Choosing a Lawyer: Guidelines
It is not an easy decision. Suppose a friend of mine in another
State needed a DCF defense lawyer. I would advise the friend to
ask each possible lawyer at least the following questions:
1. Do you regularly oppose DCF in contested court cases?
The reason is simple. DCF cases are not like criminal cases or
divorce cases. They have some elements in common with those
cases, but they are not the same. The pretrial procedure is
different, the evidentiary rules are different, the motions are
different, and the client is required to speak to the opposing
party (DCF), whether he wants to or not. Also, the press and
public are usually excluded, giving the State more power than in a
public trial.
2. Are you familiar with criminal law and divorce law?
Your DCF case might already encompass, or could encompass in the
future, a criminal case or a divorce case, or even both. The
lawyer should have some experience with these types of cases, as
what happens in criminal or divorce court may affect juvenile
court, and vice-versa. For example, taking a plea bargain may be
routine in criminal court, but it can have severe unintended
consequences in juvenile court, where the evidentiary standards
are different. Also, a divorce or post-judgment matter will
often be put on hold, pending what happens in juvenile court. If
you are involved in two or more courts, it might help
financially to have the same lawyer for all of them.
NOTE TO CLIENTS: If you do have a related case, whether civil or criminal, you may be able to look up your case and get details on the Connecticut Judicial web site.
Note on Family Relations
When a case is in Family Court for divorce, post-judgment,
or otherwise, it is standard for the parties to go to Family
Relations before appearing before the Judge. Family
Relations will normally ask you if there are any Juvenile Court
orders in place. They have the right to check to see if
any Juvenile Court orders have been entered, as these could
impact Family Court.
However, Family Relations sometimes asks about DCF investigations, and may wish to see any DCF substantiations or registry recommendations. Keep in mind that Family Relations has no authority to access these documents, whatever they may tell you. They simply do not.
You are NOT required to sign a release authorizing Family Relations to access your DCF documents. Failing to sign such a release will not "count against you."
This prevents a party from using a substantiation or registry placement against the other party. And that is as it should be: DCF administration findings have a totally different legal standard than do Family Court Findings.
3. Do you meet with DCF and the client together from time to
time?
DCF has enormous advantages, in that the client is forced to
meet with them, or be branded as non-compliant. Further, it is
economically impossible for the lawyer to be present at every
such meeting. However, the lawyer must be present at some
meetings, including initial ones, to set the tone and protect
the client’s rights. Therefore, the lawyer should be willing to
make “home visits” and attend meetings at DCF offices when
needed. DCF defense law is almost never limited to the lawyer’s
office; and certainly not to occasional courthouse chats.
4. Do you get a copy of the client’s file and review the
important records with the client?
There is a wealth of information on clients in DCF files, and
often there is a smoking gun. Getting the information is
sometimes difficult, and reviewing it is tedious. However, any
lawyer who does not do that, and is not fully prepared, will not
be in a position to adequately represent the client. Further, if
a court case has already started, then court files must be
reviewed. The lawyer must review the important records with the
client, in order to plan a proper defense. Otherwise, the lawyer
is flying blind.
5. Do you appear at case status conferences with your own
recommendations, or do you simply wait for the DCF
recommendations?
Being unprepared, and waiting for DCF to tell you what to do, is
a losing strategy. A prepared lawyer will have reviewed files,
spoken to the client, spoken to service providers, gathered
witnesses and documents, and be ready with his own
recommendations. The lawyer must be prepared to file court
motions if needed. In simplest terms, your lawyer must be
pro-active; since DCF, a large organization represented by the
State Attorney General, most certainly is.
6. Do you regularly interface with other lawyers in the case?
In a court case, the child has a court-appointed lawyer,
and sometimes a court-appointed Guardian Ad Litem (GAL) as well.
Your lawyer should work with those people and ensure that they
have all the facts, not simply DCF’s facts. Further, your lawyer
should ensure that they visit the child, see parent/child
interaction, and have the opportunity to interview the parent
and visit the home. The lawyer should ensure that they have
access to all documents, not simply the ones that DCF gives them
or that are easily available. Occasionally, your lawyer can work
with the Assistant Attorney General (AAG), who represents DCF,
if DCF is being particularly difficult. The point is that your
lawyer should be willing to work, on your behalf, with the other
lawyers in all cases.
7. Are your costs reasonable?
Sadly, lawyers have nothing to sell but time. Costs vary, and
they can almost never be guaranteed in advance, as cases depend
upon many factors. You want to ensure that the lawyer uses
appropriate technology to minimize costs, and uses associates
and paralegals whenever possible to keep costs down. Further,
you want to ensure that you aren’t paying for unnecessary
frills. Your lawyer should be able to offer you a brief
consultation at a reasonable fee, before you commit to full
representation.
8. Do you use e-mail?
E-mail is the greatest office time-saver ever developed. If you
have to waste time playing telephone tag, the chances are that
you are being short-changed. Further, if your lawyer cannot or
will not communicate with you, then you are certainly being
short-changed. Lawyers are busy, and unlike on TV, they have
many clients and many cases; but they should still be reasonably
available, and always there in case of emergency.
9.
Do you prepare clients for psychological evaluations?
In many cases, parents are required to undergo a
psychological evaluation. Sometimes, the children may also
be evaluated, and there may be a parent/child interactional
evaluation. Suffice it to say that most clients are
nervous about such evaluations. They have no idea what
they encompass, what the evaluator is supposed to do, or what
they should or should not say. Further, DCF often "loads"
the psychologist in advance with its own documents, which are
usually unfavorable to the parent. Also, DCF often "loads"
the questions that the psychologist is supposed to answer.
As has often been remarked, he who controls interview questions
controls the interview. Innumerable cases have been lost
because the parent was not adequately prepared for the
psychological evaluation. You need a lawyer who will:
ensure that balanced documents go to the psychologist; ensure
that the psychologist consults your own service providers also;
ensure that the questions to the psychologist are fair and
balanced; advise you as to the purpose of the evaluation and the
limits of confidentiality; and advise you of what to expect at
the evaluation in terms of: general approach, preparation for
interview questions, the reasons not to argue or plead your case, the
nature of objective personality tests, and the nature of
projective personality tests.
Our office keeps abreast of literature in clinical psychology. We have a clinical psychologist on retainer to help us with our questions, and to provide expert guidance when needed. We also took the lead in alerting the Attorney General to the fact that DCF, and not the Judicial Department, was actually paying the psychologists who performed independent evaluations; that has now, fortunately, changed. We have not hesitated to write to the full panel of State clinical psychologists to explain our views.
We do prepare clients for psychological evaluations. That material is proprietary, and thus cannot be detailed on this web site. You want to be sure that you do not go into a psychological evaluation and get blindsided.
Persons who are interested in getting a handle on just what clinical psychology entails are urged to do the following:
1. Read “The Story of Psychology”, by Morton Hunt, 1993; available on the internet. This is a popular volume, not a scholarly manual, but it provides decent background as to how psychology itself, and the various fields within it, developed.
2. Read “Science and Pseudoscience in Clinical Psychology”, S. Lilienfeld, ed., 2003; available on the internet. This is a good critique of clinical psychology by one of its leading academics.
3. Read any number of internet articles; but be aware that their reliability is, to be charitable, not guaranteed.
4. Read “Cross-Examination Experts in the Behavioral Sciences”, published by West Group, a leading law publishing company. This is a real eye-opener, and a must for defense lawyers.
5. Peruse the web sites of the American Psychiatric Association and the American Psychological Association. However, this may end up being more confusing than before you looked, unless you have some background.
Clinical psychology is a wonderful field, but it is not so deep and mysterious as its practitioners often claim. Neither is it an exact science. See Some Problems with Psychological Evaluations.
10. Do you have access to expert witnesses if needed?
Occasionally it is necessary to hire an expert witness, whether
in psychology, medical technology, child custody, or other
matters. Your lawyer should be able to find and help you retain
such an expert witness if needed.
11. Do you use a lobbyist?
DCF typically is very active in dealing with the State
Legislature to get its way. DCF tries to get bills through the
Legislature, get administrative regulations approved, and squash
any attempts to get bills and regulations passed that would
restrict its powers. DCF also disguises its lobbyists, who are
typically DCF employees, as “legislative liaisons”, “government
relations consultants”, and the like. The upshot is that
taxpayers, in effect, pay DCF to lobby against the taxpayers’
own interests. Your lawyer should have access to a lobbyist
who at least keeps abreast of DCF doings in the Legislature and
tries to influence the Legislature for the benefit of clients,
before it is too late. This, of course, is unfortunately
another reason why you cannot defeat DCF for free.
As one example: DCF recently revised its regulations on Central Registry placement. See Substantiation/Registry. The revisions, as originally drafted by DCF, would have ensured that anyone who was arrested for a related offense would automatically be placed on the Registry. No provision would have been made if the case was dismissed or nolled. Through working with our lobbyist, we were able to get this provision defeated.
We also ensured that a person who pleads “Nolo” in a Juvenile Court matter (see Abuse/Neglect Petitions) could not have that nolo plea used against him in a Registry case. In fairness, most DCF staff lawyers already agreed with this; but some did not, and it had to be clarified.
Administrative regulations are tricky. They are less visible than statutes, and clients do not get court-appointed lawyers for DCF administrative matters. Yet a Registry finding can have severe lifetime consequences for a person.
We also worked with our lobbyist to defeat a bill that would have exempted court-appointed lawyers from negligence actions. However, we expect this bill to pop up again regularly in the Legislature.
You want to be sure that your lawyer keeps abreast of statutes and regulations.
We regularly attempt to get favorable bills
passed in the State Legislature. Examples include bills to:
require DCF to give effective advance written warnings to
parents before submitting to a DCF investigative interview or
home visit (the “Mini-Miranda”); stop DCF from reducing or
suspending visitation as a tool for punishing non-deferential
parents; make it easier to dismiss improper DCF petitions;
require DCF to adhere to its own Regulations to provide proper
affidavits; and many others.
In an incredible case in 2010, DCF attempted to introduce a bill
to allow DCF to suspend a Judge’s order to return children to
their parents, if the Commissioner objected to the placement.
(Raised Bill 5310). This actually happened in America.
Fortunately, the Bill was defeated; but it proves that with DCF,
you can take nothing for granted.
12. How do you deal with stonewalling?
The strongest DCF technique for winning cases is a simple one:
stonewalling. DCF will promise to do something, smile, and then
simply not do it. Many lawyers simply argue and argue and make
phone calls. The parents get frustrated, and also argue with the
social workers. That, of course, almost always makes it worse.
You need to know how your lawyer deals with stonewalling. If DCF
continues to refuse to do what it should, does your lawyer know
how to go up the chain of command? Does your lawyer utilize the
other lawyers in the case? Does your lawyer file motions in
court, including contempt motions when necessary, to force DCF
into action?
Unless your lawyer fights fire with fire, and utilizes the
courts when DCF refuses to do its job, then you are being
shortchanged. Make sure that your lawyer is not the type to get
discouraged or demoralized by stonewalling tactics.
It’s not how bright you are. It’s how you act when things are
dim.
13. Do you have support staff?
I once had a dentist who had no support staff. He did his
own cleanings, phone answering, bill paying, scheduling, and the
like. He was of course qualified to do all this, but it
restricted his time to practice dentistry and also to keep up
with the profession.
All professionals need support staff. There is simply too much work to do, and too many new things to read and study, to let the professional be tied up with routine office administration.
If your lawyer has a good and caring paralegal, the vast majority of routine matters will be handled faster and less expensively than if the lawyer has to do it. Also, if the lawyer has other lawyers available in the office, then scheduling conflicts will be minimized. It is not unknown for a law firm to have to be in 2 or 3 different courts at once.
There is no hard-and-fast rule, but I would be very leery of a lawyer with no support staff, or a staff consisting only of a telephone message service.
There are other possible questions. In the end, choosing a lawyer is a judgment call. I hope that the above list will prove useful.
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