Legal procedure: service on foreign defendant via Twitter OK'd by Federal court

A federal magistrate judge in San Francisco has approved service of a lawsuit via Twitter on an overseas Kuwaiti national accused of helping fund ISIS.

U.S. Magistrate Judge Laurel Beeler allowed the Twitter service in a suit by the nonprofit St. Francis Assisi . . .
Side note: usually rules of service are governed by the rules in which court the suit is filed -- for example, a suit in Michigan's Circuit Court would be governed by the Michigan Court Rules. In this case, it's in federal court, so it is governed by Federal Rules of Civil Procedure. 

If a plaintiff needs to serve a defendant notice of a suit, the rules tell the plaintiff how to do that properly. Typically, the rules will allow for service on a defendant's attorney, or at their address via certified mail, or through a process server. If the plaintiff can't serve the defendant in a typical fashion, he or she must request that the court allow for an alternative service method. 

Beeler said service via Twitter is not barred by any international agreement with Kuwait, and it is reasonably calculate to give notice. “Al-Ajmi has a large following on Twitter,” Beeler wrote, “and has used the social-media platform to fundraise large sums of money for terrorist organizations by providing bank-account numbers to make donations.” His Twitter account is active and he continues to use it, she added.

Article here (via aba journal). 

Legal documents, rules, and cases: they are your friends! More novel concepts in the law

Many times when a client (or potential witness) gets some legal documents in the mail, they become overwhelmed, and don't even read them. Or they read parts of them, and blank out the other parts. This often leads a to missed deadlines, a failure to respond, and makes the case even worse. It's the "ostrich" approach to litigation (If I put  my head in the sand, maybe it will all go away). This approach isn't a very good one.

Same thing goes for attorneys sometimes: they will get some pleadings from another attorney, or a notice from court, fail to read it thoroughly, and miss something important about the case.

Ancient truth: Yes, legal paperwork is sometimes hard to read, but if you break it down into smaller parts, it's easier.

And here's the secret: when you read it, it has to contain the rules (or cases) that it's based on, and those rules are something that you will need to use to argue (with or against) to get to win your side of the case!

In other words, you have to read it all (especially if you're an attorney), to see what else you should be arguing. And most likely the judge will read all of it too.  So if you don't read, the judge will wonder why you left that out of your argument.

Let me get specific here: You're the client, and you have gotten a notice to appear on your case. It will have the case number, name of the hearing, where the hearing will be (the courthouse, room, and street address), the time and date. It will also have how to respond to it listed on that same form. You (or your attorney) will need to contact the court to do something about the hearing, like reschedule it.

Sometimes, however, the form will contain other information, like "if you do not respond by 21 days from the date of this notice, then . . . ." What's the "then?" Possible "thens" : this order will be signed by the judge,  or then you will lose your window of appeal, or then the bench warrant will be issued. That's the trigger to get you into motion.

Or, let's try a different scenario: You're the attorney, and you get a new client, who needs you to do something with the documents. Where do you start? What court are you in? Make the first step of actually reading what the client gives you. (One more hint: it might not say what the client thinks - see above, clients don't always read everything!) But at least what the client gives you will have the court on it, and something about the case so you can at least get more information.If the client doesn't have the right papers, get the copies from the court of everything else in the file, so that you know exactly where you stand right now. Otherwise, your response will not be accurate.

Now: back to Novel concepts in the law: use those same documents to get the basis that you need to start arguing. In this scenario, you're the attorney with new pleadings from the other side. Those pleading should have a rule, or case citation in them. Look at the rule (or case)! It could be that the attorney on the other side is citing the wrong thing (so you will need to mention to the court what should actually be argued), or that your client's situation is somehow different from what's cited. Then you go about distinguishing your client's case from the one cited, and try to persuade the judge that he or she should agree with your version of things. It's the old "the sky is blue, your honor, that's true, but the shade of blue it was on that day was streaked with gray clouds. So when the opposition says "blue," they should really be saying . . . " You get the idea.

Michigan Court Rules have changed for garnishment

Any garnishment issued after September 30, 2015:

 1. only expires after the garnishment is paid (instead of after 6 months like prior garnishments would have);
2. creditors have to pay $35 to each garnishee; and
3. wage garnishments must be served in accordance with Michigan Court Rules. 

This means, once you have a judgment in your client's favor, and 21 days have passed (during which the Defendant hasn't filed an appeal of that judgment), you will need to prepare a Request for Garnishment, (use the SCAO form, that's easiest) file it in court, serve it on the defendant, and mail to the garnishee (employer, IRS, whoever is paying that defendant).

A defendant will have the chance to object to garnishment, as long as the defendant does so within 14 days after being served with the Writ.

For more information go to the Michigan Court Rules. Look specifically at MCR 3.100 et seq.

(snore snore! I know, right?)

Incapacitated individuals and family law: who can file for divorce?

Q: Can a guardian or conservator file for divorce on behalf of an incapacitated individual?

A: Yes. 

The Michigan Court of Appeals has recently ruled on this issue. See In Re: Burnett Estate,

834 NW 2d 93 - Mich: Court of Appeals 2013.

If an individual becomes incapacitated, it's likely that he or she will then have a person acting for him or her. It could be a conservator -- who's in control of his or her finances, or a guardian -- who's in control of his or her personal decisions (like where to live, what doctors to see, etc.). 

That guardian or conservator -- whether appointed by a court or selected through another method-- is allowed under Michigan law to file suit, and be sued on the incapacitated individual's behalf. (See Michigan Court Rules 3.202 (A) and 2.201 (E)). Under the Burnett case, that includes a suit for divorce (and, presumably custody). 

In the Burnett case, a divorce was filed by the conservators of the Plaintiff. The Defendant later motioned the court for summary judgment, asking for the circuit court judge to dismiss the action, based on the case being filed by a conservator.

The circuit court dismissed the summary judgment motion, saying a conservator does have authority to file on behalf of an incapacitated individual. Other issues existed in the case. But once the case was decided, the Defendant appealed on multiple grounds, including the grounds that the conservator should not have been allowed to file, and that the circuit court should have granted the summary judgment motion.

The Court of Appeals disagreed with this ground of Defendant's appeal, and interpreted the Court Rules to allow for a divorce to be filed by a conservator or guardian.

"Had the legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of [the statute]." Burnett, at 97.

Have more questions about family law or estate planning (or the inter-twining of the two)? Ask me! Post your comments or questions on this blog.