Tuesday, June 30, 2009

Failure to Appear

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

No comments: