for my office. The best thing is that it is a web based, hosted application, meaning that I can log on and get my case and client information from any computer on the internet anywhere I happen to be. And, since my paralegal, Tara Whitacre, spends most of her time in Ohio it is easy for her to get assignments, do the work and upload the resulting document.
Anyone looking for a simple case management package for a small law office should give it a look. It can be found at http://www.bill4time.com. There is a 30 day, fully functional, free trial.
~Tim
Extended Absence
I am back after an extended absence from blogging. This spring was interesting as I was forced to spend some time in Ohio dealing with a family emergency and then faced a medical crisis of my own for the first time in my life.
I am fine now and have been back at full strength for about a month, but have been too busy digging out from under the pile of work to have time for this blog. I have been taking the time to write down ideas for topics so there will likely be quite a few posts in a short period of time.
I want to thank all of my clients who were patient with me while I wasn't able to devote my full attention to their matters. I have found that most people are generally good about things like that. There were only three clients who did not understand. Two of those were domestic relations clients and one was a simple matter of negotiating a release of judgment. Only one remains a client, the other two took their business elsewhere. The fact that only those three had such a lack of understanding speaks volumes for the people of the State of Tennessee.
~Tim
I am fine now and have been back at full strength for about a month, but have been too busy digging out from under the pile of work to have time for this blog. I have been taking the time to write down ideas for topics so there will likely be quite a few posts in a short period of time.
I want to thank all of my clients who were patient with me while I wasn't able to devote my full attention to their matters. I have found that most people are generally good about things like that. There were only three clients who did not understand. Two of those were domestic relations clients and one was a simple matter of negotiating a release of judgment. Only one remains a client, the other two took their business elsewhere. The fact that only those three had such a lack of understanding speaks volumes for the people of the State of Tennessee.
~Tim
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