May 23, 2011 Articles

Book Review: Trial Advocacy for the Child Welfare Lawyer

By Ann M. Haralambie

I attended a National Institute for Trial Advocacy (NITA) training program in 1979, back when I was a general-practice trial lawyer also doing child welfare cases. It was a wonderful, exhausting, rigorous course that I found especially helpful in my jury work. Those were the years not too far removed from In re Gault, and juvenile courts were still quite informal, especially on the child welfare side. Even as the rigors of federal law and constitutional rights were brought to bear on the practice of child welfare law and proceedings became more formal, it became apparent that certain modifications to "regular" trial practice were necessary. When I was privileged to teach at NITA's Rocky Mountain Child Advocacy Training Institute (RMCATI), it was immediately clear that trial practice taught in the context of child welfare procedures and fact patterns made a huge difference in the practical application of litigation techniques and strategies in juvenile court.

Marvin Ventrell's Trial Advocacy for the Child Welfare Lawyer: Telling the Story of the Family is a logical extension of the annual RMCATI training programs and fills a void on the bookshelves of child welfare lawyers. Marvin was a general trial lawyer before he took up child welfare and juvenile justice law, and those skills, as well as his long association with establishing and teaching at RMCATI and his tenure as executive director of the National Association of Counsel for Children, make him a logical author for this task. He does not disappoint.

We are long past the days when child welfare law was derisively described as "kiddie law." This area of the law touches lives and impacts families more than almost any other area of law. The termination of parental rights has been called the civil counterpart to the death penalty. State intervention in families can forever change the lives of family members, for better or worse. The family members involved are frequently represented by court-appointed lawyers, many of whom have few resources with which to represent their clients. They often do not have access to independent social workers, private investigators, or medical and psychological experts. They may have caseloads that make thorough trial preparation nearly impossible. Until relatively recently, the "local standard of practice" would have been considered malpractice in any other practice area. Lawyers might meet their clients only at the courthouse before hearings. They may have their first "conversations" with expert witnesses during their testimony. Some judges want only cursory testimony, with evidence being by offers of proof, declarations, or written reports, and refuse to allow or greatly limit the time for opening statements and closing arguments. Legal memoranda and citations to statutory and case law are the exceptions, not the rule. Without the eyes of a jury trial in most states, trial advocacy can be seen as a luxury the child welfare field cannot afford. There are so many cases and so little time allocated to each.

However, with so much at stake, efficient and effective trial advocacy is necessary. It is clearly necessary for the individual parties, whose lives hang in the balance, but it is also necessary for the field itself. All of its participants need to be held accountable by the stick of malpractice liability and the carrot of professional pride. Trial Advocacy for the Child Welfare Lawyer gives the often overworked, under-resourced, and under-appreciated child welfare lawyer the tools needed to advance to the next level—to become the excellent trial lawyer our families and children deserve. While there are other books dealing with substantive child welfare law and the related multidisciplinary knowledge, this is the first book to help the lawyer apply that knowledge in a way that can greatly improve the process and the outcome of cases.

Ventrell gives individual attention to each lawyer in the case, including those working for the agency, the parents, and the child. The book does not see child welfare law as settling for less than excellent trial practice. In addressing the American Bar Association's Commission on Women at its August 1992 annual luncheon, Hillary Rodham Clinton said, "The law, the lawyers, and the judges protecting our families deserve the respect now given to the law, the lawyers, and the judges protecting our corporate boardrooms." Child welfare law has become more professional since Gault largely because a critical mass of lawyers decided to remain in the field rather than stay just long enough to gain experience and move on to more lucrative fields. They came together in organizations, wrote articles and books in the field, established journals, and eventually (largely with Ventrell's vision and shepherding) created an ABA-recognized specialty certification in child welfare law. It is now time to address the finer points of trial techniques and advocacy practiced in our child welfare courts, and NITA has recognized that what it began with the annual RMCATI training programs should now be presented in book form as well.

As Ventrell points out, each case is a story, and the lawyer is the storyteller of the family's story. The story starts to be created when the lawyer first gets the case, and the story is developed as the case progresses. Judges need to be persuaded as to what the facts are and why the parties did what they did. Trial Advocacy for the Child Welfare Lawyer walks the reader through the process with specific tools. For example, to aid in formulating the story of a case, the book includes a Case Analysis Summary, a Good Facts/Bad Facts Chart, and a Proof Chart. Ventrell provides the outline, making it easy for lawyers to organize the facts and issues of a case in a meaningful and efficient way. He analogizes the case-analysis process to a legal version of the scientific method, formulating and testing hypotheses.

Following the case analysis is case preparation: direct examination, closing arguments, cross-examination, objections, and opening statements. One or more chapters are devoted to each of these phases of case preparation. The best trial-practice books provide the underlying reasons for why lawyers should do things certain ways and easily accessible tools for doing them. Trial Advocacy for the Child Welfare Lawyer does that as well. This is a book that newcomers to the field will find to be an invaluable resource, and experienced lawyers will use it to refresh and enhance their trial skills.

Most trial advocacy books deal with commercial, personal injury, or criminal law examples. While lawyers can certainly apply the rules and techniques to child welfare cases (a leading question is a leading question regardless of practice area), there are specific issues in child welfare cases that require nuances in practice that are not present in most other areas. Trial Advocacy for the Child Welfare Lawyer is primarily directed to the adjudicatory hearing but applies equally to any hearing at which witnesses testify and exhibits are offered.

One omission that I would have liked to have seen rectified is a chapter addressing specific trial advocacy issues that arise at subsequent hearings and their typically abbreviated time frames. As we push courts to increase hearing times and reduce unrealistic case loads, we must still deal with the existing limitations. Many of these cases involve sequential evidentiary hearings over a period of months or years. They may involve moving from dependency review hearings to termination of parental rights hearings or guardianship or adoption hearings. The relevant players may change with new case workers and experts. The children's placements may change, involving new foster parents, group homes, or residential treatment centers. Family members may come or go as kinship resources. The lawyers for various parties may change from time to time. The judge may change. Certainly, the children grow older, and their needs change. Child welfare cases are not transactional. Although they may begin with a discreet event, as personal injury or criminal cases do, the family's circumstances are always being scrutinized, and the reasons for keeping a child in the system may no longer be related to the original reason for court involvement. All of these circumstances make trying a child welfare case particularly challenging. To the extent that a child welfare lawyer can organize the case and keep useful notes, making the transition from one hearing or one lawyer to the next will be easier.

The final chapter, which covers ethics and professionalism, does not merely use child welfare examples but gets to the heart of what makes child welfare law unique. Who is the agency lawyer's client—the agency or the people in general? Does the child's lawyer represent the child's wishes, best interests, or both? How does one deal with a client with diminished capacity? This chapter takes a stark look at the "informality" culture that has allowed us to be lax about confidentiality and loyalty to our clients. It is important to end the book with this reminder of our ethical and professional duties to our clients, opposing counsel, and the court. Excellent trial lawyers know the law, present it with skilled advocacy, and are thoroughly ethical and professional. Trial Advocacy for the Child Welfare Lawyer calls on us all to step up our game and reach for that excellence of practice.

Keywords: litigation, children's rights, book review, trial advocacy, child welfare

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Ann M. Haralambie — May 23, 2011