Small Firm Conference of the ISBA

I will be speaking Friday September 14th to the Solo and Small Firm Conference of the Illinois State Bar Association. The topic of my presentation is authentication of evidence, in particular the authentication of digital evidence. More and more we use Facebook pages, text messages and other forms of digitally based information as evidence. Digital evidence, like any exhibit, must first be authenticated before it can be admitted. Authentication requires a preliminary showing that the proffered evidence is what it claims to be. Foundational testimony is often used to authenticate the exhibit but other methods can also be used: stipulations, request to admit the authenticity of the exhibit, and judicial notice may establish that the exhibit is authentic. Authenticity is not a difficult burden and questions about authenticity of the exhibit go toward the weight given to the exhibit, rather than its admissibility. General claims that “the exhibit could have been tampered with” are insufficient to disqualify it. Don’t forget: establishing authenticity is only the first step in admitting the document. You still must contend with other evidentiary obstacles such as hearsay, best evidence rule, relevance, etc.

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Scribes-The American Society of Legal Writers

I recently attended the annual meeting of Scribes, which is a legal writing Honor Society. I was inducted as a member a few years ago. It is always a thrill for me to rub shoulders with some of the finest legal writers in the country. Scholars, judges, lawyers and other professionals attended. Retired Supreme Court Justice John Paul Stevens was awarded a lifetime achievement award (via video). Judge Diane Wood from the Seventh Circuit Court of Appeals spoke on legal writing and the importance of clear thinking and communication in the law. In the hurly-burly world of family law, it is difficult to maintain the high standards of communication espoused by Judge Wood. But, it is vital. I am constantly reading and learning of ways to improve my communication skills, both written and verbal. I regularly buy books on legal writing written by Brian Garner (also a Scribes member) as well as other distinguished legal writing scholars. One of the great challenges of the practice of law is the need to constantly improve. If you’re not getting better you’re getting worse!

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Out With the Old and On With the New

Check out my new blog!

http://www.peskindfamilylawinsights.com/

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What I Learned at Trial School

I just completed my first year as a faculty member at the ABA Divorce Trial Advocacy Institute. I was there with other superstar instructors from around the country.  Also on the faculty were nationally recognized psychologists and business evaluators helping teach students the nuances of dealing with mental health and business evaluation experts.

While I was there as an instructor, I was also a student. Richard Bach said that “we teach best what we most need to learn.” After 25 years of regular trial practice, it was a great  to focus on all of the fundamentals of the practice…evidence, foundations, trial technique and the like. No matter how many cases I have tried, it is always good to refocus on the  basics. Excellence is a never-ending process of improvement. But it all starts with the basics. The journey is undoubtedly circular.

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New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)

FACTS:

In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   

QUESTION:

Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?

HOLDING:

Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.

REASONING:

The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.

ANALYSIS:

The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP

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New Case Law: When does the Obligation to Pay for College End?

May 20, 2010

In re Marriage of Baumgartner, Ill, No. 109047 (per Freeman)

FACTS:

In their judgment for dissolution of marriage, Susan and Craig Baumgartner both agreed to contribute to the postsecondary educational expenses of their son Max. After Max was convicted of a criminal offense and was serving a three-year sentence, Craig motioned the court for the removal of the couple’s obligation to pay postsecondary educational expenses for Max.  Without receiving any evidence on Craig’s motion, the circuit court ruled sua sponte that son Max’s incarceration constituted his full emancipation and that any future obligation on Craig’s part to pay for Max’s college education was abated.  The circuit court denied Susan’s motion for reconsideration. Finding no authority to support the argument that Illinois would recognize incarceration as a self-emancipating event, a divided panel of the appellate court reversed, finding the trial court erred in ordering the termination of Craig’s obligation to contribute to Max’s education expenses based solely on the basis of Max’s incarceration.   

QUESTION:

Whether the trial court erred in determining that incarceration alone is a self-emancipating event for a minor?

HOLDING:

Yes.  The trial court erred in determining that incarceration was a self-emancipating event for a minor. Appellate court judgment affirmed. Cause remanded.

REASONING:

The minor’s incarceration alone was not dispositive as to whether he was emancipated.  Although lengthy incarceration is one of the many situations in which a minor may be found to be emancipated, based on the circumstances of a particular case, the circuit court failed to complete the required analysis to determine the minor’s status in this case. The circuit court record contained no evidence whatsoever pertaining to the parents’ care, custody, control, or support of the minor or whether the minor voluntarily abandoned that support. Minors can emancipate themselves, i.e., place themselves beyond the care, custody and control of their parents. However, emancipation cannot be presumed.  Whether a minor is emancipated depends upon the relevant facts and circumstances of each particular case.

Further, emancipation is not necessarily a continuing status.  A minor may become unemancipated if there has been a sufficient change in circumstances.  The burden of proving emancipation is on the one asserting it.  Changes in life circumstances for a minor such as entering into marriage or the armed services may or may not lead to emancipation, depending on the resulting effects on the minor’s status relative to his or her parents.  Even the commission of a crime by the minor, by itself, is not dispositive of emancipation, although lengthy incarceration is one of many situations in which the minor may be found to be emancipated. The inquiry is whether the minor has become self-emancipated by any means other than reaching majority age, which was not addressed in this case.

ANALYSIS:

The basic ruling here is not necessarily radical. The trial court probably should have heard some evidence before ruling.  Neither the statute nor the case-law automatically presume emancipation. But what I find interesting about this case is the notion of emancipation potentially morphing back to unemancipation. Under this ruling, a child could be married for ten years, divorce, and then potentially have a court order one or both  parents to contribute to her expenses.  In my mind this is particularly egregious in light of the fact that children of in tact families have no right to any contribution from their parents.  The legislature needs to correct this legal anomaly. SNP

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The Daily Grind

A family-law practice is grueling. We deal with intense emotions on a daily basis. Highs are higher and lows are of course, lower.

The reward, however, is helping people, often miserable, improve their lives and circumstances post-divorce. And while we would love to think of ourselves as heroic (our clients often do), the truth is that it really is about hanging with it and just making it happen every day. True professionalism is just that–showing up and consistently performing under difficult and adverse circumstances.

As Winston Churchill said, “Continuous effort–not strength or intelligence–is the key to unlocking our potential.” True heroism is all about just being there when they need us.

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