Critters and the Court System

In certain areas, the law greatly lags behind society. This is true in technology, social media, and pets in divorce actions. In a typical divorce case, the two main disputes concern custody and property distribution. Currently, under the law there are two types of property: real and personal. Real property includes all real estate, and attachments. Personal property covers everything else; including pets.

In cases with children, usually the pets go with the children. In other cases, it isn't so easy.

In most states, personal property and debt must be distributed equitably. I'm often asked: "whats an equitable property division?" Its different in every case; but it often isn't equal. Not much of an answer, I know. This is especially difficult with pets. After all, how can you enjoy 1/2 of a pet? Or split up pets? Neither are good ideas.

Even worse, the method for distributing personal property is based on its fair market value. Fair market value is usually the price a willing buyer would pay to a willing seller for the property; in this case the pet. This is particularly devastating to pet owners, because the fair market value of a pet doesn't begin to reflect the actual value to the owner. Yet under the current state of the law; courts cant take that into consideration.

Of course there are whispers of cases where Judges have deviated and applied the "best interest" standard to pets, which is normally reserved for children. "Best interest" standard, means the court looks at whats best for the children, rather than the interests of the parties. But applying that standard to pets is extraordinarily rare, even in the more progressive local jurisdictions.

A growing number of states (30, according to www.animallaw.info)  give pets particular protection in domestic violence cases. Neither Kentucky nor Indiana do, as of the date of this article.

What if you aren't married? Then you get to file a personal property lawsuit, which most jurisdictions call "trespass to chattel". If you doubted me when I wrote this area of law is seriously lagging, using words like "chattel" should remove all doubt.

How to navigate this minefield? The law may change, which could govern pets much like children. But that's far from certain. At best custody of pets is an area of the law in flux and underdeveloped in many jurisdictions; and non existent in others. This is particularly difficult, because it doesn't give an attorney much indication on how a court is likely to rule. Which segues into my next point.

In litigation, although an attorney may have an idea; noone cannot control or accurately predict what a court will do. Otherwise, there would never be litigation. So the outcome is always unknown; and dealing with the unknown is always tricky. This is especially true when dealing with something as valuable as pets. The best way to control the outcome, especially regarding pets, is through an agreement via settlement.

There are four different types of agreements: Cohabitation, Prenuptial/antenuptial, Post nuptial, and property settlement agreements. Cohabitation agreements would be appropriate when the parties wish to live together, without considering marriage at that time. Prenuptial is before marriage, in consideration of marriage. Post nuptial is post marriage, but pre-divorce. Property settlement agreements are after marriage and with a divorce pending; in which the agreement resolves the property issues in the case.

Agreements avoid the unpredictable outcomes associated with litigation; reduce litigation costs; and help provide a set schedule for when/where each party can enjoy time with their pets. Finally they can also help parties appropriate veterinarian costs; which is often litigated more frequently than actual pet custody/visitation. Any pet owner knows, vet bills can be very, very expensive.

Which agreement fits your situation? Well, it depends. Typically, its best to reach an agreement early as possible. I know, I know - nothing says romance like a good prenup or cohabitation discussion. Am I right? Even so, an agreement while both parties are still amicable, are the easiest and least expensive. There's more agreeing, and less fighting. Plus it gives you both a degree of comfort and stability on the issue moving forward. Those are always good things.

Attempting to negotiate agreements after litigation ensues means litigation costs were already incurred, and a vindictive spouse can attempt to leverage the pet issue for purposes of negotiating a favorable settlement on other issues.

So get the pet issue resolved as early on as possible. Agree on something while you're both still happy; and reduce it to writing. Its a cheaper more predictable outcome in every situation.

The Confederate Flag Conundrum

Recently a young man who'd previously posed with a confederate flag carried out a vicious shooting attack on African American members of a Charleston area church. As a result, many politicians, companies, and citizens decided to ban the confederate flag; citing the flag as a divisive symbol of racism.

I carry no love for the notion of the confederacy, or its flag. In fact, I was surprised to learn it is/was flown at many state capitals/monuments across the south. I'm also vigorously opposed to the notion of discrimination or racism, on any level. Hate is a terrible thing. However, the flag controversy is a very slippery slope. 

1) The first amendment makes it unconstitutional for any state actor to ban or inhibit speech based solely on its content. Hate speech is even protected, for the most part. While the first amendment clearly doesn't apply, due to the outcry being from individuals, I think the values of free speech should still apply. 

Its dangerous social precedent to ban speech/symbol, based solely on content. Maybe this time, you're on the popular side of the issue. But what happens when you're not? What happens when society wants to silence you, based on what you're saying? Because this starts a slippery slope. Whats next to be banned because people don't approve? Our society thrives on the concept of free flowing ideas. Not only the ones we agree with. 

2) History is history. The good, the bad, and the ugly. The flag was a symbol of seceding states (which, frankly, I'm surprised doesn't offend people) and used by racists only in the past few decades. Even though its often seen as a symbol of hate, its still history.

Our nation's history definitely has its warts. From the awful acts of slavery, to the trail of tears, to the internment of Japanese-Americans during WWII. We cant afford to forget history just because its bad. In fact, one might argue this type of history is MOST important. 

George Santayana correctly stated the famous line: "Those who do not remember the past are condemned to repeat it." Yes its awful. Yes people get emotional, upset, angry, etc; and I understand why. But by learning about the ugly parts of history, we can be better situated to not repeat these mistakes. This is even more true for the monuments, and historic sites; which politicians are now clamoring to ban.

If you're fighting for this flag because it represents your racist view fueled by hate, then you're the problem. Even so, I think its a dangerous precedent and a very slippery slope when we begin censoring people and editing history; just because we don't like what they say.

Social Media: A Blessing and a Curse

Recently I read an article discussing the difficulties of maintaining a marriage. A key issue discussed was the impact of social media on relationships. It struck me as being extremely accurate. But it also made me look beyond relationships, and consider the impact of social media on our lives in general.

Social media is both a wonderful benefit, and an incredible burden. Its removed the humanity, from being human. We can digitally connect with anyone in the world, yet we've stopped personally connecting altogether. Wonder how your old friend from high school is doing? In the past you'd call them up, have lunch, etc. Now, just check Facebook.

We're always accessible anywhere, anytime; especially if you're a small business owner. I LOVE the fact my clients/prospective clients can contact me anywhere, anytime using Facebook. My clients will agree. I'm always accessible through social media, and its often times the most efficient way to communicate. My clients' phone numbers may change, but their Facebook stays the same. However some people really struggle with having to "always be on". While I appreciate the business aspect of it, I somewhat struggle with it in my personal life.

It destroys our self esteem. I've seen a quote floating around that says "don't compare your 'behind the scenes' with other people's 'highlight reel'". Incredible observation. We're all guilty of it; both ways.

If someone looks at my Facebook/Instagram; it probably gives the appearance of a world traveler. While I've certainly traveled, this couldn't be further from the truth. I post pictures of nice meals at nice restaurants; but I leave out pictures of times I've eaten from the dollar menu at McDonald's, or eaten a turkey sandwich at home because I'm short on money. We're all guilty.

The other side of that coin is we're all guilty of comparing everyone's social media highlights to our real lives. We look at pictures others' cars, travels, homes, etc. and think: "boy, I wish I was that financially successful".

We look at marriages/relationships and think: "I wish my marriage/relationship was that perfect". I call that the "Wheel of Fortune relationship". When Pat Sajak asks the contestants about their life, they always say "I have a wonderful wife/husband". We know that's not always true. 

In reality, we're all basically in the same boat. We all have our ups and downs. We all struggle. We've all held our breath, and hoped our debit card wouldn't be rejected at the grocery store.

We've all had rocky times in relationships. But no one posts THOSE pictures or statuses. I'm still waiting on the first contestant to say, "I have a husband; and he's gained alot of weight. But he's still OK; I guess." Or "I have a husband, but he won't work or help me with the kids. He sucks."

We all know these things to be true. So why let it effect us in such a way?

My goal for the past few months has been less social media interaction and more personal interaction. Lets put down our phones, log off Facebook, Twitter, etc; and start paying attention to the person across from us, to the people in the room with us, and to the experience we're having. We don't really need a Snapstory of your entire night out; and neither do you. You don't have to Periscope/Meerkat everything. Just enjoy the moment. The memory is far more valuable than the amount of likes it brings on Instagram.

I've been trying, and truthfully, its not been easy. Anyone who knows me, knows I love Twitter as much as any material possession. So its a work in progress. Still, I'm working to return to the days where human interaction was a major part of being human. Where social media was a great tool, rather than a giant crutch. Where we don't feel the need to portray ourselves as better than we are. Where we aren't always "on". Where we can enjoy an event or experience without making the entire night a Snapstory. Where life isn't reduced to the number of "likes".

The Straight Answer about Gay Marriage

Unless you live under a rock, you know gay marriage is today's hot button issue. A few lawsuits are pending at the US Supreme Court which will decide the issue.

Basically, Plaintiffs allege denial equal protection law because of discrimination based on sexual preference. Meanwhile, states claim they are allowed to enact legislation governing who may marry.

These cases reached the 6th circuit, which upheld the bans on gay marriage. Now it rests in the hands of the US Supreme Court.

That's the current legal situation. You could read that anywhere. I'm interested in the current public opinion.

Most know I drafted the Fairness Ordinance for the City of Vicco, which made national headlines. Most also know I'm a straight man in favor of gay marriage. So people often engage me in debate/discussion about gay marriage. In the end, people almost always find they don't oppose the legal concept of gay marriage.

Almost every objection to gay marriage is based on religious or moral concerns. But really that doesn't matter in terms of equal treatment under the law.

Most everyone agrees throwing someone out of a restaurant based on their sexual orientation, gay or straight, would be wrong. In fact, many people think that's already illegal; although its generally not. People almost always see the issue with this scenario; and why it isn't fair.

Apply that to marriage. Its the same scenario. Certain states, including Kentucky, refuse to issue marriage licenses to certain people; based solely on sexual orientation. This is inherently wrong, just like the restaurant example.

Once opponents realize there is a separation between the religious/moral objection and the legal objection; they gain clarity. Maybe they don't become proponents of gay marriage. But they stop being opponents; which is a huge step.

"Stingray" devices: Are your rights being violated?

The Washington Post has a very informative article discussing new "stingray" devices used by law enforcement (http://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html).

Basically a stingray mimics a cell phone tower. It tricks YOUR cell phone into thinking it's connecting to the tower. Instead, your phone actually connects to a device that can take whatever information from your phone they want. It can also be used to track your location. It all happens without your knowledge.

The picture is from the article,  and is a great illustration of how the stingray works.

To date, Im not aware of any reported rulings one way or the other regarding 4th amendment or other constitutional issues surrounding stingrays. For now, the issue appears to be undecided.

Eastern Kentucky: Modern Day Parable.

Over the past week, life in Kentucky, and most specifically Eastern Kentucky, has been especially difficult. Massive snow, impassable roads (some still impassable, even a week later), water outages, power outages, grocery shortages, floods, ice, etc. It made me recall an article published in June of 2014 by the New York Times which labeled Clay County, Kentucky as the toughest place to live in the US (http://www.nytimes.com/2014/06/26/upshot/where-are-the-hardest-places-to-live-in-the-us.html?_r=0&abt=0002&abg=0). I still disagree with the article, but it feels awfully accurate at the given moment.

Of course the weather is beyond anyone's control. Yet the secondary effects (ie the water, power, and roads) are within a reasonable amount of control by federal/state/local leaders. The amount of water outages that go on across the region are inexcusable. The 10 years I had my practice in Hazard, seemingly one in every ten days the city was under a "boil water advisory". Not long ago residents of Hindman, Kentucky went an extended period of time without water. Even worse? Parts of Eastern Kentucky still await public water/sewage. It's 2015. This just is not acceptable. 

What can be done? Who can help? Enter: SOAR (Shaping Our Appalachian Region). SOAR is a political creation that burst onto the scene just following the economic collapse of the coal industry in Eastern Kentucky; and was a welcome sign of hope. For reasons described above, one would naturally assume infrastructure would be the primary, and immediate goal. Wrong. Their first announced target was high speed internet, in an attempt to draw companies to the area.

This prompted memories of Sunday school class, and the parable of the wise and foolish builders. Essentially one built on a foundation of rock, so his structure was sturdy. The other built on a foundation of sand, so everything he built thereafter was weak. The gist: one must build on a solid foundation. While some readers may reject biblical concepts, surely this lesson is one we can all accept as logically sound.

Another application is Occam's Razor. A shortened explanation of Occam's Razor states "the simplest answer is often correct". It was conceived sometime between 1287-1347 AD. Both the parable and the Razor are as true today as they were 1000+ years ago.

Then why address internet before infrastructure? So residents of Eastern Kentucky can read online about places with dependable water and electricity?  How can one access the internet during the all too frequent power outages? Sure, companies may be interested in high speed internet. But companies won't relocate to an area lacking dependable water, sewage, and electricity. Furthermore, these infrastructure issues MUST be dealt with soon, especially some of the aging water lines, before they completely collapse. So why not now while grant money flows in? It defies logic.

No need to ignore concepts proven true over the course of 1000+ years. Take the simple answer - re-build the foundation of the region. It isn't as catchy as high speed internet; but its a much bigger need. Otherwise, everything else you build on the current shaky foundation will just come tumbling down.

What Happens with Lloyd Tubman?

There's been much discussion regarding the recent Lloyd Tubman news. There are two related, yet mostly separate issues in regards to Tubman and UK:

1) Legal - Tubman was presented to the grand jury (Id be interested in seeing a transcript, as Im guessing it was a softball presentation) and the grand jury reported No True Bill. This means the grand jury didn't believe probable cause exists to believe the crime was committed. Further, the prosecution stated they would not present this case again. It is not a declaration of innocence; but its the closest thing.

The victim appears to be sticking to her story, which is smart IF she testified at the grand jury; otherwise face perjury if she later changes her story. She can not appeal. However, there is no statute of limitations for felonies; so Tubman could be presented again at any time should a prosecutor so choose. Very unlikely, unless new information surfaces.

Ive tried multiple serious, serious rape cases. The law presumes innocence. However make no mistake - for these types of cases, Defendants are usually viewed as guilty until proven innocent. These are very emotionally and politically charged cases, which make them potential nightmares for any elected prosecutor. Ive seen prosecutors hammered in the press and/or election ads for dismissing rape cases that should have been dismissed.

2) UK's PR issues - Tubman wasn't fully cleared, but seems he wont be prosecuted. However there are potential PR landmines with this case. In the court of public opinion, anyone accused of rape is considered guilty; period. Don't believe me? Look at Bill Cosby (an example for the media treatment of these cases, not a comparison of facts in the case).

Media comes down so fast and hard on these cases, UK had no choice but to suspend Tubman immediately. No "we'll wait on the investigation", etc. Just an immediate, indefinite suspension. For comparison look at the Barker, Baker, Dubose situation. That's the difference in a rape allegation and an assault allegation.

Where does UK go from here? I think Tubman can come back, if his academics, etc are in order. I think there will be a minor, short term social media outcry. Maybe. But nothing major. I think the real question is: does Tubman want to come back? If so, is there anything else preventing him from re-joining the team (ie academics, out of shape, no longer wants to pursue football, etc)?