Failure to Appear

[stuart showalter]

When representing yourself in a court proceeding it is still a good idea, more accurately a great idea, to have counsel or, at a minimum, someone to watch over and assist you. I bring this to your attention today because I have a client who failed to appear for a hearing yesterday. According to my client he was to appear in court today at “I think 9:00”.

The hearing was set upon the Petition for Contempt filed by his former wife alleging he failed to pay child support. I was coaching him on what to expect the procedures to be, how to maintain his composure and what type of evidence he can use in his defense.

Last night as I was preparing some written information for him to take to court I needed to access the Petition for Contempt to see if jail time had been requested, which, if so, would have invoked additional rights. In the group of documents he sent to me as one PDF file I found the order to appear. He was to appear yesterday, not today as he had told me no less than six times.

There are specifically two reasons to ensure that you appear for hearings, especially contempt. The first is that due process requires that you have an opportunity to be heard. The time you are ordered to appear is that opportunity. If you don't avail yourself of that opportunity then you will find it to be extremely difficult to get an adverse decision set aside. Essentially the case will be heard without you and decided without your input.

The second is that you also risk a “body attachment” or “writ of attachment” being issued against you. In criminal cases a failure to appear [FTA] will always result in the issuance of a body attachment or, more likely, a bench warrant. In civil cases there are limited situations in which a body attachment will be issued. Don't use an FTA as the opportunity to find out if one will be issued.

A body attachment is similar to an arrest warrant except that a writ of attachment can only be served while court is in session and does not authorize law enforcement to enter upon a premises to perfect the attachment. Body attachments are governed by IC 34-47-4 et seq.

IC 34-47-4-2
Writ of attachment of the body of the person
Sec. 2. (a) For the purpose of procuring personal jurisdiction over a person who has allegedly violated a court order or who is otherwise in contempt of court, the court may issue a writ of attachment of the body of the person.
(b) A writ of attachment issued under subsection (a) shall:
(1) be directed to a sheriff or assisting sheriff; and
(2) fix an amount of:
(A) bail, if the order that the person has allegedly violated does not concern a child support obligation; or
(B) escrow, if the order that the person has allegedly violated concerns a child support obligation.

Interestingly my client reported to me this morning that a writ of attachment had not been issued against him. This may be explained a Marion County [Indianapolis] policy that was put in place in January 2009. That is when Marion County suspended the issuance of bench warrants for FTA's in child support cases. Marion County Court Administrator Glenn Lawrence said the warrants were suspended to allow no-shows the chance to explain why. He also said the county recently settled a case in which a defendant was denied due process.

"They might put them in jail and not bring them immediately before the court," Lawrence said. "So we felt it best to go ahead and do a blanket expungement [sic] of those outstanding - whatever they were - bench warrants." Now, the courts can only order what's called a "body attachment". "It's not really an arrest. It's a notice to bring them before the court," Lawrence said. But for now, failure to appear doesn't mean going to jail.

The Marion County Prosecutor's Office handles 72,000 open child support payment cases in any given month.

Whenever I receive a notice from a court about a court date I go straight to the computer and put that information into my calendar. Not everyone can manage to do this though and even those who manage to don't always check their calendar. Although I am in the business of doing this I don't provide this information in hopes that you will hire me to be your personal assistant and caretaker while your case progresses.

Find a responsible person who can assist you in keeping your court dates. This will serve to at least keep decisions from being made without your input. If you are not proficient at representing yourself in court then get counsel. You can still save significant amounts of money and do a good job at presenting your case if you are properly coached. This is what I am in the business of doing and would much rather do than keep your calendar for you.

Stuart Showalter, LLC – Litigation Coaching Services

[FAIR RULINGS]

Bingo... Very well said! The squeaky wheel does get greased. In my last case I filed numerous papers against the court with the AOC (Diane Nunn), California Commission on Judicial Performance, Legislative bodies, took photographs of illegal activities, exposed conflict within the four legal corporations that defend parents in Los Angeles, spoke up in court, wrote voluminous letters, involved Troy Anderson of the daily news, worked with disgruntled attorney's in regard to conflict of interest issues that were being forced upon attorney's in the public defenders office in Los Angeles, then I started exposing Judge Nash...

They accused me of destroying a forest, I told them they'd better re-plant because I wasn't done... This was a case in which I was wrongfully brought into simply so DCFS could appropriate title lV-E funding. By the time they read all my squeaking documents including WRITS all the way up the chain of command... The case was quickly dismissed. Ten days later my daughter’s mother died and all along she was under the watchful eye of DCFS.

And yes read those RULES... Know chapters, know titles, know statutes, know cites, at the state level. If you cannot find appropriate case/common law at the state level then go to the Federal level.

Use law libraries, courthouse computers or civil indexes, Research documents, if you look you might find a case similar to your own where as you can see how documents were written... Fight back!!

In some of the cases I've worked, I’ve had people say: "oh that's to far for us to drive" or "I don't think I could figure that out"... These were individuals who were going to get their parental rights terminated... "HELLO" do you want to fight for your children or what?

Okay I'd better go back to the Kave, relax and bang my head on a rock or something.
Have some Stu and read your rules... Or something like that!

[stuart showalter]

Being a thorn is better than just sitting on one's butt and being grease for the wheels of the machine. The court rules are there for public reading although not always easy to understand. A search for "Court of Appeals Rule XX" can usually produce helpful case law that defines the application of a rule.
Our state disciplinary commission, which is under the Supreme Court, I simply call the whitewash commission because that is what it is.

[FAIR RULINGS]

I see your not commenting to me but I'd like to say... State Bar's are usually a joke and only take care of their own, if their own go against them (Good ol' boys club) then they'll go after them as well and its usually the same with Councils or Commissions of Judicial review.

Filing a WRIT with the State Appellate Court (in a timely manner) is a viable alternative... And I'll tell you right now that the WRIT will most likely lose, but you can gain immense legal knowledge about your case when answered and with what I've experienced the lower level courts don't like having writs filed.

I feel readers should know this... Writ's are not that difficult to write, they just look like they're difficult to write. If you wish to go another route and appeal the whole decision then it gets difficult, be a thorn in their side.

No money...Pro Se...little or no justice

[FAIR RULINGS]

I've seen people get TPR'd in large part because they weren't properly served and missed one or two court proceedings. It behooves all to review their case file, docket, min orders, and/or case history often. Learn how to file "Motions" "Writs" and ESPECIALLY learn how to write professional letters.

Recording is good and it's good to know how to do it properly and legally as well. If you’re recording off an answering machine its fair game. If you're recording in public areas (other than courthouses and/or courtrooms) then it usually follows state statutes. Federal recording laws have remained static now for years, so if you're in a "two-party consent" state then you don't have to follow state guidelines to use the recorded evidence in Federal court, you follow Federal statutes.

It's good to record and be able to "transcribe", I not only have recorded conversations and other verbal messages, but also have transcribed hundreds of messages.

In a "two-party consent" state (which are not many) I suggest people start out by saying something like: So Mr. "X" we'd like to know why this is happening for the recorded record... Or for the recorded record would you tell us why this is happening?

Once the individual starts talking they are fair game for fair rulings. By talking they've agreed to consent to the recording... Once I have this recording then I can transcribe it verbatim with my machine that a litigant can purchase at any of the major office supply stores. These transcriptions can be added to your moving papers as EXHIBITS.

If I was not properly served in a case and a default judgment, order or similar was made against me in a court of law… You’d immediately see a flurry of papers coming off of my desktop and being filed in the appropriate upper level court. It’s not a good idea to acquiesce a ruling and end up part of the status quo. I had to learn the hard way myself and have been before many a Judicial wanker hell bent at milking the public for all he/she can get.

[stuart showalter]

Dennis-That brings an important consideration to point. Check with your state laws about use but record, record, record. I have recording devices that are the size of a penny that I can plant somewhere and then record onto a laptop within a few hundred feet. Anything you are a party to you can record but some states require that you get consent from the other party.
Something like what that lawyer told you could have been taken to the judge and the disciplinary commission. Cheers