Presenting an appeal is different from presenting a trial because an appellate record is a “closed record.” This means the appellate record is similar to a photograph. The trial is real-time and moving. The appellate record is a snapshot of a moment of that flowing concept of real-time. At trial, a party can present live evidence, explain their intent, and answer follow-up questions. On appeal, just like a photograph, time stops and time does not change an answer given. No new evidence is offered. Nobody gets to explain their answer after the trial ends. One must look to the photograph taken, (the appellate record), to determine the contents of the photograph or “record.” While one may wish to add or subtract from the photograph; the photograph (record) is already taken, developed, printed, and remains as taken. Appellate records usually include trial transcripts, pleadings and arguments of counsel. One must show, just reviewing what is in the appellate record, that the trial court committed reversible error.

To show “reversible error,” one must show a mistake was made at trial, and that mistake adversely impacted on the outcome of the case. Error, without impact, is called “harmless error” and will not get a decision overturned. The Appellant, (the person appealing), must show both error and adverse impact for appellate relief. This task is very different from the tactics used by lawyers at trial. One needs an experienced appellate attorney for this function. Greg Smith has presented hundreds of appeals over thirty years. If you wish to discuss your appeal, and you have a Tennessee, federal or military appeals case, you may call The Law Office of Gregory D. Smith at 931/647-1299. Initial consultations are free.

The first, and most important point, before one changes legal counsel, is to carefully consider if that move is actually in your best interest? Is the change being done out of anger, panic, or logic? No attorney can promise an outcome in court. The attorney you currently have knows your case, has been paid, and previously earned your trust. Can your concern be eased by simply sitting down with the attorney and discussing your concern? That may be worth a try before paying another attorney a second retainer to take over your case or proceeding “pro se.” (Latin for “on your own”). Likewise, an appeal is usually considered a separate case, so once a case is completed, you may seek other counsel for an appeal.

If you find that an attorney change is necessary, there are two ways to do it. First, you can personally tell your attorney “You’re Fired.” That option is self-explanatory. Second, you can hire another attorney, and then the newly retained attorney contacts the previous attorney for a “substitution of counsel.” These two procedures are fairly common and won’t be as stressful or offensive to the original attorney as one might expect. Changing counsel does not automatically waive any outstanding attorney fee owed to the original attorney or obligate new counsel to negotiate a return of fee from the original counsel. Most of the time, the new attorney stays out of that discussion.

In the case of appointed counsel, simply hiring an attorney usually ends an appointed attorney’s duty to represent a client. If an indigent criminal court defendant wants to fire their appointed counsel, but can’t afford to hire counsel, the defendant can instruct appointed counsel to file a motion to withdraw or send the court clerk a pro se motion or letter asking for a different attorney and stating why the change in counsel is necessary. The Court is not required to give new counsel for indigents simply because a defendant does not like the appointed attorney. Indigents do not get to pick who a Court appoints as the defendant’s attorney. That being said, courts frequently grant a first request for a different appointed attorney filed by an indigent defendant. Repeated requests for new appointed counsel are less frequently granted.

If you are in Tennessee and have questions about rules regarding changing attorneys, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal,(the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith .

The Indian Child Welfare Act, commonly called ICWA, can be found at 25 U.S.C. section 1901 et seq. ICWA applies to state juvenile court cases where a termination of parental rights or surrender of parental rights exist and either the child or one of the parents is associated with a federally recognized Native American Indian tribe. ICWA also applies to custody cases arising from a state initiated dependency and neglect case where a parent or child is associated with a federally recognized Native American Indian tribe. The third area where ICWA sometimes becomes an issue is state filed private adoption cases where at least one the parents giving up a child for adoption is associated with a federally recognized Native American Indian tribe. ICWA does not normally apply to divorce cases where one or both parents in a pending state divorce case are Native American.

It may sound odd to say a parent is “associated with a federally recognized Native American Indian tribe.” This term-of-art usually means a party is a member of an Indian tribe that the United States Department of the Interior has declared to have proven existed before the United States became a nation and said tribe still exists today. An example of a federally recognized Indian tribe would be the Eastern Band of Cherokee Indians, based in North Carolina. This tribe has traceable blood ties to ancestors “registered” as Native Americans prior to the 1930s “Dawes Rolls.” Ironically, Cherokees in the federally recognized Oklahoma Cherokee Nation may have common ancestors to their North Carolina cousins. DNA tests often determine blood lines and acceptable percentages of Native American heritage for a person to qualify as a tribal member or to be deemed “associated with a tribe.” Some people who could be registered as Native American in a federally recognized tribe do not register, but perhaps a parent or grandparent has registered. That unregistered person still has potential association with a Native American tribe. Likewise, if a Native American couple adopt a non-Indian child, the tribe can declare the adopted child to be a tribal member since each tribe determines their own membership qualifications.

In the event that a known Native American child comes into state court custody via surrender, state intervention for neglect, or private adoption, the state and court have an obligation to try and notify the relevant federally recognized Indian tribe that the child is in state custody or is being considered for a private adoption. Then the tribe, or Native American family members, can intervene in the state case to either monitor, participate in the state case, or seek to move the matter to the tribal court associated with the federally recognized Native American Indian tribe pursuant to ICWA. This law helps avoid a de facto tribal genocide by non-Indian adoptions or state foster care scenarios. Note that ICWA rules do not necessarily apply if a tribe is not federally recognized. Sadly, the mandate of ICWA is sometimes overlooked or undermined by social workers not asking about a child’s tribal background or a parent deliberately hiding a Native American tribal association. ICWA applies while a case is proceeding and a tribe can intervene, even late in the process. Once a case becomes final, even if ICWA could have applied, the right to intervene by a tribe under ICWA is usually extinguished.

For more information on ICWA or other Federal Indian Law questions, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and Federal Indian Law in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

For many criminal matters, you have the right to have a trial. During your trial, you present factual evidence to refute your guilt. You may also question favorable witnesses and cross-examine unfavorable ones. If you do not like the outcome of your case and have important legal topics to address, you can probably file an appeal.

 In Tennessee, there are four different types of courts, including two trial courts and two appellate courts. If you need to appeal a criminal conviction, you likely want to ask an appellate court to consider your case. Eventually, you may be able to appeal your matter to the Tennessee Supreme Court. You should know, though, that appeals are vastly different from trials.

Tennessee criminal trials

 If prosecutors bring criminal charges against you, you are likely to have an opportunity to plead guilty. If you choose to assert your innocence, you may proceed to a criminal trial. In Tennessee, you may have either a jury trial or a judge one, called a bench trial. Before the trial starts, you have an opportunity to uncover facts through the discovery process. Then, you present factual evidence that proves you are innocent. The prosecutor, of course, attempts to prove your guilt.

Tennessee appellate trials

 If a judge or jury convicts you of a crime, you may have an opportunity to file an appeal. The appellate process, though, is not a rehashing of your initial trial. That is, you typically may not present new facts, examine witnesses or otherwise retry the case. Instead, you argue that there was some type of legal error during the trial that negatively affected the outcome of the case. Alternatively, you may argue that the trial court violated your rights in some way.

As you can see, criminal trials and appeals have some important differences. As such, the attorney who handled your trial may not have the skill set to appeal your case successfully. By understanding the fundamental differences between criminal trials and appeals, you can better plan for choosing the right legal counsel for your case.

If you are in Tennessee, federal appeals courts or the military appeals courts and have questions about rules regarding appeals, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and his work in Federal Indian Law appeals in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith .

Tennessee parents like you need to decide what type of custody situation will work best for everyone, but especially your children. Today, the Law Office of Gregory D. Smith will examine the possible positive benefits associated with joint custody.

In recent studies, it has been shown that children of joint custody seem to do better than children of sole custody on a whole. They seem to experience more emotional stability, fewer behavioral problems, and less trouble adjusting to life in the aftermath of the divorce itself. They tend to be happier, and seem to suffer from fewer issues like anxiety or depression as they age.

In terms of relationship skills, children of sole custody are shown to struggle more in school. They tend to be “trouble-makers”, and some find it difficult to make friends their age. Likewise, many of them feel estranged from one or even sometimes both parents.

On the other hand, children of joint custody seem to have fewer issues with making friends, act up less often in school settings, and have an easier time developing meaningful relationships with both parents. It is believed that having both parents involved in the child’s life creates more harmony and balance.

If you are curious about the possibility of sharing joint custody of your child with your ex-spouse, consider contacting an experienced family law attorney. They will be able to tell you whether or not this type of custody arrangement will realistically work for your unique situation, and may be able to help you through the process to get there.

If you are in Tennessee and have questions about rules regarding divorce, family law, or custody, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

Any time you are stopped by Tennessee law enforcement officials, it is easy to become stressed and say or do things that are not helpful to your situation. One way to avoid this is to know your rights before the police show up at your door. If you are accused of a crime, the American Civil Liberties Union defines the rights you have that are intended to protect you from any wrongdoing by police.

If the police show up at your door, you do not want to invite them into your house. You can ask them to provide identification or speak to them through the door. The only time you must let them into your house is if a judicial officer signed a warrant that lists your home to be searched. If you are the subject of an arrest warrant or your name is on the document, they may also enter your home.

Just because an officer has a warrant, this does not mean that you must immediately open the door. You can ask them to either hold it up to your window or slide it under the door so you can examine it before letting the officers in. While an arrest warrant may have your name on it, a search warrant is different in that the officers can enter your house but can only search for the items and areas listed on the warrant.

Even when officers enter your home with a valid arrest or search warrant, you still have the right to remain silent. You do not have to speak to the officers or answer any of their questions while they conduct the search. Keep track of what they take, where they go and what they do as you silently observe them and wait for your chance to contact an attorney.

This is for educational purposes and is should not be interpreted as legal advice.

If you are in Tennessee and have questions about rules regarding criminal law, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

The divorce process is never easy. Even if ending your marriage is a mutual decision, it can be full of turmoil and confusion. The thought of courtroom battles may fill you with dread. But there is an alternative to the traditional litigation – mediation. We at The Law Office of Gregory D. Smith offer mediation services because we understand that litigation is not the best method for everyone. Our team helps many couples get divorced amicably and quickly.

Contrary to popular beliefs and portrayals of divorce, it does not need to deplete your emotional and financial resources. yours does not need to be full of anger and fear. Psychology Today points out that mediation is a collaborative and cost-effective alternative to adversarial litigation. Mediating your divorce allows you to negotiate an agreement instead of lashing out at one another.

Mediation is best if you and your spouse are transparent and respectful. The process provides both of you with equal bargaining strength. In mediation, a neutral third party guides you through the dispute resolution process until you both come to an agreement about the issues in your divorce. By maintaining civility and common goals, mediation often eases the psychological pain and monetary expenses of divorce.

The mediation process gives you a peaceful structure to communicate, clarity about the law and a chance to voice your concerns. Just because you are ending your marriage does not necessarily mean you and your spouse cannot work together to make the process easier on yourselves. You can find out more about divorce mediation on our web page.

If you are in Tennessee and have questions about rules regarding mediation, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

Divorce is a difficult time for anybody, but if there is a special-needs child in the balance the stakes are much higher and things can become much more complex. In the event that you are going through a divorce with a child who has special needs in Tennessee, you likely have concerns that other parents will not need to consider.

 According to the Special Needs Alliance, coming up with a solid parenting plan and how the child’s transition to adulthood will look is absolutely paramount. In the event that the divorce between you and your soon-to-be ex-partner is not amicable, then adequate legal representation is needed for both sides. It is important to be aware that child support calculators tend to not take the expenses related to a special-needs child into consideration. Additionally, child support may be counted against governmental benefits like Medicare and SSI, so both you and your ex-partner must keep this in mind.

 This is particularly salient in the event that your child will require long-term care. In the majority of divorces, child support ends when the child reaches the age of majority or when he or she graduates university. With many special-needs children, the parents must face the reality of managing a lifelong situation. It is important for both parents to understand if the child will move into a care facility upon the age of majority or if one or both parents are committed to lifelong maintenance.

 It is also important for both parties to draw up living wills and estate plans that provide provisions for the care of the child in the event of the death of one or both parents.

If you are in Tennessee and have questions about rules regarding divorce and custody, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal,(the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

It is a common misconception among defendants in criminal cases that they should use the same criminal defense attorney for both the original trial and the appeal. However, the lawyer that represented you during your initial criminal case might not be the best person for the job.

An appeal is not a new trial. It is a completely unique process that requires special legal skills, knowledge and experience. It is important to select your appellate lawyer wisely — and to understand that this might not be the same person who has represented your initial case.

Lack of special skills

An appellate attorney understands the distinctive traits of an appeal versus a criminal trial. He or she should have gone to school specifically for appeals and have experience in this area of law in Tennessee. Your criminal defense attorney, on the other hand, may lack the key skills necessary to excel in the appellate process:

  • In-depth legal research
  • Intricate and dense legal arguments
  • Large amounts of writing
  • Oral arguments in court

There is a reason trials and appeals are two separate areas of law. They require very different skills. If you intend to proceed with the appeals process, find an attorney that specifically handles appeals.

No experience with the unique appeals process

Filing an appeal in Tennessee not only takes certain skills but also has a special process. The case may go to the Court of Criminal Appeals, the state Supreme Court or the U.S. Supreme Court during the different appellate phases. Your criminal defense attorney is unlikely to have the same amount of experience handling this complicated process as an appellate attorney.

No rapport with the Court of Appeals

An appellate attorney can have a history of handling cases with the Court of Appeals in your county. The lawyer most likely has a network of people he or she knows within the Court of Appeals, as well as a history with appellate court judges. These connections could help your appeal case but are not something your defense lawyer may be able to offer.

If you are in Tennessee, a federal court of appeals, or a military court of appeals and have questions about appeals or appellate attorneys, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and his work in Federal Indian Law appeals in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.

There are many situations that could lead to your parental rights being terminated in Tennessee. Typically, when you lose your rights, you are made aware of what is happening. You are given the chance to stop the termination by the court. Courts do not often remove rights without giving you a chance to prevent it from happening. However, if your rights were terminated and you now wish to reinstate them, it helps to know where the law stands on this.

The National Conference of State Legislatures explains that the termination of parental rights is often meant to be permanent. When you lose your rights, your child is not able to be adopted. This could be by a family member, a stepparent or a stranger, depending on the situation. If your child is adopted, then it will be very difficult for you to get rights back regardless of any possible loopholes in the law. So, do keep that in mind.

In general, though, in this state, you cannot get your rights back. The state has no specific laws that pertain to the reinstatement of your parental rights. There are other states that do have such laws, which can make things easier. Your best option is to go in front of the court and see if there is any chance to get your rights back, especially if your child has not been adopted. However, keep in mind that there is no guarantee the court will give you your rights back. It all is dependent on the situation. This information is for education and is not legal advice.

If you are in Tennessee and have questions about rules regarding termination of parental rights or appeals, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.