Saturday, December 29, 2012

When a general denial is not good enough

Moving past the statutory language of Florida's Head of Family garnishment exemption brings me to read a few Florida appellate court decisions on the subject. The first opinion I encounter is Caproc Third Avenue, LLC v. Donisi Insurance, Inc., 67 So.3d 312, 313 (FL 4th DCA, 2011), and I see how easy it might be for a non-lawyer to misread the meaning of the court's decision.

Judgment debtor defendant Donisi filed a sworn affidavit to claim the Head of Family exemption and the creditor's attorney swore an oath to nothing but a general denial.

As the Florida District Court of Appeal, Fourth District, described it:
". . . . Caproc’s attorney, Justin D. Jacobson, Esq., responded by executing an affidavit entitled “Plaintiff’s Denial Under Oath of Defendant’s Affidavit for Exemption from Garnishment Under Florida Statute § 222.12. The attorney’s affidavit stated that he personally appeared before a notary and that, after being duly sworn, pursuant to section 222.12, Florida Statutes (2009), 'Plaintiff hereby denies under oath that the Defendant is entitled to the exemption claimed in the Affidavit for Exemption.' The judgment debtor moved to strike the attorney’s affidavit on the grounds . . . . " [emphasis added]
The trial court judge granted Donisi's Motion to Strike (See note below) Caproc's affidavit and the appellate court agreed that the affidavit was legally insufficient. While the appeals court discussed in some detail the statutory necessity of plaintiff itself to swear the opposing affidavit, I contend this is the least significant aspect of the the opinion.

If Caproc's attorney had produced credible specific evidence that Donisi had falsified his claim of exemption, I doubt that any Florida judge would care much who signed the affidavit. Every good judge would want to hear more, at a formal court evidentiary hearing.

In other words, even if plaintiff Caproc had made the exact same affidavit, I'd argue the affidavit was still legally insufficient.


Note: Judges generally do not take significant action in a case unless one of the parties makes a formal request, either in writing or orally in open court and on the record. If there is a problem with an opposing party's affidavit, a Motion to Strike is one good way to bring it to the court's attention.

Monday, December 24, 2012

5 ways to attack an affidavit

A unilateral sworn and signed written statement of facts, voluntarily made, is known as an affidavit. One who swears an oath and signs is called an affiant. An affidavit is not a court pleading, per se, because it may originate from a non-party and affidavits generally do not ask the court to take action. A similarly sworn court document is called a verified pleading.

Affidavits are frequently used in the preliminary stages of court proceedings, but only rarely are they admitted as evidence at trial. Affidavits are used in emergency situations when time is short and the need for court action is great, such as with emergency protective orders. Affidavits are also used to increase court efficiency by identifying those situations where the facts are not disputed. If there really is no disagreement between the parties about what happened, then there may be no genuine need for the time and expense of a full-blown trial, and a motion for summary judgment may be justified.

Regardless of the use to which an affidavit may be employed in modern legal practice, the characteristics of a well-crafted affidavit are the same throughout. I am indebted for this to an excellent article published in the January, 2010, issue of the South Carolina Lawyer by attorneys Christopher Kelly and Laura Simons, Attacking Affidavits: Maintaining the Integrity of the Process, and a 2008 memorandum of law by Andrea Kuperman, Admissibility Requirements for Summary Judgment Affidavits. In general, an affidavit may be attacked for the following reasons:
  1. If the formalities of a sworn statement are lacking. An affidavit should show that the person signing the statement was first sworn to an oath that the statements are true and then be at risk for the penalties of perjury if they are not true.

  2. If the person making the affidavit is not a competent witness. A competent witness is capable of understanding the serious nature of a sworn oath. A very young child or one suffering severe mental disability may not qualify as a competent witness in general. Likewise, one who is profoundly intoxicated or under the influence of powerful medications may be temporarily incompetent to make a meaningful oath. An affidavit should state facts that establish the affiant’s competency.

  3. If the affiant is an attorney for one of the parties. In most jurisdictions it is a violation of professional ethics for an attorney for one of the parties to be a witness. I can think of no good reason why an offer of evidence by way of an affidavit should be an exception to this. This is not an issue of competency.

  4. If an affidavit is to be used in a legal proceeding, it should contain specific statements of fact that would be admissible as evidence at trial, just as if the affiant were testifying as a live witness in court. All the rules of evidence concerning firsthand knowledge, opinion, speculation, hearsay etc. may come into play.

  5. In a similar vein, the statements of fact in an affidavit should be specific. Although vague and conclusory statements of ultimate facts may be appropriate for notice pleading, they are not useful as proof.
This is but a brief overview. As with all else, check your local jurisdiction.

Monday, December 17, 2012

Shifting burdens

Shifting burdens

Everyone who watches Hollywood-based television has been exposed to the concept called burden of proof. Law and order type crime drama and popular press news coverage of reality-based criminal trials has made the government’s burden of proof beyond a reasonable doubt part of the shared cultural experience. Almost as many people understand that in non-criminal, or civil law, court proceedings, the party with the burden of proof is subject to a somewhat less stringent standard which is frequently phrased as proof by the preponderance of the evidence.

Yet ‘burden of proof’ is not a unified or monolithic concept. The phrase is simply a shorthand expression of two distinct but related procedural concepts:

  • The burden of moving forward by producing admissible evidence, and; 
  • The burden of persuasion. 

 The popular conception for burden of proof emphasizes the latter element, or the burden of persuasion. The burden of persuasion generally does not shift from one party to another during the course of a court or administrative proceeding, but sometimes it can.

The burden of persuasion may not rest exclusively on just one side of a legal proceeding. One party may bear the burden of persuasion on some issues, but with respect to other legal issues the burden may rest on the opposing side. It all depends on the specific issue.

The burden of going forward with evidence, however, may shift several times from one side to another during the full course of a proceeding. Using a criminal law example, at the very beginning of a case immediately following arrest by the police, the government prosecutor may have the burden of producing enough credible evidence to persuade a judge or magistrate there is ‘probable cause’ to believe a crime was committed by the defendant to justify his or her temporary incarceration. Probable cause is a much less stringent burden of persuasion compared to ‘beyond a reasonable doubt.’

If the matter proceeds to trial, the government again goes first with the burden of introducing at least some evidence for every single element of a crime and that the defendant is the one who did the deed. When the government completes its offer of evidence, or rests its case, the burden to move forward shifts and the defendant has an opportunity to offer evidence to contradict or confound the government’s case, if the defendant chooses to do so. In many states the burden to prove an insanity defense rests on the defendant, who must introduce evidence and persuade in order to be successful.

If any phase of a legal proceeding ends with the party bearing the burden to produce evidence fails to do so adequately, and there is zero evidence in support of one or more of the essential legal elements of a claim or defense, the judge may summarily terminate the proceeding, in whole or in part, in favor of the party on the other side.

Wednesday, December 12, 2012

Why not a legal form for that?

I’ve been working with Florida’s Head of Family statutory exemption and the question in the back of my mind has been, why not create a general purpose form so that non-lawyers can easily claim the exemption for themselves by just filling in the blanks? The idea has a superficial attraction, if things were only that simple.

Lawyers, businesses and governments use forms every day for standardized transactions. But they each employ trained professionals who know which form to use, and what the form’s limitations are. In the arena of Florida debtors claiming exemptions there may be a few commonly recurring situations, but there is no single standardized transaction. At best, there might be several different forms for the various configurations of circumstances, but no single all-purpose form is likely.

Still, the person seeking to use the form would need a certain minimum understanding of the big picture to know which specific form to select. Forms are useful tools in the right hands, but they cannot substitute for understanding.

In the context of Florida’s Head of Family exemption, a standardized form for claiming the exemption could be extremely misleading.

Fill out the form; file the completed form to claim the exemption and, voilĂ , get the exemption! Yes?

It’s probably not quite that simple. Claiming the exemption is just the first step in what could easily evolve into a long court battle. The other side might not sit still while you nothing more than file a piece of paper to keep your paycheck or bank account for yourself. The other side has the right to question your claim of exemption and to deny the truth of what you have claimed. Your creditor might likely put your claim to the test. Then, the ball is back in your court and you must come up with legally acceptable evidence and a persuasive legal argument to convince a judge of your claim.

Mindlessly filling out a form will not prepare you for that. A legal form is no substitute for understanding.

Saturday, December 8, 2012

Specialized courts

Modern life is so vast and complex, the law and the legal system must be equally vast and complex to deal with the numerous different types of problem that arise. Nearly everyone knows there is a difference between a criminal court action and a civil court action, and if you watch TV you may also know that large urban areas may have traffic courts that do nothing but handle minor traffic violations. Technically, these are criminal actions even if the penalty is nothing more than a money fine. Or, small claims courts that specialize in civil actions below a specified dollar amount.

Most people understand that the U.S. legal system has always been divided between trial courts that are the first to hear witnesses, to look at evidence and to make judgment calls, with or without a jury, and appellate courts that review the work of trial courts.

In the world of courts and judges there is a division of labor and subject specialization that most non-lawyers may have never considered. At the federal level are bankruptcy courts and tax courts, for example, that do nothing but handle disputes in those respective legal areas. There are various administrative law judges, or 'hearing officers' as they are sometimes called, that are somewhat apart from the general judicial system even if ultimately answerable to it. Social Security is one example. The denial of a Social Security claim is first appealed to a Social Security administrative law judge who does nothing but decide Social Security disagreements. There are many of these specialized avenues of dispute resolution, depending upon the nature of the dispute.

What brought this to mind was a recent announcement on the Kentucky Court of Justice website that a new three-year program has started in Jefferson County, Kentucky, focusing on military veterans who get into trouble because of drug abuse. This new program for veterans is a supplement to the existing Jefferson County Drug Court, but it is the first program of its kind in Kentucky because of the high number of military veterans living in Louisville.

The program is a collaborative effort between local prosecutors, judges, law enforcement, medical providers and non-government social services. Specifically:
"The Administrative Office of the Courts is collaborating on this project with the Office of the Jefferson County Attorney, the Robley Rex Veterans Administration Medical Center, Jefferson County Drug Court, Seven Counties Services and Morehead State University."  Leigh Anne Hiatt, APR, Public Information Officer, Administrative Office of the Courts
What may be different from the popular conception of what courts do is the focus on solving the problem and providing treatment, rather than just dishing out punishment. The program is funded by a by a three-year$350,000 grant from the Bureau of Justice Assistance of the U.S. Department of Justice.

Thursday, December 6, 2012


Legislative bodies all across the United States and at all levels of government, from city councils to the U.S. Congress, are busy all the time passing new laws. Many shelves of bookcase space is devoted to just 200 plus years of Federal legislative enactments. Keeping track of it all and making it as accessible as possible is a big job.

A single Act of Congress may have many different part, on several different subjects and it may reference or impact upon numerous preexisting laws.

The Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 is a good example. Dodd–Frank addresses both a reform of Federal securities law and a reform of Federal consumer protection laws. The first focuses upon the activity of financial institutions, which is mainly of interest to Wall Street lawyers, and the second focuses upon such matters as consumer credit cards and payday loan, which is of interest to everyone else.

The Congressional Act itself, with all its various parts, is officially known as Public Law (or P.L.) 111-203, 124 Stat. 1376, and you can read the Public Law version online courtesy of the Government Printing Office. As an aside, the '111' of  P.L. 111-203 signifies the 111th U.S. Congress (2009 - 2011).

The various Public Laws and other Acts of Congress are collected and published at the end of a Congressional session in the U.S. Statutes at  Large (Stat.) The United States Statutes at Large are the official source for the laws and concurrent resolutions passed by the United States Congress.

The United States Code (U.S.C.) is created and maintained by a group of busy professionals who take the different parts of Congressional Acts, divide them up into logical groups and arrange them by topic. This way, all the Federal laws on Consumer Protection, for example, can be conveniently found all in one book.

This is codification, which is the process of creating a code. The U.S. has the United States Code, every State has its own state law code, and local governments have their versions too, all arranged by subject. Think building code, zoning code, fire code etc.

For the vast majority of day-to-day legal research and writing, it is to the various codes that we turn and to which we make reference.

United States Law Online: United States Code, Statutes at Large, and Public Laws, The Law Library of Congress.

Wednesday, December 5, 2012

The law: Version control

The United States legal system revolves around a few basic primary sources:
  • Published court decisions;
  • Court rules;
  • Legislative acts, or statutes, and;
  • Administrative regulations.
Each state and the federal system has its own sets of these, and they are all subject to change at any time. You can think of laws and regulations as being like different versions of Microsoft's Windows operating system, on steroids. All the time they are coming out with the new and improved version just when you became familiar with the old version.

The first item on the list, published court decisions, is the exception.

A published court decision does not change once it is published. Later court decisions can change the meaning or the validity of the earlier decision, but they don't go back to the first decision to add a footnote letting you know that it has been changed. They do not do that. It is one possible reason why some lawyers sometimes drink too much. It is a constant worry that they missed out on an important change.

The main trick for researching court decisions is to work backwards in time, and start with the newest decision first. Older cases are still sometimes very useful, but more skepticism and research is needed.

Court rules, legislative acts and administrative regulations are a little easier, in this respect: They are updated and supplemented regularly and each rule or statute generally has a revision history. This is an example from the Kentucky Rules of Civil Procedure, CR 11 Signing of pleadings motions, and other papers; sanctions:
This rule was first adopted by the Kentucky Supreme Court in 1953 but amended in 1963 and 1989. If you are reading a Kentucky Appellate Court decision from 1959 discussing this CR 11, you know it is a somewhat different rule they are talking about and there is no point looking for case law before 1953. 

Tuesday, December 4, 2012

PTFA does NOT expire December 31, 2012

The Protecting Tenants at Foreclosure Act is a Federal law that went into effect during 2009 as part of a larger Act called the Helping Families Save Their Homes Act of 2009, Title VII, Public Law 111-22. The Act gave additional protection to innocent third-party tenants renting and occupying premises that went into foreclosure. The Act was intended as a temporary expedient and it was originally slated to expire on December 31, 2012.

 However, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) changed the expiration date to December 31, 2014.

The provisions of the Act, as amended, are set out in 12 USC § 5220 note. Literally, in the notes to that section, but also provided here:

Effect of Foreclosure on Preexisting Tenancy  
 Pub. L. 111–22, div. A, title VII, § 702,May 20, 2009, 123 Stat. 1660, as amended by Pub. L. 111–203, title XIV, § 1484(1),July 21, 2010, 124 Stat. 2204, provided that: 
“(a) In General.—In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title [May 20, 2009], any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to 
“(1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and  
“(2) the rights of any bona fide tenant, as of the date of such notice of foreclosure 
 “(A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or  
“(B) without a lease or with a lease terminable at will under State law, subject to the receipt by the tenant of the 90 day notice under subsection (1), except that nothing under this section shall affect the requirements for termination of any Federal- or State-subsidized tenancy or of any State or local law that provides longer time periods or other additional protections for tenants.  
“(b) Bona Fide Lease or Tenancy.—For purposes of this section, a lease or tenancy shall be considered bona fide only if 
“(1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant;  
“(2) the lease or tenancy was the result of an arms-length transaction; and

“(3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State, or local subsidy. 
 “(c) Definition.—For purposes of this section, the term ‘federally-related mortgage loan’ has the same meaning as in section 3 of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2602).”

Louisville Legal Aid Society, Tenants and Foreclosure: Questions and Answers About Rights for Louisville Renters - Kentucky Law

Jennings Strouss, Attorney, What You Need to Know About the "Protecting Tenants at Foreclosure Act"

Monday, December 3, 2012

Online legal resources for Kentucky small claims

Legal self-help is much easier with Internet access to nearly every legal research tool you might need. Here are a few links to get you on your way, if you are a Kentucky resident.

Small Claims Court specific:

General legal resources:

Saturday, December 1, 2012

A cause of action

A man walked into a lawyer's office, sat down and launched into his story. There is always a story. Some people think that being called to answer in court is like going to the principal's office. If you can tell a sad enough story or devise a good enough excuse, then you're off the hook. Most people don't know what type of story  a judge needs to hear. That's why we have lawyers. The lawyers understand the rules of legal story-telling.

Other people think of courts as lottery machines. If you buy a ticket, you have a chance of winning a bazillion dollars. Again, this is not how it works.

So, the man tells his story to the lawyer. One day the man had car trouble while driving on the expressway and he pulled his car over to the side of the road. As he was outside the car looking under the hood, a big eighteen-wheeler came barreling past and one of its wheels came flying off.

The lawyer asks, "Did the wheel hit your car?"

The man, "Nope."

The lawyer, "Did the wheel hit you?"

The man, "Nope. The wheel flew right over my head an landed in a field. It scared the heck out of me. Let's sue."

The lawyer, "Nope."

The man lacked a legally recognized "cause of action." Now, if the truck tire had hit the man in the head and put him in the hospital, then his story world have been much closer to being the type of story the lawyer could work with. There would have been actual physical damage to the man's body, a hospital bill to pay, possibly lost income, and probably a lot of genuine pain. Just being frightened generally doesn't count for much.

You could sue, but you would not win. Lawyers like to win.