DSCN3343Before we arrive at wedding season’s summer peak, people might as well know what resources exist for their divorce.  It is easy to find the official divorce forms on the Courts webpage.  Filling them out is even quicker and easier with the ICAN! online interactive forms.  The language of the forms has been updated for gender neutrality. Likewise, it is easy to work with the Family Self-Help Center to have your forms reviewed, or to speak to a volunteer lawyer about your situation.  If people still have questions, they are more than welcome to check the information resources we have at the law library.  After all, divorce can be complicated, especially where children or real estate are involved.

One modern trend might come with unique complications of its own.  Here I speak of the growing trend of senior divorce (commonly known as “gray divorce”).  Even as divorce rates have stabilized or declined for other age groups, the  rate among people 50 and older has doubled since 1990.  This increase is due to numerous reasons, but is mostly just an evolution away from a time when an unhappy older couple automatically stayed legally married regardless of marital satisfaction or circumstances.   Regarding the complications, senior divorce is likely to involve more assets to divide and more health and retirement issues to account for.

Whether you are a senior facing divorce in your  near future, you may as well know that your divorce is less likely to be quick and simple.  Read Nolo’s Special Issues in Late-Life Divorce to get an idea of what you may face.   We also have Divorce after 50: Your Guide to the Unique Legal & Financial Challenges  (Nolo 2013) by Janice Green.  If you are an attorney that works with older divorce clients, valuing the couple’s unique assets may not be a simple task.  There is always the trustworthy Family Law Financial Deskbook (MN CLE 2d Ed. 2014) for your convenience, but be aware of some of the other resources we have available to help:

  • Valuation and Distribution of Marital Property (LexisNexis) by J. McCahey & B. Aldeman. (Three-volume set - annually updated.)
  • Valuation of Divorce Assets (ThompsonWest Rev. Ed. 2005) by B. Goldberg.  (Two-volume set – annually updated.) 
  • Valuation of Pensions in Divorce (Wolters Kluwer 5th Ed.) by M. Altschuler.  (One volume - annually updated.)

 

 

file0001179129151Mental Health Awareness Month isn’t just about those who might accidentally land in the criminal justice system. It is also a time to consider the mental health of lawyers. For those legal practitioners seeking to grow their own professional happiness and satisfaction, it turns out that money and prestige aren’t on the list of essential ingredients. A New York Times article recently showcased a Yale Law School study which revealed that it was those lawyers making the least money that scored highest on a happiness survey. These included most notably public defenders and Legal Aid attorneys. The findings of this study were similarly echoed in a Minnesota Lawyer blog.

Lawyers don’t necessarily score high points for happiness compared to other professions, given their high incidence of suicide and alcohol abuse. This negative mental state might also be built into the occupation itself, as lawyers must always be aware of that half-empty glass in the form of possible worst-case-scenarios. Our legal system is adversarial by nature where one party’s win must mean another’s loss. Also, a Westlaw search of lawyer disciplinary cases before the Minnesota Supreme Court reveals that clinical depression is often packed in the baggage of the disciplinee. (In case you’re wondering, Minnesota case law allows psychological afflictions to be a mitigating factor in disciplinary proceedings. See In re Wayhrich, 339 N.W. 2d 274 (1983)).  This lawyer predelection against happiness also appears to start early.  The Yale study concluded that 70 percent of the law school students were affected by mental health issues.  Additionally, this article from the Journal of Legal Education showcased a different study that revealed increasing levels of depression among law students as they progressed toward graduation. Basically, only eight percent of students showing signs of clinical depression upon entry, but 32 percent did by the end of first year, and 40 percent by graduation. (Here’s another provocative theory: The growing student debt load that students accumulate during law school might leave them increasingly susceptible to depression, especially as they face an iffy job market.)

If your mental state has deteriorated to the point that your work quality could be affected, see about getting some help through an organization like Lawyers Concerned for Lawyers.  Are you a law firm associate on the fast track to partnership hoping that true happiness will finally enter your life when you make partner?  An author of the Yale study believes that this likely won’t prove true. His conclusion from the findings is that prestigious firm jobs simply do not provide the “feelings of competence, autonomy or connection to others—three pillars of self-determination” that public service-oriented jobs do. But you don’t have to leave the firm partner track to take advantage of these happiness factors. For an afternoon of public service, consider volunteering for our Housing and Conciliation Court clinic. Our volunteer lawyers find that the offering answers and advice to our community’s residents who need it most to be an immediately rewarding and satisfying experience.

 

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May is National Mental Health Awareness Month.  If people don’t make an automatic connection between mental illness and law, perhaps they should.  A study by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS) from 2006 showed that 64% of local jail inmates, 56% of state prisoners and 45% of federal prisoners had symptoms of serious mental illnesses. According to NAMI Minnesota (National Alliance on Mental Illness), about 25% of the men and 65% of the women in Minnesota state prisons receive treatment for mental illnesses.  These numbers would indicate that jails and prisons have become the default landing place for those with mental illnesses.  This is further demonstrated by this state-by-state survey from the National Sheriffs’ Association.

Ideally, people with mental illnesses get the help they need outside of the court system, but too often this is not the case.  The end result is that people frequently wind up in the criminal justice system directly or indirectly as a result of untreated (or inadequately treated) mental illness.  It is fortunate that our justice system is becoming more aware of this reality, and that these cases need more than traditional criminal justice and penal tools.  Ramsey County’s Mental Health Court Program (RCMHC) is one of 3 mental health courts in the state of Minnesota, and was created so that the 2nd Judicial District could deliver “more specialized and individualized” justice to mentally ill criminal defendants.   For an inside look, see this recent William Mitchell Law Review article written by Ramsey District Judge John Guthmann about the RCMHC and mental health courts in general.

Are you an attorney working with a mentally ill client and need to know how best to advocate with their special needs in mind?  There are some great resources online, especially from NAMI Minnesota.  These include ”Advocating for People with Mental Illnesses in the Criminal Justice System”  and “Juvenile Justice: Advocating for a Child with a Mental Illness.”  Here in the law library we now have the Mental Disability Law: Civil and Criminal (Lexis 2nd Ed.) treatise set by Michael Perlin.  We also have the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders: DSM-5 for your convenience, as well as books that address the legal uses and interpretations of the Minnesota Multiphasic Personality Inventory (MMPI).  Finally, you might find this simple issue spotting list helpful.

 

file2801302980272The subject of adoption typically conjures the image of a childless couple facing the lengthy administrative ordeal in order to become parents of an infant or small child. The less visible reality is often an adult who wants to step up and be the official parent to a child they already know, or of an adult who marries a parent and wants to legally adopt the step-child.

Adoption has an interesting history in Minnesota. There were the orphan trains that brought parentless children from impoverished eastern cities in hopes that they might be adopted by Midwest farm families (that often needed the labor). In 1917 Minnesota enacted legislation closing adoption records to public inspection. This was done in part to protect the biological mother from the era’s “shame” of having a child out of wedlock. (Probably also to protect from shame of BEING born out of wedlock, and the shame of presumed infertility for the adoptive parents.) There was also the fear that biological families might look up adopted children and taint them with their negative influences. Biological fathers were typically bypassed in Minnesota adoption proceedings prior to passage of 1974 legislation that recognized an unmarried father’s interest in the child, with legal rights to be protected. Access to records also became more open over time, corresponding to the social forces that shrank the shame factors as well as the demand for genetic information as it related to health. This interesting look at the evolution of adoption law in Minnesota can be found in this William Mitchell Law Review article by Wright S. Walling.  Also consider the book Family Matters: Secrecy and Disclosure in the History of Adoption (Harvard U. Press 1998) by E. Wayne Carp. (This is available through the St. Paul Public Library.)

If you are considering adoption, either as a biological or as an adoptive parent, there is a wealth of information to aid your research. Start by reading Minnesota Statutes §259.20 – §259.89. Information about completing adoption’s legal processes can be found in this brochure from the Minnesota Department of Human Services.  Be aware that adoption is a serious legal undertaking, however, and one should get the advice of an adoption lawyer if they are considering it. Are you an attorney who doesn’t usually practice adoption law, but has a client in one of the above scenarios that wants to make their parenthood status official? The law library has extensive family and adoption law resources, but the most simple and practical might be Adoption Law: Start to Finish (NBI June 2013). This tool looks at different types of adoption, presents applicable Minnesota statutes and rules, and even offers guidelines for dealing with unexpected obstacles.  Legal forms are also included.

Anyway, Happy Mothers Day to all mothers, regardless of how they got that title.

 

We know that modern habeas corpus law has its roots in the historical Magna Carta, but what is the role of habeas corpus in modern law? Who may petition for such a writ? What tools are available for seeking this writ and where are can they be found?  The writ of habeas corpus is clearly specified in both the U.S. Constitution (Article I Section 9) and the Minnesota State Constitution (Article I, Section 7). Minnesota statutory law specifically outlines the provisions for a writ of habeas corpus under M.S.A. §589. Basically speaking, “[A] person imprisoned or otherwise restrained of liberty, except persons committed or detained by virtue of the final judgment of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon the judgment, may apply for a writ of habeas corpus to obtain relief from imprisonment or restraint.”  Conveniently, M.S.A. §589.05 even provides form language for seeking state habeas corpus relief.

Habeas corpus is probably more commonly  understood in its federal application, as a remedy for  a person in custody pursuant to a state court  judgment to petition the federal courts for relief, and who has exhausted all of their state remedies. This application of habeas corpus as a legal remedy provided under 28 U.S. Code §2254, plus its historical significance, is described in detail by the U.S. Supreme Court  in the case of Fay v. Noia 372 U.S. 391 (1963).  Forms to file for the different federal writs of habeas corpus (including §2254) are available at the website of the U.S. District Court of Minnesota.  This page offers two different habeas corpus petition packets (based on different sections of  U.S. Code), so one should carefully read the enclosed instructions prior to making their final selection.   If you are an attorney embarking on a habeas corpus filing, the library has some additional resources that might help.  April 27 2015 001

  • Allan Ellis’s Federal Prison Guidebook (James Publishing 2015) by Alan Ellis et al. This is a book of programs and policies for 105 prisons, including educational, vocational, and apprenticeship opportunities, UNICOR, counseling and rehabilitation services, fitness and recreation facilities, religious services, telephone policy, accommodations in surrounding area, and much more.  There is an entire chapter providing guidelines for preparing habeas corpus motions.
  •  Federal Habeas Corpus Practice and Procedure (LexisNexis 6th Ed. 2011) by Randy Hertz and James S. Liebman  This is an authoritative and practical 2-volume treatise with practical advice and expert analysis from practitioners and subject matter experts.  The treatise and the accompanying supplement includes the latest habeas corpus case law as well as important statutory changes.

Of course, don’t miss our Law Day event this Thursday (April 30) which will feature a special talk on habeas corpus.

 

 

LawDay_FINAL_Logo-NEWBe aware that next Friday (May 1) is the day officially designated as Law Day. This is the day set aside to celebrate the rule of law. Sponsored by the American Bar Association (ABA), this annual event underscores how law and the legal process contribute to the freedoms that all Americans share. The day also provides opportunity to recognize the special role of courts in our democracy. President Eisenhower first established Law Day in 1958, and Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day in 1961.

This year’s Law Day theme, “Magna Carta: Symbol of Freedom under Law” commemorates the 800th Anniversary of the Magna Carta. This historic document has come to embody a simple but enduring truth: No one, no matter how powerful, is above the law. It now stands as both a symbol and an inspiration for many basic rights Americans hold dear today, including due process, habeas corpus, and trial by jury. An excellent synopsis of the evolution of the Magna Carta into modern habeas corpus law can be read in Justice Anthony Kennedy’s opinion in  in the U.S. Supreme Court case of Boumediene v. Bush, 553 U.S. 723 (2008), starting on page 9.

On Thursday, April 30 the Ramsey County Law Library and the Ramsey County Bar Association (RCBA) will mark Law Day with a presentation by William Mitchell Adjunct Professor Bradford Colbert  titled “Due Process, Habeas Corpus, and the Magna Carta: Reflections on Representing Prisoners in the 21st Century.” This event, which is free and open to the public, will take place in Room 40 of the Ramsey County Courthouse. Registration will begin at 9:00 AM, with the program beginning at 9:30 AM. One CLE credit for the event will be available (free for RCBA members, and $10 for everyone else). The RCBA will then present their Distinguished Humanitarian Service and Liberty Bell Awards in a special presentation and reception. Guests are then invited to the 18th floor for a tour of the law library. Read more about this special event and mark your calendars to attend!

 

National Library Week (and What It’s All About)

March 11 2015 004This week the Ramsey County Law Library joins with libraries all across the nation in celebrating National Library Week. A brainchild of the American Library Association (ALA), the purpose of this event is to celebrate the contributions of our nation’s libraries and librarians and to promote library use and support. After all, as the ALA’s Freedom to Read Statement begins, “[t]he freedom to read is essential to our democracy.” Our library is also committed to the principles set forth in the ALA’s Library Bill of Rights.

Our particular library serves the Second Judicial District Court, city and county officials, members of the local bar, and inhabitants of Ramsey County. It is covered under Minnesota Statute §134A, which governs the establishment and operations of county law libraries in Minnesota.  In particular, §134A.02 requires that “the use of the library shall be free to the judges of the state, state officials, judges of the district, municipal, county, and conciliation courts of the county, city and county officials, members of the bar, and inhabitants of the county.” (This contrasts to county law libraries in some other states, where access might be by paid subscription or only for local attorneys.) So when people ask if our library is open to the public, the answer is an unequivocal “yes.”

Best-selling author David Baldacci is serving as Honorary Chair of National Library Week. Visitors to the library this week can register to win one of three Balducci political thriller novels, plus pick up a free pocket Constitution or a word game.

 

DSCN8455The fast-paced existence of most lawyers seldom allows much time for personal future planning. Yet wouldn’t any self-respecting lawyer want to make sure they have the final word on how they eventually end their practice? In truth, even if you swear you will never retire, the very nature of life allows no one to practice forever.*  Failure to plan for the inevitable can bring harm to clients, not to mention stress and inconvenience to partners and loved ones. And while Rule 27 of the Minnesota Rules on Lawyer Professional Responsibility allows a trustee appointment for a lawyer who cannot properly discharge duties to clients due to “disability, disappearance or death,” the best way to protect your clients (and loved ones) against such unforseeables is to have a written contingency plan already in place.

This subject is all the more crucial for solo practitioners. Rule 1.3 of the Minnesota Rules of Professional Conduct states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Comment [5] specifically warns that “[to] prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

So with this in mind, the Law Librarian offers some material to assist lawyers with their own future planning :

  • K. William Gibson (ed.),  Flying Solo : A Survival Guide for the Solo and Small Firm Lawyer  (5th ed. 2015).  This new edition of Flying Solo provides its usual time-tested answers to real-life questions, with its primary focus on the practical matters of starting a law practice.  Special emphasis here is given to the chapter “When I Die, Part II.”  Here are detailed instructions for how to plan a special instructional notebook to assist survivors in the unfortunate event of your untimely disability or demise.
  •  Peter A. Giuliani, Passing the Torch Without Getting Burned:  A Guide to Law Firm Retirement and Succession Planning (2013).  This book is meant to identify the economic variables and issues that must be considered for retirement from the perspective of law partnerships and firms.    It analyzes such retirement policies as “emeritus status” arrangements, mandatory retirements, and compensation packages.  It also information on how to gracefully bow out of a partnership, versus how and when to dissolve or sell the partnership.
  •  Susan A. Berson, The Lawyer’s Retirement Planning Guide (2010).  This practical book looks at retirement’s more personal angle, with guidance on investing your money  and managing your retirement withdrawals.  It also includes health tips for longetivity and advice for handling family finances.  In short, this is a book of practical advice on long-term planning that everyone should consider, and not just lawyers.

*On a related note: The Ramsey County Bar Association (RCBA) will hold its annual memorial service for recently-deceased lawyers next week.

 

 

file0001349487113Last week fans of Better Call Saul got to watch hero/villian Jimmy McGill essentially demonstrate the legal principle that there is no privacy expectation protected under the Fourth Amendment of the U.S. Constitution when it comes to your curbside garbage. In 1988, the U.S. Supreme Court held in California v. Greenwood that the Constitution does not prohibit warrantless search of curbside garbage left for collection. (486 U.S. 35). Coincidentally, the Minnesota Supreme Court recently put the whole garbage-as-discoverable-evidence doctrine under the microscope of the Minnesota Constitution in the case of State v. McMurray (A12-2266).

The facts of McMurray basically involved police seizure of contents left by McMurray in opaque plastic garbage bags on his curbside for trash collection. Murray’s attorneys argued that the warrantless search of his garbage was an impermissible search and seizure under Article 1 Section 10 of the Minnesota Constitution, which they argued protects beyond the U.S. Constitution standard. The Minnesota Supreme Court concluded that since this provision of the Minnesota Constitution reads the same as the Fourth Amendment of the US Constitution, it doesn’t afford any more privacy. Thus, police officers in Minnesota didn’t need a search warrant to sift through McMurray’s trash, since there is no expectation of privacy once garbage is placed outside for collection, just like in Greenwood. In a provocative dissent, Justice Lillehaug wrote that the nature of trash has changed since Greenwood, as has the scientific means of analyzing it for information. The majority, however, concluded that “Minnesotans are well aware of potential threats to their privacy and security and have prudently altered their conduct in response.”

So now Minnesotans, be aware that our Supreme Court believes that you can prudently manage your own garbage and its secure disposal. Garbage management and disposal, however, is a far trickier proposition in the professional legal context than it is for common households. Are you an attorney anticipating a big “clean out” of your office in the near future? Do yourself a favor and adopt a formal document destruction policy for your practice if you don’t already have one. Second, give a moment’s thought to what you plan to do with that recycling bin that you plan fill when carrying out your office purge. Assuming that the documents or other materials in the bin can be legally and ethically destroyed (a subject beyond the scope of this blog), do you know the proper and secure means of doing so? As for your clients, they should also know which materials should be kept, destroyed, or turned over to you, plus the secure means to carry out each option.  (Obviously, all of these questions should be asked not only of the hardcopy documents and objects at hand, but also of electronic information.)

Before your (or your client’s) private information comes into the wrong hands (i.e.  identity thieves, stalkers, or enterprising Jimmy McGill-esque snoops), consider reading some of these resources available at the law library:

  • Frans, Myron L., and Christopher J. Kopka, “Records Management and Retention Policies for Law Firms,” Bench & Bar of Minnesota  (April 1998): 28-34. (This article provides a practical overview on your ethical obligations from a Minnesota standpoint.)
  • Kent A. Gernander, Client Relations Formbook (2014 2nd Ed.). (See Chapter VI – File Retention and Destruction)
  • Robert L. Haig, Successful Partnering Between Inside and Outside Counsel (2010). (See Chapter 29 – Management of Corporate Documents.)
 

Courtroom 055Women’s History Month is drawing to an end, and besides celebrating women’s establishment as judges, we should also remember that women serving as jurors was not always a given. Minnesota eliminated all legislative gender qualification from jury service in 1921, making it one of eight states passing female juror legislation following ratification of the Nineteenth Amendment. (A few states had allowed women jurors before the passage of women’s suffrage, but most did not.) On this issue, Minnesota was on the slightly earlier side of progress.  At the extremes, Utah allowed for limited female jury service in 1898. Mississippi, on the other hand, did not allow women on juries until 1968, not coincidentally the same year that Congress passed the Federal Jury Selection Act, prohibiting discrimination in jury service on basis of gender. This article from the Minnesota Legislative Reference Library offers even more interesting details behind our state’s history of including women on juries.

Prior to women’s suffrage, women were routinely excluded from juries. The common arguments of the day against women jurors included the predictable; namely that women should not have to be exposed to the seamy details of trials, that taking women away from their children would be detrimental to families, and that women might be too sympathetic to the criminally charged to convict them. In 1879, the U.S. Supreme Court upheld state laws that completely excluded women from jury service.  (Strauder v. West Virginia 100 US 303) As recently as 1961 the U.S. Supreme Court would still uphold a Florida statute that required women to register with the clerk of court if they wished to be included in jury lists (Hoyt v. Florida 368 U.S. 57). In Hoyt, a wife was convicted of the murder of her husband by a jury composed of 12 men, due to a Florida statute that only allowed women for jury service  if previously registered with the clerk of the circuit court indicating a desire to so serve. The Supreme Court reversed this course in 1975 with Taylor v. Louisiana (419 U.S. 522). Mr. Taylor had been convicted of aggravated kidnapping by an all-male jury chosen from an all-male panel. Louisiana law was similar to Florida’s, in that women could not be seated as a jurors without previously submitting a written request indicating a desire to serve. This time the Court held that women as a class could not be excluded from jury service or given automatic exemptions based solely on sex. The women-have-family-duties argument lingered, but in 1979, the Supreme Court overturned an automatic jury service exemption for women (but not men) who requested one, while indicating that a gender-neutral child care exemption would be permissible. (Duren v. Missouri 439 U.S. 357) Recall from a couple years back that that jury in the George Zimmerman trial made headlines for being all-female. This was in fact rather noteworthy considering that Florida (and most of the South) had been rather slow in establishing women on their juries.

The behavior of jurors as it relates to their gender (or race, age, income, etc.) has long been a much-studied subject. If you are an attorney and would like to select the best jury for your upcoming trial, consider these books:

  • Scientific Jury Selection by Joel D. Lieberman and Bruce D. Sales (APA 2007)
  • Blue’s Guide to Jury Selection by Lisa Blue and Robert Hirschhorn (Atla Press 2004)
  • Mastering Voir Dire and Jury Selection by Jeffrey T. Frederick (ABA 2011)
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