Bryant's Barrister Blog

Posted By Joshua S. Bryant on July 7, 2010

The 87th General Assembly passed Act 976 of 2009, now commonly known as the Social Host Liability Act.  People always need to know what is and is not legal, so here is what you cannot do under this new law: you cannot serve alcohol to someone under the age of 21 in your own home unless it is for religious purposes or to a member of your family.  You are not liable if you are not home, if the underage drinking occurs on rental property that you own but lease to another, or if alcohol is served during a religious ceremony or for religious purposes, such as communion.

A first offender under this new law is guilty of a C Misdemeanor.  The second offense is an A misdemeanor, punishable by up to a year in jail and a fine.  Each offense after that is a D Felony, punishable by a fine and up to six years in prison.  The last section of this act purports to allow cities and counties to pass ordinances more stringent than this new act, so make sure you check your local laws before serving alcohol to any minor, including for religious purposes or to a family member.

Category: Judicial Process | No Comments »
Tags:

Posted By Joshua S. Bryant on July 6, 2010

Romans chapter 3 introduces us to eternal justice.  To mere humans such as ourselves, God’s justice often seems like a paradox; it seems itself unjust.  But we cannot pursue any study of God without following other precepts of understanding God: that his ways are higher than our ways, his thoughts higher than our thoughts, and that we must not lean on our own understanding but acknowledge Him for who He is – the creator of the universe and every thing and every law in it.  His justice is higher than our justice.

Our unrighteousness – our sin – shows the righteousness of God.  Putting this in terms of light and dark, how can you know what dark is without light, and vice versa?  Without sin, we would not know what righteousness is; without evil, we would not know what good is.  Sin is thus a necessary evil (no pun intended).  But God’s punishment on us for our unrighteousness cannot be deemed as unjust.  If it were, how could God judge? 

Therein a seeming paradox is found.  By our sin, God gains.  The more sinful we are, the more gracious and merciful He must be.  The more gracious and merciful He is, the greater and more glorified he is.  As Romans 3:7 suggests, through our lies God’s truth abounds to His glory.  But if God gains by our sin, why are we still punished?  And why should we not do more evil that God may be more glorified?  Paul recognized these as legitimate and tough questions to be answered.  I believe they are answerable, but the answer must be internalized by faith – not by reason.  Logic is insufficient – His grace is sufficient.

My understanding is simply this – God is God and I am not.  His perfect design I cannot contest (as we will discuss in Romans 9).  If God designed eternal justice such that the sin which He prohibits makes Him more merciful and thereby more glorified in saving me, so be it.  If God punishes the evil necessary in me to show me what righteousness is, so be it.  But I also am becoming more and more aware of sin in my own life, which makes me appreciate His sacrifice and love Him for it all the more.

Category: Justice, The Role of Law | 1 Comment »
Tags:

Posted By Joshua S. Bryant on June 29, 2010

The U.S. Supreme Court has extended the application of the Second Amendment right to bear arms in the case of McDonald v. Chicago.  Chicago and a suburb of Chicago had laws that practically forbade possession of a handgun. 

When first enacted, the bill of rights only applied to restrict the power of the federal government.  After the civil war, the Fourteenth Amendment was passed which extended some constitutional protections to people from state laws.  Which constitutional protections are applied to state law under the due process clause of the Fourteenth Amendment are selected under a doctrine called “selective incorporation.”  Before today, the Supreme Court had never addressed whether the Second Amendment applied to State law under the due process clause. 

The Court left the issue to one question – is the right to bear arms fundamental to the American design of ordered liberty or deeply rooted in our nation’s history and tradition?  The Court answered this in the affirmative relying on a controversial case two years ago, District of Columbia v. Heller.  The Heller case noted that self-defense is a basic right and found that citizens must be allowed to use handguns for the purposes of self-defense.  The case also noted that this right is deeply rooted in American tradition.  As such, state law cannot infringe upon the second amendment.

Unfortunately, the Court left the decision at that and remanded the case to the trial court to determine whether the challenged laws violate the Second Amendment.  How far this case will go to advance second amendment rights remains to be seen, especially since the Court on occasion called the right to bear arms a “fundamental right.”  Under due process jurisprudence, state infringement of fundamental rights are reviewed under strict scrutiny, meaning that in order for the law to survive the state must have a compelling state interest and the law must be narrowly tailored to achieve that compelling state interest.  There can be no question that the state has a compelling interest in regulating firearms for the protection of society in general.  The question will be where is the line between the state’s compelling interest and the individual’s right to possess and if necessary use a firearm.

Since the Court stopped short of indicating where this line exists, there will likely be more litigation.  Heller and McDonald will become key cases on the application of the Second Amendment.

Category: Legal News | 8 Comments »
Tags:

Posted By Joshua S. Bryant on June 28, 2010

This morning I have four arraignments in the Benton County Circuit Court.  What is an arraignment anyway?  Arraignment is the court hearing at which a criminal suspect is formerly charged and turned into a criminal defendant.  The prosecutors will present the “felony information” – a document which specifically outlines the charges.  The defendant will enter a preliminary plea of not guilty pending his or her discovery of all the evidence that the government has against him or her.  The judge next sets the case for an omnibus hearing at which the judge will determine if there are any unresolved issues regarding the full disclosure of evidence.

The judge may also hear or set for hearing a few motions that can be made by the defendant’s attorney.  For example, a defense attorney must notify the Court at the earliest practicable time whether he or she intends to put the defendant’s mental fitness to proceed in issue or whether it intends to raise the defense of insanity at trial.  Arraignment is a hearing at which this notice can be given.  Another possible motion to be made is the motion to reduce bond, which is based on a multitude of factors for another post.  The Court can consider a motion to transfer a case to juvenile Court if the case could have originally been brought in that court.  This decision is also based on numerous factors which should be left for another post.

Most of the time, the arraignment is a quick process lasting no more than a minute or two per defendant.  The later hearings tend to take more time and become more complex.

Category: Judicial Process | No Comments »
Tags:

Posted By Joshua S. Bryant on June 27, 2010

Elena Kagan, the current U.S. Solicitor General, is slated to begin her confirmation hearing tomorrow, June 28, 2010.  She has been nominated by President Obama to fill the vacancy of Justice John Paul Stevens, who is retiring after many years of service to his country on the Supreme Court.  I must oppose Kagan’s confirmation to the U.S. Supreme Court.

Let me preface by stating that I understand that this post may generate political opposition, but the judicial process must be inherently apolitical.  Unfortunately, it is anything but in the United States, especially when it comes to Supreme Court nominees.  My opposition to Kagan’s confirmation by the Senate has nothing to do with politics.  From what I’ve read, she has taken several conservative positions in the past as well as several liberal positions.  I do not think her record reflects any particular bias to one political party or platform over the other.

My opposition to Kagan’s confirmation is simply based on her lack of judicial experience – she has never been a judge.  Her appointment to a Federal District Court or Court of Appeals position would probably be fine, but she has never faced a situation where she must make a decision between to opposing parties as a neutral arbiter and politically blind applicator of the law. 

It takes more than legal brilliance, which Kagan certainly has, to be an effective judge.  It takes, among other things, a lifelong commitment to the study of law, a completely impartial stance on each case as it is presented, a thorough and fair review of each side of the argument, and a learned and articulately delivered opinion of the law.  Even veteran judges who exhibit each of these characteristics make mistakes, which is why we have the appellate process in law.  But to place a rookie judge in a position to make decisions from which no appeal can be taken is haphazard at best.  For this reason alone, I must oppose Kagan’s confirmation.

Category: Judicial Process | 1 Comment »
Tags:

Posted By Joshua S. Bryant on June 26, 2010

Alimony, also known as spousal support, is often overlooked in divorce cases.  Its purpose is to level the playing field – to prevent one person from being destitue and the other maintaining his or her wealth.  The basic considerations for alimony are simple, but the actual determination is much more difficult. 

Alimony is based on one person’s ability to pay it and the other person’s need for it.  It’s that simple.  If a litigant asks the Court for alimony they must show three things.  First, that the person asking for it actually needs it.  Simple, right?  Second, they must prove that the person who would pay alimony can actually pay it.  Equally as simple.  But third, they must convince the Court of an amount that the payor should pay.

This can be difficult for litigants to prove and even more difficult for litigants to be happy with for several reasons.  First, people must understand that everyone lives on less money after divorce.  Think about it.  During the marriage you had two incomes paying for one morgage, electric bill, gas bill, water bill, cable bill, internet bill, phone bill, and so forth.  After the marriage is over, you are making the same amount of money between the two of you, but are doubling up on all of those expenses.  Instead of one mortgage or rent payment, now you have two; instead of one of each utility bill, you now have two of each utility bill.  That makes the payee (the person receiving alimony) believe he or she is entitled to it, and makes the payor (the person paying alimony) think they are paying too much.

The second problem is that alimony must be reasonable.  Define reasonable.  It’s different for each litigant, each lawyer, and the judge.  Ultimately, in Arkansas it only matters what the judge thinks is reasonable.  If a litigant thinks a judge’s decision is unreasonable, too bad.  Sure, you can appeal – but the only question on appeal is whether the judge abused his or her discretion, and judges have broad discretion.

So what is the solution?  Obviously the first option to explore is trying to work things out.  Can you afford two rent payments each month?  If not, divorce is going to be very tough for you.  It could ruin your credit and force you into bankruptcy.  You could have to live life without an extra bedroom, a big back yard, internet, cable, and some other luxuries that you currently enjoy.  Either way, you cannot expect to live in the same financial situation as you did during marriage.

The second solution is to work with an attorney who can give you an idea of what might be reasonable and try to settle on the issue of alimony.  Your lawyer will be able to tell you whether you need alimony and whether the other party can pay it, or vice versa if you are being asked to pay alimony.  Research shows that most people are more satisfied with their own solution to a problem (i.e. the problem of alimony) than being told what to do by a judge.  If you can settle – do it.

Category: Divorce | 6 Comments »
Tags:

Posted By Joshua S. Bryant on April 19, 2010

Many people want to be “in the know” when it comes to situations facing them.  The Bryant Firm, P.A. now offers a new way for potential, current, and former clients to get good information related to their case.  Go to www.thebryantfirm.com/shop where you will find books related to a wide variety of legal issues and the emotional, psychological, financial, and other aspects of those legal issues.

For example, you will find books not only about divorce, but also about preventing divorce, divorce recovery, parenting in joint custody, etc.  If there is a topic you are interested in but we do not have a book on that topic, let us know and we will get that topic posted ASAP!

Category: Affordable Legal Services | 2 Comments »
Tags:

Posted By Joshua S. Bryant on April 14, 2010

The Bryant Firm would like to welcome Laura Sossamon to the firm as a law clerk.  Laura is finishing up her first year of law school at the University of Arkansas in Fayetteville and will begin working at The Bryant Firm as soon as her finals are over in May.  The addition of a law clerk will increase the efficiency, productivity, and expertise of The Bryant Firm.  Laura will be responsible for research, drafting, filing, and other administrative duties as needed.

Many firms will bill you a separate hourly rate for the work of a law clerk, but not at The Bryant Firm.  If you pay a flat rate, you will not be charged any more for the work that Laura does on your case.  If you pay an hourly rate, you will only be billed that rate for the work I do.  You will be billed $25.00 per hour for any work that Laura does.  If you have any questions or concerns, please contact us at (479)286-1129.

Category: Affordable Legal Services | No Comments »
Tags:

Posted By Joshua S. Bryant on March 4, 2010

There’s an old saying that “ignorance of the law is no excuse.”  It’s true.  When I was  a freshman in college, I was late for class one morning and the car I drove was a late 90′s model Crown Victoria.  You could almost lay two people end to end in that car – it was practically a boat.  This made it difficult to park, especially after having been awake for only five or six minutes.  I found a parking place to my right and turned a little to sharply to enter it.  I hit a truck in the adjacent space.  So I put my car in reverse and tried again.  I hit the truck again.  It finally dawned on me that I would be unable to park there, so I found another space further away and parked there.

On my way towards the building I noticed the damaged I had caused.  I had ripped the rear bumper off of this truck and caused quite a bit of damage to my own car.  Not wanting to be late for class, I quickly wrote down the truck’s license plate number and parking sticker number and hurried to class.  I fully intended on taking care of the matter as soon as class was dismissed, but the University police had other plans.  About 20 minutes into class, I was escorted out of class by a uniformed police officer and charged with leaving the scene of an accident.  How embarrassing!  I had to go before the judge!

When I arrived in Court the judge asked me whether I plead guilty or not guilty.  Did I leave the scene of an accident?  Well, technically yes.  So I plead guilty.  The judge then decided to make me stand there in front of him for what seemed like an hour while he answered a question that his clerk had about the previous case.  He then looked at me and said “look, I know you tried to do the right thing, but you didn’t do the right thing.”  He entered my guilty plea and sentenced me appropriately.

Ignorance of the law is no excuse.  The statutes which organize the law are public documents.  You can find them on the Internet and at the courthouse.  It is unfair to others who know and obey the law to allow those who don’t know the law to go unpunished.  The law is equally promulgated to all and equally enforced on all.

God’s law is the same way.  If it isn’t enough that everything we see, which God created, proclaims his majesty and tells us things about Him, He gave us the law through His prophet Moses.  And we have the law in a central location – one book – the Bible.  Ignorance of that law is no excuse – which is how Paul opens chapter 2 of Romans.

We are unrighteous judges of God’s law because we are guilty of the exact same offenses.  Romans 1:18-32 provides a litany, although not exhaustive list, of the crimes of humanity.  We are all guilty of some of the things on this list, and as such we are unable to rightly judge anyone.  None of us are above doing any of these things.  And by judging others we judge ourselves.  In regards to sin, God has always seen humanity as a single entity.  Thus by condemning others we condemn ourselves, who practice the very same thing.  So not only does God view humanity as a single entity, but also views sin as a single entity – not as individual sins.  Just because I am not a murderer does not give me the right to judge the murderer.  I am a sinner and the murderer is a sinner.  Who am I to judge?  Only He who is perfect can rightly judge.

But there is hope in that God is a kind, forbearing, patient, and forgiving God.  Even so, we who are believers cannot presume that being forgiven gives us the authority to judge others.  God’s gracious forgiveness is not meant to give us that authority – it is meant to stir in us a longing to repent.

Hope grows stronger in that unlike us, God is a righteous judge.  To those who patiently seek to follow him and obey the law, God will reward.  Those who are self-seeking and disobedient will become an object of God’s wrath.  God will show no partiality.

So what is the Role of Law?  To set the standard by which all must but cannot live, and to lay the foundation upon which God’s justice will be done.

Category: The Role of Law | No Comments »
Tags:

Posted By Joshua S. Bryant on February 15, 2010

“The ‘rule of law’ refers to a principal of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.” – The United Nations

The rule of law is a principal every lawyer and lover of democracy must believe in.  I certainly believe in the rule of law.  But this blog post and its progeny will discuss the role of law.  The law, while necessary, is mortal.  It had a beginning and it will have an end.  The need for law will one day pass away, and all that will remain is the adoration of The One who destroyed it.  The book of Romans discusses the role of law.  It poignantly exalts the law and its purposes while balancing its current role with, and future destruction by, sovereign grace.  We begin in Romans chapter 1.

Paul was a bond-servant of Christ.  To use a legal term, Christ had bailed him out like a bondsman posts a bond for an accused criminal.  As believers, we have all been bailed out by Christ, but Paul was more than that.  He was an apostle – one who speaks with authority having actually seen Christ.  God used Paul for the good news – a plan that was prepared in eternity past, promised through the Jewish prophets, and fulfilled in the man Jesus of Nazareth. 

Jesus was fully human – descending from King David; and fully divine – being eternal and powerful in nature having unequivocal power over life and death.  Through Christ we received grace – the law’s counterpoint – so that we might share this good news with the world.  Romans was written by Paul to the church in Rome, which Paul eagerly desired to visit and for which he often prayed.  The faith of the parishioners in Rome was known throughout the known world. 

So what is this good news to which Paul was enslaved?  To understand good news requires us to understand the dismal nature of the status quo in which news may be good, and the status quo is this: we are dead.  We never lived.  Morbid as it may be, we must understand our condition – we have never tasted, never loved, never perceived.  We are dead and will be forever.  Why?  Because we have not and could not maintain the standard of living which God has called us to.  Therefore, the good news can be nothing short of the power of God for salvation from this eternal death.  In the good news, God’s righteousness is revealed both to the one who has the faith to hear it and for the strengthening of that faith.  And the good news is one purpose of the Law – without the Law, we would not need this good news.

Violations of the Law incur the wrath of God, and there isn’t a human who has not violated the law.  The wrath of God will result in making our death irrevocable.  Our actions against the Law suppress the truth.  We cannot say that we cannot know the God who wrote this law.  Look around!  God’s eternal power and divine nature are clear in the things He has made.  If that were not enough, He gave us the law through Moses.  But we do not follow it either.  We are conceited and place undue emphasis on our own logic and thinking.  We think we are wise and understanding, but we have only made ourselves unwise – we lack understanding.  Among humans you will find the unrighteous, evil, covetous, malicious, envious, murderers, quarrelsome, deceitful, gossips, slanderers, God haters, insolent, arrogant, disobedient, foolish, faithless, heartless, and ruthless.  We all are guilty of at least one of these from an early age, hence we are dead.

Because of our inability to follow the Law, we are all under a sentence of death – both physical and spiritual.  We have become accustomed to both to a degree.  Physical death is painful because of the perceived finality of death.  But we have become immune to the sting of spiritual death because we are already spiritually dead (see Colossians 1, Ephesians 2, and Romans 3).  Once irrevocable, spiritual death is still perceived by the dead in a place known as Hell.  Many today would disagree on the grounds that we are all in essence good people.  That may be so, depending on your definition of what is good.  But according to the Law, no one is good enough because the measure of “good enough” is perfection.  No one is perfect. 

Others would say that the bar is too high; but us being human and God being God, who are we to complain?  The all powerful God of the universe created everything that we see and things we cannot see or even possibly imagine.  Can we really argue with His Law?  We are merely nothing compared to Him.  Where to set the bar is certainly His prerogative, and we are charged with meeting that bar.  The consequences of certain failure demand death.

This is the Law.  Under the circumstances, our faith in the Rule of Law may seem misguided.  But like it or not this Law rules and we must follow it.  No rebellion or revolution can overthrow it, for it is divine in origin.  This Law has been publicly promulgated through the scripture.  It is equally applied to and enforced on all humanity.  It was created by God and adjudicated by Christ who will fairly judge the living and the dead by this one standard of perfection.  But good news!  The Law is mortal, and when its end comes a new Law will reign.  In the new Law we must now place our trust and hope, because only under this new Law is our death revocable.

Category: The Role of Law | No Comments »
Tags: