January 2020 – Gregory D Smith

Looking At The Appellate Record

Appeals, Civil Law, Criminal Defense, Family Law, Military Law, Uncategorized

Presenting an appeal is different from presenting a trial because an appellate record is a “closed record.” This means the appellate record is similar to a photograph. The trial is real-time and moving. The appellate record is a snapshot of a moment of that flowing concept of real-time. At trial, a party can present live evidence, explain their intent, and answer follow-up questions. On appeal, just like a photograph, time stops and time does not change an answer given. No new evidence is offered. Nobody gets to explain their answer after the trial ends. One must look to the photograph taken, (the appellate record), to determine the contents of the photograph or “record.” While one may wish to add or subtract from the photograph; the photograph (record) is already taken, developed, printed, and remains as taken. Appellate records usually include trial transcripts, pleadings and arguments of counsel. One must show, just reviewing what is in the appellate record, that the trial court committed reversible error.

To show “reversible error,” one must show a mistake was made at trial, and that mistake adversely impacted on the outcome of the case. Error, without impact, is called “harmless error” and will not get a decision overturned. The Appellant, (the person appealing), must show both error and adverse impact for appellate relief. This task is very different from the tactics used by lawyers at trial. One needs an experienced appellate attorney for this function. Greg Smith has presented hundreds of appeals over thirty years. If you wish to discuss your appeal, and you have a Tennessee, federal or military appeals case, you may call The Law Office of Gregory D. Smith at 931/647-1299. Initial consultations are free.

January 21, 2020/by admin

How Do I Change Or Fire My Lawyer?

Appeals, Civil Law, Criminal Defense, Family Law, Indian Law, Military Law, Uncategorized

The first, and most important point, before one changes legal counsel, is to carefully consider if that move is actually in your best interest? Is the change being done out of anger, panic, or logic? No attorney can promise an outcome in court. The attorney you currently have knows your case, has been paid, and previously earned your trust. Can your concern be eased by simply sitting down with the attorney and discussing your concern? That may be worth a try before paying another attorney a second retainer to take over your case or proceeding “pro se.” (Latin for “on your own”). Likewise, an appeal is usually considered a separate case, so once a case is completed, you may seek other counsel for an appeal.

If you find that an attorney change is necessary, there are two ways to do it. First, you can personally tell your attorney “You’re Fired.” That option is self-explanatory. Second, you can hire another attorney, and then the newly retained attorney contacts the previous attorney for a “substitution of counsel.” These two procedures are fairly common and won’t be as stressful or offensive to the original attorney as one might expect. Changing counsel does not automatically waive any outstanding attorney fee owed to the original attorney or obligate new counsel to negotiate a return of fee from the original counsel. Most of the time, the new attorney stays out of that discussion.

In the case of appointed counsel, simply hiring an attorney usually ends an appointed attorney’s duty to represent a client. If an indigent criminal court defendant wants to fire their appointed counsel, but can’t afford to hire counsel, the defendant can instruct appointed counsel to file a motion to withdraw or send the court clerk a pro se motion or letter asking for a different attorney and stating why the change in counsel is necessary. The Court is not required to give new counsel for indigents simply because a defendant does not like the appointed attorney. Indigents do not get to pick who a Court appoints as the defendant’s attorney. That being said, courts frequently grant a first request for a different appointed attorney filed by an indigent defendant. Repeated requests for new appointed counsel are less frequently granted.

If you are in Tennessee and have questions about rules regarding changing attorneys, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal,(the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith .

January 4, 2020/by admin

When Does The Indian Child Welfare Act Apply To Custody Cases?

Family Law, Indian Law

The Indian Child Welfare Act, commonly called ICWA, can be found at 25 U.S.C. section 1901 et seq. ICWA applies to state juvenile court cases where a termination of parental rights or surrender of parental rights exist and either the child or one of the parents is associated with a federally recognized Native American Indian tribe. ICWA also applies to custody cases arising from a state initiated dependency and neglect case where a parent or child is associated with a federally recognized Native American Indian tribe. The third area where ICWA sometimes becomes an issue is state filed private adoption cases where at least one the parents giving up a child for adoption is associated with a federally recognized Native American Indian tribe. ICWA does not normally apply to divorce cases where one or both parents in a pending state divorce case are Native American.

It may sound odd to say a parent is “associated with a federally recognized Native American Indian tribe.” This term-of-art usually means a party is a member of an Indian tribe that the United States Department of the Interior has declared to have proven existed before the United States became a nation and said tribe still exists today. An example of a federally recognized Indian tribe would be the Eastern Band of Cherokee Indians, based in North Carolina. This tribe has traceable blood ties to ancestors “registered” as Native Americans prior to the 1930s “Dawes Rolls.” Ironically, Cherokees in the federally recognized Oklahoma Cherokee Nation may have common ancestors to their North Carolina cousins. DNA tests often determine blood lines and acceptable percentages of Native American heritage for a person to qualify as a tribal member or to be deemed “associated with a tribe.” Some people who could be registered as Native American in a federally recognized tribe do not register, but perhaps a parent or grandparent has registered. That unregistered person still has potential association with a Native American tribe. Likewise, if a Native American couple adopt a non-Indian child, the tribe can declare the adopted child to be a tribal member since each tribe determines their own membership qualifications.

In the event that a known Native American child comes into state court custody via surrender, state intervention for neglect, or private adoption, the state and court have an obligation to try and notify the relevant federally recognized Indian tribe that the child is in state custody or is being considered for a private adoption. Then the tribe, or Native American family members, can intervene in the state case to either monitor, participate in the state case, or seek to move the matter to the tribal court associated with the federally recognized Native American Indian tribe pursuant to ICWA. This law helps avoid a de facto tribal genocide by non-Indian adoptions or state foster care scenarios. Note that ICWA rules do not necessarily apply if a tribe is not federally recognized. Sadly, the mandate of ICWA is sometimes overlooked or undermined by social workers not asking about a child’s tribal background or a parent deliberately hiding a Native American tribal association. ICWA applies while a case is proceeding and a tribe can intervene, even late in the process. Once a case becomes final, even if ICWA could have applied, the right to intervene by a tribe under ICWA is usually extinguished.

For more information on ICWA or other Federal Indian Law questions, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and Federal Indian Law in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

January 4, 2020/by admin

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