Putting a face to the “plain language” debate

Lawyers should be servants. This is never easy. In fact, it’s usually pretty hard. The billed hour and the adversarial system and the looming cloud of malpractice does not naturally encourage us to be “others-centered.” We have to serve our clients, but we also have to serve the courts and, in some attenuated way, we have to serve justice. (I trust the conflicts of interest there are not lost on the reader.) And then we have to make living. No wonder the lawyer-servant is so rare.

tremain

I was reminded this week in a poignant way that one way to serve people is by drafting documents in plain language. You know, so the people who paid you (and for whom the documents were drafted) can actually make use of them. Yes, I know—it’s a radical idea. The debate over plain language is not a purely academic question, after all.

Prologue: One benefit of doing all this internet stuff is that people can actually find me—on the internet. Often these are the kind of people who don’t know anywhere else to look but the google. These are folks who don’t know a lawyer or don’t know anyone to ask. I am thankful for these people because they help me remember what it’s like to be on the other side, where the law is (unfortunately) shrouded in mystery.

On to the poignant experience: A woman found me on the internet this week and called to ask a question. She was wondering whether her new mother-in-law could take her daughter on vacation. (She was divorced and remarried and has custody of the daughter.)

The only way to answer the question, of course, was to look at the divorce decree and see if it addressed the situation. So, I asked her if she had a copy of it, to which she replied that she did. I asked her if it said anything about vacations or out-of-state trips.

Her reply: “I don’t know because I can’t read it. I only read on a fourth-grade reading level, and I don’t understand the words.”

Let that sink in.

After seeing a copy of the decree, I could understand her plight. It was full of nonsense—useless recitations, tired Latinisms, recycled garbage from a thousand decrees before. It was unclear on most of the things that matter and bulging at the seams with words that served no purpose. I’m sure the lawyer who drafted it felt very, very smart when he filed it. I hope so, anyway; he surely could not have walked away from the experience with the conviction that he was an effective lawyer.

If someone can’t read, that is one thing. But someone with a fourth-grade reading level should be able to read their divorce decree and understand it. (If not, I don’t think it’s a legally effective decree.  The people who need to rely on it don’t know what in the heck to do with it.) Fourth-graders, after all, can read things like Johnny Tremain, Beverly Cleary, and Judy Blume.

If someone can explain the dangers of silversmithing during the Revolutionary War to a fourth-grader, surely it’s reasonable that I can tell people where there stuff goes and what to do with their kids in an understandable way.

On Covenant Marriage

I wrote a post in April of last year about Covenant Marriage; my thoughts have not changed significantly. You can find it here.

Bob Clausen of Channel 4 recently chose to do a special on Covenant Marriage and, having found my post, decided to interview me. It was fun. There were a few fleeting moments of lucidity, but I definitely have a lot to learn about giving an interview. I look forward to more similar opportunities.

bob-clausen

The interview will air tonight at the 10 o’clock spot.

Bob and I spoke for about 25 minutes and I expect you’ll only see me for about 30 seconds. (Again, this is not a bad thing!). But as those things go, I suspect that the interview will not reflect my thoughts in a comprehensive way.

So to make sure that I don’t end up “saying” something I didn’t mean to say, here is a brief outline of what I think about Covenant Marriage.

1. The importance of lifelong, healthy marriages cannot be overstated. People are (other things equal) healthier, more productive, and more responsible when they’re in a healthy marriage.

2. Working to figure out how to strengthen marriages is important work, regardless of one’s worldview or religion.

3. The State of Arkansas should do everything it can to strengthen marriage because it will materially benefit its citizens and make the state stronger.

4. The drive behind the enactment of the Covenant Marriage was a noble one—an attempt to use the legislative process to strengthen marriage.

5. Covenant Marriage’s place in our law is a positive one because it shows the State’s understanding of the importance of marriage and need to strengthen it.

6. Unfortunately, however, the practical benefit of Covenant Marriage is minimal. It is more likely to cause harm than good.

7. There are better ways to use the law to set more stringent parameters on your marriage. (Read here (or better, call) for more information on this.)

That’s what I think. If the interview ends up saying something else, this controls.

When Does Arkansas Child Support Stop?

 

This post is a simple and straightforward one, but I get this question all the time: “When does my Arkansas child support stop?”

child support

In Arkansas, a person’s child support obligation will stop “as a matter of law” (more on that in a second) when one of the following things happens:

  1.  The child turns 18 and is not enrolled in high school. (He or she has either graduated or dropped out when he or she turns 18.)
  2. The child is over 18 and graduates from high school. (Yes—even if your child goes to Harvard on a full scholarship at age 14, your child support will continue until he or she turns 18. Graduation only matters if the child is over 18.)
  3. The end of the school year after the child turns 19.
  4. The child is emancipated. (For more information on this, go here.)
  5. The child marries.
  6. The child dies.
  7. The child’s parents remarry.
  8. The child is adopted.

A few things to note: The termination of one’s child support does not magically erase past due child support (also known as “arrearages”). Also, if a Court has ordered you to pay additional child support past the normal time (like, for instance, to pay for a child’s college), then you’re on the hook.

Arkansas law says that your child support obligation will stop “as a matter of law,” but that’s a little deceiving. After one of the events listed above happens, it is the obligor’s (the person paying child support) duty to follow up. According to the Arkansas child support law, the obligor has to provide written notification to the following people:

1. The custodial parent,

2. The physical custodian (if this applies),

3. The clerk of the Court where payments are made,

4. Your employer (if your income is withheld to pay the child support), and

5. The Office of Child Support Enforcement (OCSE).

These letters must include the following items:

1. A copy of the most recent child support order,

2. The name and age of each child that you are seeking to terminate child support, and

3. The name and age of each child whose child support has already been terminated.

So I guess the child support law should actually say that the Arkansas child support will stop “as a matter of law”—and if you send out a bunch of detailed letters that you didn’t know you had to send. True story: I recently saw a case where a father had paid child support until the child was 24 simply because he had not taken the steps to stop it. And once that money has been paid out, it is gone forever. Yikes!

If you’ve got any other questions about stopping your child support (or questions about Arkansas child support in general), please call us.

How Does Interstate Child Custody Work in Arkansas?

The legal issues with child custody in Arkansas are usually pretty simple: Who’s the better parent? (As set forth in the magical “best interest of the child” standard.) No need to be a lawyer to understand that. Things can get a little tricky, however, when the child custody issues involve more than one state. This actually happens a lot. And because a lot of child custody battles do end up across state lines, there are two important laws in Arkansas that govern which court should hear the child custody matter: The UCCJEA and the PKPA.

The UCCJEA (it stands for Uniform Child Custody Jurisdiction and Enforcement Act) is what’s called a “uniform” law. So, in this case, a bunch of people who are smart about child-custody-jurisdiction-stuff all get together and recommend to different states what they should adopt as their own laws. Sometimes this works; sometimes it doesn’t. In the case of the UCCJEA, though, it has worked beautifully: Every state (including Arkansas, of course) except for Massachusetts has adopted the UCCJEA, and it is in the process.

uccjea-interstate-jurisdiction

The main thing to know about the UCCJEA is that it puts the most weight on where a child’s “home state” is when making an initial decision about jurisdiction (The home state is basically where the child has lived with a parent or guardian for the six months before a lawsuit is filed.) The second most important thing to know about the UCCJEA is that once a state gets jurisdiction, it tends to keep it. The third most important thing to know about the UCCJEA is that its purpose is to reduce confusion and make sure that at least state has jurisdiction over a custody matter at all times. That is the “big picture” with the UCCJEA.

Once a court exercises jurisdiction, it may lose it under a couple of different circumstances. (We’ll use Arkansas as an example here.) For instance, if no one (neither the child nor either parent) lives in Arkansas, then Arkansas would lose jurisdiction of the case. That’s a pretty easy example. The harder case is when the custodial parent and the child live in another state but the non-custodial parent continues to live in Arkansas. In that case, you’ve got to prove that the child no longer has a substantial connection to Arkansas and there’s no longer evidence about him or her in Arkansas. That tends to be pretty hard to prove, and most courts don’t like to give up jurisdiction if they don’t have to.

There are two important takeaways from all this if you anticipate being involved in an interstate child custody situation:

  1. There is a significant strategic advantage to acting first, so you need someone looking at your situation immediately. And when I say immediately, I mean now.
  2. You need to find someone who understands the UCCJEA. Unfortunately, many family lawyers do not and won’t be thinking how they can use it to your strategic advantage.

Most child custody disputes never really resolve; if you’ve got a four-year old and an unpleasant ex-spouse, you should expect another fourteen years of lawyer fees, court costs, and frustration. Arkansas tends to be a fairly cheap and efficient place to fight these battles. The difference between Arkansas having jurisdiction and another state having jurisdiction might mean a difference of tens of thousands of dollars, depending on the situation.

That is, if you can keep your case in Arkansas, you’re probably better off. We can help with that—call us.

Is it Hard to Get Divorced in Arkansas?

arkansas-divorce

Posts like this make me fondly remember the days when the Huffington Post actually had interesting things to say. (They don’t anymore.) The article is titled “The Five Best and Worst States for Getting a Divorce,” and while I’ll agree the title is interesting, that’s about all that’s interesting about it. According to the author, Arkansas tops the list of the hardest states in which to get a divorce.

Apparently the most important factor is the “Ease of Filing Score,” which is a combination of the length of residency required, separation requirement, and waiting period. Arkansas ranks the worst. Of particular interest is the “Minimum Total Processing Time,” which is 540 days. I have no idea what the 540 days are for; I don’t think any lawyer who took 540 days to get an Arkansas divorce would stay in business very long.

Anyway, as a service to the reading public and those who may trust HuffPo with divorce advice, here’s what it actually takes to get divorced in Arkansas:

  1. You (or your spouse) needs to have lived here for sixty days. (Yes, if your spouse lives here and you don’t, you can still file here.)
  2. You need $165 ($185 in Pulaski County if you’re an attorney) for a filing fee.
  3. You need to have grounds. (If you don’t want to bother with a separation, you can simply plead “general indignities.”)
  4. You have to wait thirty days after you file before the divorce is complete.

There are a few other things to worry about like proper service and getting a good, specific decree (stuff that’s best for a lawyer to do), but those aren’t too difficult, and they didn’t factor those things into the equation.

I do hate to see people get divorced, and sometimes I wish it was a more difficult process (although I don’t think it would do much to encourage people to try harder at marriage, unfortunately).

But it ain’t, especially in Arkansas.

How to Beat a Credit Card Lawsuit

Note: This blog has two purposes:

1.  I want you to give you interesting content that I have curated, digested, and then written about in a way that is engaging and understandable. My goal is both that you would be entertained and become more interested in the law.

2.  I want you to hire my firm to help you with your legal issue. 

So the blog is sort of a friendly boxing match. I give you (hopefully) good stuff—jab, jab, jab—and then every once in a while I’ll work in a right hook where I’m really gunning for your business. Today will be a right hook. Now, it’s not a haymaker—this information should be good and hit my “target”—but I’m still looking for your business. Just wanted you to know.

Now for the good stuff . . .

credit-card-debt-suit

When someone doesn’t pay for something they’ve bought, that debt is often sold to a company that specializes in debt collection. This debt might be a credit card or car loan or motorcycle loan or anything. If the company can’t collect the debt itself, it hires a debt collection law firm to sue the debtor. There are several of these debt collection law firms in Arkansas; some are better than others.

The debt collection process is highly regulated—a debt collection company can’t just do whatever it wants. The most important regulation for debt collection firms is the Fair Debt Collection Practices Act (FDCPA), which is both a federal law and an Arkansas law. It applies to suits over credit card debt.

In 2012, the Arkansas Supreme Court decided a case called LVNV Funding v. Nardi, where it basically reminded Arkansas debt collection firms that they have to have proof of the original debt before they sue. Because these debts have been sold, many times the original contract has been lost. No original contract = no lawsuit. (Courts have since decided that an Arkansas debt collection firm can amend or change their lawsuit if they later find the original document, but they usually can’t find it.)

Arkansas debt collection firms operate this way: They sue (on a credit card debt, for example), nobody answers, they get a default judgment on the debt because no one has answered, then they garnish someone’s wages with the default judgment. That’s it. It doesn’t matter if they actually have a case or have the original document because people usually don’t fight it.

That’s what we want to change. No one should ever just roll over in a debt collection lawsuit. At the very least, he or she needs to make sure that the Arkansas debt collector actually has the original contract. If the debt collector does have the original contract, it’s time to settle. If they don’t, the judge should dismiss the case.

If you (or someone you know, of course) has been sued by an Arkansas debt collection firm, please reach out to us. This is especially true if you’ve been sued and the time for filing an answer has elapsed—usually thirty days. You may not only be able to get out of the debt, but you may also be able to get damages under the FDCPA because the debt collector sued you improperly. The damages for every single communication that violates the FDCPA is $1000.

The debt collector may or may not have the original contract, but they usually don’t. Hire us to help you find out.

 

4 Lessons in Lawyering from “Car Talk”

I am sad that Tom Magliozzi of “Car Talk” has died—he was a real bright spot on the radio. He and his brother Ray (“Click” and “Clack”) hosted the show for over 25 years before retiring in 2012. You can still hear reruns on NPR and even podcast the reruns on iTunes. (Not sure if podcasting is still cool, but I certainly use the heck out of it.)

car-talk-tom-magliozzi

Man, “Car Talk” is great. It is about cars and car problems in some sense, but those are just vehicles (zing!) for talking about the thing that really matters: Life is funny. All of it is funny if you take the time to think about it (and talk about it with those accents). They could make anything funny even though I had no idea what they were talking about. (Although I would like to point out that I changed my oil one time in high school and have also replaced a “serpentine” belt. I’m not sure if they call it that because it was a devilish task, but I wouldn’t doubt it.)

Ever seeking to reflect on things to get better, I’ve been thinking about Mr. Magliozzi. Here’s my lawyer’s takeaway on four things I can learn from Click and Clack:

1. People aren’t stupid; they just do stupid things sometimes.

As I pointed out earlier, I don’t know anything about cars. Most of the people who called in to “Car Talk” to pose an automobile dilemma obviously didn’t know much either. And they often had done something stupid—or a series of stupid things—to get in the situation for which he or she was seeking help.

But the guys never talked down to people. They never assumed a caller couldn’t understand the technical terms or explanations. They gave everyone the benefit of the doubt. They were the experts but they didn’t feel like they had to rub it in.

That is a good word to me, especially as I deal with situations that almost invariably could have been avoided with better decisions. We all do stupid things; it doesn’t mean we’re stupid. Lawyers should expect that clients can understand what’s going on.

2. You can make anything interesting if you frame it around the listener.

Cars aren’t interesting to me, and they never will be. But I love to solve problems, and I love to hear about people’s stories—I think that’s a near-universal human trait. The Magliozzis were able to take something that relatively few people are interested in and make it engaging because they framed the issues around the caller, not their own knowledge. The car problems were interesting because they were part of a larger story about the caller and his or her issue. I may not have a car problem, but I’ve got a story and I’ve got problems to fix. We all do.

I wish I was better at this—framing a legal issue around the client, not me. I’m sure it would result in fewer eyes-glazed-over consultations and follow-up calls to ask questions that I didn’t answer because I was thinking about me, not the listener (or client, as it were). If what I’m saying doesn’t interest the person I’m talking to, that’s my problem, not his or her’s.

3. Get the back story.

Click and Clack never tried to diagnose car trouble without getting to know the person. Does the person live in Vermont or Arizona? Does the person have children? Is she married? Does he live two miles from work or two hours away (or does his two-mile commute take two hours, an entirely different problem)? For the guys, they knew they couldn’t solve the car issue without knowing all the facts and asking the right questions. And they were able to do it in a relatively short amount of time—they made jokes, but they didn’t ask stupid questions. Every question, even if it seemed off-topic, moved them toward an answer.

Yeah—I need more of this.

4. Build a relationship before solving the problem.

(Or, at least do your best to build a relationship while solving the problem.)

The world is full of people peddling their wares. Whether it’s lawyers or auto mechanics or any other service provider, everyone is selling something, even if he or she may not look like the typical salesperson (you know: the pushy door-to-door vacuum salesman). We all have more options than we do money; often, we have multiple good options. Talented people with interesting things to buy are everywhere.

So how do people choose who they hire to help them? Assuming you’ve got a good product, I think it’s tough to overstate the importance of establishing trust. You establish trust through deliberately cultivating a relationship. How did the guys on Car Talk do this? They were smart. They cared. They were people. They asked about the callers’ hometowns and dogs. And so forth . . .

People could have called any auto mechanic and, assuming they have any network at all, received good advice about how to fix the problem. They called the Magliozzis because they wanted a solution AND a relationship.

Legal solutions are everywhere; that reality becomes truer by the day, it seems. (LegalZoom, RocketLawyer, Avvo Advisor, LawFone, etc.). To capture business from these places, lawyers must be willing to provide good, workable solutions (that’s a threshold requirement) while building the kind of trust that only a real person can provide.

Just like the guys on “Car Talk” did.

Law-practice fl”AVVO”r of the Month.

See what I did there with “flavor?” You’re welcome.

The law is a cottage industry. Starting with LSAT prep, the test itself, “How-To” Guides for law school, supplements, textbooks, Bar Prep, and then the Bar itself—and that’s just to get there! Once you’re a lawyer, there is a chorus of impassioned voices calling you to buy their product, all of which is the magical key to lawyerly success.

Even I (who will listen to nearly anyone) have learned—in just one year of practice—to hang up on these people. I have heard it all and been duped on several occasions and have become pretty darn calloused to all these snake-oil salespeople peddling these law-practice panaceas. (Can “panacea” be plural? I am not sure.)

avvo

Avvo falls in that camp. It’s better than many, but it is still easy to game. If you spend some money and answer some questions and haven’t been disciplined, you’re likely to rise to the top and achieve the highly sought-after pinnacle of Avvo-ness: a perfect 10.0 out of 10.0 rating. (Let me check my cynicism for just a moment. I have read many responses on Avvo that were genuinely helpful and obviously written by someone who knows what he or she is talking about. But there’s plenty of drivel.)

Avvo recently announced a new product: Avvo Advisor. Whereas normal Avvo (Avvo Answers) is just a free forum for people to ask (always interesting; often inane; sometimes insane) questions about their pressing legal issues, Avvo Advisor is a paid service. Evidently you pay $39.99 for 15 minutes from a “top-rated” (HA!) attorney who specializes in your particular field. It isn’t being offered in Arkansas yet, but I am sure we are quick to follow the other nine launch states.

I am intrigued by this concept. One on hand, I would LOVE to make some money off all the good free advice that I give away literally (not literally as figuratively—I mean “literally” literally) every single day. I’m not sure what percentage of the $39.99 would actually go to the lawyer, but it would seem to be a decent way to fill some gaps in a lawyer’s day. And it would certainly be more profitable than browsing Facebook or ESPN or something. I also think that I could give someone enough good, solid advice in the span of 15 minutes to make it worth his or her while.

It doesn’t take long to realize, however, that this is unlikely to work. (I know it will “work” in the sense of making a profit, of course. The folks behind Avvo are clearly pretty shrewd.) When I say work, I mean will it actually provide benefit for the callers—the people who are paying for the service and expecting help. In my experience, the people asking questions on Avvo have a difficult time understanding their issue and narrowing their question down into understandable, answerable parts. (For example, people will often include nearly anything under the umbrella of family law, apparently under the impression that because they have a family and need a lawyer that they need a family lawyer. Sadly, it is not so.)

Another recurring issue is asking a question in the wrong jurisdiction. For instance, there are regularly people on Avvo who ask questions on British law and mistakenly assign the jurisdiction of England, Arkansas. Would someone who paid the $39.99 be more sophisticated than the person looking for free advice? Perhaps, but I doubt it.

It’s one thing to game lawyers. We tend to be critical and are on guard for would-be manipulators. (Usually, anyway. I fear that many lawyers check their brains at their web browser—”Wow, I can give you $500 a month to make Google like me? Here’s my credit card!”) But consumers—especially folks who are looking for their lawyers online—are unlikely to know that their legal issues cannot be addressed in 15 minutes. Nor do they know that the person at the other end of the phone, Avvo rating notwithstanding, is unlikely to give a crap about helping them.

The thing’s got some more problems, as pointed out by Simple Justice.

I think I’ll just keep giving my time away—15 minutes at a time.

“Who Gets My Twitter When I Die?”

Here’s our second installment to celebrate 2014 National Estate Planning Awareness Week: “Who Gets My Twitter (or Facebook or Feedly or Instagram or Pinterest) When I Die.”

When we think about our estate—our stuff—the stuff that’s going to be left behind when we die that someone else is going to have to sort through—we normally think about tangible stuff like houses and cars and books and bank accounts.

digitial-presence-estate-planning

But for many of us (especially digital-native types under, say, 35), we may have more invested in our social media accounts than we do in the stock market. (I am running low on both, I fear.) And while a Twitter account with 20,000 followers doesn’t necessarily translate into money, it ain’t nothing, either. You had to do some work to get there and it’s worth something. So, again, what happens to it after you die?

Well, if you don’t make specific plans for your social media and other digital assets before you die, the answer’s pretty scary: You have no way of knowing. Your account may be memorialized (if it’s a Facebook account) or simply shut down or left to hover in the inter-ether (yep, just made that up) indefinitely. Without clear direction from your estate plan, the future of your social media presence will pretty much be up to whoever wants to access it and the individual policies of the particular providers.

On one level this sounds trivial, but think about it more carefully: If you spend a fair amount of time using social media, that is an important part of your life. Depending on your public candor, your status updates and tweets serve as an informal autobiography. And because younger folks tend to spend so much time online, you may not have any other recorded reflections on your life.

So would you prefer for all that information to be decided on a whim, or would you prefer to direct someone in how to handle it.

Be aware of your social media presence. If you’re concerned, call us. We would love to discuss different options for making sure your digital presence is handled the way you want.