Category Archives: Uncategorized

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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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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Why I’m Proud To Be a Lawyer

Despite the poor image of lawyers, I am honored to be a member of the bar. As we commemorate Law Day on May 1, I think it is important to recognize that despite our reputation to the contrary, most lawyers are conscientious and concerned about their client’s welfare. Let me reflect on why I am proud to be a lawyer.

Illinois has a proud history of great lawyers. I am the son of one of them. My father practiced family law, and he was one of the most honorable people I have ever known. I grew up witnessing the kindness and respect he showed his clients on a daily basis. I remember his frequent phone calls at home, from clients whose children weren’t timely returned, or for more trivial reasons. I remember a call he took on Thanksgiving when I was a teenager. I knew the issue had to be important for my dad to get a call on this family holiday. My lurid teenage imagination concocted some life or death domestic struggle, probably a kidnapped child or some scandalous affair. My dad puffed on his pipe and patiently listened to the client’s plight. He told the client that everything would be fine and that he would take care of it as soon as he got to the office on Monday.

When he got off the phone, I tried to pry the salacious details from him. All he told me was that his client’s wife hid his snowmobile. This was not quite the dramatic struggle I envisioned. I told my dad incredulously that it had not yet snowed and none was in the forecast. I complained that the client should not have burdened him with such a silly issue on the holiday. He calmly told me while the issue was objectively not urgent; it was a matter of life or death to his anxious client. As my dad said, “that 10 minute call was merely inconvenient for me, but it has allowed him to relax and hopefully better enjoy his holiday during this awful period.”

This childhood memory (I‘m sure long forgotten by the client), is one of the reasons I am proud to be a lawyer. We help people–frequently during the worst time in their lives–allowing them some peace of mind during a terrifying legal ordeal. While most of us are not therapists by training, good lawyers understand that effective representation requires empathy and caring, just as much as knowledge of the law.

Our public perception is as avaricious sharks, exploiting rather than helping people. While obviously there are certain sociopathic elements in the bar, most lawyers (like my late father) are kind and caring people trying to help clients manage difficult times. If we fight, it is not because of innate irascibility–rather it is because someone is taking advantage of our clients and we want to help them. Most good lawyers are not hired guns. Rather, they are conflict managers seeking solutions.

Wisdom, patience, and responsibility are the traits that exemplify good lawyers. We are responsible, not just to our clients, but the legal system and our society as a whole. We help maintain a civilized society by allowing disputes to be resolved in a controlled forum. We advocate where necessary, but more frequently facilitate dialogue. While some malign us, there is no coincidence that in the United States, the country with the most lawyers, its citizens have the highest level of liberty and freedom.

John W. Davis, in an address at the 75th Anniversary Proceedings of the Association of the Bar of the City of New York (March 16, 1946) summed up the profession:

“True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures—unless as amateurs for our own amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men’s burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

This is why I am proud to be a lawyer.

(Originally Published Chicago Daily Law Bulletin 2010 Law Day Edition)

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