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August 01, 2011

Trial Advocacy for the Child Welfare Lawyer

Ann M. Haralambie

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Marvin Ventrell’s Trial Advocacy for the Child Welfare Lawyer:
Telling the Story of the Family
fills a void on the bookshelves of child welfare lawyers. Ventrell 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 the Rocky Mountain Child Advocacy Training Institute 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 past the days when child welfare law was derisively described as “kiddie law.” This area 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.

Until 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 statutes and case law were 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.

Trial Advocacy for the Child Welfare Lawyer gives the often overworked, under-resourced, and underappreciated child welfare lawyer the tools to advance to the next level—to become the excellent trial lawyer our families and children deserve. While other books deal with substantive child welfare law and 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.

As Ventrell points out, each case is a story, and the lawyer is the storyteller. The story starts when the lawyer first gets the case and is developed as the case progresses. Judges need to be persuaded about 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 help formulate 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.

Ventrell compares the caseanalysis 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 phase. The best trial-practice books provide the underlying reasons why lawyers should do things certain ways and easily accessible tools for doing them. Trial Advocacy for the Child Welfare Lawyer does that. This is a book that newcomers to the field will find invaluable, and experienced lawyers will use it to refresh and enhance their trial skills.

The final chapter covering ethics and professionalism 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.

Ann M. Haralambie, JD, is a family lawyer in Tucson, Arizona.