4/23/2012
Witness Prep 101
So you got a witness subpoena, what
next?
SVN 2012 Annual Conference –
Orlando
Anaicka Ortiz, Angel House, Katy, Texas
1
Guidance
SVN Standards For Supervised Visitation Practice
Rules of Evidence and Procedure
Local Rules of Court
Your Program’s Policies and Procedures
Any additional limitations i.e. funding source
SVN 2012 Annual Conference –
Orlando
Anaicka Ortiz, Angel House, Katy,
Texas
2
The Subpoena
• What type is it?
Witness subpoena or records subpoena
Witness subpoena with records request
• What records are required? Do you make copies?
• Do you want to comply? If not, do you have
options?
o Does it comply or is it defective: form, include fees, served properly, and
timely?
o Do you want to quash/seek protection from the subpoena?
o Do you want to try and limit it (by agreement or order)?
o Consequences for failure to comply?
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
3
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4/23/2012
SVN Standards For Supervised
Visitation Practice
21.2 General Policy Statement
1. Unlike clients of lawyers, clients of providers do not have
a privilege of confidentiality, which protects against
having client records subpoenaed by the court or by
another party as part of a court proceeding.
2. A provider must have written policies and procedures
regarding confidentiality and the limits of
confidentiality, including but not limited to the
submission of observation notes or reports.
3. A provider must maintain confidentiality and refuse
information without written permission, except as set
forth under section 21.3 in this document.
SVN 2012 Annual Conference –
Orlando
Anaicka Ortiz, Angel House, Katy, Texas
4
SVN Standards For Supervised
Visitation Practice
21.3 Exceptions to Confidentiality
In the following situations, a provider may
release client information without specific client
permission:
1. In response to a subpoena request;
2. In reports of suspected child abuse and neglect to
the appropriate authority as required by law; and
3. In reporting dangerousness or threats of harm to
self or others as required by law.
SVN 2012 Annual Conference –
Orlando
Anaicka Ortiz, Angel House, Katy, Texas
5
SVN Standards For Supervised
Visitation Practice
7.1 Purpose
This section sets forth the obligations of maintaining client files and case
records, guidelines for release and disclosure of client information, and types
of provider reports to the court and/or referral source.
7.4 Protection of Client Information
1. A provider must set forth in writing, implement, and maintain policies
and procedures regarding the release of case information. Case files
must not be released except as provided by law, court order, or
consent of the parents.
2.
When a request for a case file is received, the file must be reviewed and
personal identifying information must be redacted (covered over),
except as required by law, as required by the court or subpoena, or
when reporting suspected child abuse.
3.
When a client is staying in a shelter or other confidential location,
especially in domestic violence cases, the provider must not disclose the
shelter location or other confidential client identifying information,
except as required by law or court order.
SVN 2012 Annual Conference –
Orlando
Anaicka Ortiz, Angel House, Katy, Texas
6
2
4/23/2012
Using Records
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Preparing the records (review and redact)
Using records to prepare for testimony
Testifying from the records
Using them to refresh your memory (It’s okay to ask.)
Authenticating the records (…as business records)
Facts: details, summaries, and estimates
Opinion – Is it in the records? Is it ever okay?
Hearsay
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
7
Using Records
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
8
Hearsay
• What is it?
• Hearsay within Hearsay
• When it may be allowed:
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o
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Admissions by party
Business records
Bench v. Jury trial
Other…
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
9
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4/23/2012
Hearsay
From “To Kill A Mocking Bird”
[testifying]
Tom Robinson: Well, I said I best be goin', I couldn't do nothin' for her, an' she
said, oh, yes I could. An' I asked her what, and she said to jus' step on the
chair yonder an' git that box down from on top of the chifforobe. So I done
like she told me, and I was reachin' when the next thing I know she...
grabbed me aroun' the legs.
[a murmur erupts in the courthouse]
Tom Robinson: She scared me so bad I hopped down an' turned the chair
over… [Tom shakes his head, re-living the ordeal with his eyes half-closed]
Tom Robinson: And I said, Miss Mayella, let me outta here, an' I tried to run.
Mr. Ewell cussed at her from the window and said he's gonna kill her.
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
10
Court vs. Deposition
Sworn testimony in both situations
Usually both are recorded by court reporter
Both are used as evidence in the case
Depositions are often video or audio recorded
Will potentially be questioned by all counsel
You are a third party, and not a witness “for” either
party
• Limitations
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o Courts limit questions and allow more arguments with objections
o Deposition is more open in questioning and often has limited objections
• Setting
o Court – Formal setting and rules
o Deposition – more casual and relaxed
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
11
Federal Rules of Evidence
401. Evidence is relevant if (a) it has any tendency to make a
fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the
action.
602. A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness’s own testimony…
701. If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge
...
SVN 2012 Annual Conference
– Orlando
12
Anaicka Ortiz, Angel House, Katy, Texas
4
4/23/2012
SVN Standards For Supervised
Visitation Practice
6.2 General Policy
…
3. A provider must not make recommendations or
state opinions about future visitation arrangements
and/or child custody determinations.
4. This policy does not prohibit a provider from
providing factual information based on
observations of clients which may be used by
others who are conducting an evaluation and/or
assessment.
SVN 2012 Annual Conference –
Orlando
Anaicka Ortiz, Angel House, Katy, Texas
13
“You can’t handle the truth.”
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
14
Sample Courtroom Layout
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
15
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4/23/2012
Sample Proceeding
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Who is present?
Swearing in
“The Rule”
Direct examination
Cross examination
Others (Amicus, Ad Litems, pro se party…)
The Court
Objections
o To questions
o To answers
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
16
Giving Testimony
Direct Examination
• Usually cannot lead
• Open ended questions
• May be harder to
answer because
harder for the attorneys
for form good questions
and harder to know
what they want
• Requires memory
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Cross Examination
Often leading
More “yes or no”
May be limited
May try impeachment
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Attack your truthfulness
Attack reliability of records
Attach your credibility
Attach your character
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
17
Direct Examination
From “Amistad”
Baldwin: Captain Fitzerald, please explain to us your
primary duties in Her Majesty's Navy.
Captain Fitzgerald: To patrol the Ivory Coast for slave
ships.
Baldwin: Because?
Captain Fitzgerald: Because slavery is banned in British
law, sir.
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
18
6
4/23/2012
Cross Examination
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
19
Cross Examination
From “A Few Good Men”
Kaffee: Lieutenant, do you know what a code red is?
Lt. Kendrick: Yes, I do.
Kaffee: Have you ever ordered a code red?
Lt. Kendrick: No, I have not.
Kaffee: Lieutenant, did you order Dawson and two other men to
make sure that Private Bell receive no food or drink except water
for a period of seven days?
Lt. Kendrick: That is a distortion of the truth, Lieutenant, Private
Bell was placed on barracks restriction, he was given water and
vitamin supplements and I can assure you that at no time was his
health in danger.
Kaffee: I'm sure it was lovely for Private Bell. But you did order the
barracks restriction, didn't you? You did order the denial of food.
Lt. Kendrick: Yes, I did.
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
20
Cross Examination
“My Cousin Vinny”
Vinny”
• Vinny Gambini: How could it take you five minutes to
cook your grits when it takes the entire grit-eating world
20 minutes?
Mr. Tipton: Um... I'm a fast cook, I guess.
Vinny Gambini: [across beside the jury] What? I'm sorry I
was over there. Did you just say you were a fast cook?
Are we to believe that boiling water soaks into a grit
faster in your kitchen than any place on the face of the
earth?
Mr. Tipton: I don't know.
Vinny Gambini: Perhaps the laws of physics cease to
exist on your stove. Were these magic grits? Did you buy
them from the same guy who sold Jack his beanstalk
beans?
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
21
7
4/23/2012
Witness Prep 101 Review
Review the records
Organize your thoughts
Review your policies and procedures
Know your program statistics
Review your resume
Review any deposition or prior testimony
Identify any problems or issues
Anticipate common questions
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SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
22
Witness Prep 101101Do’s and Don’ts
Do
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Always be truthful
Take a breath before each answer – wait after any objection
Answer what is asked
Speak slowly and clearly
Make eye contact
Be clear, concise, and mindful of tone
Ask for clarification or a rephrase when needed
Say so if you don’t know or don’t remember
Correct any errors right away
Admit talking about or preparations made for testimony
Dress appropriately
Verify where the courtroom or other location is beforehand
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
23
Witness Prep 101101Do’s and Don’ts
Don’t
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Give non-verbal responses (nod, hand gestures)
Get angry or emotional
Argue
Guess about the question being asked (such as
compound, improper, or confusing questions)
Guess about the answer
Be pressured into giving an improper opinion
Volunteer too much information on long answers
Refuse to answer “yes or no” questions with yes or no
Take it personally
Hide any mistakes or problems
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
24
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4/23/2012
Dressing for Credibility
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Dress like a professional.
Dress conservatively.
Avoid wearing loud colors.
Always be neat and clean.
Keep hairstyles simple and neat.
Minimize jewelry.
Avoid wearing items that may
identify a personal association or
belief. Political buttons, club pins
…may trigger some prejudices
against you in the mind of a juror.
Know your audience
expectations, i.e. a skirt with
sandals or no stockings may be
fine in Miami or Houston, but not
in your area.
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
25
SVN Standards For Supervised
Visitation Practice
20.3 Cautionary Note on All Reports or Observation
Notes
When submitting any reports or copies of
observation notes, a provider must include a
cautionary note stating the limitations on the way the
information should be used.
SVN 2012 Annual Conference –
Orlando
Anaicka Ortiz, Angel House, Katy, Texas
26
Opinion Questions
• When the attorneys ask for your opinion
o Answer with facts (don’t make a big deal of it)
o Keep answering with facts
o Summarize when needed
• Some are ok, but back it up with facts.
o Was it cold outside?
o Was he/she upset?
o Did they leave right away?
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
27
9
4/23/2012
When to Not Answer
• Compound or Confusing Questions – ask them to
rephrase or clarify
o So did you only supervise visits on Wednesdays and not allow him to bring
any guests?
o Did you review all the records and speak to opposing counsel before
court to prepare your testimony?
o Do you walk to school or carry your lunch?
• Questions that misstate your testimony, facts or the
records
• Improper Questions
o When did you stop beating your wife?
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
28
Fin
SVN 2012 Annual Conference – Orlando
Anaicka Ortiz, Angel House, Katy, Texas
29
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