To Appeal or Not to Appeal: Key Considerations Before Filing an Appeal

Not all cases are successful. In civil litigation, the very nature of most cases will dictate that unless the parties reach a settlement there will be at least one winner and one loser. In most instances, a case is not necessarily closed with the ruling of the judge or jury. That ruling can typically be appealed to a higher court. The option of an appeal may sound like a life vest for your case, but oftentimes that simply is not the truth of the matter.

Before you decide to file an appeal you should take into account some of these key considerations. Appeals rarely allow you to have another bite at the apple. An appeal is not a chance to try the case again. The appellate court will most likely be limited to the evidence previously entered into the record in making its decision. The appellate court generally serves as a review of the legal issues; not a second-level factfinder. In most cases where the appellate court does consider factual issues, it will provide a substantial level of deference to the trial court’s determination. Ultimately, this manner of review leads to the appellate court affirming the trial court’s ruling the majority of the time. Studies have varied on reversal rates; however, as an example, a study of the U.S. Court of Appeals decisions in 2015 found that the lower court’s decision was reversed less than 9% of the time.

Despite these facts, there are still times where an appeal will clearly be in your best interests. This is primarily so where the lower court has made a ruling that is directly against established law. The only way to remedy that ruling will likely be through the appeals process. There are also situations where the law on an issue is not clear and/or may be reasonably interpreted in different manners. If you think your case may have a strong chance of appeal, you should get with an attorney immediately. The law requires that an appeal be timely filed and failure to file before the deadline will generally be fatal to your appeal; regardless of the strength of your claim.

What to Expect When a Child is Charged With a Crime

One of the worst things a parent wants to experience with a child is the criminal justice system. Fortunately, the courts have a very different process for juvenile criminal defendants than adults. The juvenile system is built upon the idea of rehabilitation. The Court often considers and, in my experience, generally prefers probationary options for juvenile defendants. Because of this, the juvenile system tends to be more collaborative. The parties involved in a case are much less likely to simply be the state and defendant. The Court will likely involve the juvenile’s parents and possibly counselors, school officials, etc.; there will also be an intake and/or probation officer.

The juvenile defendant still has certain rights and will be given the opportunity to challenge the charges. While juvenile defendants do have most of the same rights as adult criminal defendants, one notable exception is the right to a jury trial. This means that the Judge will likely be determining the outcome of the case. When a juvenile is taken into custody, he or she has a right to a detention hearing within 72 hours. If the juvenile remains in custody then an adjudication is generally required to be held within fourteen days. The adjudication hearing is essentially the trial in the juvenile court setting.

If the allegations against your child are false, of course, you will likely want to fight and make a strong defense. But it is also important to understand the benefits of being proactive in the rehabilitative process. This is where knowledge of the juvenile system can be particularly helpful.

Non-Compete Agreements in Arkansas

Non-compete provisions are one of the more common topics that we get questions about when it comes to employment agreements. Many employees sign employment agreements without paying any attention to the non-compete buried within it. Some employers use templates or form agreements that contain non-compete provisions that they do not even understand. Because of this, it seems many people are operating under non-competes without a full understanding of their enforceability. And in some cases neither the employer or employee appears to know their rights.

A.C.A Sec. 4-75-101

In 2015 the Arkansas legislature passed a law that drastically changed the enforceability of non-compete agreements. The courts had previously established a policy against the enforcement of non-competes. But this new statute explicitly established their enforceability - clearly indicating an intent to change the policy of the courts. Under this statute, a well-written non-compete agreement will generally be enforced.

Key Considerations

There are a few primary considerations with non-compete agreements. First, a non-compete agreement is only enforceable where the employer has a “protectable interest.” What constitutes a “protectable interest” is a relatively broad category. Common examples of protectable interests include confidential information, customer lists, intellectual property, customer goodwill, and profit margins. Another consideration is whether the restriction on competition is overly broad. The duration and geographic boundaries of the restrictions should be only as much as necessary to protect the employer’s interests. The Court will look towards factors such as the nature and location of the employer’s business in determining whether the restrictions are reasonable. However, two years post-termination is a presumptively reasonable amount under the statute. Importantly, where the restrictions are overly broad, the court may engage in a process called blue-penciling, which allows the court to essentially re-write the agreement so that the non-compete is reasonable and enforceable.

Before you sign a non-compete it is important that you understand the restrictions being put into place. For some, the restrictions in a non-compete provision can define the course of a career. Non-competes should not be overlooked. If you have questions about the enforceability or scope of a non-compete provision it is recommended that you consult with an attorney to discuss the matter.

Opening a New Business in Arkansas Part 2

Before forming a new entity, it is important that you understand the different types of entities that exist under Arkansas laws. Companies are unique and a different entity may make sense for some that would not for others.

Opening a New Business in Arkansas Part 1

There is a right way and a wrong way to set up a new business. You may have a million-dollar idea, but if you do not start your company in the proper way even a great business can cause you a whole lot of headaches.

Understanding Interrogatories

Before a case goes to trial, the parties are allowed to engage in a process known as discovery. During this phase of litigation, the parties gather and exchange information. One of the tools a party can use to obtain information is through the use of interrogatories.

Interrogatories are a series of written questions that are served upon another party in the case. In Arkansas, the receiving party must generally respond to these questions within thirty (30) days. Rule 33 of the Arkansas Rules of Civil Procedure establishes the manner in which a party should respond to a set of interrogatories. The rule also outlines the manner in which a party may object to a certain question. Typically, the Court will allow broad requests for information. Some of the most common objections are where the requests will not lead to any relevant information or where the requests seek information protected by attorney-client privilege.

If you are seeking information in your case, you can utilize interrogatories to obtain information without the expenses that are associated with other forms of discovery such as a deposition. One notable downside to interrogatories is that they allow the other party to have weeks to formulate a response rather than the seconds he or she may have to respond while testifying in a deposition or at a hearing.

If you have received interrogatories, the key thing to remember is that you need to respond or object in a timely manner. Failure to do so can lead to discovery sanctions and/or unnecessary additional litigation. If you are able to respond in a quick and complete manner you can save a substantial amount of time and resources that might otherwise be tied up in the discovery process.

Using Text Messages In Court

Much of our communication in today’s world is done via text messaging or some other type of messaging app (e.g. Facebook Messenger). These easily recorded conversations can be helpful during litigation, but you want to avoid some common pitfalls if you plan to use them in court.

As an initial matter, you should know that text messages will not always be admissible in court. There are issues regarding relevance, hearsay, and other evidentiary rules that may keep the messages from being entered into evidence.

In instances where it is appropriate and you want to use a text message as evidence, you still need to make sure you have accounted for the who and when. The most common questions tend to relate to who sent the text and what date the text was sent. So if you have a screenshot of a text message and it does not have a date anywhere on it, that can be a problem. Similarly, if you have a screenshot that does not specify who sent the message, that can also be a problem.

There are online services that you can use to retrieve messages from your phone and create a document that clearly indicates which number sent each text and when each text was sent. We often encourage clients to utilize this service when the case is going to involve numerous text messages; the cost to the client for that service is typically completely offset by the saved attorney’s fees from the increased efficiency in reviewing the messages.

If you are using screenshots then here are some tips to follow:

  • Account for the date the messages were sent. This may mean taking multiple screenshots of the thread going back to the beginning of the conversation on that date.
  • Have appropriate names for individuals within the message thread. If you are introducing the text messages of an opposing party, you should not have a derogatory name for that individual (particularly if you are involved in a family law matter). I often recommend removing the name or changing it to the individual’s phone number.
  • Have the phone number of the party sending the message apparent in the screenshot. Again, that may mean changing the contact’s name in your phone to that number.
Parental Alienation

How to Reverse Parental Alienation

In a perfect world, separated parents would put their children first and their feelings of animosity second. Unfortunately, this doesn’t always happen: If a person doesn’t have the proper coping techniques, it can be hard to identify and control these negative feelings towards their ex-spouse.

Murder in Arkansas: The Varying Degrees and What They Mean

Have you ever wondered how Arkansas views each of the degrees of murder? Five main types exist, but every state has its own set of definitions and typical punishments. Whether you’ve been convicted or have a loved one who has, here’s what you need to know about how Arkansas classifies murders.

The Three Types of Parental Alienators

Did you know that there are three types of parental alienation? Since humans are complex creatures, there are varying degrees of alienation that your ex-partner might be conducting — and what’s worse is that you might not even realize they’re happening. Let’s dive into what you need to know about the three types of alienators. 

Type #1: The Naive Alienator

The most harmless level of alienation is the naive alienator. 

In fact, this level is so mild that the targeting parent wouldn’t classify themselves as targeting at all; they truly do value the benefits of their children having both parents. Instead of standing in the way of their relationship, they prioritize their children’s wellbeing and include the other parent in all significant decisions and activities. 

But humans are not black and white. When a person undergoes emotional distress, it’s only natural to respond in a distressed way, even if it’s unintentional. They may subconsciously say or do things towards the other parent that could be perceived as rude or disregarding. 

So a naive alienator might say, “You’re going to your father’s house on Monday because he doesn’t work as much as I do.” This might seem like no big deal at first glance, but in a way, this subtly programs the child to think that their other parent is lazy and their main custodial parent works harder.

Level #2: The Active Alienator

The active alienator believes their children should have a healthy relationship with their other parent, but sometimes, they have trouble controlling their pain and frustration. 

The main key to being an active alienator is semi-uncontrollable anger, so an active alienator parents may say, “Your mother might not want to come to your school play. Remember the last time she had to leave early for work? We shouldn’t ask her; she’s always so busy.” 

While this alienator can control their emotions to an extent, their bitter feelings towards the other parent may bleed out into their children’s relationship. However, it’s not unusual for them to follow up later, attempt to fix the problem, and acknowledge that they made a mistake to the kids. 

Level #3: The Obsessed Alienator

The most severe level of parental alienation is the obsessed alienator. This type of parent is often anxious and angry and will go to great lengths to damage or cut off their children’s relationship with the other parent. 

The primary key in obsessive alienators is that they are paranoid and will project that paranoia onto their children, allowing them to take on the victim role. This can lead to severely alienated children who are just as scared of the targeted parent and refuse to see them. 

It’s important to note that there are many reasons an obsessed alienator may act the way they do. Their behaviors may be justified — such as being the victim of abuse — or they may not be, where paranoia and anger take over rational thinking.

If paranoia is present, the obsessed alienator might say things like, “You cannot visit your father this weekend. I don’t trust him to take you to school. And he’ll probably leave you home to hang out with his new girlfriend. I will never force you to go there if you don’t want to because I know it’s a matter of time before his irresponsibility puts you in real danger.” 

Contact Hickey & Hull Law Partners Today

Unfortunately, parental alienation is a fairly common phenomenon affecting millions of children in the United States. But if you’re unsure whether or not your children are experiencing alienation, be sure to check out the five tell-tale signs and then what you can do to protect your family at each stage of alienation: 

  • Naive: Naive alienation usually does not require a mediator or lawyer, although it is helpful to go over custodial requirements with the help of a family law attorney to make sure everyone’s on the same page and no stone is left unturned. 
  • Active: Going back and forth between being angry and solving the issue isn’t a sound system for either parent or the children, so light mediation is often recommended. 
  • Obsessive: At this level, the only thing you can do is to work with the courts and experienced family law attorneys who can help identify existing issues, come up with solutions, and mediate.

Whatever level you’re on, contact Hickey & Hull Law Partners today. 

Our compassionate and experienced attorneys will protect you and your children to save your relationship before any long-lasting damage is done. Fill out our form for a free consultation, or call us today: Our River Valley office number is 479.434.2414, and our Northwest Arkansas number is 479.802.6560.