Standing With Clout
Please refer to eBook
Standing InThe Shadow of the Law
by Marilyn Harrison
(Available for download)
Rights & the Juvenile Justice System”
By Thomas M. Dutkiewicz, President
Special Family Advocate
Connecticut DCF Watch
P.O. Box 9775
Forestville, CT 06011-9775
Dept. of Health & Human Services (DHHS) Civil Rights Page: http://www.hhs.gov/ocr/
The following is from the publications online catalog of Child Welfare Information Gateway http://www.childwelfare.gov/
Working with the Courts in Child Protection
User Manual Series (2006)
Year Published: 2006
Part of a series of manuals designed to provide guidance on child protection practices, this manual explains court processes most relevant to child abuse and neglect cases. It introduces concepts and terminology associated with the courts, describes the key court processes, and presents practical information to help child protective services caseworkers prepare for court litigation. Specific chapters address: the general or common court system; the powers of the court and the rights of parents and children in child maltreatment cases; the interplay between child maltreatment legislation and caseworker practice; the juvenile court process; the criminal court process; domestic relations and ...
Please Note: You will be referred to another Site
Child Welfare Information Gateway
and a New tab or page
7 - Going to Court
Appendix A - Glossary of Terms
Appendix C - State Telephone Numbers for Reporting Child Abuse
How to Use or Attack Expert Witnesses
law_self_help <law_self_help@ yahoo.com> wrote: This is for medical malpractice, but offers helpful info for other types of cases
QUESTIONS TO ASK THE DEFENDANT DOCTOR
Preparation is the entire key to a doctor’s deposition. You must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.
1. Most lawyers ask the same boring questions at the beginning of every deposition:
a. State your name and address
b. State your qualifications, pedigree, schooling, etc.
Comment: OK, this is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctor’s deposition this way. Why not go right to the heart of the case with the very first question? You can always get the doctor’s credentials later or at the end. Besides, the credentials are usually found online or in a curriculum vitae, and don’t help except to establish where he went to school and whether he’s board certified in any specialty. On more than one occasion the doctor has been disoriented by this approach. They are usually prepared for questions in a lock-step manner and do not expect something so unusual, but legally permissible set of questions right off the bat.
2. Go ahead- ask why they operated on the wrong side of the brain as your first question. “Objection, no foundation,” says the defense attorney. “So where does it say in the CPLR I need to lay a foundation question?” Despite this exchange of ‘ideas’, if you get such an objection, then simply ask:
a. “Didn’t you operate on my client on this date?”
b. “Isn’t it true you operated on the wrong leg?”
3. I always advocate asking the ‘why’ question at deposition. It is much better to know the reasons why a doctor did or didn’t so something now, rather than save the question for trial. At trial, the reason may be devastating to our case, and if so, I want to know about it now. Besides, when you question a doctor at trial, as an adverse witness, you never want to ask a question in which you don’t know the answer. If you do, you subject yourself, your client and your case to inherent risks that could jeopardize the case.
4. Make the doctor read his notes into the record. This is important for anyone who is trying to decipher the doctor’s handwriting later on. Your expert will definitely need to know whether the scribble is important, and the only way to do that is if the doctor explains, on the record, what his scribble means.
5. Be polite. At all times. You can’t imagine how many lawyers don’t listen to this recommendation. They think they know it all, are sarcastic, belligerent, annoying, and really annoy everybody in the room. The doctor’s attitude in responding changes as well. No longer is the doctor as verbose. No longer does the doctor look like the perpetrator. Rather, he might begin to look like a victim if attacks against him and his credibility are kept up.
6. You can still make all your points without being hostile, angry, yelling or screaming. The old saying ‘you get more with honey than with vinegar’ speaks volumes. Naturally, you’re not going to bend over and sweet talk your way to getting the doctor’s admissions about how he screwed up. But, the key is being professional and knowledgeable. You gain more respect from your adversary- (don’t worry about respect or lack of it from the doctor) by being respectful than you do if you are antagonistic.
7. There are times when you want to rile the physician. You want to know if you can push his buttons. You want to know how easily it is to rankle his composure. If it’s easy to do at deposition, your trial strategy toward this witness just got that much easier.
8. Find out about conversations the doctor had with the patient, family members and other doctors. Remember, conversations are rarely recorded in a hospital record. Make sure you ask the doctor to confirm or deny comments that your client has testified about. Most often, the doctor will claim they no longer recall the conversation. But, if your client does, it’s much more possible that the conversation occurred. If the doctor denies making certain comments, then you know you have different facts about the same conversation, and a jury will have to ultimately decide who is telling the truth.
9. Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked.
a. Ask whether their hospital privileges have ever been suspended or provoked.
b. Always ask whether the doctor has given testimony before.
i. Ask whether it was an an expert for plaintiff or defendant
ii. Ask whether they were a treating physician
iii. Ask what type of case it was, and the name of the case
iv. Ask whether they were paid for their time in Court to testify in that matter
10. In New York, in a medical malpractice deposition, you must ask opinion questions. The doctor- as a defendant is required to answer ‘expert’ questions and give answers about his medical opinions.
a. Do you have an opinion, with a reasonable degree of medical probability whether the treatment rendered to Mrs. X was appropriate and within the standard of care?
b. If you have an opinion, what is that opinion?
c. Confront the doctor with other opinions in the medical community that disagree with his school of thought and ask what he thinks of those opinions.
d. Ask the doctor to admit to certain facts- Here’s an example:
i. Isn’t it true the patient got Ex-lax at 10 p.m.?
ii. Isn’t it true that patients with colon tumors shouldn’t get ex-lax?
iii. Are there any circumstances when you would prescribe this medication for a patient who had this tumor?
iv. Would you agree that if the patient got ex-lax at 10 pm that would be a departure from good care?
v. Would you agree that the only reason the patient suffered injury was because she got ex-lax at 10 pm?
vi. Would you agree that had she not gotten the ex-lax at 10 pm, she wouldn’t have suffered the bowel perforation?
11. Make sure you rule out other potential causes of injury besides the malpractice that you are claiming occurred here. The reason you do this is to learn the potential defense to your case. The defense will always come up with some explanation as to why your argument is not valid. Better you should learn it during the deposition than to head to trial without knowing what their defense will be.
12. Ask many open ended questions. Ask who/ what/ where/ when/ why/ how. By doing this, you will get the doctor to talk and explain. If the doctor’s is going on and on without directly answering the question- and his attorney is letting him- that’s ok. Let him keep talking; you might actually get some useful information. When he stops talking simply say “Maybe my question wasn’t clear doctor. What I was looking for was….can you answer that question?” Always take the blame if the doctor says the question is not clear. Don’t respond to him by asking “What didn’t you understand about my English language question?”
13. Ask about medical definitions.
a. What is an endocervical curettage?
b. What is a myocardial infarction?
c. What is hypoxia?
d. Ask whether these definitions are commonly accepted within the medical community, or whether there are other schools of accepted definitions.
14. Ask whether they’ve reviewed any medical literature or textbooks prior to coming to the deposition.
a. Did you bring any with you?
b. Which ones did you review?
c. What did you learn from the article? Did it support your position here, or was it contrary to your position?
15. Finally, but not last, ask about credentials, schooling, licensing, board certification- but you should already have this information before your deposition when you research the defendant doctor. I always advocate doing a Google search on the physician to see if they’ve authored anything or if there’s anything out there online that’s worthwhile knowing. I recently learned from an online search where the defendant doctor was fired from his residency and sued the chairman of his department. Needless to say, this information proved very useful at deposition.
There have been many books written about how to conduct depositions. The most important factor about taking a doctor’s deposition has, in my opinion, been the experience of the attorney doing the questioning. Anyone can read from a list of prepared questions. It takes an experienced attorney to listen to the answers and know where you want to go and then develop a strategy on how to get there while protecting your client’s rights to the best of your ability.
For more information, please feel free to call me, 516-487-8207
Gerry Oginski is an experienced medical malpractice and personal injury trial attorney and practices exclusively in the State of New York. He has tirelessly represented injured victims in all types of medical malpractice and injury cases in the last 19 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.
Take a look at Gerry's website http://www.oginski- law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have over 200 FAQs to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something of interest to you on this site. http://www.oginski- law.com
Also, take a look at Gerry's FREE Medical Malpractice video tutorials at
(From our "Evidence" Tutorial)
Expert witnesses are witnesses who have no first-hand knowledge of the facts at issue.
Expert witnesses know only what they've been told. They are told certain facts before trial and they are presented with hypothetical facts during trial. The difference is critical.
Experts should only be allowed to offer opinions ... not conclusions!
Be on your toes and don't let expert testimony go beyond what should be allowed!
Experts are hired to offer "expert opinion" testimony. They don't have first-hand knowledge of the facts, so they cannot testify as to the hard facts of the case. They only know what they've been told. Therefore, they are permitted to offer opinions of fact only.
They are never permitted to offer an opinion as to which party should win the case!
They are given certain facts to consider and asked to provide their opinions based on those facts ... facts about which they have no first-hand experience.
The value of such testimony is entirely in the expert's knowledge, skill, experience, training, or education. Experts don't know the facts first-hand as lay witnesses do. They can only offer opinions based on the facts they are told.
In order to testify as an expert, the witness must be qualified as an expert by being examined and cross-examined under oath. If the judge believes the witness is an expert in the field required to form an opinion on some material fact, the court will declare him or her an expert by reason of knowledge, skill, experience, training, or education.
Having qualified as expert, the witness may offer opinions or infer conclusions from facts presented to him, even though he has no first-hand knowledge of the facts.
Of course facts presented to an expert must be substantially identical to the facts in evidence. Otherwise the expert's opinion is meaningless, irrelevant, and therefore inadmissible.
Commonly, after presenting all facts material to a case by putting on witnesses and authenticating documents and things, counsel will call experts who are asked for opinion testimony based on the hypothetical facts presented to them.
"Doctor Wisdom, if an employee were exposed to airborne fibrous asbestos having a median particulate size of 7 microns in concentration of 4 micrograms/liter for an average 40-hour work week over 18 months, is it more likely than not that such an employee would develop symptoms of asbestosis?"
Note that the expert witness is not asked to testify if the plaintiff, in particular, came down with asbestosis from working at defendant's manufacturing plant. That would be offering an opinion on the ultimate issue before the court, and no witness (expert or lay) is permitted to offer such ultimate opinions.
Instead, the expert is asked to testify as to the probable outcome of a hypothetical fact circumstance.
If the expert testifies that asbestosis is likely, counsel may ask the witness, "What are some of the symptoms of asbestosis, Doctor?" If the expert's description of asbestosis symptoms is the same as the symptoms of the plaintiff already presented to the jury, and the conditions of the workplace are the same as technically described to the expert, the jury will have a sound basis for finding in favor of the plaintiff ... at least as far as causation of the plaintiff's injury.
Expert testimony can be very costly. If you can make your case without an expert witness, you should consider doing so. If there is any doubt as to the value of a particular expert, however, search for another. And, hire your expert early on. Allow plenty of time to confer with your expert before trial to make certain the expert truly is qualified and will give the testimony you need to win.
If you are unsure if your expert is scrupulously honest, make him swear to and sign a written draft of his opinion before trial. If the expert refuses, get another expert. Don't let your own expert surprise you at trial with answers you didn't expect.
Always depose the other side's expert before trial! Never trust the other side's expert. Some "experts" testify to the highest bidder. Sad, but it does happen.
Don't let experts go beyond what the rules allow!
I thought this information might be beneficial to some of our members and good to add to our group files., Nancee in CA
Useful facts about the words and the rules that lawyers use.
Legal Self-Help Step-by-Step ... Defining American Justice. Toll Free: 866-Law-Easy ... Used your tutorials to take on Capital One Bank and win! The Courthouse ...
www.jurisdictionary. com/rule_of_law. htm
Lawsuits Made Easy - Step-by-Step Self-Help for Pro Se Litigants ... Used your tutorials to take on Capital One Bank and win! The Courthouse was buzzing for days! ...
www.jurisdictionary. com/SidePages/ Objections.htm -
Lawsuits Made Easy - Step-by-Step Self-Help for Pro Se Litigants ... Contact seminar@jurisdictionary. com for more information or to organize or ...
www.jurisdictionary. com/SeminarInfo. asp
Winning lawsuits really comes down to controlling lawyers and judges.
This Tips & Tactics Newsletter shows you a few things you need to know If you want to control a lawyer ... whether it's the one on the other side or even your own. Some lawyers are honest. Many are not.
All lawyers want to succeed ... financially, socially, professionally, and politically. This factor makes them do things behind your back that you must understand and prepare for, if you don't want to be another victim of the legal profession. It also gives you power to control them!
Many lawyers are afraid of judges. They shouldn't be, but they are. When they ought to stand and fight, argue with the gorilla in the black robe, and demand to make their record - many of them will simply surrender - usually in ways their client doesn't know enough to recognize. They know they'll have to be in front of that same judge next week and for months to come. For this reason (if you need to hire a lawyer) get one from another town, someone who has no reason to be friendly with the judge! And, of course, use our self-help course to know what your lawyer should be doing to win your case!
Many lawyers have the misguided idea their job is to be clever in a way that skirts the rules, riding as close to the edge as they can. They think it's good lawyering to play a "gotcha" game, twist the meaning of words, and knowingly hide evidence! To deal with this, use motions to compel and motions to show cause why the lawyer and his client should not be held in contempt of court. That gets their attention!
A few lawyers even go so far as to cross the line and knowingly violate the rules, intentionally allow perjury, physically hide tangible evidence and tell the court it's "missing", and even cite cases that don't even exist! Prove it with admissible evidence, and move the court for an order to show cause why the lawyer should not be held in criminal contempt! Guaranteed to make the lawyer stutter and stop playing the cheater's game!
Trust me. All lawyers want to succeed. When lawyers you have to deal with (your own or your opponents') use trickery and deceit, call the court's attention to it with a MOTION.
Do not talk to the court about it. Do not beg the court to do something about it. Move the court!
Motions put the ball in the judge's "court" and require him or her to make rulings on the record ... putting the fear of failure into the cold, calculating hearts of dishonest lawyers who know success in their profession is impossible once judges begin entering orders on the public record officially finding them to be dishonest sharks!
Jurisdictionary' s 2-day lawsuit self-help course prepares you to control lawyers effectively ... yours and the other guy's!
Do you know how to properly move the court? Do you know how to threaten lawyers' professional reputations by getting a judge to force them to come clean? Reporting them to the bar does little if anything to control lawyers. Moving the court for an order putting a stop to the typical lawyer high-jinks and deceptive games makes the crooked ones straighten up quickly! That's a good thing for you!
Subject: [fosterparentallegtions] Re: CPS scrambling to make a case
Yeah VicKY, In our case we gave the State a list of our witnesses as requested but they did not give us theirs until right before the scheduled hearing. The State's attorney took my list of witnesses and proceeded to contact them either by phone or in person and tried to get them to "change" their testimony... (I told my witnesses NOT to tell them anything and NOT to listen to them when he tried to discredit me). He proceeded to tell them what a terrible person I was and that I deserved everything I was getting. He came on an 8 hour drive one way to see our family doctor who was testifying for me...and barged into his office without an appointment and demanded to see the doctor. My doctor told him he supported me 100% and threw the prosecutor out of his office. The State's attorney also went to the district office and was allowed to view my private personnel records WITHOUT my permission. So know that the "enemy" pulls out all stops in their effort to "win". They play dirty and so should you. (See:The Little Known “DIRTY TRICKS” of DCFS/CPS/DSS)
Nancee in CA
egypt pyramid <egypt_48@yahoo. com> wrote:
So true! We have to learn to play dirty & quickly! This is the hard part because it is exactly against our natures!
This is what cps preys upon...
The best way to start is to find their employment codes and NAIL THEIR SUPERVISOR IN THE POCKETBOOK.
In CA, they're located at CALIFORNIA GOVERNMENT CODES starting at section 813
by Judge Roderic Duncan
Copyright Â© 1992 Nolo Press
One of the things schools don't teach in courses on the court system is that in almost every trial, at least one of the parties will step up to the witness stand, swear to tell the truth "so help me God" and then sit down and violate that oath.
Lying under oath is an accepted element of most trials. If that weren't true, there would be little need for a jury. Juries are just supposed to decide what the facts of the case were. Was the traffic light green or red when the accident occurred? Did the store clerk say that your new computer would handle the just released whiz-bang software, or did she just say she thought it might? In most cases the jury simply decides who it believes.
Once the jury decides who is telling the truth, it is the judge who applies the law to the facts and decides what the judgment will say.
Another fact little known to those who don't live in the court system every day is that there is rarely any earthly punishment for lying in court. (I say "earthly" because there remains the possibility St. Peter may not take kindly to those who swear falsely.) There is, of course, the crime of perjury, described in the California Penal Code as follows:
"Every person who, having taken an oath that he or she will testify...truly before any competent tribunal..., willfully ...states as true any material matter which he or she knows to be false...is guilty of perjury."
But all of us who have been around the court system for a while know that perjury is almost never prosecuted. District Attorneys say they have learned juries won't convict anyone of perjury no matter how strong the evidence. Whether this is based upon actual experience or myths passed down from their elders isn't clear. But I can state with some experience they won't prosecute. I sent a slam-dunk case of perjury to my local D.A. a couple of years ago and pointed out that one of the parties admitted in my court that he had lied under oath. The D.A. never even responded to my letter.
One peculiarity I have noticed in judging at several levels of the court system is that small claims court seems to be the most perjury-free. Day-after-day, in case-after-case, I recall people standing up in small claims court and testifying to facts that clearly damaged their cases. Things such as: "Well, the light was either yellow or red, but I thought I would have time to get through the intersection on time...besides, that other car was coming on entirely too fast."
In Superior Court, where I now sit, it is extremely rare to hear anyone admit something that might damage their case. In Family Court, no one I know has ever heard a wage-earner in a support case admit that he still was earning overtime after the divorce papers were served.
Once in a while it does happen. A warring spouse will look out across the courtroom and say something nice: "I know she hates me now, but I'd like it to be clear that when we were together she was always a very good mother and a wonderful wife." When it happens, it sort of blows me away. If he goes on to say that they had always agreed that after he finished medical school she should have the support necessary to get her M.B.A., I usually end up believing most of the rest of what such a witness says.
Is the fact that witnesses seem more honest in small claims court--where lawyers aren't allowed--attributable to the fact that when a lawyer gets into a case, he or she will advise the client to lie? In a few cases I am sure it happens, but in most instances I think a lawyer just points out to the client that if he admits he is still earning overtime, the judge is going to increase the support he is ordered to pay. The client understands that truth equals a financial hit and decides to lie.
Is the lawyer doing something wrong? It depends on nuances too delicate to quantify. A lawyer who explains the adverse consequences of certain testimony, is only doing his or her job. A suggestion that the truth be "modified," of course, is unethical behavior.
I see no evidence that people are lying in court more now than they did thirty years ago when I started as a lawyer. The situation probably does not mean that a new reform movement to fight lying in court should be formed. People going to court representing themselves should just be prepared to prove every essential element of their case--and not depend on the other side to admit any more than the obvious facts of the situation.
We will present our "American Justice" program to your church or civic group free of charge! We're leaving South Florida Thursday the 22nd of February, up through Central Florida to the Panhandle, then westward toward Mobile and points west. Email us!
call it hard-ball.
We call it winning the easy way!
Like a game of baseball, players must know how to use the rules ... in addition to knowing how to handle a bat and ball.
If they want to win, that is.
The rules that win lawsuits aren't much harder to learn than the rules of baseball. The rules of litigation are quite easy to learn!
Whether you're a plaintiff or defendant, you need to smack the ball as hard as you can with pleadings, proof, and procedure that put the other side on notice you are playing hard-ball ... that you intend to win ... that everyone, including the judge, is going to play by the rules in your lawsuit ... and you'll settle for nothing less!
It's always a good thing to be polite and respectful in court, but it makes no sense to litigate gently, tenderly, or mercifully.
Winning requires hard-hitting pleadings, proof, and procedure to get at the truth and move the court in spite of opposition!
Toll Free for details: 866-Law-Easy
============ ========= ========= ========= =========
Copyright © 2002
Return to eBook Index