Overcoming Fear to Make a Record in Georgia Appeals Cases with Juveniles

Last Friday, I spoke at a conference in Atlanta devoted to training attorneys who represent parents in juvenile deprivation hearings. The overall conference was devoted to representing parents in juvenile court. And the focus of my topic was preserving a record for appeal in juvenile court.

I still do cases out of juvenile court from time to time. Earlier in my career, I did these cases quite a bit. From listening to the conversation, it doesn’t sound like the juvenile court culture has changed very much.

I give the “preserve the record” talk quit a bit at conferences. This year, I’ve presented on this topic twice. And I’ve spoken at this particular conference for several years in a row. This conference is a little different because you must go back to challenge some bad assumptions underneath “business as usual” in juvenile court. I actually use a slide with a single sentence in my Keynote presentation. That sentence reads, “the rules of evidence apply in juvenile court.”

The thing is that the rules of evidence aren’t really enforced in juvenile court all that much. When you appear in juvenile court and start making hearsay objections, the judge, opposing counsel and guardian often look at you as if you just landed in court from some distant planet.

When I’ve gotten records and transcripts from cases in juvenile court where I was not trial counsel, they are terrible. They are terrible in a way worse that the average way that records are terrible.

There’s a pervasive “culture of cooperation” in the average juvenile deprivation that undermines the very concept of an adversarial system.

So, the focus of my talk was how important it is to overcome fear and simply start making objections in juvenile court. If my hour-long talk could be condensed down to five points, it woudl read like this:

• If juvenile courts mistreat the parties, then the blame lies with the judge and the State. But it also lies with the attorneys who represent clients there. Unlike in basketball or football, where there’s a referee whose job description includes calling fouls and penalties, the parties must “throw the flag” before they can get a ruling. If you don’t throw the flag, your opponent will spend the whole game grabbing your client’s facemask.
• Sure, the fix is in. DFACS and the State of Georgia control most of the courtrooms in Georgia. But just because you are going to lose the objections doesn’t mean that you shouldn’t make them. In fact, objections that my appellate client lost at trial are like music to my ears when I read a trial transcript.
• Your job is to collect rulings at trial, not to win them. If your goal is to collect rulings, then you will position the case for appeal better than if your goal is to win them. Think of a trial as a basket that you will fill with rulings. The ones you collect that went your opponent’s way will form the basis of your appeal.
• A ruling comes when a judge says, “sustained,” “overruled,” “granted,” or “denied.” “Move along,” “noted,” and “ask your next question” are pseudo-rulings that will do nothing but nuke your future appeal.
• The more objections that your opponents has to deal with and the court has to decide means that the system must work harder to convict your client or take your client’s children away. Often, better deals will come just so that the people in court will make you go away. Even if your opponent clears all the hurdles you throw up, it takes energy to clear hurdles. If you assume that DFACS is predatory, they might let your client go in favor of easier prey in the form of the next case on the calendar where the lawyer is a big pushover.

The groups asked great questions, and I met several future friends and colleagues during the talk and in the hallway afterward. Once again, I learned just as much as I taught in the process of preparing the talk, giving it, and engaging in discussion with the CLE participants.