GPSOLO
SOLO, SMALL FIRM AND GENERAL PRACTICE DIVISION
A PUBLICATION OF THE AMERICAN BAR ASSOCIATION
rePresentIng
chIldren
Is Your PractIce
reallY automated?
trIcks for
troubleshootIng
outlook
Where Is Your data?
GPSOLO, AMERICAN BAR ASSOCIATION, 321 N. CLARK STREET, CHICAGO, IL 60654-7598
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ORGANIZATION
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ASSOCIATION
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
march/aPrIl 2017
Volume 34, number 2
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
GPSOLO
Contents
Volume 34, Number 2 • March/April 2017
­
14
10
28
FEATURES
10
The Child Client
Building trust and having good communication are
essential for a successful relationship with a child client.
24
by travis cushman and kari Petrasek
14
Defending a Juvenile Delinquency Case
Try to be innovative and prepare new arguments for your
juvenile defendants. Remember: Many juvenile clients
will be your future adult clients.
by eva J. klain
28
by kenneth a. Vercammen
18
Representing Juveniles:
Abuse/Neglect vs. Parental Custody
In both abuse/neglect and custody cases, an attorney
has the duty to fiercely defend and protect the rights
of the child.
by kathryn e. terry
Is Your Child Client a Victim of Sex
Trafficking?
Child victims of other crimes may also be victims
of human trafficking, specifically domestic child
sex trafficking.
Protecting Children’s Rights in School
Discipline
Attorneys defending young persons can significantly
limit the impact of the school-to-prison pipeline.
by Johanna e. miller
32
Bullying: On- and Off-line
What can you do as an attorney to ensure that schools
provide actual avenues of protection for their students?
by mario a. sullivan and Joachim marjon
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Contents
36
36
Protecting Immigrant Clients in the
Juvenile Justice System
Delinquency proceedings can have a disparate impact
on immigrant youth.
40
BEST OF ABA SECTIONS
56
by angie Junck and rachel Prandini
40
Addressing the Overuse of Psychotropic
Medications on Dependent Children
How can legal practitioners in the foster care system
ensure that plans to treat a child with psychotropic
medications are scrutinized for the child’s well-being?
42
Airbrushed Heirs: The Problem of Children
Omitted from Wills
This article addresses rules designed to protect children
from unintentional disinheritance.
by adam J. hirsch
58
by mackenzie J. sorich
The Lawyer’s Internet Marketing Tool Kit
These useful tools will help your firm execute its online
marketing campaigns, improve performance, and track
results.
by Jason marsh
42
Is Your Practice Really Automated?
Used properly, technology won’t take the human element
out of lawyering—only the mundane processes.
60
by tanya scribano
46
What and Where Is My “Data”?
You must structure data correctly, be able to quickly
and completely retrieve it, and know when to destroy it.
by david michael
50
Simple Tricks for Troubleshooting Outlook
Yourself
Preventing Outlook breakdowns is key, but when things
go wrong, you can tackle them yourself.
by lisa hendrickson
Children, Trauma, and the Potential for
Tort Litigation
When representing a child in tort litigation arising out of
alleged trauma, keep in mind that the effects of trauma
can be serious and long-term.
by robert a. simon
62
College Sexual Misconduct Disciplinary
Proceedings
School disciplinary proceedings differ dramatically from
court cases and often lack due process.
by andrew t. miltenberg and Philip a. byler
64
A Broader View of Dispute Resolution
The growth of ombudsmen programs bears witness to
the need for a broader type of dispute resolution.
by charles l. howard
66
www.americanbar.org/gpsolo
Confidentiality in the Age of Social Media
No criminal defense lawyer wants a reputation for
casually revealing client information in public.
by ty alper
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
COLUMNS
04
Road Warrior
Traveling Companions: iPad Pro vs. Surface Pro 4
by Jeffrey allen
06
The Chair’s Corner
Building All Relationships
by stephen d. Williams
08
54
68
Solo, Small Firm and General Practice Division News
Spring Meeting, Call for Applications
Ready Resources
Ready Resources for Representing Children
Roˉnin Reports
Giving Diligence Its Due
by benjamin k. sanchez
70
Mac User
Note-Taking Apps: An Update
by Victoria l. herring
72
Technology Special Report
CES: What’s New in the World of Consumer Technology
by Jeffrey allen
76
Product Review
eDiscovery Point
by Jeffrey allen
80
GP Mentor
Interviewing Your Child Client
by cathy krebs
GPSolo (ISSN-1520-331X) is published six times a year (January/February, March/April,
May/June, July/August, September/October, and November/December) by the ABA Solo,
Small Firm and General Practice Division, 321 N. Clark St., Chicago, IL 60654-7598.
The magazine is committed to fulfilling the special needs of solo, small firm, and general
practitioners. The contents of GPSolo do not necessarily represent the views of the
Solo, Small Firm and General Practice Division or the American Bar Association but
are the views of respected members of the profession. Any member of the Association
becomes a member of the Solo, Small Firm and General Practice Division by sending
an application and annual dues of $45 ($10 of which funds GPSolo) to the Division of
Professional Services, ABA, 321 N. Clark St., Chicago, IL 60654-7598. ABA membership
is a prerequisite to Division membership. Institutions and individuals not eligible for ABA
membership may subscribe to GPSolo for $135 per year, $145 for residents outside the
U.S. and its possessions. Per copy price for members and nonmembers is $30. Requests for
subscriptions and back issues should be sent to ABA Service Center, service@americanbar.
org or 321 N. Clark St., Chicago, IL 60654-7598. Copyright © 2017 American Bar
Association.
Contact Us: To write for GPSolo, contact Jeffrey Allen ([email protected]). For more
information about the magazine and the Division, visit our website at americanbar.org/
gpsolo or call 312/988-5648.
Although articles in this issue of GPSolo refer to numerous products and manufacturers by
name, neither the ABA nor ABA Divisions endorse non-ABA products or services; reference to
such products or services should not be so construed.
Cover: Masterfile
EDITOR-IN-CHIEF
Jeffrey Allen • [email protected]
ISSUE EDITORS
Judy Toyer (convening issue editor) • Cedric Ashley • Rinky S. Parwani •
Eileen Sullivan • Consultant: Kari Petrasek
ASSISTANT EDITOR
Joshua Paulin
TECHNOLOGY EDITORS
Jeffrey Allen • Wells H. Anderson • Nerino J. Petro Jr.
BEST OF ABA SECTIONS EDITOR
Christine M. Meadows
EDITORIAL BOARD
Brian Annino • Cedric Ashley • Raymond Catanzano • Andrew C. Clark •
Charles C. Dawson Jr. • Alan E. DeWoskin • Joan M. Durocher • Ashley
Hallene • Brian Hobbs • Sarah Holmes • Alan Klevan • Lesly Carmen Longa •
Shaolaine Loving • Aastha Madaan • Staten T. Middleton • Ariadne S.
Montare • Rinky S. Parwani • A. Renee Pobjecky • Savannah Potter-Miller •
Ronza J. Rafo • Jeffrey C. Robinson • Benjamin K. Sanchez • James
Schwartz • Eleanor Southers • Eileen Sullivan • Mario Sullivan • Artika R.
Tyner • William Slater Vincent • J. Anthony Vittal • Ex-Officio: Sheila-Marie
Finkelstein • Kathleen Balthrop Havener • Angela Morrison • Michael Ruttle •
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aba Publishing
DIRECTOR OF PUBLISHING Donna Gollmer
EDITOR Robert M. Salkin
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solo, small firm and general Practice division
CHAIR David H. Lefton
CHAIR-ELECT Stephen D. Williams
VICE CHAIR Melanie Bragg
SECRETARY Richard A. DeMichele Jr.
BUDGET OFFICER Stephen J. Curley
REVENUE DIRECTOR Alan O. Olson
DIRECTOR Kimberly Kocian • [email protected]
Direct inquiries to: American Bar Association, 321 N. Clark St.,
Chicago, IL 60654-7598, fax 312/988-5711
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
road WarrIor
traVelIng comPanIons:
iPad Pro Vs. surface Pro 4
by Jeffrey allen
I
n my previous column, I focused on
a comparison between the Mac OS
X and Windows 10 operating sys­
tems—I still can’t help but wonder
if Microsoft skipped Windows 9 as a
marketing tool, putting them at version
10 to match Apple’s OS X. Oh, well, that’s
not relevant to this column’s topic—the
iPad Pro versus the Surface Pro 4—just a
random thought that marched across my
brain as I wrote that column.
iPad Pro
Jeffrey Allen ([email protected], jallenlawtekblog.
com) is the principal in the law firm of Graves &
Allen in Oakland, California. A frequent speaker on
technology topics, he is Editor-in-Chief of GPSolo
magazine and GPSolo eReport and a member of the
Board of Editors of Experience magazine.
4
Apple iPad Pro (left) and Microsoft Surface Pro 4 (right)
to the camera, as Apple created the
smaller iPad Pro with a better camera
(12-megapixel iSight versus 8-megapixel
iSight). The two iterations of the iPad
Pro have a few other differences that
will likely fall into sync in the next up­
grade. You can compare the specifica­
tions in detail on Apple’s website (apple.
com/ipad-pro/specs).
Perhaps the most significant differ­
ence from a usability perspective relates
to the relative sizes and weights of the
two devices. Without a case (or key­
board) the smaller iPad Pro measures
9.4” x 6.6” x 0.24” and weighs 0.96
pounds (0.98 pounds for the WiFi + cel­
lular models). The larger iPad Pro (also
without a case or keyboard) measures
12” x 8.68” x 0.27” and weighs 1.57
pounds (1.59 pounds for WiFi + cellu­
lar). The weights with Apple’s keyboard
case come to 2.33 pounds for the larger
and 1.73 for the smaller. That makes the
larger version slightly larger and heavier
than the 2.03 pound, 11.04” x 7.74” x
0.14”/0.52” MacBook and about the
same size and almost as heavy as the 3.02
pound, 11.97” x 8.36” x 0.59” MacBook
Pro (13”). So, you are taking up just
about the same space in your case and
carrying almost as much weight with the
larger iPad Pro with keyboard case as
you would for an excellent laptop com­
puter. Given this choice, I would likely
opt for the MacBook Pro in most cases
over the larger iPad Pro owing to its
substantially greater power for a slight
increase in weight; but if I did not need
the laptop, I would likely opt for the
smaller iPad and save the 1.3 pounds of
extra weight. In truth, I prefer using a
laptop when I write, so if I have seri­
ous writing to do (other than simply
e-mails), I generally will bring a laptop
along instead of the iPad.
In practice, the smaller iPad Pro
has joined my Kindle eReader and my
iPhone 7 Plus as the tools that come with
me on virtually every trip and accom­
pany me in most of my daily activities.
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Images courtesy of Apple and Microsoft
Anyway, for those of you who have not
read my previous comments about the
iPad Pro, let me summarize them for you
briefly. (For purposes of simplicity, I will
refer to the 9.7” iPad Pro as the “smaller”
and the 12.9” iPad Pro as the “larger.”)
I like the smaller iPad Pro as a traveling
companion. It has lots of power, lots of
uses, and comes in what I consider the
perfect size. While the larger iPad Pro has
a slightly faster processor and a bit more
RAM, I do not consider it as useful as a
traveling companion owing to its larger
size and greater weight. In truth, I have
not noticed much difference in perfor­
mance speed between the two versions,
despite the differing specifications.
The two versions both use the same
version of the iOS, come in the same
memory configurations, and have
Retina displays. To create the Retina
presentation the larger iPad Pro comes
with a higher resolution than the smaller
one, but you do not see the difference.
Another significant difference relates
My laptop comes with instead of the
smaller iPad on some trips. My larger
iPad Pro mostly sits at home in its case
waiting for me to pull it out on those
occasions when I have a use for it. To be
sure, the larger iPad Pro does not come
without its appeals. I have, for example,
found uses for both versions in court.
While the larger iPad Pro is too bulky
and cumbersome to feel comfortable as
a handheld tool in presenting to the jury,
the smaller version works perfectly. On
the other hand, the bigger screen on the
larger iPad comes in handy for my use as
a primary evidence display at the counsel
table. In fact, I like it better than a laptop
for that purpose, and some of the apps
available for the iPad facilitate that use.
Surface Pro 4
This brings me to the part of this column
that those of you who have followed my
writing for some time or who know me
personally may find surprising.
I have not favored Windows laptops
for most of my career. Recently, how­
ever, Microsoft came up with the Surface
Pro 4. The Pro 4 represents the latest it­
eration of Microsoft’s Surface Pro series.
In the Pro 4, Microsoft made substantial
hardware improvements over previous
versions of the Surface Pro and put Win­
dows 10 on the device. The Surface Pro
4 has a touch screen and functions in ei­
ther laptop mode or as a tablet. You can
even remove the keyboard cover to make
it a lighter tablet package. If you read
my previous column, you will already
know that I like Windows 10 quite a bit.
It appears stable and relatively easy to
use. I still prefer Apple’s OS X in some
regards and Apple’s iOS in others. Win­
dows 10, however, provides both a tab­
let and a laptop mode so that the same
basic operating system works on both
GPSOLO | ambar.org/gpsolomag
platforms, although the different modes
have somewhat divergent functionality.
In recent releases, it appears that Apple
has gravitated toward a unified operating
system for mobile devices (tablets and
phones) and computers, but Microsoft
beat Apple to the punch in that regard.
Most significantly, the Surface Pro 4
gives me both a very good laptop and
a usable tablet in a single device, so I
only have to carry one device instead
of two. Thus, even though I prefer the
MacBook Pro to the Surface Pro 4 as a
laptop and the iPad Pro to the Surface
Pro 4 as a tablet, the Surface Pro 4 shines
as a hybrid device, giving me a very good
laptop and a functional tablet for a lot
less weight and space in my bag. The Sur­
face Pro 4 measures 11.5” x 7.93” x 0.33”
and weighs 1.73 pounds without the op­
tional keyboard case. The keyboard case
costs $129.99 and adds 0.64 pounds to
the package, bringing the total weight
to 2.37 pounds. Most significantly, the
programs I use most, Microsoft Word
and PowerPoint, Adobe Acrobat Profes­
sional, and a browser for Internet access
and access to my online billing program,
work pretty much the same on my Mac
computers, the Surface Pro 4, and my
iPad. To be sure, each platform has some
peculiarities by comparison to the oth­
ers, and I would like it better if they did
not; but, in truth, the differences are not
that significant, so I can easily move from
one platform to another.
One of the things I particularly like
about the Surface Pro 4 is that it runs
full-fledged computer software. By
comparison, the MacBook Pro runs
computer software, but the iPad Pro
does not. On the other hand, Apple’s
iTunes App Store has some apps that run
on tablets enabling the iPad to do some
things that laptops (its own and those
running Windows, such as the Surface
Pro 4) cannot.
A recent article posted online by
Laptop magazine (tinyurl.com/jhofrw7)
compared the Surface Pro 4 to the large
and small iPad Pro. The article concluded
that the Surface Pro 4 has more power
and better specs as a tablet. Despite the
specifications advantage, the article
recognized the iPad Pro as the better
tablet, although not by as much as you
might think.
While the Surface Pro 4 does not feel
quite as unwieldy as the larger iPad Pro
when used as a tablet, it also does not feel
as svelte or comfortable as the smaller
iPad Pro. The bottom line is that, more
and more often, when I feel the need for
both a tablet and a laptop while traveling,
I find myself bringing the Surface Pro 4
instead of taking both a MacBook Pro
and an iPad.
concluSion
We have heard that the tablet will replace
the laptop going forward. Although the
iPad Pro performs like it thinks it is a lap­
top replacement, it really does not com­
pletely substitute for a laptop. It comes
close in many respects, but, in addition to
not running all the same software, it fails
for me when it comes to word processing.
Having the keyboard helps, but it does not
carry the day. I still find it disconcerting to
have to take my hands off the keyboard to
move the cursor by manually touching the
display. In my opinion, Apple would be
well advised to add a touch pad to the key­
board or allow a mouse to work with the
tablet. Conversely, I see the Surface Pro 4
as a very competent laptop that thinks it
is a tablet. While it functions adequately
as a tablet, I would like it better if Micro­
soft made the configuration a bit smaller
and lighter. 
5
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the chaIr’s corner
buIldIng all relatIonshIPs
by stephen d. Williams
h
ello to my fellow members
of the Solo, Small Firm and
General Practice Division. My
name is Stephen D. Williams,
and it is my honor to be your
Chair-Elect this year and the incoming
Chair for the Bar Year that will begin at
the ABA Annual Meeting in New York
this August.
By way of introduction, let me take this
opportunity to provide you with my back­
ground. First and foremost, my firm is me.
I’m a solo practitioner, like many of you,
and I have practiced for the past 11-plus
years in the Borough of Flemington, New
Jersey. Never heard of Flemington? It is
a small community in the western part of
central New Jersey, located approximately
63 miles from Times Square in New York
City and 50 miles from Independence
Hall in Philadelphia. It was also the site,
in 1935, of what was called the “Trial of
the Century” (prior to the O.J. Simpson
trial): Flemington, the county seat of
Hunterdon County, was where the State
of New Jersey tried Richard Hauptmann
for the kidnapping of Charles Augustus
Lindbergh Jr. three years earlier. This case
garnered international news coverage that
the locals say rivaled that of the O.J. case
60 years later. It was my honor to serve as
counsel during the penultimate jury trial
in the Lindbergh courtroom.
As with many of you, the struggles
of running my own practice have been
challenging and yet rewarding. Prior to
becoming a solo practitioner, my past
practices have been with firms that had
as few attorneys as three or as many as
40 in an insurance-based defense practice.
Although I currently practice in New
Stephen D. Williams ([email protected]),
the guest contributor of this issue’s column, is
Chair-Elect of the GPSolo Division. He is a solo
practitioner in Flemington, New Jersey, focusing
on family and criminal law
6
programs—everyone attending will gain
valuable information for their individual
practice. I encourage each of you to join
our Division at the Fairmont Scottsdale
Princess for what will surely be a memo­
rable event.
The BenefiTS of MeMBerShiP
Stephen D. Williams
Jersey, where I was born and raised, my
legal career includes a stretch in Louisiana.
I attended law school at Louisiana State
University and passed the state’s bar exam.
Working for three different trial court
judges in the 15th Judicial District Court
(made up of Acadia, Lafayette, and Ver­
milion Parishes in southwest Louisiana),
my passion for the profession grew.
In addition to involvement in the
ABA’s GPSolo Division, my commit­
ment to the New Jersey State Bar Asso­
ciation has allowed me to serve as chair
of its Municipal Court Practice Section,
and I currently serve on its Membership
and Unauthorized Practice of Law and
Ethics Committees.
Before addressing what we will be
doing in the GPSolo Division next
year, I would be remiss not to mention
what is still to come this year thanks to
Chair David Lefton’s leadership and
planning. Our Spring Meeting in Scott­
sdale, Arizona, May 17 to 20, will be
another joint gathering with our friends
from the Group Legal Services Associa­
tion (GLSA). This meeting will feature
many thought-provoking and engaging
What is coming in 2017–2018? First, know
we will continue bringing you the unique
member benefits you already enjoy to
help you in your daily practice:
 ABA Solo and Small Firm Re­
source Center (ambar.org/
soloandsmallfirms), providing
marketing, technology, practice
management, CLE, and substan­
tive law resources for solo and small
firm lawyers.
 GPSolo LinkedIn social media
group (tinyurl.com/n24dlqt), where
members can connect, make refer­
rals, and read publications written
or shared by other members.
 SoloSez (solosez.org), the “virtual
water cooler” where solo practi­
tioners can pose questions, offer
advice, and share information.
 Our award-winning books and
publications, including the GPSolo
eReport and GPSolo magazine,
keeping you up-to-date on the latest
legal topics and practice methods.
 Our virtual Brown Bag luncheons,
an ongoing series of lunchtime
seminars, free to you, our members,
examining a wide variety of topics
ranging from cutting-edge practice
developments to substantive law
and practice management advice.
 Our ongoing relationships with
other Sections, Divisions, and Fo­
rums within the ABA.
In designing these benefits, we never
forget that GPSolo is the home of the na­
tion’s solo, small firm, and general prac­
tice attorneys, as well as the home of its
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
military attorneys; as such, our program­
ming will always focus on serving these
members.
Building all relaTionShiPS
Our theme for 2017–2018 is captured in
the abbreviation BAR, which stands for
Building All Relationships. As anyone
who practices law knows, this business is
all about relationships, and these relation­
ships cover every aspect of our lives. First
and foremost is the relationships we have
with our families, which bear the brunt
of our profession on a daily basis. In our
practices, obviously, our most important
relationship is with our clients because
without them, well, we wouldn’t have a
practice. Then there are the relationships
we have with our fellow lawyers, either
within our office or our adversaries, cocounsel, and associates. If you litigate,
there are your all-important relationships
with the court personnel and the judiciary.
Finally, there are the relationships we have
within the community, which could help
develop businesses. All relationships are
important to all of us, and we must focus
on these to improve the practice of law and
the interaction with our family, friends,
and communities.
diviSion MeeTingS in 2017–2018
Our Fall Meeting will take place Octo­
ber 19 to 21, 2017, in St. Paul, Minnesota,
near the northern source of the Missis­
sippi River. The conference will be held
at the historic St. Paul Hotel in the heart
of downtown. Known for its old-world
charm and sophistication, the hotel is a
mere block away from the Xcel Energy
Center, home of the Minnesota Wild, and
across the street from the old courthouse
that was used to try many of the 1920s
prohibition criminal trials. And St. Paul
is only a $1.75 light-rail ride away from
downtown Minneapolis (its sister city).
The St. Paul meeting will continue the
GPSOLO | ambar.org/gpsolomag
legacy of our past two Solo & Small Firm
Summits as we turn our attention once
again on how to build a better, more suc­
cessful practice through tips and ideas to
help you better market your firm, develop
a larger client base, and quite frankly make
more money. We will offer plenary ses­
sions with high-profile national speak­
ers and continue our tradition of great
social events.
As some of you may know, the Di­
vision’s top corporate sponsor for many
years has been Thomson Reuters. This
meeting will be unique because we will
start on Thursday afternoon on the cam­
pus of Thomson Reuters for a welcome
CLE session, followed by our opening
Welcome Session and Reception thrown
by Thomson Reuters for all attendees.
Following the success of last fall’s Di­
versity Reception, we will hold a Diver­
sity Roundtable followed by the Second
Diversity Reception. Diversity is a key
component driving the BAR message
by bridging the gap between all people
regardless of their gender, nationality,
color, sexual identification, or political
viewpoint.
The schedule for this meeting will allow
you to explore the greater Minneapolis–
St. Paul region, and if the professional
sports schedule makers cooperate, there
may be an opportunity to see the Min­
nesota Vikings, Wild, or Timberwolves
while we are there.
From April 26 to 28, 2018, GPSolo will
have our Spring Meeting in the City that
Care Forgot, New Orleans. This meeting
will once again be a joint meeting with
our friends from GLSA. If you were at
our meetings in Las Vegas or Key West,
you know the tremendous programs that
GLSA puts on, which more than make
this meeting worth attending. In addition,
we will host the networking opportunities
that you have come to expect—and lots of
fun in the Big Easy.
We will be staying at the Sheraton New
Orleans Hotel just outside the French
Quarter on Canal Street. Our meeting
coincides with the first weekend of the
New Orleans Jazz and Heritage Festival,
held annually at the New Orleans Fair
Grounds Race Course. This will allow our
attendees the opportunity to see and enjoy
a variety of musical artists of all types, in­
cluding some of the top music acts in the
world. The schedule will be announced
in early 2018, and it will be my personal
commitment to make sure that everyone
has plenty of time to tailor their schedule
and attend as many performances as they
can. The intention with this meeting is to
begin the day early so that everyone can
enjoy Jazz Fest.
In addition to our Division meetings,
our Division will once again be a presence
at the ABA Midyear Meeting, February
1 to 4, 2018, in Vancouver, British Co­
lumbia, Canada, and the ABA Annual
Meeting, August 2 to 5, 2018, in Chicago,
Illinois; at the Annual Meeting we intend
to bring back “Solo Day,” where you can
pick up CLE credits in a broad array of
substantive legal fields.
Join uS!
The 2017–2018 GPSolo Division Bar Year
will be an exciting one filled with some­
thing for every attorney across this great
nation of ours. As such, I am humbled and
yet excited by the prospect of becoming
Chair in the upcoming year. There will
be no BAR to how far we can go and no
BAR on the commitment we all have to
the Solo, Small Firm and General Practice
Division, where our motto is “Your Suc­
cess, Our Mission.” 
7
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
solo, small fIrm and general PractIce dIVIsIon neWs
sPrIng meetIng, call for aPPlIcatIons
at americanbar.org/groups/gpsolo/
initiatives.html.
iStock
don’T forgeT aBouT TheSe free
gPSolo MeMBer reSourceS
2017 JoinT SPring MeeTing
May 17 to 20
Fairmont Scottsdale Princess
Scottsdale, Arizona
Presented by ABA Solo, Small Firm
and General Practice Division; ABA
Standing Committee on Group and
Prepaid Legal Services; Group Legal
Services Association (GLSA).
It’s not too late to register for the
2017 Joint Spring Meeting, which prom­
ises to be spectacular. Come and enjoy a
Western Welcome Reception Hoedown
at the new Copper Canyon events cen­
ter. Enjoy a Southwestern Cookout
including Abuela’s Sizzling Fajitas.
Enjoy a small, quaint, intimate setting
with Peter Blauner, a writer for Law and
Order. Because we feel it is important
to be the best you that you can be, you
don’t want to miss the “Mind and Music
over Matter: The Wellness CLE,” in­
cluding yoga, meditation, ecstatic dance,
and hotel wellness staff.
For more information on all the exciting
programing at the Joint Spring Meeting,
go to ambar.org/gpsolospringmeeting.
8
call for aPPlicaTionS: diverSiTy
and young lawyerS fellowShiPS
GPSolo is pleased to announce the spon­
sorship of four Diversity Fellowships
and two Young Lawyers Fellowships
during the 2017–2018 Bar Year.
The Diversity Fellowship Program is
designed to promote diversity within the
Division and the ABA while providing
leadership development opportunities
within the Division for women, attor­
neys of color, and those with disabilities
and persons of differing sexual orienta­
tions and gender identities.
The Young Lawyers Fellowship Pro­
gram is designed to provide young law­
yers the opportunity to become actively
and integrally involved in the Division’s
meetings and committees with leadership
development opportunities.
Applications and nominations for
both Diversity and Young Lawyers
Fellowships must be received by April
28, 2017. Successful applicants will be
notified in early June 2017.
For more information about these
fellowship programs, visit our website
Hot Off the Press Series. GPSolo’s Hot
Off the Press series, featuring new book
publication releases and authors, is held
entirely by teleconference as a Division
member benefit at no additional cost.
The sessions are held bimonthly (start­
ing in January) on the third Wednesday
of the month, and they normally last one
hour during lunchtime. The content of
the program is based on the author’s
book published by ABA Book Publish­
ing. Past sessions include: The Lateral
Lawyer: Opportunities and Pitfalls for
the Law Firm Partner Switching Firms;
The Debt Collector’s Handbook; Be a
Better Lawyer: A Short Guide to a Long
Career; How to Capture and Keep Cli­
ents; Marketing Strategies for Lawyers;
The Business Guide to Law: Creating
and Operating a Successful Law Firm;
and more!
Brown Bag Sessions. These sessions
are short, informal educational events on
timely topics organized by committees
and held entirely by teleconference as a
Division member benefit at no additional
cost. They are held monthly and normal­
ly last one hour during lunchtime. Past
Brown Bag Session topics include: Anat­
omy of a Client Relationship: How to
Attract and Keep Quality Clients; Prox­
ies in Nonprofit Membership Organiza­
tions: Proximate Cause of Conflicts; 7
Success Secrets for Mastering Your Cash
Flow; and Competitively Managing Firm
Challenges in a Buyer’s Market.
The Division does not offer con­
tinuing legal education credits for these
programs.
You can access past sessions on the
GPSolo Division website at any time:
americanbar.org/gpsolo. 
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
A guide that offers minimum practice standards to help ask
the questions that need to be asked in every case
Child Abuse And negleCt CAses
A Comprehensive Guide to
understAndinG the system
By Travis Cushman
Children deserve our love, our support, and our protection.
Child Abuse and Neglect Cases: A Comprehensive Guide to
Understanding the System is a road map for anyone who
wants to help keep children safe. The book is also a guide to
understanding the child welfare system overall.
Child Abuse and Neglect Cases suggests practice standards
to help judges, parents’ attorneys, children’s attorneys, CFs
workers, GaLs, and family members ask the questions that
need to be asked in every case. The author of the book, Travis
Cushman, indicates that following the strategies outlined in the
book should reduce the chance of costly formal litigation.
Topics covered include:
• WhatIsthe“System”?
2016 • 6x9
148 Pages • Paperback
Product Code: 5150491
List Price: $49.95
GPSolo Members: $39.95
• TheNeedforaBalancedandNeutralSystem
• Biases–Inherent,Personal,andAvoidableOnes
• ChildrenintheCourtroom
• ShowCauseHearing
• Mediation
• ExtensionofTemporaryLegalCustody
• HearingtoDismiss/Reunify
• GuardianshipHearing
• TerminationofParentalRightsandAppeal
• RolesofPartiesBeforeandDuringHearings
To order this title or other
American Bar Association publications:
Call (800) 285-2221
Visit www.ShopABA.org
and search by product code listed or book title.
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Deposit Photos
The Child Client
10
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
c
hild clients can be parties in state-initiated dependency and
neglect cases, in private separation cases and custody battles,
as well as in emancipation proceedings. They may also need
representation when engaged in a disability determination
or special-needs litigation, in a juvenile criminal case, or in
a contract negotiation (e.g., for a child prodigy). Representing a child
client is similar to representing an adult client in some ways, but at times
it must be approached in a different manner by the attorney.
iniTial conTacT and Building TruST
When meeting either adult or child clients for the first time, call them
by their proper name and look them in the eye when you shake their
hand. Be cognizant of how you communicate with them: Do not talk
down to a child client. Ask open-ended questions and always answer
their questions as best as possible. Treat clients with respect and in a
professional manner from the onset of the case. Always follow through
with what you tell them you will do, and get it done in a timely fashion.
These simple steps will help build trust between you and the child (or
adult) client.
Another way of building trust with child clients is by making sure
they know that you represent them and not a third party. Explain what
this means in a thorough manner and reiterate that you will keep what
they tell you in the strictest confidence. This concept will help build trust,
but it is typically easier for an adult to understand than it is for a child.
With a child client, an attorney may have to explain what is being said
in several different ways and modify the way the issue is approached.
coMMunicaTing wiTh The child clienT
No matter the age of the child or the nature of the case, meet with the
child, and/or the child’s care provider, as soon as possible after being
retained or appointed as attorney. If the child is age appropriate, continue
meeting or communicating with the child before every hearing. During
the conversation, explain the nature of the proceeding in a developmen­
tally appropriate fashion and learn the child’s wishes. Maintain contact
with the child and the child’s care provider, keep them informed about
the status of the case, and promptly comply with your client’s reason­
able requests.
Attorneys may have to alter their approach with a younger child,
especially when explaining the specific language of a contract, a rule, or
a statute and how it is applied, as well as the standard of proof required
for a given issue and the maximum penalties that could be imposed.
An attorney would need to explain in simple terms the different court
hearings clients can expect to attend and their constitutional rights with
regard to the legal matter. These are just a few examples that may arise
depending on the case being litigated, so the attorney should always be
looking for different ways to explain issues to the child.
The younger the client, the harder it will be to get the child to fully
understand these issues and make an informed decision. If the client’s age
prevents him or her from having the mental capacity to understand the
items being discussed, the attorney should communicate with the child’s
care provider. This communication deviation, speaking about the case
with the child’s care provider, will occur more often when representing
younger children.
by travis cushman and kari Petrasek
GPSOLO | ambar.org/gpsolomag
11
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
REPRESENTING CHILDREN AS A GUARDIAN AD LITEM
In state-initiated child protection cases, children with
capacity as well as those who lack capacity are typi­
cally appointed a guardian ad litem (GAL). The GAL
could be a practicing attorney, a retired attorney, a
representative from a guardian ad litem organization,
or a caring community member. GALs might receive
compensation for their work, but often the position is
undertaken pro bono or filled by a volunteer.
No matter what type of GALs are appointed or
whether they are paid for their services, GALs repre­
sent to the court what they believe is in the child’s best
interests. The GAL advocates this best interests per­
spective even when the child has the capacity to con­
vey his or her wishes to the court. At times, depending
on the child’s age, GALs’ opinion as to what they be­
lieve is in the child’s best interests will differ from the
child’s expressed wishes. Advocating for the child’s
best interests, especially when it differs from the child’s
expressed wishes, can be challenging for the GAL.
Before forming an opinion about what is in the child’s
best interests, the GAL should meet with the child and
the child’s caregiver regularly throughout the case,
particularly before every hearing. Some GALs will meet
with the children in different locations to get a compre­
hensive perspective on the overall living arrangement.
The GAL should review all available documents and
interview the parties involved in the case, including as
many family members as possible. By doing so, a GAL
will be able to form an opinion based on the facts of the
case and first-hand knowledge of the family dynamics.
The GAL’s opinion should not only advocate for
what is in the child’s best interests as it pertains to
placement and reunification, but also on how the local
Department of Children and Family Services (DCFS)
is handling the case. A thorough report will inform the
court as to how the parents are accepting the assis­
tance being offered and how the case is likely to be
resolved; a thorough report will also make recommen­
dations and suggestions to the court when warranted.
Recommendations that may help the court make
its decisions include what should be accomplished
before the child can be reunified with his or her
parents and whether the child’s current placement
12
should remain the same or be changed. Other impor­
tant suggestions are what modifications should be
made to the parents’ treatment plan or what should
be done to eliminate the threats of danger that initi­
ated the case, if they still exist.
For a court to accept the opinion, recommenda­
tions, and suggestions of a GAL, the GAL must remain
neutral and independent with respect to any other
party or agency working on the case. To be effective,
the GAL’s opinion must be made free of influence from
DCFS, the state’s prosecutor, the different parents’ at­
torneys, the child’s care providers, and other GALs.
(For more, see tinyurl.com/z3qop6h.) This is important
to every case because many judges rely heavily on the
opinion of the GAL.
Judges rely on GALs because they usually spend
more time with the child than does any other party in
the case. Additionally, the GAL is often granted broad
powers by the court to investigate the case with little
to no interference, so the GAL’s opinion should be well
substantiated. After investigating the case and forming
an opinion, a GAL typically delivers recommendations
and suggestions to the court by submitting a written
report. The GAL should distribute a copy of it to all the
parties of record before each hearing so everyone
knows the GAL’s position.
GALs who remain neutral and independent while
performing their comprehensive investigation will be
able to give a proper perspective on what is in the
child’s best interests. If the GAL is actively involved with
the child, the child’s parents, and the child’s extended
family, the GAL will not only protect and help the child
but may also be regarded as a mentor. A GAL who is
regarded as a mentor will be able to make a difference
in a child’s life while helping a parent in need succeed at
becoming a competent mother or father.
For this reason, being a court-appointed GAL is an
extremely important role that more and more courts
are seeking attorneys to perform. An attorney who
performs as a GAL in this manner will not only have
the respect of the court and the parties practicing
therein, but may also be regarded by the child as a
lifelong friend.
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
When representing youth who are
ten years or older, be aware that these
children are usually cognizant of what
is going on and typically have a pretty
clear understanding of how they would
like the case resolved. Obviously, not all
teenagers have the same maturity or un­
derstanding level. Teenage youth can be
like mini-adults, sometimes more mature
than the adults, while others look and act
like eight-year-olds.
evaluaTing caPaciTy
When representing a non-age­
appropriate child, typically under the
age of five years old, the attorney should
meet the child client in his or her actual
living conditions whenever possible
and evaluate the child’s capacity. When
evaluating capacity, an attorney should
consider many factors, including age
appropriateness. Determine whether
the child is capable of differentiating be­
tween right and wrong and the difference
between the truth and a lie. Determine
whether the child client is capable of con­
sidered judgment and conveying his or
her wishes in an understandable manner.
If not, the child may lack capacity.
When the child lacks capacity, the
attorney may want to form an opinion
regarding what are the child’s wishes as
well as what will be in the child’s best
interests in the future. If the child lacks
capacity, discuss the nature of the pro­
ceedings with the child’s care provider
and communicate with the child’s care
provider before every hearing. Still meet
with the child occasionally, however, to
observe how the child client is doing.
For a child of capacity, the attorney
should advocate for the child’s expressed
wishes. If the child lacks capacity to con­
vey his or her wishes, the attorney should
inform the court and in some jurisdic­
tions should advocate for what is in the
child’s best interests or request that a
guardian ad litem be appointed. In other
jurisdictions, the judge may want the at­
torney to advocate for the child using the
substituted judgment standard. (Accord­
ing to the Commentary to Section 7(d)
of the ABA Model Act Governing the
Representation of Children in Abuse,
Neglect, and Dependency Proceedings
(2011), “determination of a child’s best
GPSOLO | ambar.org/gpsolomag
interests remains solely the province of
the court. . . . A lawyer should determine
the child’s position based on objective
facts and information, not personal be­
liefs.”) Judges may interpret procedural
statutes differently, so even courts in
the same jurisdiction may vary in how
they believe the child client should be
represented, especially as it pertains to
children being present in the courtroom.
children who want to
participate in court
proceedings should
have the opportunity
to attend and be
heard, but it should
be done in a way
that will not produce
additional trauma.
The child’S ParTiciPaTion
Inform age-appropriate children wheth­
er it is mandatory that they attend court
proceedings. When attendance is man­
datory, help facilitate age-appropriate
participation. When attendance at
court proceedings is optional, inform
child clients of their right to attend and
participate in each proceeding and the
advantages and possible disadvantages
of being present.
It is important for an age-appropriate
child who wants to be part of the process
to have the opportunity to attend and
be heard. It should be done, however,
in a way that will not produce additional
trauma to a child victim or frustrate re­
habilitation efforts of a criminal child
client. Having a voice, especially for a
child client, can promote healing from
any underlying issue, which in turn may
affect a change in behavior patterns.
In cases where the child’s attendance
is optional, the attorney must understand
there are many times and reasons why a
child should not be in the courtroom.
For example, some children, especially
those who are placed in a new school
after removal, can be teased and bullied
when they return to school after the
hearing. So use professional judgment as
an attorney and never pressure a child to
attend an optional hearing. Furthermore,
always respect the child’s right to say no.
However, age-appropriate children have
the right to decide whether or not they
want to attend a hearing. Sometimes chil­
dren want to attend hearings that affect
their lives and the lives of their siblings.
If the child wants to attend but is not
able to at the time and date set for the
hearing, continue the hearing so the child
may attend.
If the child attends a court hearing,
whether mandatory or discretionary,
the attorney should always take the
time to meet with the child after the
hearing and debrief him or her concern­
ing what occurred in the courtroom.
Do not assume the child understood
the outcome of the hearing, even on the
simplest of issues.
concluSion
Representing the child client can be re­
warding in many ways and a refreshing
change for attorneys who consistently
represent adults. Just remember, when
representing the child client, there are
often procedural and jurisdictional dif­
ferences of which the attorney must be
aware. Building trust and having good
communication are two items that are
essential to having a successful relation­
ship with a child client. Attorneys who
follow these guidelines should have a
successful attorney-client relationship
with a child client. 
Travis Cushman ([email protected]) is the principal
of the Cushman Law Office PC in Great Falls,
Montana; his work focuses on abuse and
neglect mediation as well as the representation
of children, parents, and grandparents. Kari
Petrasek ([email protected]) is the principal
of Petrasek Law, PLLC, in Mukilteo, Washington;
her work focuses on dependency and termination
matters as well as representation of children.
She has also served in many cases as a guardian
ad litem for dependent children.
13
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Defending a Juvenile Delinquency Case
by kenneth a. Vercammen
14
GPSOLO | March/April 2017
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
h
andling juvenile delinquency
cases is becoming a subspe­
cialty that requires special
knowledge of the juvenile
justice system. Juvenile cases
are difficult to handle for a variety of
reasons:
 Juveniles often refuse to admit to
their attorney any participation in
the offense despite clear guilt.
 Parents sometimes refuse to
a c k n o w l e d g e t h e i r c h i l d ’s
involvement.
 Different rules and court systems
are involved.
Deposit Photos
The inTake inTerview
When clients first come to my office,
we have them fill out our Confiden­
tial Criminal Case Interview Sheet. We
obtain background information such
as the client’s name, address, grade in
school, future plans, prior criminal
charges, current offenses charged, date
of arrest, names of other witnesses, and
details on what either the client or the
client’s parents were told by the police.
Our interview sheet also asks if there is
anything else important. The extent to
which the client fills out the form lets us
know whether or not the client will fol­
low instructions and cooperate with us.
After reviewing the complaint and the
interview sheet, I ask a series of ques­
tions of the client. We request the cli­
ent wait until the end of the interview
before explaining his or her side of the
story. We also ask if there is anything
else of importance in connection with
the case that we should know. The cli­
ent may have pending serious criminal
charges in another state or county. I usu­
ally open up the statute on the computer
and print a copy. Then we show the client
the specific language of the charged of­
fense and explain the maximum penalties
that could be imposed. By understanding
the charges they are facing, clients are
more likely to realize the seriousness of
the offense and pay our retainer.
According to the ABA Model Rules
of Professional Conduct, a retainer letter
or written statement of fees is required
for new clients. Once we receive our re­
tainer, we begin work right away. Usu­
ally while the client is still in the office,
GPSOLO | ambar.org/gpsolomag
we prepare a discovery letter on the
computer to the prosecutor and court
and hand a copy to the client. We occa­
sionally call the court to advise that we
will be handling the case.
Law is a business. I try to impress
my clients and hope that they will send
additional clients. I also provide all my
clients with a brochure explaining how
to appear in court, a brochure on motor
vehicle points, and a brochure regard­
ing alcohol counseling/substance abuse
treatment, if applicable.
I recommend that my clients provide
me with a list of ten to 15 reasons why
they should not go to jail/detention and
why the court should impose the mini­
mum penalties. This provides us with
information for mitigation and penal­
ties and also provides information to
be considered by the prosecutor in plea
negotiations and the judge in sentencing.
who iS The clienT?
The client must be the juvenile charged—
not the parent or grandparent who pays
the bills. It is important to preserve the
confidence of the client. I let the juveniles
know that they can call us whenever they
want, and we will not tell their parents
anything told to us in confidence.
Discovery in non–motor vehicle cases
is requested in writing to the county
prosecutor/district attorney, not the
town municipal prosecutor. Motor ve­
hicle charges alone are heard by the mu­
nicipal court judge and handled by the
municipal prosecutor.
Trial call is the next appearance, and
the defense counsel will receive discov­
ery, if it has not previously been received.
Applicable motions should be filed prior
to the trial call: motion to suppress, com­
pel additional discovery, dismiss com­
plaint, etc.
Juveniles have most of the same rights
under the U.S. Constitution as adults:
 Fourth Amendment: no unreason­
able searches
 Fifth Amendment: right to remain
silent
 Sixth Amendment: right to an
attorney
 Sixth Amendment: right to crossexamine witnesses
Unlike adults, juveniles do not have
15
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a right to a jury trial and do not have to
post bail.
It is a popular misconception that
records of juvenile arrests are automati­
cally erased when juveniles turn 18. In
fact, the criminal “charge,” even if later
dismissed, stays on their record forever
unless clients have their attorney file a
formal petition for expungement.
The offenSe and arreST
or guardians. A person is a juvenile for
delinquency purposes until his or her
18th birthday. For serious crimes, if the
juveniles are a threat to themselves or the
community, or if the juveniles are habit­
ual offenders, they can be brought to the
county juvenile detention center. They
will remain in detention until released
by the superior court judge at a recall
hearing, after a probable-cause hearing,
or at the conclusion of the case. It is rare
and serious when a juvenile is held at the
detention center.
or not to divert the case. Diversion for
many cases means removing them from
court altogether and sending them for
total handling to a juvenile conference
committee (JCC) or intake service
conference.
The first rung on the typical diversion
ladder is the JCC, which is a town-based
group of citizens who work with the ju­
venile offender to devise an appropriate
resolution of the case. Citizen members
are appointed to recommend to the
court how to handle selected juvenile
cases. Members meet with the juveniles
and make recommendations, which may
include restitution, participation in a job
placement or community service pro­
gram, counseling, writing letters of apol­
ogy, or other conditions.
For juveniles with prior charges or
more serious charges, the case is put on
the formal trial calendar. These proceed­
ings resemble adult criminal proceedings.
The juvenile must be represented by an
attorney, and the state is represented by
an assistant prosecutor.
Relatively few juveniles are currently
incarcerated, but the number may in­
crease as proposed legislative changes re­
quire jail terms for juveniles who commit
certain offenses such as auto thefts and
for juveniles who continue to commit
heinous offenses.
For the most serious crimes, the
county prosecutor can make a motion
to remove to the adult criminal court.
Miranda warning and
confeSSionS
firST aPPearance in forMal Trial
caSeS
Police must provide a Miranda warning
to juveniles. Parents/guardians do not
have to be present for police questioning.
If a confession was obtained, review the
discovery. You need to try to preclude
the admission of a confession. The issue
will be whether the waiver of a Miranda
warning was “knowing and voluntary”
by the juvenile.
Case law indicates both juveniles
and even special-education students can
waive their right to remain silent.
The court itself will send a copy of the
complaint to the juvenile’s parents and a
mandatory notice to appear for an inter­
view for public defender eligibility. The
public defender handles only indigent
cases—juveniles whose parents are on
welfare, unemployed, and have no assets.
This mandatory appearance is un­
necessary once the client retains an at­
torney and the attorney sends in a notice
of appearance.
Police are permitted to arrest if they see
a crime or are provided with informa­
tion that a juvenile committed a crime.
The police then sign a complaint form,
which later is forwarded to the superior
court, family part, in the county where
the juvenile lives. Generally, the juvenile
will be released to the custody of parents
many of these juvenile
clients will become your
future adult clients.
PoST-inTerview PreParaTion
We also make a motion to suppress
where there is a question regarding
the validity of a stop or search. New
Jersey and many jurisdictions will also
permit a motion to dismiss on de minimis infractions for non-substantial of­
fenses (e.g., shoplifting one candy bar).
Any other motions to dismiss should
be made in writing, such as those re­
garding statute of limitations or lack
of jurisdiction.
Often in cases that deal with just one
triable issue, such as the admissibility of
a blood test result for alcohol or drugs,
you can make a motion in limine or sug­
gest a pretrial conference. It is often a
good idea to try to have the judge decide
a crucial issue by motion in order to save
you a six-hour trial.
Upon receiving discovery, we for­
ward a photocopy of all discovery to
our client. We then discuss with the cli­
ent whether or not we have a reasonable
prospect of winning.
If it is a drug case, we may make a
written objection to the entry of the lab
certificate as evidence at trial. We are also
under a responsibility to provide any
reciprocal discovery to the prosecutor.
Write to and call the prosecutor ahead
of time to see if a matter can be worked
out or plea-bargained.
16
PreParing for courT
diverSion of criMinal chargeS
In many states, the county prosecutor’s
office of family court initially screens
each complaint and decides whether
In cases involving essential witnesses, we
may write to the witnesses and ask them
to call us so that we can find out what
really happened. If possible, I have a law
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clerk call up after we send the initial let­
ter. The attorney could not testify if the
witness provides an inconsistent state­
ment, but our law clerks could testify. I
sometimes speak to the witness myself
afterward to determine whether or not
the witnesses are credible. You must pro­
tect yourself from looking like a fool.
Often neither the client nor the witnesses
is telling the truth.
Have witnesses interviewed to deter­
mine if they will be credible and help
your client. Serve your subpoenas on
witnesses in sufficient time prior to trial.
Have your legal research done prior to
trial, such as on constructive possession
of drugs or stolen property.
Advise your client to be prepared and
look neat. The Grateful Dead or Bud­
weiser T-shirts should be replaced with
something that looks presentable. Also
advise the client to bring money to pay
fines or restitution.
firST-offender PrograMS
Most states have deferred adjudication/
continuance, conditional discharge, pre­
trial intervention, or other programs that
are available to juveniles charged with
drug offenses who have never previ­
ously been arrested or previously been
convicted of the drug offense. Again, to
avoid embarrassment, it is a good idea to
speak with the prosecutor and the police
officer because they may have a criminal
abstract to indicate that the client is not
eligible for such a program.
Letters of reference and character
references are helpful in cases where the
judge has wide discretion.
In a deferred adjudication the judge
may direct the juvenile to perform a
job, write an essay, be on unsupervised
probation, or undertake other require­
ments. The juvenile must earn dismissal
by fulfilling conditions such as restitu­
tion, community service, counseling, or
school attendance.
Plea To leSSer defenSe
There is no prohibition against speak­
ing with state’s witnesses. Outside of the
courtroom, I usually call out the name
of the non–law enforcement state’s wit­
nesses to determine their versions of the
facts or whether they would object to my
GPSOLO | ambar.org/gpsolomag
proposed resolution to avoid a lengthy
trial at the end of the court session.
Clients planning to enter a guilty plea
to any offense must understand what the
offense is and put a factual basis on the
record. You will be embarrassed if your
client is pleading guilty to a drunk driv­
ing case and, when the judge asks what
your client had to drink, the client insists
he had only one beer. The judge will send
you back to your seat and must refuse
to take the guilty plea unless an adequate
factual basis is put on the record. Having
previously obtained my client’s favorable
background, I usually put on the record
reasons why the judge should give the
minimum penalty.
After the client pleads guilty, it is a
good idea also to ask the client on the
record if he or she has any questions of
me or of the court.
Another major difference in juvenile
cases is that the prosecutor does not make
binding sentencing recommendations as
part of a plea bargain. The judge has total
discretion regarding the sentence im­
posed. If the juvenile pleads guilty or is
found delinquent (guilty), the judge has the
discretion on sentence: deferred adjudica­
tion, probation, incarceration, residential
placement, restitution, fine, etc.
If the case goes to trial, the judge
serves as the fact finder and makes all
decisions, unlike adult court where those
charged can have a jury trial. The trial is
held before a superior court judge in the
county where the juvenile resides.
concluSion
Whether or not you have a trial or there
is a plea to reduce the charge, you will
wish to know you did the best you could
for the client. Even if you lose at trial,
you want to have been such an articulate
advocate that the client walks out say­
ing, “My attorney is great, but the judge
is wrong.” Unhappy clients and their
parents will post on Google, LinkedIn,
Facebook, and other sites that their at­
torney did not work hard. Try to be in­
novative and prepare new arguments.
Many of these juvenile clients will be
your future adult clients. 
Kenneth A. Vercammen ([email protected]),
Esq., is a trial attorney practicing in Middlesex
County, New Jersey. He is the author of Wills
and Estate Administration (ABA, 2015), Criminal
Law Forms (ABA, 2013), and Smart Marketing
for the Small Firm Lawyer (ABA, 2014).
expert Witnesses,
VAluAtion, & dAmAges:
the expert's point of VieW
By WesTon anson
Expert Witnesses, Valuation, &
Damages: The Expert’s Point
of View discusses how to best
use experts, when to hire them,
how to find good ones, and
how to test whether they have
adequate knowledge. it can be
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2013 • 6x9
284 Pages • Paperback
Product Code: 5150458
List Price: $109.05
GPsolo members: $99.95
To order this title or other
American Bar Association publications:
Call (800) 285-2221
Visit www.ShopABA.org
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Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
rePresentIng JuVenIles
abuse/neglect Vs.
t
here are many different areas in which a lawyer
can represent a child: abuse/neglect proceedings,
juvenile justice cases, guardianship cases, probate
cases, civil litigation case, and parental custody
cases. This article will focus on the similarities
and differences between representing a child in abuse/neglect
cases and parental custody cases. This article is written based
on my experiences as an attorney for children in New Mexico
governed by New Mexico law.
aBuSe/neglecT caSeS
by kathryn e. terry
18
iStock
Abuse/neglect cases involve representing children who have
been taken into custody by the state and are in foster care,
relative placement care, or another type of out-of-home
placement. In these cases, the state is the legal custodian of
the child and is responsible for making all decisions for the
child, including, but not limited to, the child’s placement;
education; scheduling and ensuring the child receives medical,
dental, and counseling services; and visitation with parents
or other family members.
When a child is under 14 years old, the child is appointed
a guardian ad litem (GAL), an attorney who is tasked with
advocating for the child’s best interests. The GAL is also
responsible for being a check and balance on the other play­
ers in the case—making sure the state is providing services
the child needs, the placement is appropriate and safe for
the child, the child is spending time with appropriate family
members such as grandparents or siblings, and the social
workers and other agents of the state are following stated
policies and laws. While a child’s wishes are important and
are to be taken into consideration, a GAL is responsible for
making recommendations regarding the best interests of a
child, regardless of the child’s wishes. The GAL is required to
report the child’s wishes at every proceeding, but the GAL’s
recommendations or report to the court are not bound by
the child’s wishes.
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Parental custodY
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19
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In some states, such as New Mexico,
when a child turns 14, the child no longer
has a GAL but instead is represented by a
youth attorney. In this role, the attorney
is appointed not as a best-interest attor­
ney but as an attorney who specifically
advocates for the child’s wishes, just as
an attorney representing an adult. This
can be a difficult role when a child wants
something that is contrary to his or her
best interests. In these situations, the at­
torney usually uses the phrase “my client
has stated . . .” or “my client wants . . .” to
indicate that a child wants something that
is contrary to his or her best interests.
child’s counselor that the child should
not attend a hearing, a child is in school,
or it would be traumatic for a child to be
in the courtroom. When a child is 14 or
older, the child can choose whether or
not to attend hearings.
Custody. In New Mexico almost all
cases begin with a plan of reunifying
the family and sending the child home
to the parents. When a child is alleged to
have been abused or neglected, the state
files a petition and an affidavit outlining
the details of the abuse or neglect. If the
petition is granted, an ex-parte custody
order is entered allowing the state to
the phases of abuse/
neglect cases are
dictated by federal
timelines, based on the
needs of the child.
The most typical example of this is a
child who wishes to return home to an
abusive parent or a parent who is not
engaging in services to change the situ­
ation that led to the child entering state
custody. If a child is under 14 at the time
a case starts but turns 14 prior to the case
ending, the GAL can become the child’s
youth attorney, unless the child requests
a different attorney, the GAL requests to
withdraw, or the court determines that
appointing a different attorney would
be appropriate.
Abuse/neglect cases tend to follow
specific phases: custody, adjudication,
judicial review, permanency, termination
of parental rights, and dismissal. Each
phase is dictated by federal timelines
based largely on the needs and timeline of the child. Additionally, in New
Mexico, starting in 2016, children are
required to attend all hearings, unless
there is good reason for the child not
to attend. Good reason can include a
therapeutic recommendation from the
20
have temporary legal custody and place
the child in an out-of-home placement.
The first hearing that occurs is a custody
hearing, which is a probable-cause hear­
ing with expanded rules of evidence to
determine whether there is probable
cause to keep the child in state custody.
At the time of the custody hearing, the
hearing officer or judge does not make
a formal determination regarding the
parents’ actions but rather makes a de­
termination regarding whether the child
should remain in state custody until fur­
ther proceedings can be held. This hear­
ing is required to be held ten days after
the ex-parte custody order is signed.
As part of the order from the cus­
tody hearing, a general assessment plan
is developed in which the parents and
the child are ordered to attend assess­
ments and follow recommendations
regarding the need for certain services.
At the time an ex-parte custody order
is entered, the parents and the child are
assigned attorneys because all parties to
an abuse/neglect case, including children,
have a statutory right to counsel under
the Children’s Code. At the time of the
custody hearing, the GAL or youth at­
torney is new to the case, as are the attor­
neys for the parents, and may or may not
have met the child. The appointment of
the child’s attorney occurs at the time the
custody hearing is scheduled, therefore
the GAL or youth attorney generally has
only a few days to gather initial informa­
tion and get a sense of the general facts of
the case. The attorney for the child will
make a report to the court regarding how
the child is doing and the child’s wishes if
the child is 14 or older and if the attorney
has had an opportunity to meet with the
child prior to the hearing.
Adjudication hearing. Sixty days
after the custody hearing is held, the
court is required to hold an adjudica­
tion hearing, which is a trial to determine
if the parents abused or neglected their
children. Often the parents take a plea
to avoid a trial. Regardless of whether
there is a finding of abuse and/or neglect
or if a parent enters a plea deal, the court
orders a treatment plan with specific ser­
vices for the child and the parents. It is
important to note that these proceedings
are civil, not criminal, therefore the plea
agreement can only be used in further
abuse/neglect proceedings and cannot
be used in any criminal case. If a criminal
case is pending, a parent will generally
receive use immunity so nothing in the
abuse/neglect case can be used in the
criminal proceeding.
By this point in the case, the GAL
or youth attorney has had time to meet
with the child and interview foster par­
ents, teachers, and other people close to
the child. The attorney may also have
observed a supervised visit between the
child and the parents. The adjudication
hearing pertains only to events that
occurred from the time the state was
contacted regarding potential abuse or
neglect until the time of the custody
hearing. The GAL or youth attorney
can question and call witnesses at the
adjudication hearing, but this is not re­
quired. The attorney for the child will
again give a report to the court regard­
ing how the child is doing and will let
the court and the state know if there are
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
any other services the child needs. The
child’s attorney will often take a position
regarding the state’s case against a parent,
but the burden of proof is on the state,
not on the child.
Judicial review. Ninety days after
the adjudication is completed, the court
holds an initial judicial review. This is
an opportunity for the court to obtain
information on whether the parents are
working through their treatment plans,
how the child is doing in the out-of­
home placement, whether the child has
moved, and whether any changes need
to be made to placement, visitation, or
treatment plans. The state must demon­
strate that it is making reasonable efforts
to reunify the child and the parents.
Permanency hearing. Six months
after the initial judicial review, the court
holds a permanency hearing. Generally,
the child will have been in custody for
close to a year by the time the perma­
nency hearing is held. At this hearing,
the state is responsible for recommend­
ing either that the plan should remain
reunification if the parents are working
their treatment plans and making prog­
ress, or that the plan should be changed
to guardianship, adoption, or a planned
permanent living arrangement (indepen­
dent living), depending on the age of the
child and the circumstances involved. If
a child is with family members who are
partly working their plans, but need
more time, guardianship might be an ap­
propriate option. If the parents are not
working their plan and not making any
progress in eliminating the causes and
conditions that brought the child into
custody and the child is under 17 years
old, the plan is likely to be changed to
adoption. Once the plan is changed, it
can be changed back to reunification if
a parent begins making progress. Sub­
sequent permanency hearings are held
every six months until the child is re­
turned home, adopted, or the case is
otherwise dismissed.
Termination of parental rights. If a
parent continues to fail to make progress
with his or her treatment plan, the state
can file a motion for termination of pa­
rental rights. The state has the burden of
proving that it made reasonable efforts
to help the parents work their treatment
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plan and that the parents failed to make
sufficient progress or change the con­
cerns that led to the state taking custody
of the child. In New Mexico, if the state
does not file the motion for termination
of parental rights and the child is over
14, the child has a right to file the mo­
tion and request attorney fees be paid by
the state. At each proceeding, the GAL
or youth attorney makes a report to the
court on the ongoing progress of the
child, voices the concerns of the GAL
or youth attorney, and states the child’s
wishes. The attorney also has a right in
any proceeding to challenge the evidence
provided by the state or the parents. If
a parent does not wish to go through a
trial on the motion for termination of
parental rights, a parent can voluntarily
relinquish his or her rights to the child.
Once termination or relinquishment
has occurred, a child is considered avail­
able for adoption. At this point, if the
child is in a foster home or with a family
tuition for college or trade school in New
Mexico, and additional supports for find­
ing a job or enrolling in school. Under
certain circumstances, some of these
benefits are available to the child until
he or she turns 26. The youth attorney
for the child is responsible for advocating
for the child’s wishes, including assisting
the child with the applications, making
sure the appropriate appointments and
assessments are done, and advising the
child on the child’s rights and responsi­
bilities throughout the process.
Dismissal. Once the adoption, guard­
ianship, or transition to independent liv­
ing is complete, the case is dismissed. A
case is also generally dismissed when a
child turns 18, by which point one of the
above events is likely to have occurred.
The case is now closed, and the attorney
no longer has any additional duties to the
child. Throughout all proceedings in an
abuse/neglect case, the attorney has a right
to challenge the evidence provided by the
In abuse/neglect cases,
the attorney has a
right to challenge the
evidence provided by
the state or the parents.
that wishes to adopt the child, the pro­
cess can move relatively quickly. If that
is not the case and the child needs an
adoptive home, or if a child is nearing
the age of 18, the process can move much
more slowly. If a child is 16 or older and
the child does not want to be adopted,
the state can create an independent liv­
ing plan for the child. This involves an
assessment of the child’s skills and needs,
along with an application for the child
and the social worker to complete. In
New Mexico, a child who does not want
to be adopted but instead would like to
live on his or her own can receive ben­
efits such as Medicaid, a housing stipend,
state or the parents and provide witness­
es and evidence that support the child’s
wishes or the child’s position. Additional
responsibilities for the attorney represent­
ing a child include attending treatment
team meetings if the child is in treatment
foster care, attending Individualized Edu­
cation Program (IEP) meetings if the child
is in special education, communicating
with mental health professionals treating
the child (with the child’s consent if the
child is over 14), meeting with the child
prior to any proceeding, reviewing medi­
cal or mental health reports for the child
(with the child’s consent if the child is
over 14), representing and protecting the
21
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
child’s cultural needs, and advocating for a
child’s right under federal laws such as the
Americans with Disabilities Act and Indi­
viduals with Disabilities Education Act.
when a child is 14 or older and the court
is considering a change in custody, the
court is required to consider the child’s
wishes. In many cases, parents believe
that children get to choose or make their
In parental custody
cases, the gal
makes formal
recommendations to
the court regarding
what is in the best
interests of the child.
ParenTal cuSTody caSeS
In contrast to an abuse/neglect case, in
a parental custody case a child does not
have any statutory or rule-based right to
an attorney. In parental custody cases,
the appointment of an attorney for a
child is within the court’s discretion,
based on the facts, circumstances, and
needs of the child. In New Mexico, un­
like abuse/neglect cases, a child can be
appointed a GAL in a parental custody
case regardless of the child’s age. The
GAL is required to investigate by inter­
viewing all parents or parties involved
in the case, interviewing the child, inter­
viewing mental health professionals and
any other professionals the GAL deems
necessary, and reviewing any documen­
tation the GAL deems necessary. Unlike
a GAL in an abuse/neglect case, in paren­
tal custody cases the GAL makes formal
recommendations to the court regarding
what is in the best interests of the child.
This can include legal or physical custo­
dy, time sharing, choice of school, choice
of religion, extracurricular activities, or
any other issue that is disputed between
the parents. The GAL can be appointed
for a limited purpose (determining what
school the child should attend) or for a
more general purpose (determining legal
and/or physical custody of the child).
Pursuant to New Mexico statutes,
22
own decisions when they are 14, but this
is a false belief. The court is still required
to act in the child’s best interests, regard­
less of what the child actually wants. In
practical terms, children who are 17 and
whose parents are in a high-conflict cus­
tody case are likely going to have more
say in where they spend their time. Teen­
agers often “vote with their feet” as they
get closer to turning 18. An attorney
representing an older teenager can help
that child voice concerns and can help the
child and parents better communicate so
they can improve their relationship and
decrease conflict.
Additionally, the appointment of a
GAL can occur at the beginning of a case,
for example in a particularly contentious
divorce proceeding, or after years of
litigation. The GAL, as an advocate for
the child, often provides suggestions and
guidelines for the parents on issues such
as communication. The appointment of a
GAL is rule-based in New Mexico, not
statutory-based. There are no set phases
or timelines for ongoing parental cus­
tody cases, and appointments can have
a specific time frame (e.g., one year) or
can be indeterminate. If no expiration
date is included in the order appointing
a GAL, the only event that would auto­
matically trigger the end of the GAL’s
appointment is a child turning 18. If the
child still requires a GAL after the ex­
piration date set out in the order, either
parent or the GAL can request that the
appointment be extended. Similarly, if
there is no expiration date, either parent
or the GAL can request termination of
the GAL’s appointment.
A GAL in a parental custody case
often has wide discretion and, upon the
agreement of the parties, can be given
arbitration authority to make certain de­
cisions in a case. While advocating for
the child and reporting the child’s wishes
are similar in abuse/neglect and parental
custody cases, a GAL in custody cases
often has greater authority. Addition­
ally, once recommendations are made, if
a parent objects to the recommendation,
the GAL gives an oral report regarding
the investigation and the recommenda­
tions and can be questioned by the par­
ents or the parents’ attorneys. GALs can
also call witnesses and cross-examine any
witnesses who are called by the parents.
In both systems, the child’s attorney
can file motions and request relief from
the court; in custody cases, however, the
judge has broader discretion and author­
ity. For example, in abuse/neglect cases,
the state has authority over the place­
ment of the child. This decision can only
be overturned by a showing of abuse of
discretion. Therefore, even if a child, a
child’s attorney, or the judge disagrees
with the placement, if it cannot be prov­
en that the state abused its discretion in
making the placement decision, the de­
cision will stand. In custody cases the
judge has complete discretion over the
time-sharing schedule and physical cus­
tody of a child. Additionally, in custody
cases the parents’ rights are still intact
and parents simply disagree regarding
the child’s best interests. In abuse/neglect
cases, there is only one entity making
decisions for the child.
Owing to the nature of custody cases,
a GAL also has the role of being a referee
between the parents. GALs are usually
appointed in high-conflict custody cases,
when the parents cannot agree on certain
decisions that need to be made for their
child. Often the parents have been through
multiple professionals, including a parent
coordinator, a custody evaluation, or ad­
ditional mental health assessments prior to
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the appointment of the GAL. Sometimes
the case has been pending for a long time
as the judge has attempted to work out the
disputes between the parties. Often, the
appointment of a GAL is a last-resort op­
tion. The role in these cases is not one of
oversight or a check-and-balance system,
but instead is one of investigation. In cus­
tody cases the GAL is an arm of the court
that serves as the court’s eyes and ears in
helping the court determine what decisions
are in the child’s best interests.
concluSion
In both systems, an attorney who is ap­
pointed to represent a child has the duty
to fiercely defend and protect the rights
of that child. In each system, the attorney
gives the child a voice by consistently
reporting to the parties and to the court
what the child wants and how things
look from the child’s point of view. An
attorney appointed in a parental custody
case may have more authority to make
recommendations to the court about
specific issues, whereas an attorney ap­
pointed in an abuse/neglect proceeding
is more of a check and balance; neverthe­
less, both attorneys have an opportunity
to change the outcome for a child. In one
system, that change might be decreas­
ing the conflict between two parents
when the child is in the middle of that
conflict. Or it might be creating a time­
sharing plan that is less disruptive for
a child, thereby giving the child some
peace and stability. In the other system,
the change might be providing a better
home and a more stable foundation for a
child, whether this results from parents
making progress on a treatment plan or
from adoption or guardianship. These
changes can fundamentally affect how a
child develops, what opportunities the
child might have in the future, and how a
child deals with a mental health issue that
might otherwise go undiagnosed. Being
an attorney for a child, regardless of the
system, is a powerful role that comes
with specific duties and significant re­
sponsibilities. 
Kathryn E. Terry ([email protected])
is a principal of Terry & deGraauw, PC, in
Albuquerque, New Mexico, focusing on family
law and the welfare of children.
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2017 • 7x10
384 Pages • Paperback
Product Code: 5150494
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imAges With impACt:
design And use of
Winning triAl VisuAls
By Kerri L. ruTTenBerG
Packed with hundreds of full-color graphics, Images
with Impact: Design and Use of Winning Trial Visuals
is a “must-have” for trial lawyers to help turn trial
themes into visual images that juries are more likely
to understand, believe, and remember.
The book analyzes key visual communication
tools such as maps, timelines, graphs, and photos,
addressing what works and why, and teaches
graphic design basics to help presenters improve
their own visuals. Images with Impact also offers
strategic tips for high- and low-tech presentations,
provides advice on spotting misleading visuals, and
surveys federal and state law on demonstrative
evidence across the country.
To order this title or other
American Bar Association publications:
Call (800) 285-2221
Visit www.ShopABA.org
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Is Your
Child Client a
V ictim of
Se x Trafficking ?
iStock
by eva J. klain
24
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
W
hether you represent a child client in
abuse and neglect (child welfare) pro­
ceedings or in some other capacity, you
should recognize that child victims of
other crimes may also be victims of
human trafficking, and specifically domestic child sex
trafficking. Often, the children may not view them­
selves as trafficking victims. It is therefore important
for you to assess a case with a full understanding of
applicable laws—both traditional laws and more recent
anti-trafficking statutes.
whaT iS huMan Trafficking?
Human trafficking generally involves use of power and
control to extract labor or services from one party for
the benefit of another, often but not always for financial
or material gain. Movement between jurisdictions is not
required, and the value gained does not need to be finan­
cial—anything of value may be exchanged, including
food, drugs, labor, or a place to sleep. Both adults and
children can be victims of various forms of trafficking,
including sex and labor trafficking.
The Trafficking Victims Protection Act of 2000
(TVPA) defines “severe forms of trafficking in per­
sons” as:
A. sex trafficking in which a commercial sex act is
induced by force, fraud, or coercion, or in which
the person induced to perform such act has not
attained 18 years of age; or
B. the recruitment, harboring, transportation, provi­
sion, or obtaining of a person for labor or services,
through the use of force, fraud, or coercion for
the purpose of subjection to involuntary servi­
tude, peonage, debt bondage, or slavery. (TVPA,
22 U.S.C. § 7102 (8) (2008))
Under this definition, any child under the age of 18
engaged in commercial sex is a victim of a severe form of
trafficking. Furthermore, a “commercial sex act” means
any sex act for which anything of value is given to or
received by any person—the child victim may receive a
benefit such as a place to sleep or food, or a third party
such as a pimp or trafficker may financially benefit.
MyThS and facTS aBouT
doMeSTic child Sex Trafficking
Very often, the public views child sex trafficking as
something that only happens overseas to young girls,
when, in fact, commercial sexual exploitation and sex
trafficking happen every day across America. Its victims
are both boys and girls who live in diverse geographic
areas—cities, suburbs, and small rural towns (tinyurl.
com/jg82hru). But it is often a crime that is hidden not
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only from its victims’ families and friends but also from
the professionals who interact with the youth.
Many legal professionals and others who work with
youth are unaware that sex trafficking occurs in their
communities or, more significantly, lack the knowledge
or training to identify and serve them. And even when a
victim is identified, there are often too few resources to
provide the specialized care trafficking victims require.
idenTificaTion of vicTiMS
Attorneys representing youth have a unique opportu­
nity to identify victims of trafficking among their clients.
Certain characteristics make youth more vulnerable to
trafficking, including their dependence on adults, home­
lessness, and justice-system involvement. Previous child
abuse is also a common characteristic of youth who are
sex trafficked. Children and youth involved with the child
welfare system and placed in foster care are at high risk
of trafficking resulting from the lack of stability in their
lives, the separation and physical distance from friends and
extended family, and the related emotional toll. Childhood
trauma is a common characteristic within this population.
A 2013 California Child Welfare Council study
found between 50 and 80 percent of commercial sexual
exploitation victims were involved with child welfare
at some point (tinyurl.com/gp7vgf9). Other studies
support this connection; the Connecticut Department
of Children and Families found that 86 of 88 children
identified as sex-trafficking victims were involved
with child welfare services in some capacity (tinyurl.
com/gv4u9ef).
Involvement with juvenile justice is also common
among trafficking victims. Arrests of minors for prosti­
tution may be relatively low (1,130 nationally in 2009),
but 65 percent of identified victims report being arrested
for other offenses, including petty larceny, shoplifting,
drugs, trespassing/loitering, or lack of identification
(tinyurl.com/hrngorh).
Determining whether a child client has been a victim
of trafficking can begin with identifying some of these
risk factors. Additional identification and screening
can help guide your approach to the case, as well as
build a strong and trusting relationship with your cli­
ent. Screening is generally conducted by the child wel­
fare or other agency with which the youth is involved.
However, attorneys can also ask questions to better
determine whether a child is a trafficking victim (see
the sidebar on page 26). Some indications of possible
trafficking include unexplained absences from school,
physical signs of abuse, withdrawn behavior, a signifi­
cantly older boyfriend or girlfriend, or a sudden increase
in expensive possessions.
25
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
POTENTIAL QUESTIONS TO IDENTIFY
TRAFFICKING VICTIMS
Were you told to do anything you did not want to do?
Did anyone promise you something if you did? Who?
Were you paid? Did you get to keep the money?
Were you ever hurt?
Did anyone say he or she would hurt you, your friends, or your family?
Were you ever afraid? If yes, why?
Were you able to talk with family and friends?
Where did you sleep? Was it in the same place every night?
Did you travel to different places?
What did you do at night?
From Katherine Kaufka, “T Nonimmigrant Visas and Protection and Relief for Victims
of Human Trafficking: A Practitioner’s Guide,” Immigrant Briefings, September 2006.
Reprinted with permission.










Once a youth is identified as a poten­
tial trafficking victim, it is important to
understand that his or her needs may be
very different from other clients and may
not be what you expect. In a recent na­
tional study, trafficked youth identified
their top three needs as assistance with
housing and utilities, employment and
education, and food and money at the
most basic level (tinyurl.com/hrngorh).
Each of these was more important to
them than receiving counseling. At the
same time, the trauma victims’ experi­
ence must be appropriately addressed,
both within the attorney-client relation­
ship and to inform advocacy for appro­
priate, specialized services.
Providing TrauMa-inforMed
advocacy
In 2014 the American Bar Association
called for integrating trauma knowledge
into daily legal practice as well as inte­
grating and sustaining trauma aware­
ness and skills in practice and policies
(tinyurl.com/jrhpjmm). A traumatic ex­
perience for a child is one that threatens
the life or physical integrity of the child
or someone important to that child, such
as a parent or sibling. The event causes
an overwhelming sense of helplessness
and terror and produces intense physical
effects such as a pounding heart, rapid
breathing, or dizziness.
A child’s reaction to trauma may
best be understood as an adaptation to
survive, and trauma reactions are often
26
misdiagnosed or overlooked as symp­
toms of other mental illness. As part of
trauma-informed legal advocacy, it is
important to understand how a child’s
trauma history may influence his or her
behavior (tinyurl.com/hqerslz, tinyurl.
com/z9gmtaf):
 Be aware of a child’s trauma trig­
gers (reminders of a past traumatic
event that make the person feel in
imminent danger again).
 Understand that a child’s behavior
is often a coping mechanism.
 Consider the child’s chronological
and developmental age.
 Enhance resilience by helping the
child find mastery or success.
 Build the child’s relational capac­
ity—ensuring the child maintains
or develops a deep emotional con­
nection to at least one supportive
adult.
 Focus on the child’s functional
ability.
 Advocate for evidence-based
treatments.
 Seek trauma-informed therapists.
Trauma may affect the attorney-client
relationship and the ability of the child
to trust his or her attorney.
PrevenTing Sex Trafficking and
STrengThening faMilieS acT of 2014
While the child welfare system is designed
to protect and help children, up to 80 per­
cent of youth who are currently or for­
merly in foster care become victims of sex
trafficking (tinyurl.com/zmlkdyo), and
still others come into the system as either
known or hidden trafficking victims. In
response, Congress passed and President
Barack Obama signed into law the Pre­
venting Sex Trafficking and Strengthen­
ing Families Act (the Act) on September
29, 2014 (Pub. L. No. 113-183 (2014)).
Since then states have worked to imple­
ment required changes to the child welfare
system’s response to domestic child sex
trafficking. Many of the Act’s provisions
relate to child welfare agency practice but
also have implications for attorneys rep­
resenting parents and children.
The Act imposes requirements on
child welfare agencies to develop policies
and procedures to identify, document,
and determine appropriate services for
child victims of sex trafficking and those
children who may be at risk. Agencies
are required to consult experts in law
enforcement, juvenile justice, health
care, education, and services for at-risk
youth. As a result, agencies will benefit
from the knowledge and expertise of
other disciplines as well as inform and
support their approach with data from
other departments and service providers.
Specialized programs or courts may
exist in your jurisdiction with a focus on
specific types of cases, such as identify­
ing and addressing child sex-trafficking
dependency cases or multi-jurisdictional
cases involving both juvenile justice and
child welfare–involved youth. For in­
stance, the Los Angeles County Board
of Supervisors in 2015 dedicated nearly
$7 million for sex-trafficking initiatives,
including creating a specialized court for
trafficked children in the child welfare
system. This court, called the Dedication
to Restoration Through Empowerment,
Advocacy, and Mentoring (DREAM)
Court, benefited from lessons learned by
the Succeeding Through Achievement
and Resilience (STAR) Court, which
serves youth who have been trafficked
and arrested. Among girls involved with
the STAR court, nearly 80 percent had
prior contact with the child welfare
agency (tinyurl.com/gqwatas).
The Act also addresses the increased
risk of trafficking among youth who run
away from foster care. To better under­
stand the number of children who run and
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
to locate missing children more quickly,
child welfare agencies must now report
when children are missing from care to
local law enforcement within 24 hours so
the youth can be entered into the National
Crime Information Center database at the
Federal Bureau of Investigation. A report
to the National Center for Missing & Ex­
ploited Children (NCMEC) must also
occur within 24 hours. As the national
clearinghouse on missing and exploited
children, NCMEC provides support to
social service agencies searching for chil­
dren missing from care, including case
management, poster distribution, onsite
law enforcement technical assistance and
outreach teams, and case analysis.
In addition to the reporting require­
ments, the Act requires child welfare agen­
cies to develop policies to quickly locate
youth who run or are missing. Agencies
must also gather information to help in­
form future responses, including the pri­
mary factors that cause a youth to run and
the child’s experiences while absent from
foster care, including whether the child was
a possible sex-trafficking victim.
As an attorney representing youth
within the child welfare system, you
can help enforce the provisions of the
Preventing Sex Trafficking and Strength­
ening Families Act by ensuring reporting
systems are in place and the required data
is collected. If you represent a child who
has run from care, you can confirm that
the agency has made a report and is using
all available information to locate your
client or request judicial oversight of the
agency’s progress in attempting to locate
a missing child.
In addition, when a child client returns
to care, you can advocate for appropriate
screening for sex trafficking and ensure
any identified services and interventions
are provided (see the section “Questions
to Ask at Hearings: Youth Who Run
Away from Care” in the ABA’s The Role
of the Court in Implementing the Older
Youth Provisions of the Strengthening
Families Act, tinyurl.com/ha5swjs). At­
torneys play a significant role in deter­
mining how to address the factors that
led a child client to run and how those
circumstances should be adjusted to sta­
bilize the youth in the least-restrictive,
most family-like placement.
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ADDITIONAL RESOURCES
ABA Center on Children and the Law and the Juvenile Law Center, In Issue Brief:
The Role of the Court in Implementing the Older Youth Provisions of the
Strengthening Families Act, February 2016: tinyurl.com/ha5swjs
Center for Court Innovation, Youth Involvement in the Sex Trade: tinyurl.com/
htcbe22
Gluck, Elliott, and Rricha Mathur, Child Sex Trafficking and the Child Welfare
System (State Policy Advocacy and Reform Center, July 2014): tinyurl.com/
zmlkdyo
Klain, Eva, and Amanda Kloer, Meeting the Legal Needs of Child Trafficking
Victims: An Introduction for Children’s Attorneys & Advocates (ABA, 2009):
tinyurl.com/gp5ht7k
National Council of Juvenile and Family Court Judges, National Center for Miss­
ing & Exploited Children, and Office of Juvenile Justice and Delinquency
Prevention, Missing Children, State Care, and Child Sex Trafficking: tinyurl.
com/jaf7bc3
National Research Council and Institute of Medicine, Confronting Commercial
Sexual Exploitation and Sex Trafficking of Minors in the United States: tinyurl.
com/z63doov
Vera Institute of Justice, Out of the Shadows: A Tool for the Identification of
Victims of Human Trafficking: tinyurl.com/hgtskub
Trafficked youTh are vicTiMS,
noT offenderS
The Preventing Sex Trafficking and
Strengthening Families Act’s require­
ments to provide appropriate services
for trafficked youth align with the
legislative trend to provide safe har­
bor protections so youth receive ser­
vices rather than enter the criminal or
juvenile justice systems as a result of
charges for prostitution or other com­
mercial sex acts. Although state stat­
utes vary, safe harbor generally refers
to a continuum of state law provisions
that may include:
 classification of trafficking victims
as abused or neglected children;
 training to identify child victims
of trafficking;
 diversion programs or immunity
from prosecution for child victims
of sex trafficking;
 specialized services for victims;
 funding for services;
 establishment of a task force or
commission;
 public awareness efforts;
 in-court protections;
 expungement of any criminal of­
fenses; and
 establishment of a trafficking
victim compensation fund. tinyurl.
com/ja73mbf
Some states are amending their
statutes to include some safe harbor
law provisions, which may be scat­
tered throughout the statutory code
or found together in one act. They
aim to treat youth who are trafficked
as victims rather than offenders and to
serve victims within the child welfare
system while avoiding criminal or juve­
nile justice involvement when possible.
The Justice for Victims of Trafficking
Act of 2015 (Pub. L. No. 114-22) also
requires that states amend their statutes
to define trafficking of minors as child
abuse and neglect.
concluSion
Representing victims of trafficking—from
identification of youth at risk to traumainformed legal advocacy—provides at­
torneys the opportunity to positively
affect the circumstances of children and
youth for whom they work. Knowledge
of human trafficking can help attorneys
fully address their clients’ needs. 
Eva J. Klain ([email protected]) is
director of child and adolescent health at the
ABA Center on Children and the Law.
27
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
ProtectIng chIldren’s rIghts
28
GPSOLO | March/April 2017
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
In school dIscIPlIne
iStock
d
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by Johanna e. miller
uring the 2011–2012 school year, more than 3
million students were suspended from school
across the United States, including more than
720,000 students with diagnosed disabilities.
The majority of students are suspended from
school for vague and subjective offenses such as insubor­
dination, not for dangerous behavior.
The overuse of suspensions is a serious and urgent issue
for the entire nation. Students who are suspended are twice
as likely to drop out of high school as their peers (tinyurl.
com/jo8yekd) and are four times more likely to be involved
with the criminal justice system (tinyurl.com/hosl6pe). Re­
searchers and advocates refer to this problem as the “school­
to-prison pipeline.”
Why are students being suspended at such astronomical
rates? Many school districts have adopted discipline poli­
cies that take a “zero tolerance” approach to misbehavior.
While that may sound appealing on paper—reducing subjec­
tivity in school discipline and “cracking down” on disrup­
tions—experience has demonstrated that these policies lead
to discriminatory outcomes and rarely improve educational
results (tinyurl.com/hr2nyna). The only thing zero tolerance
policies consistently result in is more suspensions.
Often, the students who are suspended—because they
struggle to keep up, to focus, or to manage their emo­
tions—are those who most need educational support.
This means that millions of children who are already
struggling in class end up spending the most time out of
an academic setting or in an alternative placement where
supports can be inconsistent. The length of a suspension
varies widely from state to state: In California the maxi­
mum suspension is five consecutive school days, except
in rare cases, but in New York students can be suspended
for an entire school year. Students who are pushed out
of classrooms because they are struggling may literally
end up in jailhouses.
29
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
STudenTS wiTh diSaBiliTieS
are aT riSk
Statistics from the U.S. Department of
Education show that suspensions are en­
forced at disproportionately high rates
against students of color and students
with disabilities. There are many reasons
to be concerned about this disproportion­
ality: It contributes to the “achievement
gap,” it impacts graduation rates, and, as
disparate treatment under the law, it may
be a violation of students’ civil rights.
In New York City, the nation’s larg­
est school district, African-American
students represent a third of enrollment
but more than half of suspensions; stu­
dents with disabilities represent just over
10 percent of enrollment and about 30
percent of suspensions.
New York City is not an outlier,
nor is this problem restricted to urban
school districts. Nationally, students
with disabilities are more than twice
as likely as their peers to receive a sus­
pension (tinyurl.com/je5ga43). A 2012
study found that nearly 20 percent of all
students with disabilities in the State of
Illinois had been subject to a suspension.
In 2011–2012, the Miami-Dade (Flori­
da) school district, home to more than
350,000 students, suspended more than
a quarter of all students with disabilities.
Even as overall suspension rates have
dropped across the country, disparities
by race and disability have gotten worse.
For any student, significant time
away from the classroom environment
can impact educational achievement. For
a student with a diagnosed disability, a
long-term disruption in access to educa­
tion and support services can completely
derail educational progress. Fortunately,
federal disability law provides protections
for students in these situations. Unfortu­
nately, many parents and even attorneys
don’t understand students’ rights, and
school districts often disregard or ignore
them. It is essential that attorneys and par­
ents know the law and understand how
to use it to keep kids in school.
due ProceSS and oTher
ProTecTionS
In Goss v. Lopez, 419 U.S. 565 (1975),
the U.S. Supreme Court recognized that
public school students have a property
30
interest in their education, protected
by the Due Process Clause of the U.S.
Constitution. While the laws governing
school suspensions are different in each
state, most permit students to be removed
from their regular classes for a few days at
a time with relatively minimal due process
requirements. For longer suspensions,
students are generally entitled to formal,
detailed notice of the allegations, along
with the opportunity to tell their side of
the story to a neutral fact finder.
attorneys defending
young persons can
significantly limit the
impact of the schoolto-prison pipeline.
While students do not have a consti­
tutional right to assigned counsel in the
suspension process (as they would in a
criminal proceeding), they are usually
permitted to have an advocate (often
a parent or a non-attorney advocate).
The advocate for the student may be
able to call witnesses and cross-examine
the school’s witnesses. School districts
should provide access to the written
rules for suspensions upon request; some
districts even publish the rules in their
student code of conduct.
ProTecTionS for SPecial­
educaTion STudenTS
The federal Individuals with Disabili­
ties Education Act (IDEA) provides
important safeguards before students
with disabilities can be removed from
school. Unfortunately, it often requires
a very savvy parent or informed attorney
to ensure these processes are followed.
Imagine a sixth-grade student with an
anxiety disorder that causes him to have
panic attacks. We’ll call him Alex. Alex is
academically on pace with his sixth-grade
classmates, but he has trouble regulating
his emotions and calming himself down.
During panic attacks he has been known
to hurt himself, and he has trouble in
high-stress situations, often “freezing
up” during a test or when called on in
class. Alex has an Individualized Educa­
tion Program (IEP) to ensure the school
addresses his disability in a way that will
not limit his educational achievement.
The IEP provides him extra time to take
tests and permits him to turn in written
instead of oral assignments. It also pro­
vides a permanent hall pass so Alex can
go to his counselor’s office anytime he
needs a safe space to calm down. These
accommodations have served him well.
After December break, Alex’s school
changes all sixth-graders’ schedules,
and Alex has a new math teacher. The
school neglects to inform her of Alex’s
IEP, and on the very first day, she calls
on Alex in class and asks him to work
out some problems on the board. Alex
feels himself start to panic. He follows
the requirements of his IEP and starts
to leave for his counselor’s office. The
teacher sees Alex walking out of a class­
room in the middle of an oral quiz, and
starts yelling at him. Alex takes off run­
ning, shoving another student who was
standing by the door. The next morning,
the school calls Alex’s father and tells
him Alex is suspended for ten school
days for insubordination and a physical
altercation. What are his options?
First, Alex should not be suspended
for behavior that is out of his control.
For a student with an IEP, federal law
provides for an additional review of his
case to consider just this question. While
there may be a fact-finding hearing to
determine Alex’s guilt or innocence on
the allegations of misbehavior, if he is
found guilty, Alex’s IEP entitles him to a
separate review to examine the underly­
ing cause. This review is called a mani­
festation determination.
For infractions not involving drugs
or weapons, a ten-day suspension of a
student with an IEP entitles the student
to a manifestation determination. Non­
consecutive school removals that add
up to ten days also entitle the student
to a manifestation determination, if the
behavior was substantially similar each
time, so a school cannot defeat this rule
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
by suspending the student for a few days
at a time. If the allegations against Alex
are substantiated at the fact-finding hear­
ing, his parents should request a mani­
festation determination.
In the manifestation determination,
Alex’s IEP team meets to determine if his
misbehavior was caused by his disability
or by the school’s failure to meet the re­
quirements of the IEP (the IEP team in­
cludes teachers, specialists, and parents).
In this case, the behavior was clearly a
manifestation of the school’s failure to
inform Alex’s new teacher about his IEP.
Even if Alex did not have an IEP, he
may still have been entitled to a mani­
festation determination if the school
had constructive notice of his disabil­
ity (for example, if an evaluation had
been completed but an IEP was not yet
developed).
If it is determined that Alex’s mis­
behavior was caused by his disability,
the school cannot suspend him, and the
IEP must be adjusted to prevent the same
thing from happening again.
reSToraTive and educaTional
aPProacheS To diSciPline
Schools don’t have to give up on main­
taining discipline in order to protect
students’ rights. Advocates and educa­
tors across the country are promoting
alternatives to suspensions that can keep
kids in the classroom and help them learn
from misbehavior. One method that has
a dedicated following is known as “re­
storative discipline.”
The concept behind restorative dis­
cipline is that the restorative process
helps students understand the impact
their behavior had on the school com­
munity—classmates, teachers, and oth­
ers—and identify ways for them to repair
the harm. Through this process, students
learn to take responsibility for their ac­
tions, they gain a deeper understanding
of other people’s needs and experiences,
and they experience a close community
of care. Restorative practices can im­
prove young people’s communication,
empathy, patience, and problem-solving
skills, all while keeping them in school.
Instead of testifying against the student,
teachers coach him or her through cor­
recting the behavior. Because restorative
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discipline does not involve removing
students from their regular classroom
or services, it is less burdensome on the
school and less disruptive to the students.
While educators need training to fa­
cilitate emotionally safe and effective re­
storative practices, the cost to schools is
relatively low. Many organizations across
the country offer free or low-cost trainings
for educators and support staff. Trained
educators can also help students learn how
to facilitate restorative procedures.
SPecial conSideraTionS
for aTTorneyS
Representing students in school disci­
plinary proceedings can be emotionally
taxing. Students are often confused by
the process and may feel that trusted
adults from their school are betraying
them. Attorneys working on school dis­
cipline matters should spend extra time
to make sure the young person feels in­
cluded in his or her own defense and un­
derstands what’s going on. If the student
has a disability that impacts communica­
tion or cognitive abilities, the attorney
will need to make accommodations to
ensure that both student and parents feel
supported, are active participants, and
understand their options.
Finally, because many schools overly
rely on police or “school resource offi­
cers” to maintain order and discipline,
a student facing a suspension—even
for a relatively minor incident—may
have been arrested at school. If so, it is
essential for the education attorney to
communicate with the defense attorney,
as anything the student says on record
in a discipline proceeding can be used
against him or her in criminal court. The
defense attorney may advise the student
to waive the suspension hearing in order
to avoid creating a record or may ask the
attorney to adjourn a discipline hearing
until the criminal matter is resolved.
Unfortunately, the special-education
protections that apply in school disci­
pline procedures do not extend to crimi­
nal law matters. Police who are assigned
to schools likely have no idea that a stu­
dent has a diagnosed disability. Any stu­
dent could feel traumatized after a police
encounter in school, but this is especially
true for students with emotional or cog­
nitive disabilities; if the student is afraid
to return to school, the attorney can help
explore options for transferring to a new
school. It is important that the student
and parents are informed of their rights
and options in these situations.
Attorneys who understand how to de­
fend a young person in a school suspension
hearing can significantly limit the impact of
the school-to-prison pipeline. While some
school districts view students’ due process
rights as overly burdensome, these proce­
dures are often a student’s best chance to
stay in school. Especially for students with
disabilities, a good attorney or advocate
can make all the difference. 
Johanna E. Miller, Esq. ([email protected]),
is advocacy director for the New York Civil
Liberties Union.
The Solo, Small Firm and General Practice Division acknowledges its
appreciation to the advertisers that support this publication.
Our advertisers play an integral part in the success of GPSolo.
We are pleased to have the support of the following companies:
31
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Bullying
You are not alone, you didn’t do anything wrong,
you didn’t do anything to deserve being bullied,
and there is a whole world waiting for you. . . .
—President Barack Obama
iStock
d
espite fond memories of
childhood, each of us has
either experienced or wit­
nessed bullying, or maybe
we were the bully. It is a
problem that has been around since
we began defining ourselves and those
whom we view as different. It will likely
be around forever, but we have a duty
to take a stand and protect those who
cannot protect themselves. This article
will examine ways of holding schools
accountable for failing to protect their
students, various avenues that might be
available for relief, and emerging prob­
lems and challenges in cyberbullying.
There are many definitions of bully­
ing, but generally it is considered to be
unwanted and aggressive behavior that
is repeated or has the potential to be re­
peated. Bullying can take many forms,
including making threats, spreading
rumors, physically or verbally abusing
someone, and purposefully isolating
someone from a group.
According to National Center for Ed­
ucation Statistics in 2015, at least one in
four children report having been bullied.
We know that the actual number is even
higher because at least 64 percent of stu­
dents do not report when they have been
a victim of bullying. But these numbers
are only half of the story. Being bullied
is not only painful, it has been linked to
mental and physical health problems as
well as general behavior disorders that
could be lifelong.
In the modern age of global inter­
connections and 24-hour access, bul­
lying can happen anywhere, at any
time, and to anyone. Technology has
made our lives easier in many ways,
but it has left our youth vulnerable to
a new form of bullying. There are no
certain factors that determine whether
a student will be the victim of bullying,
but studies have shown that socially
isolated students; lesbian, gay, bisexual,
and transgender students; and students
with disabilities are at a higher risk of
being victims of bullying. According
to Tara Kuther, Associate Professor
of Psychology at Western Connecti­
cut State University, “bullying gets so
much more sophisticated and subtle
in high school . . .” (tinyurl.com/
jhktvlu). It is during these years, when
adolescents can be their worst with­
out thinking about the consequences
of their actions, that our society must
put measures in place to help protect
against the dangers of bullying.
by mario a. sullivan and Joachim marjon
32
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on- And off-Line
�
GPSOLO | ambar.org/gpsolomag
33
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
ProTecTing children
on School groundS
Our journey began when a young
woman and her parents came to the of­
fice of one of the authors to ask for help.
The young woman had made pleas to her
principal’s office to take action against
bullies, but no action was taken. Like a
leak in your roof, bullying gets worse
if not addressed. One day the young
woman was assaulted by her tormentors,
and her family contacted Joachim Mar­
jon for counsel. After researching causes
of action, we discovered that, despite all
50 states having statutes dealing with
bullying in schools, bullying remains a
problem that is poorly addressed. The
majority of the state statutes that ad­
dress bullying do not create a cause of
action against schools that fail to com­
ply. Schools are no different than most
bureaucratic entities—without some
motivating force, such as monetary li­
ability, a simple proclamation of intent
something that would be protected under
free speech; (2) school officials retaliated
by bulling this student themselves; and
(3) the school was bullying this student
because of the speech of the student. In
our case with the young woman, a free
speech claim was not viable because the
school had not played an active role in
the bullying and there was no protected
speech involved.
For an equal protection claim under
Section 1983, plaintiffs must prove (1)
they were selectively treated differently
by the school based on some protected
trait, such as race, gender, or sexual ori­
entation; (2) this different treatment re­
sulted in plaintiff’s injuries; and (3) the
different treatment was done in bad faith
by the school. There have been very large
verdicts won on cases using this cause
of action, but it takes very specific facts
to prevail over summary judgment. Our
case did not involve discrimination by
the school but rather just the standard,
like a leak in your roof,
bullying gets worse if
not addressed.
rarely leads to results. Without a defined
cause of action to overcome the state’s
high hurdle of sovereign immunity,
plaintiffs must be creative in their ap­
proach to hold a school liable for failing
to protect its students. The two ways
we observed that bullying has been ad­
dressed are through 42 U.S.C. Section
1983 civil rights actions and through
state tort claims.
For Section 1983 actions, a plaintiff’s
bullying must be related to a consti­
tutionally protected category, such as
free speech or equal protection. Using a
theory of free speech, one could bring a
claim under the First Amendment if (1)
the victim student was attempting to say
34
indiscriminate negligence that put the
whole student population in danger;
thus, an equal protection claim did not
appear to fit our facts.
Given the narrow scope of Section
1983 action claims, much of the bullying
plaguing our nation’s schools is not pro­
tected. This leaves only claims in which
the state has waived its sovereign immu­
nity to be sued. In our case, we attempted
to breach sovereign immunity through
an exception with regard to maintenance
of public property. These exceptions to
sovereign immunity are common among
states in order to provide an avenue of
relief to those injured on public property
as a result of dangerous conditions such
as uncovered holes or exposed electri­
cal wires. This avenue does not require
the same constitutional elements to be
proven as do the Section 1983 actions,
nor does it require the school to affirma­
tively act to cause the bullying; rather, the
standard is one of negligence. Through
this exception, we alleged that the bully­
ing that took place at the school was an
unaddressed dangerous condition such
as having students exposed to asbestos
over time.
We used the state anti-bullying stat­
ute, the school’s policy on bullying, and
statements from public figures claiming
they were fixing the problem of bullying
to evidence the school’s knowledge that
bullying was a dangerous condition and
notice of the fact that it was a problem
requiring immediate attention.
Just because we could touch the
school did not mean that a claim was
going to provide a desirable remedy.
Under most state tort claim acts there
are no punitive damages available. This
made it difficult because the school was
treating our case as if it were a slip-and­
fall and only wanted to negotiate in the
standard three-times medical damages
range, which does not work for most
bullying victims, who do not have large
medical bills. In order to make the case
viable, we had to demonstrate that bully­
ing takes a cumulative effect and that the
real damages may not manifest for years.
We hired a professor from the University
of New Mexico who was able to identify
and explain injuries caused by bullying
that could be observed in our client,
as well as the long-term problems one
might expect from such injuries. While I
cannot discuss the specifics surrounding
the outcome of our case, hiring an ex­
pert moved the debate for damages from
being fought in the realm of bumps and
bruises to the cost of long-term psycho­
logical harm.
a new age of Bullying:
cyBerBullying
In the age of smartphones and social
media, bullying has taken on a new form,
outside the classroom and off-campus. It
is difficult for our generation to relate to
this type of bullying; what we endured or
witnessed as students usually remained
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
on school grounds. Cyberbullying has
brought the sense of being alone, differ­
ent, and self-disappointed into the home,
the one previously safe space.
Cyberbullying is bullying that takes
place using electronic technology, in­
cluding text messages or e-mails, posts
on social networking sites and websites,
and fake profiles. It is more difficult to
detect and to protect against because of
the ease of access to technology and the
anonymity it provides a bully. According
to the Cyberbullying Research Center
(cyberbullying.org), about 20 percent of
children ages 11 to 18 have been victims
of cyberbullying. The i-SAFE Founda­
tion (isafe.org) reported that more than
half of teenage students have either ex­
perienced or engaged in cyberbullying.
We have seen the difficulties in ob­
taining relief when bullying occurs on
school grounds; it becomes even more
challenging with cyberbullying. Because
students have the ability to send mes­
sages, e-mails, and texts or to post com­
ments from any device, from anywhere,
and anonymously, schools have little
ability to address or discipline a student
for cyberbullying.
Any regulation of a student’s speech
faces First Amendment challenges, in­
cluding disciplinary actions for cyberbul­
lying, and only in certain circumstances
can a school or state regulate off-campus
speech. The U.S. Supreme Court has held
that not all student speech is protected
and has set forth several exceptions, with
hurdles to overcome, in which a student’s
speech may be regulated. In Tinker v.
Des Moines Independent Community
School District, 393 U.S. 503 (1969), the
Court held that a school could discipline
a student for off-campus speech that
is intentionally directed at the school
community and is reasonably under­
stood to be threatening, harassing, and
intimidating. Additionally, the Court
has held that a school can discipline a
student for off-campus speech that is
found to be obscene. In Miller v. Cali­
fornia, 413 U.S. 15 (1973), the Court set
forth several factors to determine when
speech will not receive First Amendment
protection because it is obscene. Even
with these exceptions, schools or legis­
latures attempting to protect students
GPSOLO | ambar.org/gpsolomag
from cyberbullying must carefully draft
and narrowly tailor their regulation and
disciplinary actions so that they do not
restrict protected speech.
In addition, given the nature of cy­
berbullying and the virtual anonymity
it provides, it can be difficult to establish
the school’s knowledge of and deliber­
ate indifference to such bullying, or that
the bullying was of such a nature that it
altered the educational condition of the
We, as attorneys,
can work together to
make a difference by
ensuring that schools
are providing actual
avenues of protection
for their students,
both on and off the
school grounds.
student, in order to establish a cause of
action for violation of other federal stat­
utes, including Title IX of the Education
Amendments Act, the Individuals with
Disabilities Education Act (IDEA), Sec­
tion 504 of the Rehabilitation Act, or the
Americans with Disabilities Act (ADA).
Outside of looking for redress for
cyberbullying through school policies,
one could seek civil actions directly
against the bully for defamation or in­
tentional infliction of emotional distress.
Each such action has its own difficulties
to overcome depending on the type of
cyberbullying and circumstances. For
example, it is difficult to make a claim
for defamation with text messages or e­
mails sent only to the victim because they
are centralized and generally not words
published to others. In addition, because
of the anonymity of certain types of
cyberbullying, it can be difficult to prove
who the offender is. Finally, in the case
of a young bully, you will probably try
to make the bully’s parents liable, which
can create many additional issues.
Threats of violence or explicit pho­
tos can turn the matter into a criminal
offense and should be reported as such
to the authorities; the criminal justice
system is still available if matters have
progressed that far. Finally, many cell
phone providers and social media sites
have policies against content that is con­
sidered to be cyberbullying, so notifying
them might lead to their blocking the
activity from continuing.
As technology continues to improve
our access to others and the anonymity
of our communications, protecting our
children from the harms of cyberbul­
lying will become ever more difficult.
Each of us has a duty to bring an end to
bullying in all its form; we can reach out
to students, share our stories, and help
those victims who are suffering from
bullying.
concluSion
Creating a safe place where no one ever
gets hurt feelings is likely impossible,
but we have a duty to take basic precau­
tions to protect children from the emo­
tional terrorism caused by bullying. As
cyberbullying becomes more and more
prevalent, it is ever more important for
us to look at various avenues to fight
back. We, as attorneys, can work to­
gether to make a difference by ensuring
that schools are providing actual avenues
of protection for their students, both on
and off the school grounds; by enact­
ing anti-bullying programs and policies;
and by seeking laws that allow redress
for victims of bullying. We encourage
you to visit the ABA Section of Civil
Rights and Social Justice’s Bullyproof
Committee website (americanbar.org/
crsj) to learn more about what you can
do to help bring an end to bullying. 
Mario A. Sullivan ([email protected])
is a principal of Johnson & Sullivan Ltd., in
Chicago, Illinois. Joachim Marjon (jmarjon@
gmail.com) is the principal of Marjon Law P.C.
in Santa Fe, New Mexico, and recently relocated
to Rochester, Minnesota.
35
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
36
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Protecting Immigrant Clients
�
in the Juvenile Justice System
�
J
by angie Junck and rachel Prandini
uvenile justice proceedings
often cause confusion and anx­
iety for youth and their fam­
ily members as they struggle
to understand the short- and
long-term consequences of involvement
with the delinquency system. Attorneys
representing youth know the challenge
of explaining these complexities in ways
that are meaningful. For immigrant
youth in the juvenile justice system,
the consequences can be even more
overwhelming and dire, and attorneys
representing these youth have a duty to
understand and advise their clients about
the potential repercussions while ensur­
ing that they take advantage of a unique
opportunity to help youth stabilize their
immigration status, ensuring a successful
transition into adulthood.
iStock
iMMigranT youTh in The Juvenile
JuSTice SySTeM
Across the country, juvenile justice
systems report that they are serving in­
creased numbers of immigrant youth.
This is in line with population trends:
A 2011 study found that 23 percent of
children in the United States are either
immigrants or the children of immi­
grants. Immigrant youth may be un­
documented (without legal status), have
a temporary visa (e.g., a tourist visa), or
be a lawful permanent resident (i.e., a
green card holder).
Many of the immigrant youth in the
juvenile justice system were brought to
the United States at a very young age,
have grown up almost entirely in the
United States, and consider this coun­
try to be their only home. Some of these
youth do not know the language spo­
ken in their native country and have
no memories of their birth country. As
first-generation immigrants, these youth
often experience a lack of parental con­
trol or involvement in their lives owing
GPSOLO | ambar.org/gpsolomag
to parents working long hours to make
ends meet and language barriers that
many parents experience when engag­
ing with systems in the United States.
Because of economic constraints, some
of these youth may also grow up in highcrime neighborhoods.
Other youth involved in the juvenile
justice system may be more recently ar­
rived immigrants who are completely
unfamiliar with the legal system and cus­
toms in the United States. Some immi­
grant children come to the United States
with a parent or adult relative, while oth­
ers arrive unaccompanied, without their
parents or a legal guardian. Recent years
have seen a huge increase in the number
of children coming to the United States
unaccompanied, especially from Cen­
tral America. These youth have often
endured unspeakably traumatic expe­
riences in their home countries; feeling
that they face certain death there, they
make the difficult decision to make the
dangerous journey north. The trauma of
this population is compounded by sepa­
ration from their families and commu­
nities and adjustment to a new culture.
iMMigraTion conSequenceS of
delinquency
When immigrant youth come into con­
tact with the juvenile justice system,
special care must be taken. Although
delinquency is treated differently than
criminal convictions under immigra­
tion law, it can still be problematic for
youth. Criminal convictions very often
create an outright bar to maintaining
or gaining immigration status in the
United States; conversely, children and
youth are eligible for many avenues for
obtaining legal status in spite of delin­
quency. In this sense, immigration law
acknowledges the diminished guilt of
youth and their increased capacity for
rehabilitation, in line with how state laws
treat youth differently than adults when
they violate the law. Nonetheless, delin­
quency can negatively affect a youth’s
immigration status in lasting ways.
The biggest risk of delinquency is for
undocumented youth because they are
at the greatest risk for deportation and
they are looking to legalize their status.
Youth with legal status, such as green
card holders, will rarely be deported as
a result of delinquency, although there
may be other consequences.
It is crucial that juvenile defense at­
torneys provide proper advice to youth
regarding the immigration consequences
of delinquency. In fact, the U. S. Supreme
Court held in Padilla v. Kentucky, 559
U.S. 356 (2010), that criminal defense
attorneys—including juvenile defense
attorneys—have an affirmative duty to
competently and affirmatively inform
their clients of the possible immigration
consequences of their pending criminal
or juvenile cases in order to assist them
in maintaining or obtaining legal status.
It is essential that attorneys un­
derstand the two major ways that
delinquency can impact a youth’s im­
migration status. First, specific delin­
quency adjudications, or the conduct
on which they are based, may prevent
youth from maintaining or achieving
lawful immigration status, resulting in
deportation from the United States. The
most common and damning of these
are drug-trafficking offenses, including
sales. For example, if an undocumented
youth has an adjudication for drug sales,
the federal government may find when
an undocumented youth is applying for
a green card on the basis of special im­
migrant juvenile status (a humanitarian
form of immigration relief for youth
under juvenile court jurisdiction who
have been abused, neglected, or aban­
doned) that the youth is ineligible be­
cause there is “reason to believe” that he
37
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
or she engaged in drug trafficking. Under
federal law, this would prevent a child
from obtaining a green card and put the
child at risk of deportation. Attorneys
must be aware of and advise clients about
these bars to getting immigration status
and seek alternative pleas when possible.
(For more, see tinyurl.com/zrhx47e.)
Second, the federal government may
exercise its discretion to deny legal status
or another immigration benefit to an ap­
plicant based on its determination that
the youth is not the type of upstanding
individual who deserves it. Youth may
apply for legal status either affirmatively
or defensively (while facing deportation
from the United States), and discretion
is often at the heart of the decision by
immigration authorities whether to grant
relief. Immigration authorities may con­
sider any potentially negative factor, in­
cluding a history of juvenile delinquency.
The federal government looks especially
citizens later in life—another discretion­
ary immigration benefit.
oTher iMMigraTion conSequenceS
of involveMenT wiTh The
Juvenile JuSTice SySTeM
Beyond the impact that a specific de­
linquency adjudication may have on
a youth’s ability to maintain or obtain
immigration status, simple involvement
with the juvenile justice system (even
when it doesn’t result in an adjudication)
can often have devastating consequences
for undocumented youth. In some locali­
ties, suspected undocumented youth are
routinely reported to U.S. Immigration
and Customs Enforcement (ICE), the
federal agency responsible for enforce­
ment of immigration laws inside the
United States. This kind of reporting
may involve a violation of state laws pro­
tecting a youth’s confidentiality. Report­
ing undocumented youth to ICE also
Information about
immigrant youth must
not be shared with Ice
in violation of state law.
negatively upon delinquency adjudica­
tions that implicate gang involvement,
drug sales, and violent or sexual offenses.
These types of offenses should, there­
fore, be avoided especially for undocu­
mented youth if at all possible, even if it
means pleading to an offense that seems
more “serious” under state law. Immi­
grant youth who are not undocumented,
but are also not citizens—for example,
lawful permanent resident youth who
hold a green card—are unlikely to be
deported on the basis of a delinquency
adjudication unless it involves violation
of a domestic violence protective order.
Nonetheless, youth with green cards
generally should avoid the same types of
offenses as undocumented youth to pro­
tect their ability to become naturalized
38
typically leads to arrest, detention, and
the initiation of deportation proceedings
by federal immigration authorities.
Many states have laws that shield in­
formation from juvenile court proceed­
ings from being shared without a court
order. These laws reflect a long history
of protecting juvenile proceedings and
records from disclosure in order to fa­
cilitate the rehabilitation of youth and
avoid stigmatization. When juvenile jus­
tice officials alert ICE to the presence of
suspected undocumented youth in their
care, this may not only constitute a viola­
tion of a youth’s rights of confidentiality,
but it is also at odds with the goals of the
juvenile justice system. Attorneys repre­
senting immigrant youth must therefore
ensure that their information is not being
shared with ICE in violation of state law.
This can be done through informal ad­
vocacy with juvenile justice officials, or,
if possible, by requesting an order from
the juvenile court directing officials not
to share a youth’s confidential informa­
tion with ICE.
Such advocacy against reporting to
ICE is critical because when youth are
reported to immigration authorities,
there are myriad consequences. Most
youth who are reported to immigration
authorities are subject to additional de­
tention, sometimes in another juvenile
hall setting, even if they have served their
time in the local juvenile justice system.
After being initially transferred and de­
tained by ICE, the vast majority of youth
apprehended are transferred to another
federal entity, the Office of Refugee
Resettlement. Often, these youth do
not return to their communities until
after they have been transferred to im­
migration detention facilities in remote
areas where they have suffered lengthy
separation from their homes, families,
and communities and the isolating and
frightening experience of immigration
detention. Most youth are eventually re­
turned to their communities—in fact, in
approximately 90 percent of cases, youth
are reunified with family members—but
often not without a cost. Their lives may
be further destabilized owing to the trau­
ma of separation and detention. Many
other consequences also result from the
detention experience, such as gaps in
education, familial discord, and stress
owing to fear of deportation, as well as
former trauma being exacerbated by pro­
longed detention. For youth involved in
the juvenile justice system, immigration
detention can last anywhere from a few
months to years, typically much longer
than with youth not involved in the ju­
venile justice system.
Reports to ICE also result in the initi­
ation of deportation proceedings against
a youth. Many immigrant youth are not
ultimately deportable because they are
eligible for a defense against deporta­
tion and legal status in the United States.
However, even when youth can defend
against deportation, it is very challeng­
ing for them to obtain legal status when
they are separated from their family and
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
navigating a complex system on their
own. Further, after referral to ICE, youth
will have to seek protection against de­
portation in a defensive posture where
they are in adversarial proceedings with
opposing counsel charging them with
unlawful conduct, often far away from
family members and without access to
immigration legal counsel (because there
is no right to appointed counsel), rather
than being able to submit an application
affirmatively. Clearly, reporting to ICE
does not support the goals of juvenile
justice systems—rehabilitation and suc­
cessful transition into adulthood.
Even when juvenile justice officials
do not report youth to ICE, they may
not be equipped to address the unique
and complex needs of these youth. For
example, immigrant youth may expe­
rience linguistic and cultural barriers
to interacting with the juvenile justice
system. Further, many immigrant youth
have experienced trauma, either in their
home country, in their journey to the
United States, or within the United
States, which can affect how they in­
teract with the system and respond to
rehabilitative services. Funding restric­
tions based on immigration status may
also hinder efforts to provide adequate
services to immigrant youth. Attorneys
representing these youth should bear
in mind these factors and consider how
they may impact their clients’ outcomes.
helPing youTh Secure
iMMigraTion STaTuS
Attorneys representing immigrant youth
in delinquency proceedings can play a
critical role in their lives by identifying
potential eligibility for immigration re­
lief and making appropriate referrals to
legal services agencies. Defense counsel is
often the first and last reliable individual
these youth may see who may be able
to affirmatively help them resolve their
immigration situation.
Congress has created various avenues
for certain immigrant youth—even
youth involved in the juvenile justice
system—to obtain lawful immigration
status in the United States. Under cur­
rent law, youth may be eligible for a
variety of different forms of relief from
deportation, including special immigrant
GPSOLO | ambar.org/gpsolomag
juvenile status (for abused, neglected, or
abandoned children under state court
jurisdiction), U non-immigrant status
(for victims of serious crime), T nonimmigrant status (for victims of labor
or sex trafficking), or protection under
youth’s best interests to return to his or
her country of birth. Armed with these
findings, a youth can then apply for SIJS
and get started on the path to a green card
and the stability that it provides. Many
youth in the juvenile justice system have
delinquency
proceedings can have
a disparate impact on
immigrant youth.
the Violence Against Women Act (for
victims of abuse by a U.S. citizen or per­
manent resident parent, stepparent, or
spouse). Obtaining immigration status
permits young people to live and work
openly in their communities, to remain
with their families, to pursue future em­
ployment or higher education, and to
gain access to resources and services that
are essential to their well-being. Flagging
a client’s potential eligibility for immi­
gration status and making a referral to a
legal services organization could change
the course of his or her life.
Many youth in juvenile justice pro­
ceedings are eligible for special immigrant
juvenile status (SIJS), a path to legal sta­
tus for young people involved in state
court proceedings that begins with the
state court judge making certain factual
findings before the youth can apply for
the status with the federal government.
Because eligibility for this form of im­
migration status depends on a state court
determination, attorneys representing
youth can play a particularly important
role in helping youth apply by request­
ing the findings from the juvenile court
judge. For youth to apply for SIJS, the
state court must find that (1) the youth has
been ordered into the custody of an indi­
vidual or state department or agency by
the court (e.g., a probation department);
(2) the youth cannot be reunified with
one or both parents due to abandonment,
abuse, neglect, or a similar basis under
state law; and (3) it would not be in the
successfully received SIJS findings from
delinquency court and gone on to receive
a green card under this special provision.
However, youth who are not flagged for
eligibility while under 21 and subject to
the juvenile court’s jurisdiction will miss
out permanently on the opportunity to
apply for SIJS.
concluSion
When attorneys and other professionals
are not well informed of the disparate
impact that delinquency proceedings can
have on immigrant youth, these youth can
suffer severe consequences that under­
mine their well-being and run counter
to the overall goals of juvenile justice
systems of keeping families together and
ensuring youth are rehabilitated and suc­
cessfully transition into adulthood. Attor­
neys representing youth in juvenile court
proceedings can make a critical difference
in their lives by understanding the immi­
gration consequences of delinquency ad­
judications, the damaging impact of youth
being reported to ICE, and the potential
ways that youth can seek to stabilize their
immigration status. 
Angie Junck ([email protected]) is supervising
attorney with the Immigrant Legal Resource
Center. She is also a commissioner with the
ABA Immigration Commission and co-chair of the
Immigration Committee, ABA Criminal Justice
Section. Rachel Prandini ([email protected])
is immigrant youth project attorney with the
Immigrant Legal Resource Center.
39
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
addressing the overuse of
Psychotropic medications on
dependent children
by mackenzie J. sorich
t
wenty-five percent of chil­
dren in the U.S. foster care
system are prescribed at least
one psychotropic medication
on any given day. This is es­
timated to be double to quadruple the
rate of children not in foster care. Why is
the rate double for foster care children?
Should it be? And what should legal
practitioners in the foster care system
be doing to address this situation?
PSychoTroPic MedicaTion and
children
Masterfile
Before tackling these questions, it is
important to clarify exactly what is a
psychotropic medication. These medica­
tions range from attention-deficit hyper­
activity disorder (ADHD) medications
such as Adderall to antidepressants to
benzodiazepines (commonly prescribed
but addictive anti-anxiety medication) to
anti-psychotics such as Risperdal, Depa­
kote, Zyprexa, and Trilafon.
Several barriers exist to the safe ad­
ministration of mental health care in­
cluding psychotropic medications to any
child. First, some psychotropic medica­
tions have not been studied or approved
for use with children or adolescents.
Children may have different reactions
and side effects than adults taking the
same medication.
An additional barrier to the safe
administration of psychotropic medi­
cations to foster children is the lack of
access to child psychiatrists and related
providers. In western Washington State,
for example, the backlog for a foster child
to be evaluated by a child psychiatrist is
six to 12 months, even for children who
are covered by private health insurance.
40
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The wait can be even longer for children
who are only covered by Medicaid, as is
the case for most foster children.
Despite these barriers, insurance and
medical providers considering the ad­
ministration of psychotropic medication
to a child may be influenced by external
pressures from insurance and pharma­
ceutical interests, which may not align
with the child’s wishes or best interests.
Certain diagnoses in children, such as
bipolar disorder, may more easily meet
the criteria for medication, and thus be­
come easier to treat. However, the lack
of studies on children leave the use of
psychotropic medication as “off-label”
and as such essentially experimental.
Ultimately, the National Institute of
Mental Health advises that, “[I]n addi­
tion to medications, other treatments
for children and adolescents should be
considered, either to be tried first, with
medication added later if necessary, or
to be provided along with medication.
Psychotherapy, family therapy, educa­
tional courses, and behavior management
techniques can help everyone involved
cope with disorders that affect a child’s
mental health” (tinyurl.com/jfpwf67).
The Court Improvement Training
Academy (CITA) at the University of
Washington produced a bench card in
2014 that provides tips to judges review­
ing cases in which there is a request to
authorize use of psychotropic medica­
tion on children in the custody of the
state (tinyurl.com/j62xezs). Key ques­
tions from the bench card for judges to
ask include:
1. What problem is the child pre­
scribed psychiatric medications
for?
2. Is there an evidence-based psycho­
social intervention for the child
and their caregivers (foster and/
or biological), in addition to the
psychiatric medicines?
3. How is this treatment plan helping
the child and family?
4. How are side effects monitored
medically?
Unfortunately, there are instances in
which children have already been pre­
scribed the medication at the request of
foster parents or caregivers before the
decision to medicate is ever reviewed
GPSOLO | ambar.org/gpsolomag
by a judicial officer or even the social
worker responsible for supervising the
child’s care in state custody.
advocaTing for aPProPriaTe
TreaTMenT in foSTer care
What is to be done to ensure that foster
children receive proper psychiatric care?
The appointment of attorneys for all chil­
dren in the foster care system would be
a first step in the right direction. Recent
studies in Washington State (tinyurl.com/
h75zkb9) found that children who have
attorneys are more likely to have their
needs met and spend less time in foster
care, where the likelihood of neglect
or abuse dramatically increases. There
are still a handful of states, including
attorneys for
children in foster
care can ensure that
plans to treat a child
with psychotropic
medications are
scrutinized for the
client’s well-being.
Washington, that do not offer universal
appointment of attorneys to represent
the child at issue in a child welfare case.
If a child at issue does not have coun­
sel, then motioning the court for ap­
pointment may be an appropriate step.
Mathews v. Eldridge, 424 U.S. 319, 335
(1976), is often cited as an authority in a
court’s determination of whether to ap­
point counsel to a child. The movement
to enact legislation requiring greater scru­
tiny is gaining traction in California and
in the federal government.
On a day-to-day basis, attorneys pro­
vide crucial oversight of a child’s care
while in the foster care system. They are
on the front line and can and should be
asking questions to caretakers and so­
cial workers about their client’s mental
health and access to supportive services.
Attorneys can ensure that plans to treat
a child with psychotropic medications
are scrutinized for the client’s well-being
and that the CITA bench card steps are
followed before the issue ever needs to
get before a judge. Attorneys should
be asking the questions that the CITA
bench card raises and should ensure that
sufficient and reliable information from
a variety of sources is collected before
deciding to medicate a child with psy­
chotropic medications. If information is
not readily available or other participants
are uncooperative in information gather­
ing, then it is incumbent on the attorney
to use litigation tools such as a subpoena
duces tecum and discovery demands to
obtain information.
Attorneys may also seek to confer and
provide information to the prescribing
doctor. Attorneys should ask whether
medication treatment can be coupled
with evidenced-based practices such as
cognitive behavioral therapy, traumafocused therapy, or other ongoing ther­
apy, as well as whether the prescriber
has sufficient expertise regarding the
administration of psychotropic medi­
cation to children. Attorneys should
explore ways to ensure that children’s
placements remain stable so as not to
disrupt treatment. Such steps may in­
clude working with the caregiver and
social service agency to identify other
qualified people who can provide respite
care to give exhausted caregivers a break.
A change in foster homes can result in
a child starting anew with different
medical providers and further set back
the child’s mental health prognosis from
yet another change in homes. When there
is a disagreement about how to proceed,
the child’s attorney is in the position by
duty to present the information neces­
sary to the court so that a judicial officer
can make a well-informed decision. 
Mackenzie J. Sorich (mackenzie@sorichlaw.
com) is the owner and managing attorney of
the Law Offices of Mackenzie Sorich, PLLC, a
Seattle-based family law practice experienced
in handling complex family law litigation.
41
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Is Your Practice
42
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Really automated?
by tanya scribano
iStock
m
ost law offices have a
client/matter database
system to track files and
deadlines. The system
may even have some document assembly technology, but should
it do more?
Understanding what a fully imple­
mented client/matter system can do
and taking the time to automate all mun­
dane client and administrative matter
can save a practice thousands of dollars
every year.
If designed correctly, automation
gives a significant return on investment.
Something as simple as merging and emailing out yearly retainer agreements
can save on both time and postage fees.
Automating repetitive, routine tasks will
free you up to do billable work and grow
your practice.
Law offices are more likely to hire an
additional administrative employee than
automate. Beefing up staff appears to fix
the need of additional productivity faster
than utilizing the abundance of technolo­
gy solutions available to achieve the same
goal. But before you log onto Indeed.
com, LinkUp.com, or SimplyHired.com
to find another employee for 2017, here
are some questions to answer honestly:
 Do you have a robust client/
matter database? If you do, is
it customized to all areas of law
you practice and does it automate the processes? I remember
an office that was quite proud
of the patent it had pending on
its proprietary system. When
I saw a demo of the system, it
was mediocre at best, and the
GPSOLO | ambar.org/gpsolomag
user interface was about as attractive as a men’s locker room.
The office still tracked real estate files on spreadsheets and
had weekly meetings to discuss the spreadsheets. Don’t
let pride get in the way of an
honest analysis of what you
already have in place.
 Do you have automatic assem­
bly for .docx, .pdf, .xlsx files?
◗ .docx. Some practices are
reusing other client docu­
ments by reformatting the
document to meet their
needs. This allows the pos­
sibility for confidential information to accidentally
remain on the document.
A client/matter database
should be able to merge
word-processing documents
to avoid typing in the same
data, such as property ad­
dress, over and over again.
◗ .pdf. Many areas of law
have government-created,
fillable PDF forms that
must be used. With a fully
automated database system,
the PDF can be populated
automatically, saved to the
client folder, and left fillable
for any additional, custom
editing.
◗ .xlsx. Offices that use
spreadsheets to crunch
numbers or analyze a case
are often typing in the same
data over and over again.
Spreadsheet automation
is so often overlooked because it rarely produces a
document that goes to print.
However, automating the
static data entered into the
analysis spreadsheets can
greatly increase productivity in the office.
 Are you sending routine emails automatically? Routine
e-mail communication requesting client documentation can be
integrated within a database
system. E-mail automation
designed properly can automatically update your clients
at every stage of the matter you
are working on for them with
the click of a button. It creates
a recurrent communication
chain between attorney and client. This has been shown to cut
down on phone calls from cli­
ents inquiring about the status
of their file because you simply
beat them to it.
 Do your systems get along?
The client/matter database
should integrate with the docu­
ment assembly as well as other
areas of your practice such as
the accounting software. Putting all your technology under
one user interface umbrella is
like getting that universal remote for all the pieces of your
entertainment system. Employees will spend less time launching individual applications and
entering client data into each
separate system.
43
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
LAW OFFICE AUTOMATION:
LOOK HOW FAR WE’VE COME
Automation originated in the 1970s with the electric typewriter—although not strictly
automation, it laid the groundwork for the second generation.
In the early 1980s the personal computer was available to law offices, and WordStar
was the dominant word processor. However, it proved difficult to add new features to the
WordStar platform. This allowed for WordPerfect to take the mainstream market by the
mid-1980s. It had automatic line numbering that was important to the area of law and the
ability to add footnotes/endnotes. Staff could save repetitive information such as a legal
description in a word-processing document and use the electric typewriter as a printer on
closing documents. Dedicated secretarial pools were quickly becoming obsolete.
AUTOMATION MAKES IT POSSIBLE
Then, in the late 1980s early 1990s, computer software applications utilizing database
management systems (DBMS) brought law firms to the next level of automation. Pro­
grams such as Symantec Q&A and FoxPro were common at that time as they provided a
way to digitally create, collect, store, and manipulate data. Symantec Q&A was a DBMS
that allowed for both form and datasheet views of data and the ability to use a natural lan­
guage technology called DAVE (Do Anything Very Easily). Anyone still working with DAVE
today might disagree with that acronym!
Symantec Q&A and FoxPro allowed small offices to customize database fields to the
specialty of the practice. The late 1980s and early 1990s automation solutions allowed
for querying of data such as hearing dates and time-saving mail merges. Symantec Q&A
and FoxPro have since vanished like the dinosaurs.
In 1992 Microsoft Access was released and, actually, is still in law offices today.
Microsoft Access is a database management system that may be used as the “front
end” of a program/application, allowing for data input, while other products are utilized
for the “back-end” storage for the data. Access can connect to back-end platforms such
as Microsoft SQL Server, Microsoft Azure, and non-Microsoft products such as Oracle
and Sybase.
CHANGE IS GOOD
Today, law firms are more connected to data than ever. Cloud solutions can be imple­
mented to allow data to be available from multiple devices anywhere. Gone are the days
of bringing back a pile of paper to an employee to open a new client matter. The presentday attorney is able to electronically open a file while interviewing a new client in real time.
Mundane and repetitive research today can be automated by subscribing to cloudbased artificial intelligence legal databases. The use of electronic filing is becoming a
key priority for the government, and virtual courtrooms will eventually become part of the
day-to-day work of the courts.
The past 30 years have been fascinating to watch and have allowed law offices to
save time and money by automating the law practice with the use of technology. What is
next? Fasten your virtual seat belt and enjoy the ride!
44
 Do you accept online pay­
ments for services rendered?
Many law firms are still oldschool when it comes to bill­
ing. Manually printing a paper
invoice, slapping a “Forever”
stamp on the envelope, and
slipping it into the mailbox
just slows down the process.
You may even see payment
before the Cubs win their next
World Series. It makes more
sense to e-mail that invoice
and know that there are ABAcompliant vendors out there
that can allow your clients to
pay online through your web­
site. You do not have a website,
you say? Uh-oh, you may be
in more technical trouble than
you thought.
 Are you only using the basics
of a technology? If an office has
bar code technology, is it being
used to the full potential? If bar
codes are a way to track files, is
the bar code on every document
that is produced in the office?
I had a nonprofit organization
ask me to design a database sys­
tem to automate its processes. It
turned out that the organization
had one already in place that
could do all the functions that
the nonprofit wished to hire
me for. Make sure everyone is
trained on each technology tool
you have in your office.
 Do you have a document
management solution? Does
a search for your client’s elec­
tronic folder resemble an
Easter egg hunt? Many prac­
tices had network folders be­
fore a client/matter database
was implemented. Attorneys
continue to click through the
Windows Explorer user inter­
face to find a client’s electronic
file. Does this UNC look fa­
miliar?: \\server\public\client\
PTAutomatedSolutions\2016
contract. It may be that your
office uses a mix of services to
manage, share, and archive files.
Wasting time by repeatedly
GPSOLO | March/April 2017
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searching for the files you need is costly and inconvenient. It
also makes it difficult to collab­
orate on reports, spreadsheets,
and other small projects. If you
don’t have a document manage­
ment solution, you need one!
If you answered “no” to one or more
of these questions, it is time to make a
change. However, many attorneys would
rather clean out the office refrigerator
than kick-start a technology project.
The reasons vary—anywhere from lack
of time to a past breakup with a vendor
whose salesmen sold them the Taj Mahal
but delivered a Boy Scout tent. Excuses
aside, the cost-return on moving forward
with fully automating your practice can’t
be beat. The following are some tips to
help get started:
 Have your processes in place.
This is the number-one most
important tip, as it is often
overlooked. Trying to automate
an office without processes is
like constructing a skyscraper
without architectural blue­
prints. If you are trying to auto­
mate your estate-planning area
of law, do you have a checklist
and timeline of the entire pro­
cess from start to finish? Don’t
leave it to the programmers to
fill in the blanks on your scraw­
ny processes. Weak or missing
processes can cost you more
money in implementation ex­
penses than experienced by of­
fices that have sound processes
in place.
 Assign a strong project lead.
Find an internal employee will­
ing to think outside the box. Per­
haps an associate/paralegal who
is tech savvy would be the best
person to manage the project.
Perhaps you don’t have a techsavvy employee, or the clos­
est candidate still has an active
MySpace profile. Nonetheless,
pick someone who knows the
office processes and won’t say
“But we have always done it this
way.” Make sure 15 percent of
that person’s time can be devoted
to the project, and make meeting
GPSOLO | ambar.org/gpsolomag
project deadlines part of his or
her goals for that quarter/year.
 Automation/time is money.
The hardest thing can be find­
ing the extra time it takes to
design the system. Take the
time and commit to it weekly
until the job is done. Weekly
status meetings can help keep
a project moving as there is ac­
countability to complete the
week’s tasks even if they are
completed just minutes before
the meeting. Understand that
the return on this time invest­
ment will be seen in the first
year of implementation.
your 5 gigabyte database re­
ally need an Oracle Platform, or
would SQL Server Express do
the job with no licensing cost?
Make sure you don’t overpay
for a platform simply because
it is trending.
 Communicate internally that
change is worth it. It is impor­
tant to market any technology
change to your staff and have
as many employees as possible
on board before the project
begins—and throw in some
kickoff doughnuts. Sharing
knowledge and making every­
one into a team eliminates the
the return on the
time you invest in
automating your office
systems will be seen
in the first year of
implementation.
 Find a consultant, not a
salesman. A software sales
representative can certainly be
helpful with basic knowledge
of the technology you may be
interested in, but make sure
that you can communicate
with the people who are actu­
ally customizing the system
for you. Meet the whole team
before entering into any rela­
tionship with a vendor. If they
speak nothing but C# programming language, find another
consultant team.
 Pick a platform you need, not
what all the cool attorneys are
using. Pick at least three vendors that use various platforms
to house your data. Do your research of pros and cons for each
platform. For example, does
perception of a technology
“coup” and can make the imple­
mentation a positive experience
rather than a hostile takeover.
Hopefully, this article inspires
you to take the time and look at your
current technical environment. Is it
doing what you need it to do? Could
it be better? Used properly, technol­
ogy won’t take the human element
out of lawyering—only the mundane
processes.
Just remember: Automation doesn’t
have to completely change your business
style, but it could be a game changer in
the way you run your practice. 
Ta n y a S c r i b a n o ( t a n y a . s c r i b a n o @
ptautomatedsolutions.com) is president of
PT Automated Solutions, Inc., which helps
businesses increase their efficiency, stability,
and productivity through automation.
45
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
What and Where Is My “
by david michael
46
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
“Data”?
d
ata this and data that. We
hear the word used in many
contexts. What exactly is
data? Techies everywhere
are often preoccupied with
digital data. But data can be analog, too.
Data can also be duplicated and redun­
dant. Data can expire. Data can be cor­
rupted, stolen, breached, and lost. If all
this can happen to data, we should know
what data is, where to find it, and how
to store it.
Lawyers, in particular, must under­
stand data concepts, terms, and best
practices to advise and protect their cli­
ents—and themselves. There are three
reasons to know what and where your
data is: first, to structure it correctly; sec­
ond, to be able to quickly and completely
retrieve it; and third, to know when to
destroy it. These reasons are equally
good for your clients and your law firm.
whaT daTa iS
The essence of “data” is that it is re­
corded. A live production, deposition,
or conversation is not data unless it is
recorded. If recorded, it then can take
many forms: It can be audio, visual, al­
phabetic, or numeric. Most things we call
data are combinations of visual alpha­
numeric content that communicates or
entertains. Some data is “inanimate”—it
does not change. Imagine a text docu­
ment file; even if it is translated from a
Microsoft Word document into a por­
table document format (PDF) file, its
content is fixed. Other data, such as
the balance on a client trust account, is
subject to change. These figures should
nevertheless have some data reliability
and should not change without a known
source and predictable impact. As a “re­
cord” of something, data has character­
istics, value, and context, and it needs to
be managed according to rules and laws.
iStock
TyPeS of daTa
GPSOLO | ambar.org/gpsolomag
Content data vs. metadata. Content
data is the recorded communication
itself, whereas metadata is the informa­
tion about that content. Metadata might
include the author, date of creation, lo­
cation where the file is stored, and who
owns it. Documents that are “inherited”
from other documents, such as a letter
based on the word-processing file of a
letter you previously had drafted for a
different client, also inherit some meta­
data. In this way you could expose the
name of one client to another. Data may
be “tagged” with a variety of metadata
tags that will increase your ability to cat­
egorize and organize the content without
looking at the content.
Structured vs. unstructured. In a
small business context, the term “struc­
ture” is used to describe documents and
other data that are managed rather than
unmanaged. When word-processing
documents, PDFs, e-mails, and other
digital data are stored in folders that
are appropriately labeled, indexed, and
searchable, I call this structured data. On
the other hand, if your e-mail in-box has
several hundred e-mails and there is no
distinction between advertising mes­
sages, listserve threads, and client e­
mails, then your e-mail is unstructured.
Structured data is also the data in practice
management and billing programs that
list clients, matters, documents, phone
calls, notes, billing items, invoices, pay­
ments, and accounting details. If your
day-to-day documents are stored on
your desktop or in the “My Documents”
folder, then, in my opinion, that data is
unstructured. I suggest that client docu­
ments should be structured in file folders
according to client name, matter number,
and document type. Matter names are
not always unique, and clients may have
more than one matter; this structure ac­
commodates those possibilities.
Digital vs. analog. I’ll admit, this
distinction is a bit of a misnomer. When
you think “analog,” you may imagine
a broadcast signal from the days of TV
antennae. Here I am distinguishing
between printed and electronic docu­
ments. Analog data is stored on paper;
digital data is not. The electronic data
may change formats, from a Microsoft
Word file to a PDF file or from the
figures tracked in your billing system
to a PDF report, but this data is still
electronic. Digital data could once
have been on paper, then scanned and
stored in digital form. If you have digital
data, then generally you need not keep
the original—unless it is a legal docu­
ment such as a will or a deed, where the
47
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
original signatures, raised seals, notary
stamps, and other characteristics make
the hard copy more legitimate than a
scanned document file. The desire to
“go paperless” drives an increase in
digital data and thereby increases the
need for managing that data. It is fine to
scan in all your firm bills, but you must
store this data in a clearly labeled folder
(e.g., “2016 Firm Expenses”). Within
this folder you might have separate
folders for fixed costs and variable costs
or some other breakdown depending on
your tolerance or need for more control.
Digital data should be rendered searchable. You would think this is a given, but
most PDF documents are not searchable
unless someone has indexed them via
optical character recognition (OCR).
Analog data must also be managed;
“Where did this come from, and where
is it going?” Ask yourself these ques­
tions when you are working with either
client or firm data. Data context actu­
ally matters, particularly for secondary
data. An e-mail copied and pasted from
the middle of a thread and then saved
as a word document has lost context
for the remarks made within that e-mail
thread. It also has lost any credibility
as an original or trustworthy source of
data, as it is no longer in the original
format. This data is probably not admis­
sible as evidence. To ensure your client
data maintains admissibility, consult
a forensic computer specialist. They
will make a static copy of all data on
a workstation and be able to “prove”
that everything has been maintained in
its original format.
not everything can
be “paperless,” but
you can make almost
everything searchable
and findable.
whenever practical, printed documents
should be stored in physical folders in
file sections defined by year. A file sec­
tion grouping together all firm expenses
for 2010, for example, may typically be
destroyed on the same retention sched­
ule as your taxes for that year. (Consult
your tax professional for specifics.)
Primary vs. secondary. It is impor­
tant not to mix primary and secondary
data, as telling them apart can be diffi­
cult. Simply put, secondary data is not
the original. Think of relevant financial
paragraphs copied and pasted from a
long letter and saved as a separate docu­
ment. If primary sources of data are well
secured, you can work with secondary
files, but then when done, the second­
ary data may be destroyed according
to the same time frame as the primary
data. I often focus on process analysis.
I will hold up a piece of paper and ask,
48
where To find daTa
There are three categories of where to
find data for a client or firm: on premises,
on computers, and in the cloud.
On premises. Your firm or client will
have some file cabinets of shelves with file
folders. This is a good place to conduct
a complete record inventory. If you are
responsible for all this data, no location
should be ignored. Open every drawer,
look in every box, write it all down, and
put it in an Excel spreadsheet. If clients
come in for their file and you give them
only one box out of three, there will be a
complaint to answer. Your own firm data
is equally important. Articles of incorpo­
ration, leases, promissory notes, whatever
legal documents apply to your firm, these
must be easily found. While you are at it,
consider scanning all these originals and
storing them in structured folders on a
removable hard drive off-site.
Client folders, if stored by year and
file number, are easier to find and file
than when shelved by client or matter
name. If the outside of the client folder
also includes a file type, then you can eas­
ily identify when it may be destroyed—
a traffic case has a different retention
schedule than an estate-planning case.
On computers. Digital data resides
on computers or in the cloud. A record
destruction schedule will help you keep
the volume of data in the cloud down to
the minimum, saving you money. Look
for your data on your computer or server
using Windows Explorer, or, if you use
Macs, the Finder. See if you have C:\,
D:\, E:\, G:\, etc., drives. Each of these
drives on the server probably has differ­
ent data. Your IT firm may have set aside
D:\ for SQL data and E:\ for backups,
etc. This is a good practice even for solos
or small firms. These other drives might
be external hard drives, usually used for
backups, or they might be partitions of
the root drive C:\.
On a server, C:\ is rarely for data;
this should just be programs. On a
desktop however, the C:\ drive can be
the source for many digital documents.
In Windows, you can search for all the
.pdf or .docx documents on a particular
computer by typing *.pdf or *.docx in
the search field of Windows Explorer.
If more than one person signs on to
the same Windows computer, each will
have a folder in a path something like
C:\Users\dmichael\, and each user will
have a desktop folder, downloads folder,
and documents folder. You can get to all
these folders from any login, unless the
administrator has restricted the access.
In the cloud. You can find data for a
client or firm in many cloud locations.
Like an on-premises solution, a cloud
solution will have programs, folders,
and unstructured data. One common
source of data for a firm or client might
be Dropbox. If Dropbox is installed on
a desktop, you will find these documents
in C:\Users\UserName\Dropbox. The
problem with Dropbox is that you have
different documents for different users,
and many are shared. In theory they are
kept in sync, but the individual docu­
ments are in sync, not necessarily the file
folders. If you must get your data or a
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
client’s data out of the cloud, the pro­
vider will copy everything to an external
hard drive and send it you. If the data in
the cloud was stored in a program, then
you must reinstall the program to access
the data or extract it from the source files.
whaT To do wiTh daTa you find
If you are working with a client, you
must first protect the data the client has
and find someone to create a forensic
copy of all digital data. This might be
on every desktop, every phone or tablet,
and on the server. From there analysis
and e-discovery are performed so that
the original is unadulterated.
No client documents should be de­
stroyed without having a retention
schedule in place. If data is destroyed
after a client is engaged in a lawsuit, you
know the client is in big trouble. You
will want to consider the record reten­
tion rules for your state and then draft
a record destruction schedule for your
own firm. Your clients should do this
now, before they are sued. Formalize
that policy and delete everything that
already meets the schedule. Then, every
year going forward, delete the data that
can be deleted. (A sample law firm re­
cords retention schedule can be found
at tinyurl.com/go98f4b.)
geTTing STrucTured, STaying
STrucTured
I hope this short conversation about data
has inspired you to structure your files.
No more haphazard storage in the “My
Documents” folder or the desktop for
your data, no sir. From now on, your
data will reside in nice folders, well de­
scribed, logically stored and organized.
Not everything can be “paperless,” but
you can scan and index almost everything
and make it searchable and findable. Name
everything well, and save this digital data
in well-named folders. For more ideas on
data and organizational development, read
my blog at omi-network.com/blog. 
2017 • 7x10
208 Pages • Paperback
Product Code: 5150493
List Price: $59.95
GPsolo members: $47.95
lAW firm CyberseCurity
By DanieL B. Garrie anD BiLL sPernoW
in today’s world there are new threats facing law
firms beyond the practice of law, namely data
breaches and cyber-attacks. it’s crucial that law firms
devote sufficient resources to ensuring the security
of their clients’ data. if a firm is breached, its client
files may inadvertently end up on the darknet, in
the hands of investigative journalists, or with other
nefarious entities.
Firms must take steps to create processes to
mitigate and control the risk and fallout resulting
from a data breach. a strong step in the right
direction is Law Firm Cybersecurity, a resource
that gives firms the tools they need to defend
themselves.
David Michael ([email protected]) owns and
operates Michael Matters, Inc., providers of online
and on-site support for technology solutions that
increase clarity, responsibility, and productivity in law
firms and legal agencies. He is also a Tedx speaker
and the principal philanthropist at the OMI-Network.
GPSOLO | ambar.org/gpsolomag
To order this title or other
American Bar Association publications:
Call (800) 285-2221
Visit www.ShopABA.org
and search by product code listed or book title.
49
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Simple Tricks for
Troubleshooting
Outlook
Yourself
by lisa hendrickson
m
icrosoft Outlook is the
most popular business
software program in the
world, and its top rank­
ing is well deserved. It
manages so much of our business and
personal life in one big window. Because
we rely on it for our e-mail communica­
tions, meeting scheduling, and contact
management, what happens when it
does not work right? How do you go
about troubleshooting it? As a Micro­
soft Outlook expert, I present to you the
simple tricks I teach my clients so you
can troubleshoot Outlook yourself.
Before I get started, I’m going to
teach you how to prevent Outlook is­
sues. The first thing you want to learn
is how to close Outlook properly. A lot
of people think that you can close Out­
look by clicking on the X in the righthand corner of the program. To close
Outlook properly, you should actually
go to File in the upper left, and then go
down to choose Exit. This method actu­
ally disconnects all the programs that are
attached to Outlook and closes it from
running as a process. Clicking that X in
the corner can cause errors that prevent
Outlook from launching or opening cor­
rectly. Outlook 2013 and 2016 are prone
to streaming issues as well.
50
ouTlook won’T oPen or launch
When Outlook is having trouble launch­
ing, you might see an error message say­
ing “Outlook is stuck on processing” or
“Loading Profile”—or, sometimes, noth­
ing happens, and it just doesn’t load at all.
Rebooting seems like the usual pro­
cedure your IT department will tell you
to try first. Before doing that, however,
try these simple tricks, as rebooting
your computer can be the last thing to
try nowadays.
Use the Task Manager. If you don’t
see Outlook open at all, you should first
go down to your Task Manager and see
how many Outlook processes are run­
ning. End those tasks, then check to see
if Outlook launches and opens. Outlook
has a tendency to get hung up if it has
two or three “sessions” open, so you can
solve the problem by ending all of the
tasks and relaunching.
If you are using Outlook 2013 or
2016, another tip is to go into the Task
Manager and see if there are any “Click­
to-Run” programs running in the back­
ground processes. If so, end those tasks
and relaunch Outlook. Click-to-Run is
a small application process that assists
with installing and updating Office
365. (For technical details, see tinyurl.
com/qap89hv.)
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Try Safe Mode. You can also try to
open Outlook in Safe Mode. For Win­
dows 10 users, find the Ask Me Anything
Area (Cortana, the circle next to the
Windows icon in the lower left corner)
and type in Outlook.exe /safe. Outlook
will launch and give you an option of
what profile to open. If you only have
one profile, just click OK, and your Out­
look will launch in Safe Mode.
Once in Safe Mode, go to File, then
go to Options down below, then AddIns. Go to the bottom area where you
will see Manage Com Add-Ins. Hit Go
and see what add-ins are there. Uncheck
some that you know you don’t use. If
you have Exchange, you’re going to
want to keep that; if you have Adobe
programs, you might want to keep
those. Sometimes you just have to nar­
row it down to see what the problem is.
Then hit OK, close Outlook, and try to
relaunch again.
Tip! If all the steps above fail, now
is the time to try rebooting. If this, too,
fails, contact your technicians. At least
you can tell them what you’ve already
done and save them some time in trou­
bleshooting—and impress them because
you’re a bit more tech savvy.
e-MailS noT Sending or receiving
The first thing you want to do when your
e-mail is jammed is to look in your Outbox to see if you have a lot of e-mails
sitting there waiting to be sent. If you see
many e-mails there, write down the list
of pending e-mails so you can go back
and send them later if need be. Before
doing any troubleshooting, check your
Internet browser and make sure you are
online. If not, then you have to reboot
or reset your Internet connection (WiFi,
hot spot, or Ethernet cable). I get calls
often about e-mail not sending/receiving
from clients who travel—their Internet
connection is spotty from using so many
different WiFi networks.
Delete the very bottom e-mail first.
Try deleting the pending e-mail at the
bottom; it’s most likely the culprit. It
is probably too large in size, and once
you delete it, it will allow e-mails to start
sending again. If that fails, try deleting
the rest and test them one by one. If you
cannot delete, try clicking the Shift +
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Delete buttons at the same time. This is
a “brute force” way to delete something
in Outlook.
If these efforts fail, then close your
Outlook (File>Exit) and try opening it
again and see if the e-mails send. If this
fails, you can then try to open the e-mails
in the Outbox and see if you can move
them to another folder or save them as
drafts. The Outbox needs to be empty.
Test a new e-mail after all e-mails are re­
moved from the Outbox.
Have your e-mail server settings
changed? If your e-mail is not send­
ing, it’s more than likely that the reason
is this: Your server settings may have
changed. If you have Microsoft Ex­
change, that’s probably not the issue.
But if you have a POP or IMAP account
from a local Internet service provider (or
AOL, Yahoo, or something similar), it’s
very possible that your server settings
did change, and you might want to con­
tact those companies first, or look on the
Internet to see what the incoming and
outgoing port settings should be. You
can find these settings in your e-mail ac­
counts area.
E-mail server settings sometimes can
give you issues if you have traveled re­
cently. Sometimes when you hop around
from an airport to a café while travel­
ing, your port settings may automati­
cally update for you, and you will need
to check them again when you get back
to your office.
If you’ve tried the tricks above
and your e-mails are still not sending
or receiving, then you might have a
deeper technical problem. Call your IT
specialist.
errorS keeP aPPearing
Errors are very common with Outlook,
but many vanish as fast as they pop up.
Lingering errors should be looked at
by an IT professional if the steps below
do not help. I don’t recommend clients
spend a lot of time troubleshooting er­
rors, as professional troubleshooters
know how to fix them much faster and
take preventive precautions to ensure
your data is backed up before perform­
ing repairs.
That being said, suppose you’re
working in Outlook and an error pops












51
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
up out of the blue. You can always take
a screenshot of that error and look at it
later. But the first thing I tell folks is to
close Outlook properly, relaunch, and
see if it goes away. Sometimes it will just
go away on its own.
If that doesn’t work, try rebooting
the computer, opening Outlook again,
and doing what you did before, seeing
if there is still an error.
Tip! Most Outlook technicians do
not fix Outlook errors by editing the
registry or reinstalling Office. This is
always our last choice for repairing.
ouTlook will noT Search
anyMore
A common problem with Outlook is
that the search function stops working.
This can happen after you have set up a
less is more with
outlook, so keep your
mailbox well managed
and keep up with
computer technology.
Safely reSearching your iSSue
Tip! Before doing any repairs, be sure
your computer is backed up.
Ask Google. Let’s say you still get the
error and you don’t have tech support,
and you want to see what Google has to
say about it. Start to type the first few
words of that error message, and as you
type, you can see what solutions will start
to auto-populate. Go to page one and find
the exact error match. Do not click on the
ads at the top of your search. Google now
has a feature at the top of your search that
shows you the most clicked answer, so
this is more assumedly safe to read. Even
though it’s easy to read, not every repair
is easy to do. YouTube will usually have
a how-to video of the repair being per­
formed, so you can watch it done before
tackling it yourself.
If you find yourself reading the fixes
for these errors and they seem too far
outside your range of technical knowl­
edge, you should always call a profes­
sional who knows how to do these fixes
for you. Don’t get caught up doing hours
of troubleshooting yourself—remember
what your time is worth. Also bear in
mind that you might spend hours fixing
these problems, but we probably can do
it a lot faster.
52
new e-mail account and it is download­
ing e-mail or has too much e-mail (most
common). Put your mouse in the Search
box area; look above and you will see
Search Tools, look below for Indexing
Status. A box will launch and alert you
of how many items remain to be indexed.
If yours is at zero, it’s more than likely
that your searching is working fine and
you have other issues. Let’s say that your
indexing has 150,000 items left to be in­
dexed. The easy fix for this is to leave
your Outlook open until it is back at
zero. This can take anywhere from a few
hours to a day or two.
If your index is now at zero but the
searching is still not working, the next
step is more technical and involves re­
building the search index of your com­
puter. Rebuilding the index should not
cause your computer or Outlook is­
sues, but I always recommend backing
up your computer or having your IT
technician perform this next step if you
are unsure.
To rebuild your computer index, go
to Search Tools in Outlook again, and go
to Search Options. A window will pop
up, and in there you can go to Indexing
Options. This is a little more of a tech­
nical fix, but it’s still pretty easy. Go to
the Advanced Button, Troubleshooting,
and then Delete and Rebuild the Index.
The rebuild can take one to four days.
You cannot leave your computer closed
for this time, otherwise it will take lon­
ger. You have to leave your computer on
for the entire rebuild phase.
ouTlook iS BecoMing SluggiSh
Below are the most common reasons
Outlook may be slow or sluggish. Most
of these problems you can fix yourself
with the tips that follow (and many of
the tips I have already described above
will help, too). For the mailbox tune-up
and memory upgrade, you might want
to ask your IT technician to assist.
 Outdated Outlook/Windows
version. Outlook 2003 and
2007 are geriatric versions and
are challenging to fix and rein­
stall. Upgrading to Outlook
2013 or 2016 will definitely
speed up your Outlook. Con­
sider updating your version of
Windows, too.
 Mailbox in need of a tune-up.
Check e-mail size, and be sure
e-mail is balanced between e­
mail accounts and local PST
files. If you have years of e-mail
in Outlook, moving some older
e-mails such as sent and deleted
messages to a local PST file will
help balance the load.
 Outdated Add-Ins. Be sure
you have installed all the cur­
rent updates for your Windows
computer and your Office
programs.
 Old reminders. Dismiss all old
reminders, especially if you are
on an Exchange server; these
can cause Outlook to slow
down.
 Not enough computer hard­
ware memory (RAM) or hard
drive space. Outlook can re­
quire more memory as it’s con­
stantly working. If you notice
your computer is being sluggish,
have your IT technician check
your computer’s hard drive and
the memory installed. Memory
is inexpensive, so there is no
need to put this off until you
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
buy your next computer.
There are a couple other things that
can cause Outlook to slow down. These
issues are not easy to repair yourself, but
I will describe them so you can alert your
IT technician.
 IMAP e-mails constantly syn­
chronizing. This is a sign of too
much e-mail and of the server
and Outlook not being in sync.
 Bad profile. When you open
Outlook, you are opening up
a profile that contains your e­
mail accounts, special settings,
signatures, etc. These profiles
can go bad. If you are on an Ex­
change server, it’s easy to create
a new profile, but it’s just like
setting up a new computer—
you have to start over with ev­
erything from scratch. In my
professional opinion, this fix is
a last resort.
final TiPS
People may think that Outlook runs
only on your computer, but when used
in a business setting, it’s a very active
program that communicates with the
Internet, many computers, and other
devices. Furthermore, it’s constantly
processing on a day-to-day basis. All
this creates the potential for break­
downs. The clients who contact me
the most often with Outlook prob­
lems have a lot of e-mail accounts, a
host of third-party applications, and
many years of mail in one profile. Less
is more with Outlook, so keep your
mailbox well managed. Also, keep up
with computer technology—the faster
your computer, the better Outlook will
perform. Finally, remember to back up
your computer and all Outlook data
files on a daily basis. 
Lisa Hendrickson ([email protected]) is the
founder of Call That Girl (CTG) Technology Support,
which offers a full range of expert-level remote
technical support for Microsoft Outlook, including
2017 • 8.5x11
1,148 Pages • Paperback
Product Code: 5150497
List Price: $169.95
GPsolo members: $135.95
the Complete guide to
diVorCe prACtiCe: forms
And proCedures for the
lAWyer, fifth edition
By Larry riCe anD niCK riCe
The Complete Guide to Divorce Practice: Forms
and Procedures for the Lawyer, Fifth Edition is a
valuable resource for all lawyers, whether for those
just starting out or for those who want to build up
their document library. it is a proven system that
provides a winning strategy for family law practices.
This complete divorce practice system can easily
be customized to fit each jurisdiction and case,
providing over 500 documents to efficiently take
clients through every step of the divorce practice.
The guide is easy to use, arranged in the natural
order of the divorce experience. starting with
clients, it follows through the interview, proceeds
through discovery, negotiations, mediation, and
trial and ends with prenuptial agreements. Content
includes forms, checklists, worksheets, formal
motions, orders, pleadings, agreements, and letters.
Microsoft Exchange Migrations, Microsoft Office
365 consulting, and third-party applications.
To order this title or other
American Bar Association publications:
Call (800) 285-2221
Visit www.ShopABA.org
and search by product code listed or book title.
GPSOLO | ambar.org/gpsolomag
53
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
readY resources
readY resources for
rePresentIng chIldren
s
earching for additional resources for representing
children? Take a look at the ABA publications and
CLE programs below, and check out the helpful links
to website resources hosted by the GPSolo Division
and the ABA. To order any of the products listed
below, call the ABA Service Center at 800/285-2221 or visit
our website at shopaba.org.
child aBuSe and neglecT caSeS: a coMPrehenSive
guide To underSTanding The SySTeM
By Travis Cushman (ABA Solo, Small Firm and General
Practice Division; 2016; 5150491; $49.95; ABA member price
$39.95)
This guide suggests practice standards to help judges, par­
ents’ attorneys, children’s attorneys, CFS workers, GALs,
and family members ask the questions that need to be asked
in every case. It is a road map for anyone who wants to help
keep children safe.
criMinal law forMS
By Kenneth Vercammen (ABA Solo, Small Firm and General
Practice Division; 2013; 5150457; $139.95; GPSolo member
price $125.95)
Use more than 200 modifiable forms in this book to save
time when handling clients charged with criminal and traffic
offenses. Detailed instruction and valuable insight are offered,
from the initial contact with the client, to walking into the
courthouse, to managing the steps that follow.
child SafeTy: a guide for JudgeS and aTTorneyS
By Therese Roe Lund and Jennifer Renne (ABA Center on
Children and the Law; 2009; 5490446; $21.99)
This guide offers a comprehensive approach to child safety
decision making. It addresses the fundamentals of safety as­
sessments and safety planning. It lays out clear standards or
“conditions for return” that must be met before a child can
be returned home and provides checklists to assist judges in
making reunification decisions.
children and The inTerneT: a gloBal guide for
lawyerS and ParenTS
By Thomas J. Shaw (ABA Book Publishing; 2012; 1620499;
$89.95; ABA member price $69.95)
This complete guide is an invaluable resource for anyone
concerned about children—their own or others—using the
Internet.
children held hoSTage: idenTifying BrainwaShed
children, PreSenTing a caSe, and crafTing
SoluTionS, Second ediTion (eBook)
By Stanley S. Clawar and Brynne V. Rivlin (ABA Section of
Family Law; 2013; 5130197; $89.95)
How do you identify a child alienated by one parent against
the other? This practical guide discusses all aspects of a case
where an alienated child may be involved, from identifying the
process to making the presentation in court.
children, law, and diSaSTerS
Technology TiPS for lawyerS and oTher BuSineSS
ProfeSSionalS
By Jeffrey Allen and Ashley Hallene (ABA Solo, Small Firm
and General Practice Division; 2016; 5150487; $59.95; ABA
member price $53.95; GPSolo member price $47.95)
This book provides short tips on a wide range of technol­
ogy issues. The tips emanate from GPSolo programs and
are designed to help the seasoned tech person as well as
the novice.
(ABA Center on Children and the Law; 2008; 3490002; $39.95;
ABA member price $34.95)
This book examines the intersection of children, law, and
disasters like Hurricane Katrina. It looks at the experiences
of children during the disasters and the first response to the
events in order to demonstrate how we can do a better job
for children.
changing liveS: lawyerS fighTing for children
children’S JuSTice: how To iMProve legal
rePreSenTaTion of children in The child welfare
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Edited by Lourdes M. Rosado (ABA Section of Litigation;
2014; 5310429; $49.95)
This book demonstrates the critical role that attorneys play
in changing the life courses of our most at-risk children. Each
chapter portrays a real-life case of a child in crisis and describes
in detail the lawyering that was brought to bear to achieve the
best outcome for that child.
Donald N. Duquette (ABA Book Publishing; 2016; 3490009;
$59.95; ABA member price $47.95)
The unusual and complex nature of child welfare in America
has significant implications for the child’s legal advocate. This
practical guide shares findings on the subject from the National
Quality Improvement Center on the Representation of Chil­
dren in the Child Welfare System.
54
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
creaTing effecTive ParenTing PlanS: a
develoPMenTal aPProach for lawyerS and divorce
ProfeSSionalS
By John N. Hartson and Brenda J. Payne (ABA Section of
Family Law; 2006; 5130141; $64.95)
This book is an effective resource to assist lawyers in advising
clients in the development of parenting plans that change over
time to adapt to the best interests of the child.
educaTing children wiThouT houSing: a PriMer on
legal requireMenTS and iMPleMenTaTion STraTegieS
for educaTorS, advocaTeS and PolicyMakerS, fourTh
ediTion
By Barbara J. Duffield, Casey Trupin, Laurene Heybach, and
Patricia Julianelle (ABA Book Publishing; 2014; 4180016;
$14.95)
This manual provides innovative strategies for educators and
school administrators, state coordinators and policy makers,
and advocates and attorneys to play a role in ensuring the educa­
tion rights of children and youth experiencing homelessness.
forenSic PSychology conSulTaTion in child cuSTody
liTigaTion: a handBook for work ProducT review,
caSe PreParaTion, and exPerT TeSTiMony
By Philip M. Stahl and Robert A. Simon (ABA Section of Fam­
ily Law; 2013; 5130195; $89.95)
Offering practical advice on understanding the psychologi­
cal dynamics often found in these cases, the authors use realworld examples and detail a logical process for critiquing the
evaluation reports of others and analyzing the strengths and
weaknesses of a case.
handBook on queSTioning children: a linguiSTic
PerSPecTive, Third ediTion
By Anne G. Walker (ABA Center on Children and the Law;
2013; 3490008; $30)
This book applies linguistics to the critical task of communi­
cating accurately with children in the legal system— including
forensic interviewing, testifying, and questioning.
indian child welfare acT handBook, Second ediTion
By B.J. Jones, Kelly Gaines-Stoner, and Mark Tilden (ABA
Section of Family Law; 2008; 5130150; $79.95)
This one-of-a-kind guide to the Indian Child Welfare
Act of 1978 examines case law from courts across the coun­
try—this is not an issue confined to reservations and their
border towns.
GPSOLO | ambar.org/gpsolomag
Trial Manual for defenSe aTTorneyS in Juvenile
delinquency caSeS, 2014 ediTion
By Randy Hertz, Martin Guggenheim, and Anthony G. Am­
sterdam (ABA Book Publishing; 2014; 1620621; $129.95; ABA
member price $99.95)
This massive book, in over 1,000 pages and 39 chapters, is
your complete how-to guidebook for handling juvenile court
cases from beginning to end. Its goal is to dispel the uneasiness
that lawyers with little or no juvenile court experience feel when
retained or appointed to represent a juvenile client.
underSTanding The iMPacT of Secondary TrauMa
on lawyerS working wiTh children and faMilieS
(on-deMand cle)
By Carly Baetz and Eva J. Klain (ABA Center for Profes­
sional Development, et al.; 2016; CE1605CALOLC; free;
credit hours: 1.5)
Many legal professionals are unaware that secondary trauma,
or compassion fatigue, might be affecting them or their col­
leagues. Anyone whose clients have trauma histories will benefit
from understanding secondary trauma and engaging in self-care.
gPSolo diviSion linkS
“Child Welfare and Juvenile Justice,” GPSolo magazine, April/
May 2008: tinyurl.com/gpzyxj8
“Deferred Action for Childhood Arrivals,” GPSolo magazine,
September/October 2013: tinyurl.com/hq6sceg
GPSolo Division Initiative with Kids in Need of Defense:
ambar.org/gpsolokind
“Kids in Need of Defense: How to Help Children Facing De­
portation,” GPSolo magazine, September/October 2013:
tinyurl.com/gng7sq3
Resource page for starting and running a law firm: tinyurl.
com/clwojlp
Solo/Small Firm Forms Library: ambar.org/gpsoloforms
Sponsors page: tinyurl.com/7bzft7p
oTher linkS froM The aBa
ABA Center on Children and the Law: americanbar.org/
groups/child_law.html
ABA Commission on Youth at Risk: americanbar.org/groups/
youth_at_risk.html
ABA Legal Center for Foster Care and Education:
fostercareandeducation.org
ABA Section of Family Law: americanbar.org/family
ABA Solo and Small Firm Resource Center: ambar.org/
soloandsmallfirms 
55
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{best of aba sectIons} real ProPertY, trust & estate laW
aIrbrushed heIrs: the Problem
of chIldren omItted from WIlls
by adam J. hirsch
t
his article addresses rules
designed to protect children
from unintentional disinher­
itance. It assesses the merits
of the twin theories on which
lawmakers predicate rules to protect
omitted children: mistaken omission
and failure to account for changed cir­
cumstances (obsolescence).
Obsolescence. Under what conditions
should lawmakers presume that a will is
out-of-date, despite a testator’s failure to
revoke or revise the instrument?
Marital children. Let us begin with
the simplest case. Suppose a testator ex­
ecutes a will and subsequently has a child
in wedlock. When might lawmakers infer
intent to update the prenatal will? Not a
single American pretermitted child stat­
ute creates a temporary presumption. All
operate to revise by implication a prena­
tal will whether a testator left it stand­
ing for 20 days or 20 years. Although no
state sets a time limit for the presumption
of pretermission to expire, some admit
extrinsic evidence to override the pre­
sumptions that the statutes create.
Descendants of children. Suppose a
child born after a will is executed prede­
ceases the testator. Assume further that
the after-born child would have received
a share of the estate under the rules of
pretermission if he or she had survived.
If the after-born child leaves descendants
who survive the testator, should those
descendants take in place of the child?
Arguably, they should. Whether or not a
decedent executes a will, lawmakers as­
sume that decedents want the shares that
would otherwise go to their children to
pass instead to their descendants when
children predecease the decedent. This
Adam J. Hirsch ([email protected]) is a
professor of law at the University of San Diego.
56
natural assumption is reflected in every
state’s intestacy statute. Lawmakers have
no reason to vary from this assumption
where a testator omits an after-born child
from the will and intent to provide for him
or her is implied by the circumstances.
Embryonic children. Under every
existing intestacy statute, lawmakers
already treat embryonic children as
heirs if they are subsequently born alive.
Likewise, embryonic children should be
SHOULD
STATUTES
PROTECT ALL
AFTER-BORN
CHILDREN OR
ONLY AFTER­
CONCEIVED
CHILDREN?
treated the same as other children under
pretermitted child statutes.
In 11 states, pretermitted child stat­
utes expressly cover embryonic children.
The Uniform Probate Code makes no
provision for this contingency, however.
Its pretermitted child statute covers only
“children . . . born after the execution of
the will.”
Should a pretermitted child statute
protect all after-born children or only
after-conceived children? If the statute
applies exclusively to obsolescent wills,
then only unanticipated children should
receive shares by virtue of the statute. A
testator who executes a will while cogni­
zant that a child is on the way makes an
advertent choice either to provide for or
to exclude the child in utero. No exist­
ing pretermitted child statute draws this
dividing line.
Posthumously conceived children. A
similar problem can arise in connection
with children artificially conceived or im­
planted postmortem. Here, though, the
matter is complicated by the administra­
tive inconvenience that can result from
delaying or reopening probate following
a birth that might occur any number of
years after a testator’s death. Those states
that have revised their intestacy statutes to
address the question have done so in every
way imaginable: by permitting posthu­
mously conceived or implanted children
to take as heirs, by denying them intestacy
rights, or by admitting extrinsic evidence
of intent case-by-case. The Code adopts
the last approach.
Adopted children. A child who is
adopted into a marital family becomes
the equivalent of a natural child. This
event could alter testamentary intent
in the same way that birth of a natural
child might, and the same principles
of pretermission should apply in both
instances. Here, though, the date of an
adopted child’s birth is irrelevant, for an
adoptive parent has no relationship with
the newborn child. The will of an adop­
tive parent can only become obsolescent
from the moment when adoption occurs.
The Code’s pretermitted child provision
covers children “born or adopted after
the execution of the will,” and most state
statutes employ equivalent language, al­
though 11 apply to after-born children
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
tout court. In many of those states, how­
ever, case law has construed in pari ma­
teria with the adoption statute to treat
adoption as the equivalent of birth for
purposes of pretermission.
Lawmakers also have failed to ad­
dress comprehensively the other side of
the coin. A child adopted into a family
is simultaneously adopted out of the
natural family. Under the rules of intes­
tacy, as set out in the Code and in a large
majority of states, when a natural parent
gives up a child for adoption, the child
forfeits the status as heir of that natural
parent and other members of the natu­
ral parent’s family, except under limited
circumstances. This result follows from
the assumption that the child will no
longer maintain a relationship with the
natural parent.
Suppose, then, that a testator executes
a will and subsequently has a child whom
the testator proceeds to give up for adop­
tion. Here, the prenatal estate plan has
not become obsolescent, and the rules of
pretermission should not apply. Courts
have followed this logic when applying
non-uniform pretermitted child statutes.
Under the Code, however, the rules of
pretermission pertain to any “children
born . . . after execution of the will.”
Under the text of the Code, an adoptedout child loses his or her status as a child
only for purposes of intestacy.
Mistaken omission. Six states cur­
rently have statutes providing general
relief for existing children whom testa­
tors leave unmentioned in wills. These
wills are not obsolescent. Rather, the
theory underlying these statutes is that
the omission of the child occurred by
mistake either of the scrivener or of a
disoriented testator.
Although conceptually distinct, the
problems of obsolescence and mistake do
GPSOLO | ambar.org/gpsolomag
aba sectIon of real ProPertY, trust & estate laW
this article is an abridged and edited version of one that originally appeared on page
175 of Real Property, Trust and Estate Law Journal, Fall 2015 (50:2).
for more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WebsIte: americanbar.org/rpte
PerIodIcals: Probate & Property, bimonthly magazine; Real Property, Trust and
Estate Law Journal, published three times a year; e-Report, bimonthly e-newsletter.
cle and other Programs: Watch out for RPTE’s monthly CLE webinars; for
more information, please visit our website.
books and other recent PublIcatIons: Land Use Regulation, 3d ed.; Title
Insurance: A Comprehensive Overview of the Law and Coverage, 4th ed.; A Practitioner’s
Guide to Real Estate and Wind Energy Project Development; Handbook of Practical
Planning for Art Collectors and Their Advisors; Fundamentals of Title Insurance; A Guide
to International Estate Planning, 2d ed.; The Advisor’s Guide to Life Insurance.
appear related. Both concern unambigu­
ous wills that, even so, could be said to
conflict with testators’ wishes—wishes
corresponding either with changed
circumstances or with existing cir­
cumstances about which a testator was
improperly informed. Uncertainty rep­
resents a hazard plaguing remedies for
both obsolescence and mistake, and be­
tween the two, surely, a decedent’s actual
subsequent intent must be more capable
of proof than his or her inferred factually
enlightened intent.
Children believed dead. Under the
Code, “[i]f at the time of execution of the
will the testator fails to provide . . . for
a living child solely because he [or she]
believes the child to be dead,” the child
gains a share of the estate as otherwise
specified for omitted after-born children.
Nearly half the states have incorporated
this rule into their pretermitted child
statutes. In Code states, this narrow pro­
vision supplements the general remedy
for mistake added to the Code in 2008.
Without either of these provisions, mis­
takes of fact concerning a child’s survival
would be irremediable.
Unknown children. Some testators are
unaware that they have children when
they execute their wills. Under the Code,
an omitted child can claim a share if the
child is “born or adopted after the execu­
tion of the will.” Accordingly, as regards
an unknown child, the Code’s pretermis­
sion provision operates capriciously: If
the unknown child chances to have been
born after the testator executed the will,
the child can claim a share; an unknown
child in existence when the will was exe­
cuted can claim nothing, even though the
date of birth is pure happenstance. The
only hope for an existing unknown child
would be to seek relief under the Code’s
general provision for curing mistakes,
which requires proof of hypothetically
enlightened intent by clear and convinc­
ing evidence. 
57
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{best of aba sectIons} laW PractIce management
the laWYer’s Internet marketIng tool kIt
by Jason marsh
t
he Internet is a powerful mar­
keting channel that law firms
can leverage to attract new
business. When developing
an online presence, the right
planning and implementation can make
all the difference. Below I highlight a
number of extremely useful tools to help
your firm execute its online marketing
campaigns, improve performance, and
track results.
Your website. Your website is the
foundation for your firm’s online pres­
ence and plays a key role in the overall
marketing strategy. Visitors come and
go 24/7, and they take with them im­
pressions of your law firm. Ensuring
that your website looks professional,
provides a good user experience, and
effectively showcases the firm’s value
proposition should be a priority. Use
your website to differentiate your firm
and highlight why someone should con­
sider working with you.
WordPress. Choosing the right plat­
form for your website is important, and
WordPress.org is the industry standard.
It offers a robust tool set that is both
highly functional and scalable. While
the initial setup and customization will
likely require the assistance of a web de­
veloper, WordPress makes it relatively
easy for a non-technical person to add
and update content. Pro tip: An entire
community of developers creates add-on
tools that are often free, known as plugins, to enhance the functionality of your
WordPress website. Use them.
Yoast SEO: A WordPress plug-in.
If your firm is pursuing a search engine
optimization (SEO) campaign, Yoast is
a must-have tool. Use it to easily write
Jason Marsh ([email protected]) is the founder
and CEO of digital marketing agency MARSH8.
58
page titles and descriptions. Create an
XML sitemap to submit to Google
Search Console. Pro tip: Write compel­
ling page titles and descriptions that
include target keywords to improve
click-through rate and keyword rel­
evancy. Both are important factors that
contribute to organic search rank.
Web hosting. While you cannot run
a website without hosting, choosing a
website host is nothing to stress about.
HIGH-QUALITY
CONTENT ON
YOUR WEBSITE
IS AN ESSENTIAL
FOUNDATION
FOR YOUR SEO
STRATEGY.
When evaluating a provider, make sure
to consider security, site speed, backups,
and customer service. Pro tip: Consider
encrypting your website with a Secure
Sockets Layer (SSL) Certificate. This
is a small data file that will authenticate
the identity of your website and enable
a secure connection between the web
browser and the server hosting the site.
Google Analytics. Google Analytics
is free, powerful, fairly easy to install,
and found on websites across the In­
ternet. Most importantly, it provides a
wealth of valuable information about
the visitors to your website. The primary
metrics to focus on are audience, acqui­
sition, and behavior. Audience metrics
provide insight into the users visiting
the site. Acquisition data focuses on the
individual sources responsible for bring­
ing users to your website: organic search,
paid search, social, referral, and direct. If
your firm is running different campaigns
to increase traffic to the website, acquisi­
tion data will provide the comparative
details. Behavior data reports on what
is actually happening on the site. There
you can see what pages are most interest­
ing to users and what pages generate the
most traffic.
Your blog. The goal of writing a blog
is to highlight the firm’s expertise in a
particular area of law and position it as an
authority. People go online seeking infor­
mation. Think about the type of clients
you would like to attract and consider
the type of information those people
might go online to learn about. Pro tip:
High-quality content on your website
will provide an essential foundation for
your SEO strategy.
Google Search Console. Google
Search Console is a free tool that allows
site owners to diagnose the overall health
of their site, submit site maps, and review
search analytics such as impressions and
click-through rates. Pro tip: Navigate to
Search Analytics and sort by pages and
impressions to identify high-traffic pages
with low click-through rates. Write new,
more compelling page titles and descrip­
tions to improve these rates and attract
even more traffic to your best content.
Google My Business. Google My
Business is another free tool provided by
Google that allows businesses to manage
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the details of their businesses in Google
properties such as Search and Maps. Be
sure to claim and fully update your firm’s
profile. Carefully chose the category,
write a good description of the firm, and
add quality photos. The details of your
Google My Business listing, along with
reviews, show up in a variety of ways
across Google properties, but perhaps
none is more important than the local
search results, which are tied to Google
Maps and often the user’s actual location.
Moz Local. Ensuring that your local
business details—such as firm name, ad­
dress, and phone number—are consistent
and correct across the web is important.
The online ecosystem of local business
directories is vast, and manually updat­
ing business details to every directory is
not possible. While you should manually
claim and complete as many of the most
important local and legal directories as
possible, use a tool like Moz Local to
handle the rest. Input the correct busi­
ness details once, and Moz Local will
help push your firm’s correct details to
directories across the web.
Call tracking. Correctly attributing
new client inquiries to a specific chan­
nel or campaign should be a top priority.
Because the majority of new inquiries
are likely phone calls, implementing a
call-tracking solution is critical. This
means assigning a specific phone number
for each campaign. That way, when the
phones ring, you will know the source
associated with each inquiry. Check out
well-known providers such as CallRail
and CallTrackingMetrics.
AdWords. Google AdWords is
Google’s advertising platform. Attorneys
widely use it to acquire new clients. Cor­
rectly planned and implemented, Google
AdWords can be one of the most pow­
erful and scalable advertising channels
GPSOLO | ambar.org/gpsolomag
aba laW PractIce dIVIsIon
this article is an abridged and edited version of one that originally appeared on page
40 of Law Practice, January/February 2017 (43:1).
for more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WebsIte: lawpractice.org
PerIodIcals: Law Practice (bimonthly magazine available only to Division members)
and Law Practice Today (free monthly webzine available to all). Both periodicals can be
accessed through the Division website or their respective apps.
cle and other Programs: More than 100 educational programs annually,
including live CLE sessions at various meetings (ABA TECHSHOW, Division meetings,
ABA Annual) and monthly CLE webinars.
recent books: More than 125 titles in print, including iPad in One Hour for
Litigators, 2d ed.; How to Do More in Less Time; Encryption Made Simple for Lawyers;
Risk Management: Survival Tools for Law Firms, 3d ed.
available to law firms, especially those
with consumer-facing practicing. AdWords is considered a high-intent adver­
tising channel—ads are shown based on
the use of specific keywords by users in
Google Search. AdWords is a pay-per­
click channel, meaning you only pay for
the ad when someone clicks on it. Pro tip:
Fine-tune your AdWords campaign and
migrate it into Bing, as the cost of adver­
tising is likely to be less expensive. How­
ever, carefully monitor performance, as
not all advertising channels are alike.
Retargeting. Retargeting (or remar­
keting) is a unique form of online adver­
tising that allows your firm to show ads
to people who have previously visited
your website. This is particularly useful
in high-cost advertising channels, such as
Google AdWords, where bringing a new
visitor to the site is expensive. By com­
parison, the cost of running remarketing
ads, staying top of mind, and potentially
bringing those same people back to the
site is minimal. Thus, remarketing is a
potentially high return-on-investment
advertising channel. Be sure to update
your website’s terms of service and pri­
vacy policy accordingly, though.
Lead intake. Lead intake is more
process than tool, but it is an absolutely
critical point in your marketing funnel.
While you can invest heavily in your
online marketing program, your results
will be less than optimal without a clearly
defined process for managing new in­
quiries. It takes a significant amount of
work and investment to generate a new
lead. Make sure that your firm has a welldefined process and that staff is properly
trained to qualify an inquiry, quickly
gather contact information, and “close”
the prospect on the initial consultation.
Although this list is hardly exhaus­
tive, these tools will help streamline pro­
cesses, simplify tasks, and help your firm
get the most out of its online marketing
program. 
59
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{best of aba sectIons} famIlY laW
chIldren, trauma, and the
PotentIal for tort lItIgatIon
by robert a. simon
t
he impact on children of
family-based trauma can be
long-term, and it can affect
the normal development of
the brain. When representing
a child in tort litigation arising out of al­
leged trauma, awareness of the following
factors can be helpful.
Trauma and the brain. Trauma, es­
pecially for children, creates significant
psychological problems. Trauma impacts
multiple areas of functioning. It can im­
pact physical functioning by causing
eating and sleep problems, low energy,
and even chronic pain. Trauma can affect
emotional functioning and result in de­
pression, hopelessness, despair, anxiety,
panic, fearfulness, obsessive and compul­
sive behavior, impulsiveness and anger,
emotional numbness, and interpersonal
withdrawal. Trauma can impact cognitive
functioning, adversely affecting memory,
decision making, learning, and concen­
tration, and leading to hypervigilance,
hyperarousal, distraction, and symptoms
associated with attention-deficit hyper­
activity disorder (ADHD).
People who have experienced trau­
ma may reexperience the trauma in the
form of intrusive thoughts, flashbacks
and nightmares, and emotion- or imageflooding related to the trauma. They may
experience detachment, guilt, grief, an
altered sense of time, and even obsession
with death. Individuals who have expe­
rienced trauma are at a far greater risk
for psychological dysfunction, physical
illness, and drug and alcohol abuse.
Trauma changes the brain. Because
Robert A. Simon ([email protected]), PhD,
is a national leader in forensic psychology
consulting. Based in San Diego, California, Simon
is retained by attorneys throughout the country
to consult and provide expert witness testimony.
60
the human brain is not fully mature until
at least age 25, the presence of trauma
actually impacts the developing brain
in a way that can result in long-term
neuropsychological problems. Trauma
affects the developing limbic system,
which is the brain’s center of emotional
functioning and a critical memory center.
The limbic system also is implicated in
epinephrine production and motivation,
TRAUMA IMPACTS
A CHILD’S
DEVELOPING
BRAIN AND CAN
RESULT IN LONG­
TERM NEURO­
PSYCHOLOGICAL
PROBLEMS.
and it has a role in the sense of smell,
which helps explain why certain smells
can trigger memories and trauma.
Trauma is additionally associated with
changes in cortisol levels (cortisol is also
known as the “stress hormone”).
Trauma also impacts the function­
ing of the prefrontal cortex, an area of
the brain that is involved with planning
complex cognitive behavior, personality
expression, decision making, and mod­
erating social behavior. One of the most
important functions of the pre-frontal
cortex is so-called executive functioning.
When executive functioning is impaired,
individuals can have problems differen­
tiating conflicting thoughts, they may
struggle to distinguish good from bad,
similarities and differences, and the fu­
ture consequences of current behavior.
Goal setting is a part of executive func­
tion, as is the ability to inhibit impulses
that could lead to socially undesirable
outcomes.
Thus, not only is trauma subjectively
unpleasant to feel and experience, trauma
also has the effect of inducing changes
in the developing brain. Therefore, the
psychological and neuropsychologi­
cal effects of trauma can be serious and
long-term.
Trauma, when present, can interfere
with day-to-day functioning and cop­
ing. This is because the psyche uses its
resources to manage conflict before it is
available to engage in so-called conflictfree functions. Therefore, children strug­
gle in school, adults struggle at work, and
relationships for both children and adults
are stressed and made more complicated.
Trauma and family life. In the con­
text of family life, trauma can result from
numerous sources. Most often, it results
from the presence of family violence.
Children, when exposed to protracted
and intense conflict between their par­
ents, may experience trauma. Children
who witness a parent being physically
and/or emotionally abused by the other
parent or who are the victims of abuse at
the hands of the other parent can become
traumatized. Children who have been
molested by a family member are often
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
traumatized. It is difficult to predict how
any particular child will respond to trau­
ma, and some children are traumatized
by seemingly minor things, whereas
other children who experience ongoing
abuse apparently emerge with few signs
of trauma. It is reasonable, however, to
expect children who experience the vari­
ous forms of family violence and abuse
to display signs of trauma. And when a
parent is also traumatized, the severity of
trauma on children can increase.
Trauma and tort litigation. When
representing a child in tort litigation in
which trauma to the child is alleged, it is
essential to fully explain the nature and
ramifications of the trauma and link the
trauma to specific events or a series of
events. For example, if you represent a
child who is claiming to now have posttraumatic stress disorder (PTSD) owing
to physical or emotional abuse, be very
specific about the trauma-related symp­
toms. Also, be specific about what ex­
periences induced the trauma. You will
also want to demonstrate by way of the
individual’s history that the symptoms
your client reports were not present
prior to the traumatic event or events
and that his or her level of functioning
has diminished since the traumatic event
or events. Remember that something that
does not produce trauma in one person
can produce trauma in another person,
and be prepared to deal with the idiosyn­
cratic nature of trauma. It is not uncom­
mon for those who experience a trauma
reaction to a stressor to be somewhat
“predisposed” to the trauma.
Stress, of course, is a part of life. All
people experience stress. Traumatic
stress is different and is related not only
to what is going on in the here and now
but is also related to how the traumatized
brain is “triggered” by current stress and
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aba sectIon of famIlY laW
this article is an abridged and edited version of one that originally appeared on page
22 of Family Advocate, Fall 2016 (39:2).
for more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WebsIte: americanbar.org/family
PerIodIcals: Family Advocate, quarterly magazine (three issues with how-to articles
and current trends and a fourth “Client Manual” issue for lawyers and clients); Family
Law Quarterly, scholarly journal; Case Update, monthly electronic digest of family law
cases nationwide; eNews, monthly electronic newsletter.
cle and other Programs: Monthly webinars, spring/fall conferences, and the ABA
Family Law Trial Advocacy Institute, the premier trial training program for family lawyers.
recent books: Electronic Evidence for Family Law Attorneys; Collaborative Law:
Achieving Effective Resolution in Divorce Without Litigation, 3d ed.; Mastering Crucial
Moments in Separation and Divorce; The Family Law Trial Evidence Handbook.
how it reexperiences previous trauma
and stress. Traumatic stress can be dis­
tinguished from routine stress by assess­
ing the following: how quickly one is
triggered (very quickly); how frequently
one is triggered (more frequently); how
intensely threatening the source of upset
is (the threat is minor, the reaction is
major); how long upset lasts (longer); and
how long it takes to calm down (longer).
Treatment for trauma. Expressive
psychotherapy (i.e.,“feeling your feel­
ings”) is probably not a useful way to
approach the treatment of trauma. Prom­
ising and effective treatment approaches
for people who have experienced trauma,
however, do exist. While these approach­
es do not necessarily “re-wire” the brain
when normal development has been al­
tered by trauma (although there is some
evidence that this may be possible), it is
possible to learn how to react differently
and therefore to experience less distress.
Cognitive behavioral therapy is a
useful approach for treating trauma.
Cognitive behavioral therapy recog­
nizes that unpleasant emotions are the
result of dysfunctional thinking. In
other words, the emotions are not the
problem—the thought processes that
lead to emotional experience are the
problem. The therapy works to solve
current problems and change dysfunc­
tional thinking, which in turn changes
dysfunctional behavior and dysfunc­
tional emotional experience.
Another promising approach to the
treatment of trauma is EMDR (eye
movement desensitization and repro­
cessing). EMDR combines elements of a
range of therapeutic approaches with eye
movement or other forms of rhythmical
stimulation, such as hand taps or sounds.
It is not entirely clear why EMDR works.
Some research suggests that the rapid eye
movements or other rhythmical stimula­
tion may allow the brain to access and
process traumatic material. 
61
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{best of aba sectIons} lItIgatIon
college sexual mIsconduct
dIscIPlInarY ProceedIngs
by andrew t. miltenberg and Philip a. byler
o
n April 4, 2011, the U.S. De­
partment of Education issued
what has become known as
the “Dear Colleague” letter
to every college and univer­
sity receiving federal funding. The letter
contains guidance and directives on how
schools are to address sexual assault and
misconduct allegations in order to comply
with the department’s view of Title IX.
Since the issuance of the letter, an in­
creasing number of students have been the
subject of sexual misconduct complaints
adjudicated in school disciplinary proceed­
ings. Disciplinary proceedings differ dra­
matically from cases handled in court and
are often marked by a lack of due process.
How disciplinary proceedings work.
Generally, university and college disciplin­
ary proceedings adjudicating complaints
of sexual assault and misconduct follow
the “single investigator” model. The ac­
cused receives notice and is supposed to
receive guidance on the process involved.
A Title IX investigator employed by the
school is assigned to conduct a full inves­
tigation by interviewing witnesses and
collecting documents. The letter specifi­
cally notes that investigators must conduct
“[a]dequate, reliable, and impartial investi­
gation of complaints.” Unfortunately, the
letter does not lay out the procedure for
investigating such complaints. Therefore,
the manner in which investigators operate
varies from school to school, with much
left to the discretion of each investigator.
Some investigators interview the
parties and witnesses in narrative form,
while others take a question-and-answer
approach. The investigator also exercises
discretion in determining who to question
Andrew T. Miltenberg ([email protected])
and Philip A. Byler ([email protected]) are with
Nesenoff & Miltenberg LLP in New York City.
62
as part of the investigation. Also, the inves­
tigator is given discretion about whether
consideration of other evidence, such as
videotapes and rape tests, is appropriate.
After performing the investigation,
the investigator prepares a report. Like
the manner of investigation, the nature
of the report can vary from school to
school. Some investigators draft the re­
port as descriptions of accounts given by
the complainant, the accused, and any
DISCIPLINARY
PROCEEDINGS
DIFFER
DRAMATICALLY
FROM COURT
CASES AND
OFTEN LACK
DUE PROCESS.
witnesses. In other cases, the report is
effectively drafted as a recommendation
and includes only selections of the results
of the investigation. Some investigators
provide the parties with an opportunity
to comment on inaccuracies or omissions
and object to the report, while other in­
vestigators do not. The very purpose of
the report varies from school to school.
In some proceedings, the report forms
the basis for deciding whether a hearing
is required; at other schools, the report
may constitute the final decision.
Once the investigation is complete, a
hearing is held before a hearing officer or
a hearing panel composed of university
officials and faculty members. The com­
plainant and the accused are permitted to
be accompanied by a lawyer, but the law­
yer may not speak. The hearing begins
with the investigator presenting his or
her report. Questions then may be asked
by the hearing officer or panel members
and sometimes by the complainant and
the accused. The complainant and the ac­
cused are given the opportunity to give
narrative statements, albeit not under
oath. The complainant and the accused
are not allowed to ask questions of each
other directly. Instead, they may write
questions that are submitted to the hear­
ing officer or panel, who then determines
whether to ask the questions.
Following the statements of the parties,
witnesses are asked to make narrative state­
ments. The witnesses may be questioned
by the hearing officer or panel. The com­
plainant and the accused are not allowed
to ask questions of any nonparty witness.
Instead, they submit written questions
to the hearing officer or panel, who then
determines whether to ask the questions.
The complainant and the accused are then
permitted to give a closing statement.
At the conclusion of the proceeding,
the hearing officer or panel renders a de­
cision that is typically summary in nature,
often finding the respondent responsible
without explanation. Typically, the pro­
ceedings employ a preponderance of the
evidence standard. If the accused is found
responsible, the sanction (ranging from
probation to expulsion) is imposed by the
dean, sometimes on the recommendation
of the hearing officer or panel and some­
times based on the dean’s own review of the
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case. Both parties are permitted to appeal.
Usually, either the dean or a small panel
of faculty members, as well as the dean, is
entrusted with the disposition of appeals.
Steps to take. The following steps by
counsel maximize the chances that an ac­
cused student will avoid the life-altering
penalties that may arise out of college or
university disciplinary proceedings.
1. Meet with the client. The facts of
the case must be carefully elicited to a
level of detail that may seem to reflect
a prurient interest, although the pur­
pose is quite different: The details must
be reviewed to develop a defense to the
accuser’s claim that the sexual conduct
was not consensual. The initial interviews
should pin down specifically what the
complainant and the accused were doing
the day leading up to the sexual contact
because these events can provide evidence
that the parties consented to the activity.
The interviews should also pin down the
specific actions that the accused believed
constituted consent, and further detail the
events after the sexual contact.
2. Let the college or university know
that the respondent is represented by
outside counsel. Rather than sending a
letter, a scheduling adjustment or rou­
tine communication may present the best
opportunity. Although the school will
continue to communicate directly with
the respondent, our experience has been
that the school will act more carefully.
3. Evaluate whether the school’s inves­
tigator has been conducting an adequate,
reliable, and impartial investigation. In
the “single investigator” model that most
college and university disciplinary pro­
ceedings employ, the investigator plays
a key role; therefore, where investigators
are not “adequate, reliable, and impartial”
as required under the letter, an incorrect
and unjust result may follow.
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aba sectIon of lItIgatIon
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33 of Litigation, Fall 2016 (43:1).
for more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WebsIte: americanbar.org/litigation
PerIodIcals: Litigation, quarterly journal; Litigation News, online magazine and
print quarterly; committee e-newsletters (all Section members may join any of 38
committees at no additional cost).
recent books: The Attorney-Client Privilege and the Work-Product Doctrine;
Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal
Practitioner; When Products Kill: Litigation and Regulatory Responses; International
Aspects of U.S. Litigation; The Trial Lawyer’s Guide to Success and Happiness;
Avoiding Bad Depositions: A Simple Guide to Complex Issues; Preparing for Trial: 60
Days and Counting; The Art of Cross-Examination, Essays from the Bench and Bar.
4. Identify areas of investigation that
the investigator is not pursuing but that,
if investigated, could be of critical benefit
to the client. For example, security cam­
era footage may be helpful to a defense,
but a lawyer would need to act quickly to
preserve the tapes before they are recycled
in their regular course.
5. Prepare the client for the hearing.
The client must be prepared to give a full
and compelling narrative of sexual activity
that is honest and respectful. The client
must be prepared to answer any questions
from the panel or even the accused. The
lawyer should prepare sample questions
to prepare the client to articulate suc­
cinctly why there was consent to sex and
enable the client to build credibility by
telling the story in his or her own words.
The client must also be prepared to write
questions in a manner that the panel will
feel compelled to address.
6. Accompany the client to the hear­
ing. The lawyer must be disciplined and
observe the school’s rules for the hearing,
particularly the rule that the supporter can­
not speak on behalf of the accused. The
lawyer must take copious notes so that,
if litigation later needs to be brought to
challenge the outcome of the disciplin­
ary proceeding, a court complaint can be
drafted with sufficient detail to support
the conclusion that there was an errone­
ous outcome.
7. If the client is found responsible,
assist the client in submitting an appeal.
8. If the appeal is unsuccessful, coun­
sel the respondent about bringing a court
suit to challenge the outcome of the pro­
ceeding under Title IX and state law.
Conclusion. University disciplinary
hearings are not only confusing and dif­
ficult to navigate for college students;
their consequences can be life-altering.
A lawyer representing the accused in these
proceedings must be prepared to provide
not only guidance as to the process but
also emotional support and an intellec­
tual understanding stemming from the
lawyer’s own experience. 
63
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{best of aba sectIons} dIsPute resolutIon
a broader VIeW of dIsPute resolutIon
by charles l. howard
I
n English common law, tradition
and precedent are paramount. Be­
cause common law was built on the
principles of lawyers, lawsuits, and
the adversarial process, it’s no sur­
prise that many people today assume
that resolving a dispute means hiring
an attorney and going to court. Even
more modern approaches to resolving
differences such as mediation, arbitra­
tion, and conciliation are seen through
this traditional lens.
But the concept of the “ombudsman,”
a role that first appeared in Scandinavia
about 300 years ago and has been im­
plemented in the United States for only
about half a century, springs from a very
different idea. This broader view of dis­
pute resolution comes from a separate
tradition and premise: that organizations,
including governments, should function
effectively and that an independent,
skilled agent within an organization can
help make that happen. Resolving con­
flicts is part of this effective functioning,
but it isn’t the only part. Understand­
ing this view helps us see why and how
ombuds can provide crucial help both to
individuals and to organizations.
A brief history of ombuds. The first
ombuds in a role that would be recog­
nized as such today was created in 1713
by a Swedish king who fled to Turkey
after being defeated by Russia, and who
appointed an “ombudsman” to ensure
that governmental officials followed the
law and did their duty in his absence.
A century later, Sweden adopted a par­
liamentary form of government with a
constitution that provided for an ombuds to guarantee that the government
Charles L. Howard ([email protected]) is
a partner and the general counsel of Shipman &
Goodwin LLP in its Hartford, Connecticut, office.
64
complied with the law. As the concept
spread throughout Scandinavia, an ombuds was a lawyer whose mandate was
to ensure that the government complied
with the law.
Kenneth Culp Davis, an authority on
administrative law, helped popularize
the ombuds concept in the United States
through an article he wrote in 1961 for
the University of Pennsylvania Law
THE GROWTH
OF OMBUDS
PROGRAMS
BEARS WITNESS
TO THE NEED
FOR A BROADER
TYPE OF DISPUTE
RESOLUTION.
Review (“Ombudsmen in America:
Officers to Criticize Administrative
Action”), in which he described his
observations of the workings of the
Scandinavian ombuds. He believed the
ombuds function filled two important
roles: a “check” on the activities of
governmental officials and a means of
helping ensure fundamental fairness to
concerns that could be as petty as “when
a bureaucrat irritates you, or delays too
long, or requires too much red tape, or
denies what you want.”
The work of the ombuds. Unlike the
types of disputes in which the other forms
of alternative dispute resolution are often
used, disputes in the ombuds’ area often
are about process, and they may not even
be at a level that would typically prompt
someone to take formal action. Perhaps,
for example, a medical technician believes
that she is being belittled or insulted by
her coworkers, supervisors, or hospital
physicians—but not necessarily subject­
ed to the kind of sexual harassment that
would merit lodging a formal complaint.
Whom can she talk to about her concerns
and her options? If the clinic or hospital
has an ombuds, the technician can con­
tact that office in complete confidence
and set up a meeting to talk things over.
Regardless of how this particular issue is
resolved, the ombuds often uses aggregate
data on the types of issues presented to the
office to alert the organization’s manage­
ment about systemic issues that may be
of concern.
In all his or her work, the ombuds
focuses not only on helping resolve a
particular complaint but also on pro­
moting the effective functioning of the
organization or system to help set things
right. This work pays big dividends, and
over the past 50 years, colleges, universi­
ties, and private organizations all have
appointed their own ombuds.
As the ombuds’ role has moved be­
yond its original governmental moor­
ings, which through statute, regulation,
or governmental directive provided
legal protection for its investigative
function and the attendant need for
confidentiality, it has been able to adapt
to non-governmental contexts by de­
veloping and adhering to principles
such as independence, impartiality, and
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
confidentiality in the absence of any en­
abling legislation.
In this evolutionary process, vari­
ous types of ombuds have emerged.
As described in two resolutions ad­
opted by the ABA in 2001 and 2004
(see tinyurl.com/zzdm5cv and tinyurl.
com/heh4ry7), ombuds programs have
evolved to include “organizational” and
“advocate” ombuds in addition to the
original “classical” or governmental
programs. Despite such distinctions, the
roles’ dual micro/macro focus endures:
Ombuds of all types seek to help resolve
particular concerns presented to them—
and at the same time identify trends and
systemic issues that their organizations
should recognize.
Because ombuds are usually re­
tained or employed by an organization
or governmental agency and operate as
an independent and impartial resource
available to all the organization’s con­
stituents, the ombuds services are typi­
cally free for the individuals using them.
Ombuds can help resolve conflicts, but
because of their deep knowledge about
the organizations they serve, they can
also provide information and a safe,
confidential space where people can dis­
cuss options for reporting and address­
ing their concerns. While the means for
dealing with systemic issues may vary
depending on the type of ombuds, vir­
tually all ombuds consider identify­
ing and addressing systemic problems
within their organization to be among
their main responsibilities.
The growth of ombuds programs
bears witness to the increasing under­
standing of just how much this broader
type of dispute resolution is needed.
Forward-looking colleges and univer­
sities, as well as many large corporations
and other organizations and institutions,
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aba sectIon of dIsPute resolutIon
this article is an abridged and edited version of one that originally appeared on page
7 of Dispute Resolution, Fall 2016 (23:1).
for more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WebsIte: americanbar.org/dispute
PerIodIcals: Dispute Resolution magazine, published four times per year; Just
Resolutions eNews, electronic newsletter published ten times per year.
cle and other Programs: Annual spring conference, the world’s largest
ADR conference; advanced mediation, arbitration, and negotiation training institutes;
monthly teleconferences and webinars
books and other recent PublIcatIons: Structured Negotiation: A Winning
Alternative to Lawsuits; Appellate Mediation: A Guidebook for Attorneys and Mediators;
Inside Out: How Conflict Professionals Can Use Self-Reflection to Help Their Clients;
The Choreography of Resolution: Conflict, Movement, and Neuroscience.
have been surprised by both the variety
and the cumulative significance of the
issues brought to their ombuds, and each
year numerous legislative proposals in­
clude calls for the appointment of new
ombuds to address specific concerns.
The broader view in public school
systems. Our public K-12 school sys­
tems are a great example of both the
need for and the possible opportuni­
ties provided by an effective ombuds
program. As most of us know all too
well, conflicts between parents and
school administrators abound, but the
traditional means of resolving these dis­
putes, whether through litigation or ad­
ministrative complaint processes, can be
expensive, time-consuming, adversarial,
and inflexible for everyone involved.
But such systems may not always serve
the larger good—or even the needs of the
families and administrators involved.
While almost all school disputes involve
distinct facts, many also raise systemic
issues that could be addressed through
revisions to policy or practices. And some
parents and officials really just need to sit
down, talk, listen, and start to understand
the other person’s perspective.
By providing a cost-effective, ef­
ficient opportunity for parties to talk
and for the larger system to learn and
change, an ombuds program can serve as
a check on systemic mistakes and pro­
mote public perception that educational
decision making is fundamentally fair.
School systems are just one arena
where ombuds programs are a valu­
able resource, and in our increasingly
complex and frequently global society,
there are many more. In all these con­
texts, what is needed is an appreciation
of a dispute resolution method that goes
beyond the common law alternatives,
one in which a trained, skilled ombuds
works to help with an individual con­
cern—and improve the system that gave
rise to it. 
65
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
{best of aba sectIons} crImInal JustIce
confIdentIalItY In the age
of socIal medIa
by ty alper
a
lthough the forms of com­
munication today are fun­
damentally different from
even ten years ago, the
legal profession’s concep­
tion of attorney-client communication
and the rules of confidentiality have not
kept up with the times. This article pro­
poses that criminal defense offices and
agencies adopt policies requiring strict
compliance with a blanket rule against
case-related posts on any social media
platform because (1) the harm in posting
about client matters is potentially great;
(2) the harm is easy to avoid by not post­
ing; and (3) the benefits of posting are
nonexistent for the represented clients.
The rule and its violations. ABA
Model Rule of Professional Conduct 1.6,
prohibiting the disclosure of informa­
tion relating to client matters, is famously
broad. Specifically, it states: “A lawyer
shall not reveal information relating to
the representation of a client unless the
client gives informed consent or the dis­
closure is impliedly authorized in order
to carry out the representation.” There
is no “public record” exception to Rule
1.6. Even if the information is already in
the public domain, it is a violation of the
rule for the lawyer to reveal it.
Not surprisingly, violations of Rule 1.6
come in a variety of different forms, with
correspondingly different implications.
Professor David F. Chavkin helpfully
defines several categories of violations in
his article “Why Doesn’t Anyone Care
about Confidentiality? (And, What Mes­
sage Does This Send to New Lawyers?)”
(Georgetown Journal of Legal Ethics, vol.
Ty Alper ([email protected]) is the
associate dean for experiential education and
clinical professor of law at the University of
California, Berkeley, School of Law.
66
25, 2012). First, lawyers and judges tell
“war stories” in both law school and con­
tinuing legal education settings. Chavkin
views this practice somewhat generously,
describing it as “facilitating learning . . .
with the goal of helping students become
more knowledgeable and more ethical
practitioners.” Second, lawyers discuss
their cases with other lawyers in order
to seek consultation or facilitate brain­
storming about strategic decisions. These
NO CRIMINAL
DEFENSE
LAWYER WANTS
A REPUTATION
FOR CASUALLY
REVEALING CLIENT
INFORMATION IN
PUBLIC.
conversations are usually “impliedly au­
thorized in order to carry out the repre­
sentation,” and thus usually not violations
of Rule 1.6 at all. The final category is
“shoptalk,” which Chavkin describes as
the sharing of “client stories with other
practitioners, friends, or spouses or part­
ners simply as a social device.”
As for “shoptalk,” surely most attor­
neys violate Rule 1.6, whether in teaching
or in their personal lives. Some of these
violations are more defensible than oth­
ers. But no form of “shoptalk” should
ever occur over social media. Lawyers,
and criminal defense lawyers in particular,
should practice complete abstinence when
it comes to posting about their cases on
social media. The nature of social media
multiplies exponentially the harm that can
arise from communication among friends
or partners that takes place not orally in
a quiet conversation in a bar or bedroom
but in writing, and in a public forum.
The platform of social media transforms
“shoptalk” from a practice of relatively
little risk to one with a much greater
chance of doing actual harm. Simply put,
no criminal defense attorney should ever
violate Rule 1.6 by discussing aspects of a
case on social media.
Common violations of the rule on
Facebook. Facebook posts violating Rule
1.6 can be grouped into three categories:
“egregious,” “innocuous,” and “middle
ground.” In the category of “egregious”
Facebook posts are examples of lawyers
or law students who have posted highly
sensitive or embarrassing information
about their clients or cases online. On
the far other end of the spectrum are
the “innocuous” Facebook posts. This
category would include the practice of
posting flight information for upcoming
or ongoing trips. For example, a lawyer
flying from San Francisco to Atlanta to
visit a client on death row might post
“SFO=>ATL” as a status update on
Facebook. Nevertheless, these seem­
ingly innocuous posts can be harmful.
An otherwise trivial violation of Rule 1.6
can have larger ramifications for the client
when broadcast, potentially, to the judge,
the prosecutor, the media, and others. Oc­
cupying a large “middle ground” between
the egregious and the innocuous are inap­
propriate posts that mention aspects of
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cases that are usually ongoing or recently
completed. Sometimes the posts do not
seem to refer to a specific case but refer to
the prosecution generally or make rather
vague allusions to previous cases, or both.
Consider these examples: “Great result!
Not guilty on the felony count!” “Wish
me luck, I’m off to rescue my client from
the prison-industrial complex.” “About
to start a long capital trial. Fingers crossed
for a life sentence.”
What’s the harm? First, to be clear,
all of these examples violate Rule 1.6. All
of them reveal information related to the
representation of a client. None of the
examples serve the client’s interests or are
“impliedly authorized in order to carry
out the representation,” nor do they even
serve any public interest.
Second, once a statement is posted on
social media, it can be shared, comment­
ed on, misquoted, misunderstood, and
exploited—by anyone, to the possible
detriment of the client’s interests. Few
are those who understand Facebook’s
frequently changing privacy settings
well enough to ensure that a status up­
date is seen only by one’s own Facebook
“friends.” And even if one’s friends are
the only people who are meant to see a
particular status update, there is no ob­
ligation on the part of the friends not to
share or discuss the update with someone
else, who may then share it with others
or post it in an even more public-facing
forum. Clinical teachers often ask their
students to imagine the prosecutor,
judge, client, jury, witnesses, and media
reading their posts on social media. Con­
sider even some of the “non-egregious”
examples above. Do you want all of these
people to know you are pleased with a
conviction on only the misdemeanor
count? That your goal is to secure a
life sentence? That you think the judge
GPSOLO | ambar.org/gpsolomag
aba crImInal JustIce sectIon
this article is an abridged and edited version of one that originally appeared on
page 4 of Criminal Justice, Fall 2016 (31:3).
for more information or to obtain a copy of the periodical in which the full article
appears, please call the ABA Service Center at 800/285-2221.
WebsIte: americanbar.org/crimjust
PerIodIcals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter,
three times per year; White Collar Crime Newsletter, two times per year (electronic).
books and other recent PublIcatIons: Trial Tactics; Street Legal; The
Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving
Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal
Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and
Procedure in State and Federal Courts; The Child Witness in Criminal Cases; The
Criminal Lawyer’s Guide to Immigration Law; The Shadow of Justice (fiction).
is complicit in the perpetuation of the
prison-industrial complex? The nature
of social media is such that a Facebook
post that may fall into the “innocuous”
category can take on a life of its own, par­
ticularly as it is shared and commented
on in the social media arena.
Third, the lawyer’s reputation is at risk.
It is not difficult for a Facebook post to be
shared, and it does not have to “go viral”
for it to cause significant damage to a law­
yer’s reputation. No criminal defense law­
yer should want a reputation for casually
revealing information about a client in a
public forum. Avoiding social media is an
easy way to make sure it does not happen.
Finally, posting about our cases on
social media sends the wrong message
about the dignity of clients and the crimi­
nal defense bar’s regard for the sanctity of
the rules of confidentiality. In a system
in which our clients often literally have
no voice, we have a duty not to speak in
a way that further disempowers them or
in ways that do not represent their views
and interests. The sample posts above not
only undermine our clients, they also un­
dermine the work we do to ensure that our
clients are treated with dignity and respect
in a system that too rarely acknowledges
their humanity. Indeed, while many re­
spected criminal defense lawyers post in­
formation about clients, the uncomfortable
truth is that attorneys who work at large
corporate law firms almost never post on
social media anything about their firm’s
cases. Most corporate firms have explicit
policies against posting any information
about a case in any social media forum.
Nobody in our profession should more
zealously guard the interests of our clients
than lawyers representing people facing
criminal charges. The fact that indigent cli­
ents are less likely to see social media posts
about their cases than the paying clients of
corporate law firms makes it even more
important to avoid engaging in the practice.
We owe this duty to clients who have no
say in who ends up representing them or
what is said about them in public forums. 
67
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
ˉnIn rePorts
ro
gIVIng dIlIgence Its due
by benjamin k. sanchez
W
henever lawyers hear the
word “diligence,” most
automatically think
about the research that
is done prior to enter­
ing a business transaction, especially a
merger or acquisition. How many of
us are aware, however, that diligence in
our profession is an ethical mandate that
far exceeds pre-transaction research? In
fact, diligence is the third rule in the ABA
Model Rules of Professional Conduct:
Quite frankly, while many of us know
the basic meaning of promptness, few of
us will agree on what diligence means, let
alone reasonable diligence. I encourage
you to take a few minutes to join me in
giving diligence its due.
PuSh forward deSPiTe PuShBack
Comment 1 to Rule 1.3 is very telling
in defining diligence. First, “[a] lawyer
should pursue a matter on behalf of a cli­
ent despite opposition, obstruction, or
personal inconvenience to the lawyer.”
Too many lawyers these days take the
easy way out and withdraw from a case or
terminate a client when the case becomes
inconvenient or the client becomes the
slightest bit ornery. Yet, the Model Rules
contemplate that the road will not always
be easy for the attorney, and the attorney
should know that before starting on it.
Just because most solo and small firm
attorneys have a choice in their clientele
doesn’t mean that the choice to stop
pursing a matter is simple. As a profes­
sional whose very job is to fight for your
Benjamin K. Sanchez (bsanchez@
sanchezlawfirm.com) is a commercial and
collection litigation attorney and JMT-certified
coach, trainer, and speaker in Houston, Texas.
68
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Rule 1.3 Diligence: A lawyer shall
act with reasonable diligence and
promptness in representing a client.
clients, you must not allow pushback to
be a deterrent. The legal world is not so
easy, and the public trust in our profes­
sion is predicated on the very idea that
we will do what is right even when it is
hard. Most of us understand that we will
encounter opposition and even obstruc­
tion in our endeavors to represent our
clients, but too many of us are unwilling
to endure personal inconvenience in those
endeavors. I have seen too many lawyers
not just complain about their cases and
clients but actually withdraw in the face
of difficulty. Isn’t that what your client
hired you for, to be the one to engage
the difficulties when the client is unable?
Didn’t you agree to engage in such battles
knowing that there would be opposition,
obstruction, and personal inconvenience?
While our profession benefits from all
sorts of personalities in order to handle
the diverse personalities that we encoun­
ter, one character trait we must have and
exhibit is courage. Without courage, we
will crumble in the wind and wither in
the storm. Our clients give us their trust
in reliance on our courage to do what they
cannot. Though courage has its ethical
boundaries, such boundaries are not an
excuse to be without it. You will face prob­
lems in your career; our profession is built
on tackling problems. Do not be so faint
of heart to let a little difficulty deter you
in your representation of clients.
vindicaTe a clienT wiThin reaSon
Why must we pursue the client’s matter
despite difficulty? Comment 1 to Rule
1.3 mandates that a lawyer should “take
whatever lawful and ethical measures
are required to vindicate a client’s case
or endeavor.” When you take on a cli­
ent’s case or endeavor in the beginning,
you acknowledge that you will perse­
vere despite the difficulty and do what
is lawful and ethical in furtherance of
the client’s case. Notice that Rule 1.3
doesn’t require doing whatever is nec­
essary. Our commitment to our client’s
cause is not boundless. There are ethi­
cal limits to our representation, and thus
the idea of what “reasonable” means
in reasonable diligence.
We are not expected to “press for
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
every advantage that might be realized
for a client.” We “may have authority
to exercise professional discretion in de­
termining the means by which a matter
should be pursued,” such that our “duty
to act with reasonable diligence does not
require the use of offensive tactics or pre­
clude the treating of all persons involved
in the legal process with courtesy and
respect.” Thus, diligence is not only how
we act for our clients but also how we
act within our profession. Reason itself
has a moral compass, and diligence must
include that moral direction.
MainTain conTrol for coMPeTence
Comment 2 to Rule 1.3 states that “[a]
lawyer’s work load must be controlled
so that each matter can be handled com­
petently.” The law practice management
industry is built almost entirely on the
notion of controlling our work load,
from intake to file destruction years after
a matter has been closed.
Years ago, before the technological
revolution and the rise of computers,
attorneys worked by hand and legal
resources were few. There was only so
much time a lawyer had to work on cli­
ent matters, and the amount of matters a
lawyer could handle at any one time was
very limited. We now live in an age where
quantity and size seem to matter more
than quality. Computers, legal resources,
laws, and clients in some respects are
virtually unlimited. We are pressured to
do more because we have more. Clients,
courts, and colleagues demand more
work be done at a faster pace because
that is what we are used to in today’s
world. Instant news has pushed investi­
gative news aside. Instant gratification is
valued more than enduring the journey.
As attorneys, we flood the courthouses
with motions at every whim and in turn
must respond to everyone else’s motions.
We have little time to see the forest be­
cause we are mired in the trees.
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Controlling our work load is done
in many ways. From the number of
matters we take on to how we handle
these matters daily, our work must be
thoughtful and measured. Many times,
our personal finances force us to take on
more clients than we should because we
are looking for more money to pay our
expenses and luxuries. We get in over our
heads and can’t focus on any one matter
too long, or even at all. We don’t invest
in proper technology to help us man­
age our load. With our ever-increasing
dockets, it’s almost negligent not to have
practice management systems in place.
Gone are the days that we can simply
remember everything in our heads. How
many times have we heard of or given
the excuse that something wasn’t on our
calendar? It’s not that we don’t have cal­
endars, but rather we either don’t have
a system in place to move the date from
our head or notes into our calendar or
get so distracted and busy that we fail
to use the system. Systems don’t work
without input; thus, we must be ever
vigilant in ensuring information is put
into our practice management systems
so that such systems work properly and
increase our diligence.
delay, “unreasonable delay can cause a
client needless anxiety and undermine
confidence in the lawyer’s trustworthi­
ness.” While promptness is not neces­
sarily diligence, the two must go hand in
hand. When we are not diligent, we are
subject to delay and downright oversight
altogether. When we are handling our
work load in a competent manner, we are
more likely to be timely and productive.
There is no way to manage time, but you
can manage yourself more effectively so
that you can use time more wisely.
honor coMMiTMenTS
When each of us became a lawyer, we
made a commitment to honor the public
trust bestowed on us. When we hold our­
selves out as lawyers and invite clients to
place their ultimate trust in us, we prom­
ise to be diligent in all matters. Our own
ethical rules mandate such, and to ignore
that promise is to do a disservice to our
clients, our profession, and ourselves. As
Comment 1 to Rule 1.3 states, we “must
also act with commitment and dedication
to the interests of the client and with zeal
in advocacy upon the client’s behalf.” We
must do so in a timely and competent
manner despite opposition, obstruction,
and personal inconvenience.
ProcraSTinaTion: a lawyer’S eneMy
In one of my columns, I wrote about
procrastination, including why it’s a
problem and how to attack it. I and many
other lawyers suffer from this dreaded
condition. If you are a procrastinator,
too, don’t be discouraged, because you
are not alone. Comment 3 to Rule 1.3
discusses procrastination, calling it the
most widely resented shortcoming we
have in our profession. As the Com­
ment notes, “[a] client’s interests often
can be adversely affected by the passage
of time or the change of conditions” or
even destroyed when a statute of limita­
tions is overlooked. Even when such dire
consequences are not the result of our
Be diligenT aBouT BecoMing
diligenT
My homework assignment for you is to
take one Saturday, when the phones aren’t
ringing and you aren’t disturbed by cli­
ent meetings, court hearings, and other
distractions, simply to review your cases
briefly, determine their current statuses
and next steps, and then think about how
you can work more effectively and effi­
ciently to become a more diligent lawyer
for your clients. I encourage you from
then on to take time to touch each case
every month, keeping up with the status
and determining next steps. A diligent
lawyer has happy clients! 
69
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
mac user
note-takIng aPPs: an uPdate
by Victoria l. herring
Victoria L. Herring ([email protected])
practices in Des Moines, Iowa, in an office that
has used only Apple/Macs since the early 1980s.
70
iStock
I
n the June 2010 issue of GPSolo, I
wrote a Mac User column entitled
“Note-Taking Applications for Apple
Users” (tinyurl.com/hsdnuzm). Seven
years is eons in terms of modern
technology, so I am revisiting the topic
here. Just as I found earlier, it is difficult
if not impossible to put together a short
article examining all the options for note
taking. Therefore, I decided to limit the
list a bit. In the sidebar at right are ci­
tations to online articles, essays, etc.,
which provide further information and
from which I distilled much of the con­
tent of this article. Other excellent places
to review the options are the Apple App
Store (apple.com), which has a separate
category for “Get Stuff Done” apps on its
front page, the iTunes Store (apple.com/
itunes), which focuses on iOS apps, and
macupdate.com, where you can search
for note-taking, list-making, or taskmanagement apps, as I did.
For this article I decided to focus on
the following factors to decide which
applications are the most useful for note
taking on Mac and iOS devices: whether
it’s free (although some of the apps below
have a premium cost option, all start out
free, at least for a trial period or the basic
version); whether it syncs across comput­
ers and iOS devices (so you can create
a note on your computer and edit it on
your iOS device); whether it takes notes
using pen or finger and allows images;
and whether it allows notes to be made
using dictation.
Also, there is a distinction between
applications for note taking and those
for task management or the making of
lists. Each of these functions can be ac­
complished by just creating a document
in Word, Pages, Numbers, Excel, Text
Edit, or Reminder. The problem is not
that these apps cannot be useful, but they
are not specifically focused on creating
notes, tasks, and lists. That focus is im­
portant, so, perhaps the first step is to
figure out what it is you want to do: Do
you just want to make lists (for grocer­
ies or favorite books)? Do you want to
use “get things done” task management
concepts and get your life in order? Or do
you want a note-taking app that can do
other functions as well, if needed?
The overview below is not an exhaus­
tive list or discussion of note-taking ap­
plications but is focused on my top five
applications. There are many more men­
tioned in the articles I reviewed. Because
everyone’s needs and method of note
taking are different, you will need to de­
cide how much further to research and
which to use. In the sidebar are URLs
for the various articles consulted on this
topic, so you can make your own deci­
sion. For the purposes of this article, I
did do some minor testing and have some
thoughts to share.
Evernote (evernote.com). Almost all
the articles I consulted list Evernote as the
top contender. In fact, Evernote is such
a full-featured program that it requires
study to even get a handle on its many
features. I’m a great believer in KISS
(“keep it simple, stupid”), which means
that I don’t use Evernote very often or
very well. I have an Evernote account and
for a time had a paid account, but the price
increased too much for me. I do not find
myself using it other than to save things
for later access. But it’s a fine application,
and if you want full features, it’s not too
expensive for what you get.
Microsoft OneNote (onenote.com).
Close on the heels of Evernote in the view
of these articles is Microsoft’s OneNote.
This it is a free stand-alone app, but it is
better used in conjunction with the Mi­
crosoft Office suite. It is, like Evernote,
extremely full featured and does take a bit
of effort to learn.
Apple Notes (icloud.com/notes).
Over the past few years Apple’s Notes
application has improved sufficiently for
it to be highly rated in the articles con­
sulted. It’s an easy application to use if
you’re already in the Mac universe, it’s
free, and it resides on and syncs with all
your Apple devices as well as a number
of non-Apple Internet accounts (such as
Google and Exchange). It is similar to the
old Stickies app (still in existence) and is
easy to use and simple, yet it has useful
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features. Because it’s an Apple product, it
fits the KISS bill. Of course, it’s best for
those who are deeply embedded into the
Apple ecosphere, as I am.
Simplenote (simplenote.com). The
next application that gets good marks in
most of the articles I consulted is Sim­
plenote. It is what its name indicates: a
simple note-taking application. You cre­
ate a web-based account and then put the
application on your Mac and iOS devices
and write notes anywhere, which are then
synced via the web. It allows the dicta­
tion of notes, but it handles text only—no
images or handwriting. That is one of its
drawbacks, but if you’re not using images
too often, it should not be a problem.
Google Keep (google.com/keep). A
new kid on the block is Google Keep. It
does appear to be quite simple and easy
to use, and you can collaborate using it.
However, one author cautioned against
relying on it because it might go away,
much as Google Reader did. If an applica­
tion ceases to exist suddenly and without
any backup or export possibility, that’s a
fair criticism, and you would be wise to
avoid it. In fact, given this possibility, you
might want to consider whether any of
these applications have an easy method
of exporting data, and, more importantly,
whether their data is retained somewhere
in a duplicate file, on your computer or
in the cloud, accessible to you even if the
application goes south.
There are a number of iOS note-taking
apps (available from iTunes App Store)
that allow you to use handwriting in
addition to typing on a keyboard. One
is Paper and another that receives high
marks is Penultimate (from the folks at
Evernote), but they do not have match­
ing Mac computer apps. And you would
be wise to read the review comments. Of
course, as newer Macs come along and the
OS is updated, maybe they will become
useful on Mac computers as well.
All the note-taking applications above
GPSOLO | ambar.org/gpsolomag
FURTHER RESOURCES
Mac Update: macupdate.com
Apple’s App Store (for Mac OS X as well as iOS): apple.com
“Evernote, OneNote, and Beyond: The 12 Best Note-Taking Apps,” Jimmy Daly, Zapier,
October 22, 2015: tinyurl.com/zxbg7cj
“40 of the Best To-Do Apps for Personal Task Management,” Andrew Kunesh, Zapier,
April 21, 2015: tinyurl.com/zyfl55m
“The Best iOS Apps for Taking Notes with Apple Pencil + iPad Pro,” Chance Miller,
9to5Mac, April 6, 2016: tinyurl.com/zwkvc8u
“The Best Apps for Taking Notes,” Joel Mathis, Macworld, September 1, 2014: tinyurl.
com/haqmhm5
“5 Best Note Making Software/Apps for Mac,” Yogesh Kumari, TechGYD, June 3, 2016:
tinyurl.com/jnw8lzu
“What Is the Best Note Taking App for Mac?,” Slant: tinyurl.com/hwme4ak
“Should You Be Using Apple’s Notes for iOS and OS X?,” Bryan Wolfe, Make Use Of, Feb­
ruary 24, 2016: tinyurl.com/j299vxf
“2016 Guide: The Very Best Notes App for Your iPhone and iPad,” Craig Grannell,
TapSmart, February 23, 2016: tinyurl.com/zpqd6m9
“The Best Note Taking Apps for Students,” Thorin Klosowski, Lifehacker, August 8,
2016: tinyurl.com/j2n4ucp
“The Top 12 Note Taking Apps for Getting Things Done in School,” C.M. Smith, Lifehack:
tinyurl.com/hoohucr
“7 Best Note Taking Apps,” Brett Nuckles, Business News Daily, October 5, 2016: tinyurl.
com/nuvzvsh
are free (at least for a trial period or for
the basic app). The articles listed in the
sidebar above include quite a few other
free or inexpensive note-taking apps that
might be worth exploring. For instance,
Notability (gingerlabs.com) is worth it
for writing and retaining information
for a little over $10. (I generally do not
engage in subscription plans that charge
a set amount every month or year.)
So, how do you figure out which ap­
plication you want? Figure out the factors
that are necessary for you: cost, the ability
to sync across devices, the ability to take
dictation, the creation of simple notes or
lists as well as complex and detailed notes.
There are many other factors, but they are
all somewhat dependent on the user and
his or her needs or wants.
One other feature worth mentioning for
some note-taking apps is IFTTT (ifttt.com/
discover), a web-based, free service allowing
you to create workflows that will do things
automatically. For instance, you can create
a channel for Evernote, then a workflow so
that every time you have a blog post, it is
copied to Evernote. Check out IFTTT for
yourself—the ability to automate actions
might be worth it for you. Because I use
Evernote, I do have a few of the workflows
related to Evernote. I have not tested out
IFTTT in other note-taking applications,
but I plan to do so in the future.
As noted above, your choice of notetaking apps will depend on your purpose.
I hope this article and the resources in
the sidebar above will help guide you to
a wise choice. 
71
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
technologY sPecIal rePort
ces: What’s neW In the World
of consumer technologY
by Jeffrey allen
f
or anyone who has not heard
the acronym “CES,” it does not
represent a legal concept. The
initials stand for the Consumer
Electronics Show. For the last
half century, vendors, distributors, buy­
ers, and the press have gone to the CES
where they show, buy, and/or ogle the
offerings from the makers and sellers of
technology for consumers.
I have gone to CES in Las Vegas,
Nevada, every January for most of the
last quarter century. In that time, I have
watched CES grow dramatically in size
and scope—most significantly after the
collapse of the computer show known
as COMDEX, held in Las Vegas every
November for many years. COMDEX
canceled its show in 2004 and never held
another one. Many vendors that had
gone to COMDEX went to the next CES
instead, significantly increasing the at­
tendance. Many continued to go to CES,
and as the event grew, it attracted even
more exhibitors.
CES always presents an interesting
collection of goods and services, some
new and exciting (even revolutionary),
most less exciting and more evolution­
ary than revolutionary. This year held
particular interest for me as it focused on
some relatively newly emerging technol­
ogy and continued the evolution of the
IoT (Internet of things). I found myself
particularly drawn to the health technol­
ogy and to the vast array of drones on
display. The explosion of offerings in
the smart-home rubric tapped into my
Jeffrey Allen ([email protected], jallenlawtekblog.
com) is the principal in the law firm of Graves &
Allen in Oakland, California. A frequent speaker on
technology topics, he is Editor-in-Chief of GPSolo
magazine and GPSolo eReport and a member of the
Board of Editors of Experience magazine.
72
curiosity, and I spent a fair amount of
time looking at those devices.
3-D printers. Another thing that fas­
cinated me came under the heading of
evolutionary, not revolutionary. I have
watched the evolution of the 3-D print­
ing technology with interest. We see bet­
ter and more versatile 3-D printers every
year. The printers shown at CES ranged
widely in size, efficiency, competence,
and cost. For those of you who do not
have a good grasp of what 3-D printing
does, it uses digital files to build threedimensional objects using whatever
materials the printer has been set up to
accommodate. Printing from a 3-D print­
er literally results in the construction of
a solid object from the bottom up. The
printer lays down one layer of material
after another until it completes the object.
Most 3-D printers use a plastic filament as
the construction material, but some print­
ers employ many other materials. Materi­
als used for 3-D printing include, without
limitation, ABS plastic, PLA, polyamide
(nylon), glass-filled polyamide, graphite,
graphene, epoxy resins, silver, titanium,
steel, wax, photopolymers, and poly­
carbonate. I have seen a wide variety
of products generated by 3-D printers,
including various toys, figurines, chess
pieces, small parts for other devices, and
molds for casting jewelry.
At CES I saw one 3-D printer that I
found quite impressive. I am negotiating
for a demo unit so I can try it out. If that
comes to fruition, I will likely review
it for you at a later date. From what I
could see on the exhibit floor, it appeared
compact, solid, stable, competent, and
efficient, and it only costs $699.
VR and AR. If you want to sound
like you know your stuff when it comes
to technology, you need to keep current
in the latest terms and acronyms. For
you old-timers who think “VR” means
voice recognition (as it used to do and
still does), be advised that it now also
refers to virtual reality, and you have to
differentiate by context.
Virtual reality relates to the ability
to create a computer-generated simu­
lation of a three-dimensional image or
projected environment where a user can
interact in an apparently real way, usually
using special electronic equipment such
as goggles with a screen inside.
You also need to distinguish be­
tween virtual reality and augmented
reality (AR). Augmented reality blends
elements of virtual reality and real life.
Developers can create images that merge
with the real world, allowing users to
seemingly interact with virtual compo­
nents in the real world.
Although both have business uses,
they come into play most heavily (so far)
in entertainment and gaming. I point this
out because I saw a significant amount
of VR and AR at the show. Expect to see
devices to facilitate both in droves during
the next year or so. Be careful with them:
Augmented reality, while it might prove
entertaining, may also prove highly dis­
tracting and ultimately expose the user
to dangers resulting from inattention to
the real world owing to the distraction of
the augmentation. It should go without
saying that you should not play with AR
while driving any vehicle, and you are
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GPSOLO | ambar.org/gpsolomag
In a similar vein, smart devices can
measure your activity during a workout
to gauge how efficiently and effectively
you exert yourself. Some of the devices
also have a coaching function to help you
in your efforts, functioning effectively as
a virtual personal trainer.
Smart-home tech. To my surprise,
the smart-home devices took up an ex­
tremely large part of the exhibit space.
It seems that the marketing departments
for every company making things for the
house from doorbells to refrigerators and
beyond have decreed that whatever you
make, you must add the word “smart”
in front of it before you let it on the
market if you want it to sell. We now
have, in addition to our smartphones,
smart deadbolts and door locks, smart
refrigerators, smart thermostats, and,
the one that caught me most off guard,
the smart toilet (sorry, but that seems
like an oxymoron to me; if it had any
brains, I suspect that it would not serve
as a toilet. . .).
FYI, they call the toilets “smart” as
they can figure out when to flush them­
selves (no need to push a lever anymore).
They also can determine the amount of
water necessary to complete the flush
and regulate the flow of water (kind of
an automatic version of the toilets I have
found regularly in Europe, but not so
often in the United States); they give
you the option of manually selecting a
smaller or larger flush depending on the
content of the toilet bowl. Some of the
smarter toilets also have overflow pro­
tection. Other features available on the
smart toilets (at varying prices) include:
 massaging bidet wash;
 air dryer;
 heated toilet seat;
 foot warmer;
 remote control;
 self-cleaning;
 self-deodorizer;
 nightlight;
and what smart toilet would be complete
in today’s word without
 Bluetooth and MP3 capabilities to
provide entertainment while you
utilize it.
The smart refrigerators have a feature
range from a camera that lets you con­
nect to it from outside the house to see
what you have there and determine what
you need to buy at the store, to the Samsung Family Hub, which incorporates a
WiFi-enabled touchscreen on the door to
facilitate the management of your shop­
ping list, communications with family
members, maintaining family calendars,
sharing pictures, and, of course, enter­
tainment—it will stream and play music
through the built-in wireless speakers. In
case you found yourself wondering, the
smart refrigerators come at a steep cost
increase over not-so-smart refrigerators
(like most of us currently have). Sam­
sung’s Family Hub lists for just under
$6,000 (I have seen it discounted online
by about $1,500 to $1,600).
Image courtesy of Samsung
well advised to use caution if you use
AR while walking in traffic.
IoT. One of the biggest players at
the show, the Internet of things (IoT),
showed up almost everywhere. IoT re­
fers to the connection through the In­
ternet of computing devices embedded
in everyday objects, enabling them to
send and receive data. We use the term
IoT to incorporate much of the healthtech and smart-home technology we
encounter. Speaking of health tech and
smart homes, they each accounted for an
amazingly large piece of the show. A few
years ago, these represented very small
components; now they appear almost
ubiquitous.
Health tech. Health tech includes a
collection of devices (wearable and not)
that electronically poke, prod, and assess
us in our sleeping and waking hours to
determine the state of our health. They
can measure caloric intake, caloric use,
blood pressure, oxygen levels in our
blood, blood glucose, strength, physi­
cal activities, brain activity, how long and
how soundly we sleep, and more. Many
of these devices come with Internet con­
nectivity (usually WiFi), enabling them
to transmit information to your doctor
or simply to an Internet account that will
store the information for you and main­
tain your records for later reference and/
or transmittal to your medical team. The
Apple Watch, Fitbit devices, and similar
technology represent examples of this
part of the pie, but they only scratch the
surface. On the horizon you will find
myriad condition-specific devices that
can supply continuous monitoring to the
patient and information to the medical
team via a wireless connection. Also on
display were several devices that can fa­
cilitate the diagnostic process for medical
professionals.
Samsung Family Hub
73
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technologY sPecIal rePort {contInued}
74
shapes. The drones ran the gamut from
those designed for commercial uses to
those designed for entertainment. Most
of the drones contained high-definition
video cameras with the ability to record
information as they flew, often transmit­
ting it wirelessly to the ground. Drones
seem to captivate many of us, and at CES
the crowds around areas where vendors
were demonstrating their drones grew
very large. The drones ranged from
the mundane to the fanciful, including
drones predicated on the Star Wars fran­
chise, drones designed for use in drone­
to-drone combat, drones designed to
record information about properties
and topography, and drones designed
to monitor construction or other proj­
ects in progress. I saw drones of all sizes
and shapes, ranging from some less than
an ounce in weight that would fit on a
fingertip to others several pounds in
weight and almost a yard across. One
of the drones I found most impressive
folded up into a very small, compact,
secure unit easily carried in a backpack.
The drones I saw ranged in price from
under $50 to several thousand dollars.
The drones came in many configura­
tions, but the most common included
four propellers mounted to the top of the
drone, similarly to helicopter propellers.
In fact, such drones often are referred to
as “quadracopters.”
Some of the drones I saw came with
separate controller devices, others op­
erated through smartphone apps. Some
of the smaller drones work well indoors
(perhaps even better than outdoors as
their size makes them vulnerable to
relatively small gusts of winds). The
larger drones are designed for outdoor
use only. A word of warning: The Fed­
eral Aviation Administration (FAA) has
imposed regulations respecting drones.
These regulations require registration of
drones of a certain size. Flying an unreg­
istered drone can result in a significant
fine. The basic flying rules imposed by
the FAA include:
 fly below 400 feet and remain clear
of surrounding obstacles;
 keep the aircraft within visual line
of sight;
 remain clear of and do not interfere
with manned aircraft operations;
 don’t fly within five miles of an
airport;
 don’t fly near people or stadiums;
 don’t fly a drone that weighs more
than 55 pounds; and
 don’t be careless or reckless.
If you are interested in getting a
drone, be sure to check out the FAA
rules. (PC Magazine recently published
a summary of these rules: tinyurl.com/
hp8u4kl.) Additionally, some localities
have their own restrictions relating to
drones, and you should check out that
possibility wherever you plan on flying
Image courtesy of DJI
Smart door locks let you skip carrying
keys and gain entry to your house or of­
fice using biometric measurements (e.g.,
fingerprint scans) or a smartphone app.
Smart doorbells connect your front
porch to the Internet and let you answer
the door from anywhere in the world
you have an Internet connection, allow­
ing you see who is at the door and speak
directly to them. Just think of it: You can
reject the overtures of a door-to-door
salesperson from across the city, across
the country, or even overseas.
If you have a smart house, all the
smart devices you have installed con­
nect to each other and to the Internet,
allowing you to control them remotely
from wherever you happen to be through
a wireless connection and a smartphone
app. So, with a smart house, you can
turn the thermostat on or off, answer
the door, check on your groceries, watch
your pets play, lock or unlock the door,
etc., etc. (you get the picture), from inside
the house, inside your car, at your desk,
or on your vacation.
In all honesty, as I wandered through
the maze of smart devices displayed at
the show, thinking that we had finally
reached the point where we might envi­
sion life as in The Jetsons animated tele­
vision show, I had to wonder whether
someone planned on making smart
people who could use all these devices
productively. For those of you too young
to remember George Jetson and family:
The Jetsons was produced by HannaBarbera, the same people who gave us
The Flintstones (the animated show for
which the vitamins were named). The
Jetsons debuted in the early 1960s and
presented an animated sitcom based on
a futuristic version of our world. While
we have not yet fully achieved all that the
Jetsons’ lifestyle depicted, it appears that
we are moving ever closer to that image.
I, for one, will hold out for the flying car
that folds into a briefcase at the push of
a button and somehow weighs so little
that the case can easily be carried.
Drones. Speaking of flying machines,
when I went through the exhibits, I
saw hundreds of drones of all sizes and
Phantom 4 Pro quadracopter drone
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your drone. (See tinyurl.com/jerou5w.)
Smartphone cases. Getting back to
the more mundane, I always leave CES
impressed by how many vendors really
and truly believe the world needs another
smartphone case. In that sense, this year
was no exception, but this year did see
the first claims I saw for “smart cases”
for smartphones. I did not see a lot of
companies try this promotional gambit,
but there were enough to cause me to
wonder about the possibility of litigation
over smart cases designed for the Samsung
Galaxy Note 7 not being smart enough to
stay off a phone that might catch fire (just
kidding). In this context, the reference to a
“smart case” means a case that can morph
into other functions than simply holding
the phone. Such features don’t represent
a new concept, only a new label. They
expand a concept that we have had for
some time (cases functioning as wallets
or providing additional battery power
or additional photographic capabilities).
Closing thoughts. Those of you who
have followed my writing know me as
an avid technophile. Nevertheless, I ac­
knowledge that there can come a time
when we have too much of a good thing.
I will never say that we have too much
technology, but I came away from CES
this year thinking that, while we have
developed some exceptional technology
and some wonderful inventions to make
our lives easier and more productive, we
also have a lot of waste of effort and re­
sources, resulting in the creation and of­
fering of things having what I will most
charitably describe as marginal utility. I
recognize that many of these marginal
items will not continue as viable in the
marketplace owing to their lack of ap­
peal to end users, but I do consider it
unfortunate that so much time, effort,
and money go into the development of
things that offer relatively little in terms
of innovation or advancement. I believe
that we can do better and that we should
do better. That said, hope springs eternal;
I plan on making my annual pilgrimage
to CES in Las Vegas next January. As
always, I will look for new and different
things that will make life better. 
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2016 • 7x10
248 Pages • Paperback
Product Code: 5150489
List Price: $64.95
GPsolo members: $51.95
mAstering the Art of
depositions
By saWnie a. mCenTire
The goal of every trial lawyer is to make every
deposition come alive, making it interesting and
compelling for the jury. Mastering the Art of
Depositions uses a hands-on approach with real-life
examples that explain how to achieve successful
results. This book provides practical advice for both
beginning lawyers and seasoned trial attorneys
on how to take and use depositions for maximum
advantage.
Differing techniques for lawyers on both sides of the
bar are explored, and techniques that can be used
when deposing hostile or adverse witnesses, expert
witnesses, and lay witnesses are considered. Lastly,
this book presents “best practices” for preparing
and presenting client representatives and testifying
experts for deposition, and the effective use of
objections during depositions.
To order this title or other
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Product reVIeW {sPonsored content}
edIscoVerY PoInt
by Jeffrey allen
All images courtesy of Thomson Reuters
t
homson Reuters’ (TR) eDis­
covery Point (EDP) provides
a cloud-based e-discovery
solution for attorneys. TR
designed EDP to help solo
and small firm attorneys deal with the
demands of e-discovery in a way that
puts the user in control of time and costs,
a refreshing change for the e-discovery
process and its supporting technology.
Thomson Reuters released EDP last
year, and it received accolades such as
the 2016 New Product of the Year from
Legaltech News in its annual innovation
awards. TR has advised that in the prod­
uct’s first year approximately 75 percent
of its customers came from the ranks of
solo and small firm attorneys (TR used
29 or fewer attorneys as the cutoff for
small firms in this calculation).
TR has had a long-standing sponsor­
ship relationship with the Solo, Small
Firm and General Practice Division of
the American Bar Association and has
taken advantage of this relationship to
augment its knowledge of what solos
and small firm attorneys need to sup­
port their practices. TR developed EDP
to facilitate the work done in solo and
small firm law practices.
EDP is browser-based. It works with
the more recent iterations of both the
Mac and Windows operating systems; it
also works with mobile devices such as
tablets running Apple’s iOS or Google’s
Android operating systems. Although
TR reports that it works with almost
all browsers, I am advised that insiders
recommend using Chrome (available on
most platforms), as it provides the best
experience. Because it lives in the cloud,
Jeffrey Allen ([email protected], jallenlawtekblog.
com) is the principal in the law firm of Graves &
Allen in Oakland, California. A frequent speaker on
technology topics, he is Editor-in-Chief of GPSolo
magazine and GPSolo eReport and a member of the
Board of Editors of Experience magazine.
76
eDiscovery Point interface screens.
you can access your data anywhere that
you have a reliable (preferably, highspeed broadband) Internet connection.
This feature poses both a benefit and
a detriment as the flip side of the coin
means that if you have no reliable In­
ternet connection, you cannot access or
work with your data.
You can directly upload your docu­
ments to TR’s secure servers (drag and
drop and then wait for your broadband
to get the documents up there), or you
can send your documents on a storage
device to TR for uploading. Either way
works and ultimately provides the same
result, but if you have a large quantity
of documents, you may find it faster to
overnight a drive to TR and have the staff
there upload your data directly to the
servers. Once you have the documents
online, TR automatically processes them
to make them usable by the system.
“Processing” the documents means that
EDP converts them to HTML5, scans
them for virus infection, de-duplicates
them, and runs them through an optical
character recognition process. It reads
and records the documents’ metadata
as well. Once you have the documents
uploaded and processed, you have the
option of simply storing them there
or reviewing the metadata and sorting
them into such groups as the metadata
makes possible. Surprisingly, this status,
called “pre-review” does not cost you
anything. You pay no fee for the storage
or the processing of these documents at
this stage. Payment is based only on the
documents you to choose to place into
“review” (i.e., submit to be fully pro­
cessed and accessible for discovery pro­
duction). Until you put the documents
in “review,” you cannot access content
other than metadata or create a produc­
tion file.
Other features that TR built into
EDP include the ability to Bates stamp
the pages in review (called “Document
Processing Number” in EDP-speak).
EDP also allows you to produce a file
of some or all the documents in review
for discovery production. It also gives
you the ability to redact those portions
of the documents necessary to protect
confidentiality or privacy. The redaction
does not obliterate the redacted mate­
rial to you, but it blocks the information
completely in your production files. It
GPSOLO | March/April 2017
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
also allows you to produce a file of some
or all the documents in review for dis­
covery production.
TR built EDP using the NUIX data
system. For those of you unfamiliar with
NUIX, it offers one of the most highly
respected and strongest data-processing
software programs on the market. As a
practical matter, other than by adoption
of a system such as EDP, most solos and
small firm attorneys would not have
the opportunity to use and benefit from
NUIX. The NUIX system costs more
than most solos and small firm attorneys
can (or will) justify. The software also
requires some very high-powered hard­
ware to run. Purchasing and installing the
hardware represents only the beginning
of the process, as someone must main­
tain the hardware. Most solo and small
firm practices do not have the financial
resources to do those things, and, accord­
ingly, NUIX has generally served only
the larger firms. EDP gives solos and
small firm attorneys access to the same
tools used by many larger firms, without
the investment otherwise required.
you to access by phone 24/7/365. Most
significantly, TR has adopted the model
of providing a dedicated case manager
to work with you and your staff on all
your EDP cases. Notably the model is
firm rather than case based, so you get
the same case manager assigned to your
firm for all cases, rather than a different
manager for each case or a random as­
signment that may or may not give you
the same manager for more than one case.
The system also provides for backup
support should your case manager not
be immediately available when you call.
The case manager will provide tech­
nical support to you and your staff, but
(and this is extremely significant in my
book) the case manager will also help
you set up e-discovery demands to help
ensure you ask in the right way for the
right things. For those of you relatively
inexperienced with e-discovery, this
can prove extraordinarily helpful in
complying with the “meet and confer”
requirements imposed by the Federal
Rules of Civil Procedure and by some
state discovery rules.
For some time, the federal courts
have expected counsel to have a working
knowledge of technology and the pieces
of the production and e-discovery pro­
cess. More and more state courts have
moved or are moving in the same direc­
tion. If you do not have that knowledge,
do not expect the court’s sympathy. More
likely they will say that you have an obli­
gation to learn it or to hire someone who
can provide that help to you. Such con­
sultants generally do not come cheaply,
but you likely can get a great deal, if not
all, of the help you need from your EDP
case manager.
Pricing
TR bases its pricing structure on volume,
and, as noted above, limits that volume
to the documents you choose to place
in “review.” TR has adopted two pric­
ing models: One charges on a per-case
basis, the other on a general subscription
SuPPorT and Training
TR has set up access to EDP to coordi­
nate with your access to the TR research
features you likely already have for your
firm. You use the same log-in informa­
tion (your “one pass” log-in) to make it
as easy as possible. As you would expect
from TR, the service has solid customer
support and very capable trainers that
will take whatever time you and your
staff require to learn how to use EDP
efficiently and competently. When you
start using EDP, you will want custom­
er support to give you and your staff a
training presentation to teach you how
to use the program. With a little practice,
you should find the process relatively
easy. If you need a refresher or encounter
a problem, TR has expertise available for
GPSOLO | ambar.org/gpsolomag
Better understand your data and filter out any unneeded information
before sending it to review. Because pricing is based on gigabytes
in review, this can result in significant cost controls.
77
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Product reVIeW {sPonsored content}
SecuriTy
Highlight selected text and add a note, redact, or mark as privileged.
structure. The subscription model aggre­
gates all your documents in review for all
your cases and charges based on the stor­
age of those documents. Unless you have
a minimum of 10 GB of documents in
review, however, you will pay a premium
for use in the subscription model. Even
though you pay more per GB of docu­
ments in review using the per-case model,
you only pay for what you use. Accord­
ingly, if you expect to have a total of less
than 10 GB on a regular and persistent
basis, you will save money by opting for
the per-case method of payment.
The 10 GB subscription will cost
about $48 a month per gigabyte. You
will pay about $55 to $60 per gigabyte
for actual usage on the per-case method.
Accordingly, if you have a base-level
subscription, you will pay about $480
per month, whereas if you have 5 GB of
data in review in your cases on a per-case
charge basis, you will pay about $300
a month. Although $300 a month may
sound like a substantial charge for docu­
ment storage (and it is), remember that
the charge reflects not just the storage
but also the processing of all the docu­
ments and their storage in pre-review, the
ability to sort out the potentially good
stuff from the dreck, the ability to work
with the documents in review and Bates
stamp them, and access to the help of the
78
case manager (all of which comes with no
additional charge). Another advantage of
paying on a per-case basis is that, because
you pay per case, you have a relatively
easy way to bill the cost through to the
client. Should you choose to bill the
charge to the client, it would be prudent
to disclose this intent in your representa­
tion agreement with the client.
You do not pay until you put docu­
ments in review; then you only pay for
the storage of and access to the docu­
ments in review. You cannot see the
entire document unless you move it
to review; so, if you want the full text
and not just the metadata information,
you need to move documents to review.
The beauty of the pre-review process is
that you can separate the wheat from
the chaff (so to speak) and only put the
documents that you consider usable into
review. Given that often more than 90
percent of the documents produced in
e-discovery have no significance to the
case, the pre-review process can result in
a considerable savings compared to a bill­
ing process that charges for everything
you put into the system at the entry level.
The image on page 77 graphically
depicts the structure of the pricing
model. For more, see legalsolutions.
thomsonreuters.com/law-products/
solutions/ediscovery-point.
TR understands the need for data secu­
rity and the legal and ethical obligations
that attorneys have respecting client in­
formation. TR went to great lengths to
ensure the security of the stored data.
The data resides on TR’s own proprietary
servers located in a bunker (literally) in
Minnesota. TR automatically backs up
the data to ensure that if the primary
server has a hiccup, it can quickly shift
to a backup system, giving you continu­
ing access to its applications and your
data while TR corrects whatever problem
exists with the primary system. Data on
the server automatically gets encrypted
with bank-level security, and physical
access to the servers is restricted with
appropriate security measures to pro­
tect the servers and the data. Because TR
stores the data in the United States, you
do not have to worry about the possible
effect of the laws of a foreign country on
your data’s security. TR built the bunker
to securely withstand a serious attack. I
have no way of verifying the accuracy
of this, but the folks at TR like to brag
about the strength of the bunker and its
designed ability to withstand the impact
of a 747 jet crashing into it.
The converSion ProceSS
I don’t want to leave you with the im­
pression that you simply flip a switch
and instantly use EDP effectively and
efficiently. Like any other useful tool,
it has a learning curve. If you and your
staff go through the training process and
spend a reasonable amount of time with
it, you will acquire the knowledge and
skill to use the tools effectively. You will
also need to invest some time and effort
(or pay someone to do it) to convert your
existing data for use in EDP. That pro­
cess will vary in terms of time and effort
depending on the current form of your
data and the software you currently em­
ploy. This is certainly not an indictment
of EDP, as you would also need to go
through the same experience with any
other program that you might choose.
You may have to change the way you
handle e-discovery. Many firms deal with
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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
documents production in smaller cases
simply by scanning all their documents
into a single PDF file, Bates stamping the
file, and producing it to the other par­
ties. Sometimes, when firms cooperate
in the process, they agree to a common
depository and everyone deposits the
documents to the same depository, which
then applies Bates stamps to each of the
files and concatenates the files (strings
them together into a single file) for use by
all sides. The problem with this process
when used with EDP is that EDP treats
this file as a single document, rendering
it useless to you.
Instead, to work with EDP, you will
need to convert this file into separate
files for each document (or require each
party to produce its documents as sepa­
rate files). Files can be in their original or
native form (e.g., Microsoft Word, Word
Perfect, .jpg, PowerPoint, Excel, etc.) or
converted to PDF files; you will prob­
ably prefer them in the native format as
it will likely contain usable metadata. If
you send all these files (separated into
groups by producing parties) to EDP and
put them in review, TR will process the
documents, including applying unique
identifying numbers (the equivalent of
a Bates stamp), on each document. EDP
can also generate a complete file of all
the documents for use by all parties and
exchange and production. Once this has
been done, you can take the documents
out of review and put them back into
the pre-review stage if you wish, thus
cutting off the charges for having these
documents in review until you sort out
what you want using the metadata and
put this group back into review for fur­
ther use and analysis.
The process of converting your firm
to EDP as your primary discovery tool
should not take any more time or effort
than any other conversion. It has the ad­
vantage, however, of integrating so many
functionalities for you that, at the end of
the day, you should anticipate operating
more efficiently going forward, resulting
in savings of time and money in your
e-discovery activities. While not yet
perfect, EDP is already quite good, and
it continues to get better as TR invests
more resources in its evolution. I have
not found any other package that does all
the things EDP can do for you that I like
as much, or that I think of as similarly
cost-effective.
concluSion
Large firms regularly use computer doc­
ument processing for discovery analysis.
eDiscovery Point gives you the oppor­
tunity to choose whether you need that
service and apply it only when you think
it will help, and only to the documents
that you expect will prove it useful. EDP
effectively and economically allows solos
and small firms to compete with the
larger firms in the e-discovery forum. 
Thomson Reuters is a corporate
sponsor of the ABA Solo, Small Firm
and General Practice Division. Nei­
ther the ABA nor ABA entities en­
dorse non-ABA products or services.
This review should not be construed
as an endorsement. The authors of
these reviews receive complimentary
access to the products being reviewed
for the purpose of enabling them to
complete the review.
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Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
gP mentor
InterVIeWIng Your chIld clIent
by cathy krebs
Cathy Krebs ([email protected]) is
the committee manager for the ABA Section of
Litigation’s Children’s Rights Litigation Committee
(tinyurl.com/hf73nqs). The Committee assists
lawyers and children’s law programs in providing
the highest quality of representation for children.
80
iStock
P
roviding legal representation
to children and youth is in­
credibly important work and
can be very rewarding, but
the complexity of these cases
cannot be overstated: Lawyers need to
have a strong understanding of federal,
state, and local law; child development;
services for children; administrative law;
trauma-informed care . . . the list goes on.
One of the first skills to learn is how to
successfully interview your child client.
Build trust with your client. Building
trust with your child client is absolutely
essential to a successful lawyer-client rela­
tionship. There are a number of ways you
can work to earn that trust. Pay attention
to where your client meetings take place.
They should be in quiet locations, prefer­
ably where the child feels comfortable,
which both allows the child to feel safe
but also allows you to see the child in con­
text of his or her life, giving you a better
sense of your client. Think about where
you sit in relation to the client. Across a
table can feel like an interrogation, but
sitting next to them can feel like you are
working together and are literally on the
same side. For young children you may
even want to sit on the floor as they play.
Think about your body language—are
you frowning or crossing your arms?
These can be taken as signs of disapproval.
If you need to take notes, ask your client
for permission and explain why you are
taking notes. You may also consider not
taking notes during your first meeting or
keeping note taking to a minimum so that
you can really focus on your client.
Communicate clearly with your cli­
ent. You also must ensure that your child
client understands what you say. This
point cannot be emphasized enough—as
lawyers we often feel that we are speak­
ing very simply even when we are not.
Break down your points into simple and
understandable language, use simple sen­
tence structures, and avoid negatives, as
they can be confusing. Pay attention to
the language that your client uses, and
adopt your client’s choice of words when
appropriate. If your client has recently
been through a trauma, keep commu­
nications especially simple and repeat
important points. Most importantly,
have your client repeat back to you the
really important points you are trying to
make. Just asking child clients to let you
know if they do not understand will not
generally work as most children do not
want to admit a lack of understanding
to an adult. Having them rephrase your
points back to you ensures that they are
following the conversation. You can also
welcome and encourage questions.
Assess your client’s developmental
level. It can be very helpful to assess
your client’s developmental level to
ensure you are speaking in a way that
your client can understand. To assess a
child’s developmental level, you can re­
view existing records that will assist in
evaluating a child’s cognitive functions,
such as school records or psychologi­
cal evaluations. In addition, does your
client have a disability, and, if so, how
does it affect communication and under­
standing? Does the client have a history
of trauma? All of these factors impact
understanding.
Listen to your client. This may
sound simple, but ensure that you are
actively listening and engaged. Ask your
client about his or her interests and how
things are going. Be sure that you are
not so focused on the points you need to
discuss that you miss an opportunity to
hear what your client needs to discuss. If
they had a bad day at school or are really
missing their siblings, stop and ask about
those concerns. By pausing to address
their concerns, you help child clients
focus on the items on your list, and you
may also learn about other advocacy
topics that need to be addressed, such
as unaddressed special-education needs
at school or a need for sibling visits. In
addition, be clear about your role and
the parameters of your relationship (e.g.,
is there lawyer-client confidentiality in
your jurisdiction, and, if so, what are the
exceptions?). Importantly, never make a
promise that you cannot keep.
Respect your client. Many of the
above points really center on respect for
our child clients—allowing them to speak
to us in a place they feel comfortable, lis­
tening to their concerns, encouraging
questions and conversation, truly inviting
collaboration. Through these basic points
you will develop a strong relationship that
allows you to zealously and successfully
represent your child client.
For more information on interview­
ing your child client, check out the
award-winning video Interviewing the
Child Client (tinyurl.com/z49h25x) as
well as the guide Counseling Children
and Youth in Times of Crisis (tinyurl.
com/htcf6ua). 
GPSOLO | March/April 2017
Published in GPSOLO, Volume 34, Number 2, March/April 2017 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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