The Legal Eagles of Children's Advocacy Centers:: A Lawyer's Guide to Soaring in the Courtroom

By Andrew H. Agatston

Childrens Advocacy Center professionals face extraordinary challenges as they dedicate their working lives to helping children who have made allegations of sexual and physical abuse. Effective CACs employ a multi-disciplinary team approach to the investigation, treatment, and prevention of child sexual abuse.

But we know that child abuse allegations are often settled in the courtroom, and the road toward the courtroom can be confusing and complicated for CAC professionals and their centers, which often lack qualified and competent legal counsel to pave their wave. This book is a collection of Legal Letters written by Attorney Andrew Agatston to CACs, child advocates and detectives that establishes a path toward becoming Legal Eagles for the children they serve.

"In practical understandable prose, Andrew Agatston addresses many of the legal challenges facing Childrens Advocacy Centers. Executive directors, forensic interviewers and others who work in or with a CAC will find this book to be of great assistance." -- Victor Vieth, Director, National Child Protection Training Center

"The Childrens Advocacy Center model has revolutionized the United States resposne system to child sexual abuse, and this shift has dramatically impacted the legal systems response to these children, the programs which serve them, and the records associated with this service. This book provides an outstanding overview of numerous challenging legal situations which CACs may face in this environment. While focused on the perspective of current practice in the State of Georgia, these challenges are universal, and this comprehensive compilation, written in an easy to understand format, is a must have for every CAC and its legal counsel." -- Chris Newlin, MS LPC, Executive Director, National Childrens Advocacy Center

• Language: English
• Publisher: Xlibris US
• Release date: Mar 4, 2009
• ISBN: 9781465321251

Andrew H. Agatston

Andrew Agatston, J.D. is an attorney in private practice in Marietta, Georgia, and represents crime victims in civil litigation. Additionally, since 1999 he has representing Children´s Advocacy Centers, which are facilities that serve children who have alleged sexual or physical abuse, and her currently represents five CACs in Georgia. He also operates a national Legal Eagle Listserv for CAC professionals and others who work with them, such as law enforcement, prosecutors, doctors, nurses, social workers, CPS professionals and therapists. This is the fourth edition of the "Legal Eagles of Children's Advocacy Centers" series written by Andrew Agatston to CACs as part of his national “Legal Eagle” List Serv. It follows his 2012 book "The Legal Eagles 2010 book, “The Legal Eagles Guide for Children’s Advocacy Centers: Soaring Confidently in the Courtroom,” and his 2009 book, “The Legal Eagles Guide for Children’s Advocacy Center: A Lawyer’s Guide to Soaring in the Courtroom. The “Legal Eagles” List Serv is now in its 7th year, and has more than 900 subscribers in 48 states and two Indian Territories. Mr. Agatston regularly trains CACs nationwide on these important topics.

Book preview

Chapter 1

HOW TO BE A SUPERWITNESS

Legal Eagles—Uh, oh. Here comes the witness subpoena: Laying all other business aside, you are directed to and shall appear before the Honorable Howard J. Smith to be sworn as a witness for the Defense in the case of State v. Jones. Failure to appear shall result in a finding of contempt, and a fine of not less than $300.00.

So it’s not enough that your nerves are frazzled, but they’re going to fine you, too?

Wrong. You will be a SuperWitness.

What is a SuperWitness, you ask, and how do I achieve such a lofty title? The what comes later. The how begins with the simple goal that I set for you as a SuperWitness: When you leave the witness stand, I want the jurors to think simply, Thank goodness. That’s it. That’s the goal.

I want the jurors to thank all goodness they have these SuperWitnesses right here in their communities who are trained to investigate, or treat, or support, or advocate for those who have been sexually or physically abused. I want jurors to thank all goodness that if, gosh forbid, such a horrible incident happened to their children, or their children’s children, then these SuperWitnesses would kick into high gear for them as well, just like these SuperWitnesses did in this case.

When you leave the witness stand, make sure the reaction from the jurors is Thank goodness for that SuperWitness. But in order for you to achieve SuperWitnessDom you must, as my youngest son says, bring the heavy heat.

I. KNOW YOUR AUDIENCE

You start with the jurors. They’re the only ones who matter, so when I prepare a witness, much of the discussion is about the jurors. They’ve been there from the first jury strike, and they’ll be there in the jury deliberation room after hearing the judge provide them with the most important jury charge spoken. The judge will tell them:

"You must determine the credibility or believability of the witnesses, and it is for you to determine what witness or witnesses you will believe and which you will not believe, if there are some you do not believe.

In determining the credibility of witnesses, you may consider all the facts and circumstances of the case. You may consider:

A.   The witnesses’ manner of testifying;

B.   Their intelligence;

C.   Their means and opportunity for knowing the facts that they testify about;

D.   The nature of the facts that they testify about;

E.   The probability or improbability of their testimony;

F.   Their interest or lack of interest in the result of the case; and

G.   Their personal credibility, so far as the same may appear from the trial.

You may believe or disbelieve all or any part of the testimony of any witness. It is your duty to determine what testimony is worthy and what testimony is not worthy of belief."

From Georgia’s Suggested Jury Pattern Instructions. (Emphasis added.)

It is not enough to understand your testimony, and the reason that you have been subpoenaed for trial. In preparing your testimony, you have to be aware of what jurors think, enjoy, resent, fear. No one celebrates when she receives a jury summons. Jurors have valid concerns for not wanting to serve, aside from sheer apathy: career pressures, health concerns, child care and others. But 12 have been picked. And it’s important to understand what they have gone through before they’ve seen you in your march to the witness stand.

II. VOIR DIRE

Voir dire is a French term that as far as I can tell from participating in it a bunch of times means bored to tears. For 12 jurors and two alternates to be chosen, a venire, or the group from which the ultimate jury will be chosen, consists of at least 32 to 36 people. Prior to arriving in the courtroom, these jurors have congregated in large rooms where they drink bad coffee, read newspapers and tell each other how much they dislike lawyers. Finally, all 36 file into the courtroom for the voir dire process, and are met by the stares of attorneys, defendants, court personnel, and the judge.

For jurors, it has taken what seems an eternity to reach this point, but the voir dire process will take twice as long. The process can last from half a morning to half a day or longer.

After being poked and prodded by the attorneys during voir dire, the 12 jurors and alternates are picked. They know by now that the trial process seems time-consuming and inefficient. They will see bench conferences where the attorneys and the judge tell secrets to each other in the jury’s plain view. Occasionally, they will be sent out of the jury box and into the jury room while the court hears motions on procedural or evidentiary matters outside of their presence. When they return from the jury room, the judge won’t explain the ruling or the reason that the jury couldn’t listen. This leads to a feeling that the jury is being force-fed this thing, and the feeling that these attorneys and this judge think that the jury is incompetent to hear the case and make an intelligent decision.

In sum, before you even walk through the courtroom door to testify, the jury has been told through words or acts that there are some matters that they simply don’t understand. They are also participating in a process with too many starts and stops, quite unlike the world outside where people make decisions quickly, with little need for lengthy deliberations. A SuperWitness is keenly aware of these dynamics.

III. THE TRIAL PROCESS

Remember the credibility of witnesses jury charge that will be read to the jury after the testimony is said and done. Jurors can decide that your testimony, or any other witness’s testimony, is not believable. In reality, with 12 jurors deliberating, it will be unlikely that your entire testimony will not be believed, but there might be one or two who will hold out and credit it less than other jurors. In a criminal trial, that can be their reasonable doubt. In the civil arena, that can preclude a finding that the preponderance of the evidence standard has been met. But wait, I’m an expert, you say. They have to believe me. Wrong:

"Ladies and Gentlemen of the jury, testimony has been given in this case by certain witnesses who are termed experts. Expert witnesses are those who because of their training and experience possess knowledge in a particular field which is not common knowledge or known to the average citizen. The law permits expert witnesses to give their opinions based upon their training and experience. You are not required to accept the testimony of any witnesses, expert or otherwise. Testimony of an expert, like that of all witnesses, is to be given only such weight and credit as you think it is properly entitled to receive."

Georgia’s Suggested Jury Pattern Instructions. (Emphasis supplied.)

So now the testimony begins. Remember, the jury has seen opening statements, completed their initial impressions, and are now on the prowl for reliable information. They’ve seen other witnesses testify before you, so by now the jurors know that what they are watching, and will continue to watch for as long as this trial lasts, ain’t L.A. Law. Remember that TV show? Three perfectly staged trials, staged by beautiful people, all in one hour. The jurors now understand that in real trial work, not much happens in any one hour, and where are all of those beautiful lawyers, anyway?

But here’s the kicker. That’s why you can be a SuperWitness. The bar, in the jurors’ minds, is now so low, that a competent, concise, credible witness will not just clear the bar, she’ll clear the courtroom. Undoubtedly, it is the rare case that occurs when all of the attorneys, the judge, the voir dire process, and opening statements meet the jurors’ expectations. It is frequent, however, that you will be questioned by attorneys who are overworked or ill-prepared.

IV. A SUPERWITNESS: PREPARATION IS THE KEY

In my opinion, preparing a witness is the most important part of a lawyer’s preparation for trial. Cases are lost when witnesses implode. Witnesses implode because of bad lawyering. Bad lawyering happens because of lack of preparing. It’s a vicious cycle.

But that does not mean that you can’t make sure that the attorney who subpoenas you prepares you for trial. Many attorneys simply assume—or else really, really hope—that experts or professionals don’t need to be prepared, either because they’ve testified so many times as experts that it’s old school, or because the professional is just too busy.

But you’re a SuperWitness. You want to make sure the attorney who subpoenas you:

1.   Has a thorough understanding of your file;

2.   Understands key documents you rely upon to form your expert opinion;

3.   Understands your professional language;

4.   Understands your concerns. And you always will have concerns.

If the attorney does not contact you at the very latest two weeks prior to trial to discuss when you will prepare, you will call the attorney, because you’re a SuperWitness.

During your preparation, you will be given recommendations on being a good witness at trial, one who the jury will see as credible and convincing, such as the following, oh I don’t know, 38 pointers:

1.   Dress conservatively when testifying in court. Avoid gaudy jewelry, or even darn nice but noticeable jewelry. Take off the extra rings, earrings, and neck chains. Hair should be done conservatively. Shave and get a haircut.

2.   Don’t run, but don’t shuffle to the witness stand. Walk evenly in natural steps. They’re watching you. Count on it.

3.   Be prepared to think constantly from the time you walk into the courtroom, until the time you leave.

4.   Don’t be timid and don’t show off. An oath is serious business, so stand upright with your right arm high and fingers straight, and look the officer directly in the eyes. When you hear, so help you God? you say in a voice loud enough for the jurors to hear, I DO.

5.   Attorneys get paid many ways, and one of them is through their words. Listen carefully to what the attorney for either side says AND THINK before speaking.

6.   If you do not understand a question COMPLETELY, ask that it be rephrased so you do understand. When asking that it be rephrased, don’t belittle the questioner with, That makes no sense to me. Don’t give the questioner some canned, quizzical look. Instead: I’m sorry, can you rephrase that question?

7.   Wait until the question is completed before answering. You may know exactly where the questioner is going, but it’s rude to overlap speech. And you’ll hack off the court reporter.

8.   Further, only speak when asked a question and when no one else is speaking. When you are interrupted, stop speaking, and let the rude interrupter finish. Then wait for the directions of the judge. She’s the boss, and will likely tell the rude attorney to allow you to explain and finish your answer. If you were not allowed to finish your statement due to the interruption, indicate that to the judge. Witnesses are allowed to explain their answers.

9.   Don’t overdo explaining your answers. Sometimes it’s important. Many times it’s repetitious, overreaching, argumentative, cocky and boring. In court in front of jurors, you are a professional, objective, competent SuperWitness, not a zealous advocate.

10.   Don’t nod your head, or say, Uh-uh. Say words out loud.

11.   Correct your mistakes or slight misrepresentations by admitting them and correcting them yourself. Even a small slip can plague your testimony if an astute lawyer asks more questions based upon the mistake.

12.   Know your material, but don’t memorize your testimony.

13.   If you don’t know, or can’t remember, say so. These are legitimate answers. Don’t estimate, guess, speculate and importantly, go outside of your area of factual or expert knowledge.

14.   On the other hand, don’t dodge difficult questions. There are no style points for being evasive or fighting with the lawyer on cross-examination.

15.   Don’t be so eager to please the attorney on direct examination. Don’t be so intent on rebelling with the opposing attorney on cross-examination. Don’t let anyone excite you into arguments over any point, large or small. Keep your temper.

16.   Equivocation destroys credibility. I mean, maybe it does, maybe it doesn’t—it’s a close call. SEE WHAT I MEAN?!?! Be definite and firm about what you know!

17.   Be brief. Do not volunteer information over and above the question. Just answer the question and stop.

18.   Realize that this is the FIRST time these jurors have heard your material. If you’re a SuperWitness, you’ve gone over this material many, many times. Think of what it’s like when you hear complicated or unfamiliar material for the first time.

19.   Don’t talk down to the jurors.

20.   Avoid the fidgets.

21.   Speak up. Speak up. Speak up.

22.   Slow down. Slow down. Slow down.

23.   Plain English. Plain English. Plain English. If you have to use professional jargon, say it then define it in Plain English.

24.   Lawyers can and will use lazy words, words that lack precision, or words that have different meanings depending on the context in which they are used. It is important to understand what is meant by normal, frequent or substantial and the like before answering open-ended questions.

25.   When addressing the attorneys, use Mr. or Ms. Attorney, even if Mr. or Ms. Attorney still has a bunch of pimples. When addressing the court, use Your Honor, even if Your Honor is an ass.

26.   On cross-examination, don’t look at your attorney, or the attorney who subpoenaed you, for help with big ’ol doe eyes.

27.   Beware the rule of sequestration. Chances are you are not to speak to anyone, including other witnesses, during the course of the trial until released as a witness by the court. During breaks, keep to yourself.

28.   Manners of speech such as, To be honest with you or To tell you the truth should be avoided, since they can cast doubt