Subpoena's and right of refusal....

[dipper]

Soc,

DH is going to have to represent himself in court regarding custody.  One of his points is the type of people ss is encouraged to hang out with....and especially the two people involved in his burns.  DH needs to subpoena school discipline records.

How does he do this - is there a certain name for the subpoenas?




Also, ss was afraid after listening to the two father's of these children making threats against dh while they were drinking.....in bm's presence.

In a letter to bm, dh referred to the judge telling her in court that if dh found someone to be an unhealthy influence, he had the right to request that ss not be around that person..  DH told her that he does not want ss exposed to  these individuals again and gave full reasons for this....Also, as ss has been accused by a family of breaking into their home with the girl..and was burned by these two children..it was obvious that they were not good influences on each other...

He also stated in a letter that he was sending to the kicker's parents that as he had been informed that the father was making verbal threats against him in ss' presence, he does not want them around ss - and that he does not appreciate drinking - which he feel is a drug -  in ss' presence.....

 
Do you feel that dh has enough reason to warrant this request legally?

[socrateaser]

>How does he do this - is there a certain name for the
>subpoenas?

Subpoena duces tecum. This means that the witness is ordered to come to court/deposition and testify, and that the witness must bring the requested specific documentation. Generally, when you are looking for records, you will subpoena the "Custodian of Records" at the business or agency. This is just a general name for whomever happens to have access to the materials you seek.

Frequently, when what you really want is just documentation and not testimony, you can state in the subpoena, something like "In lieu of appearing you may mail copies of the requested information, no later than ??/??/????, to NAME/ADDRESS." Most companies and organizations are anxious to not have to pay an employee to show up at a deposition, so they will accomodate such a request, even though they are not legally obligated to do so.

The advantage of the above is that you avoid costs of deposition -- the disadvantage is, that only certain documentation evidence of which satisfies hearsay exceptions will be admissible, in the event that you obtain the information in this manner.

>Do you feel that dh has enough reason to warrant this request
>legally?

You certainly have evidence of irreparable harm committed by the child, but not necessarily the parents. You would need to make a credible showing that the licker's parents' failure to supervise was a substantial cause of your child's injuries. Might be worth a shot, especially if the kicker's parents admit something inadvertantly that you could later use as proof in a negligence action.

[dipper]

Soc, what we are looking for are discipline records from the school these children attend - any record of in-school-suspension, out-of-school suspensions, or detention or disciplinary hearings......simply the dates and disciplinary action taken....

According to others on a different message board, opening presentation should be 4 minutes or less and generally, a judge is okay about it being read as he realizes that the average person is nervous.

Also, soc, emails under commercial addresses cannot be changed unless you are in the reply mode.  

Why arent emails (such as yahoo) allowed as evidence without you having to bring in the person to testify that it is definitely from them?

So, DH should subpoena the school for these discpline records to be delivered by say....a week before the hearing?


As far as witnesses, does a lawyer have to file a witness list ahead of time?  (so that we can prepare if she is bringing any of these other parents in)



In preparing questions for bm, is it acceptable for dh to have his list before him and refer to them as he questions her?



Thank you for all your help soc!

[socrateaser]

>Soc, what we are looking for are discipline records from the
>school these children attend - any record of
>in-school-suspension, out-of-school suspensions, or detention
>or disciplinary hearings......simply the dates and
>disciplinary action taken....

The record of the action taken and the date and time of the action would be admissible as a business record exception to the hearsay rule. Any stated opinion as to the reason for the action would be hearsay. Example:

12/12/04: J. Doe suspended for throwing spit wads in Social Sudies Class. (admissible)
Notes: VP spoke with J. and asked why he cannot control himself in class. J. said it was because S. Smith was calling him names. VP determined that this was not a sufficient reason for J. Doe's behavior. (inadmissible, as the other party is entitled to cross examine VP as to the truthfulness of this encounter)

>According to others on a different message board, opening
>presentation should be 4 minutes or less and generally, a
>judge is okay about it being read as he realizes that the
>average person is nervous.

I suggest that you go to court and watch your judge and his/her courtroom in action to see how others operate and what kind of responses they receive.

>Also, soc, emails under commercial addresses cannot be changed
>unless you are in the reply mode.  
>
>Why arent emails (such as yahoo) allowed as evidence without
>you having to bring in the person to testify that it is
>definitely from them?

Evidence must be (1) relevant, (2) authentic, (3) in proper form, and (4) not subject to an exclusionary rule. Assuming that you have an email containing relevant evidence, then you must show the court that it is what you purport it to be. If you explain to the court that the email, as you are presenting it to the court is currently stored on a commercial email server, such as Yahoo, in its original form, and that no one, other than a Yahoo employee can alter the document, that should be sufficient proof of authenticity. If the other party objects, then you request that the court examine the original.

However, If you present a copy of an email that you printed from Microsoft Outlook, and you make a similar assertion, and the other party objects, stating that they can show the court that the email can easily be altered from its original state, then you may have your evidence disallowed on grounds that you have not laid a sufficient foundation for its authentication.

>So, DH should subpoena the school for these discpline records
>to be delivered by say....a week before the hearing?

Get that subpoena in the mail right away. The subpoenaed party has an ongoing duty to update any evidence produced, so you can send a letter asking if there have been any changes shortly before the hearing.

Frankly, the better way to handle this is to get the documents early, and have them also appear to the hearing (actually, the optimal action is to depose the person in charge of discipline at the school, and bring that transcript to court).

But, it depends on the type of hearing. Motion hearings are almost always heard on affidavit, not testimony. Trials are different. That's when you want witnesses to appear.

>
>As far as witnesses, does a lawyer have to file a witness list
>ahead of time?  (so that we can prepare if she is bringing any
>of these other parents in)

Depends on the purpose of the witness. If the witness is part of a party's "case in chief", then you should exchange witness lists. If the witness is for "rebuttal" of another witness's testimony, then that witness can be a complete surprise. However, pulling off a "Perry Mason" is rare in modern trials.

>In preparing questions for bm, is it acceptable for dh to have
>his list before him and refer to them as he questions her?

Yes.

[dipper]

Soc in reference to the earlier message below - the clerk of juvenile and domestic court refused to allow me to file dh's subpoena. She said the children are not part of the custody case itself and therefore, no information can be obtained about them because it is personal.  I told her it was for evidence in dh's custody trial for ss, but she refussed....

This clerk got really ugly when dh got the paperwork to file for custody - saying the judge was not going to be happy to have this in front of him again so soon.  

Soc, our position is that ss should not have been with these children at all when he was burned due to their agressive behaviors.  Both children stated that they had been in trouble at school that week, the kicker that day....
 
Bringing the children into court probably wouldnt help - they are likable regardless of the facts...

Their parents wouldnt be of any use because they are threatening to beat dh up just for requesting insurance info.  They are bm's best buddies...


Are we just shot down as far as proving any negligence on bm for allowing ss to run around with these kids?


>Soc, what we are looking for are discipline records from the
>school these children attend - any record of
>in-school-suspension, out-of-school suspensions, or detention
>or disciplinary hearings......simply the dates and
>disciplinary action taken....

The record of the action taken and the date and time of the action would be admissible as a business record exception to the hearsay rule. Any stated opinion as to the reason for the action would be hearsay. Example:

12/12/04: J. Doe suspended for throwing spit wads in Social Sudies Class. (admissible)
Notes: VP spoke with J. and asked why he cannot control himself in class. J. said it was because S. Smith was calling him names. VP determined that this was not a sufficient reason for J. Doe's behavior. (inadmissible, as the other party is entitled to cross examine VP as to the truthfulness of this encounter)

[socrateaser]

>Are we just shot down as far as proving any negligence on bm
>for allowing ss to run around with these kids?

I think maybe you don't understand the subpoena process. Please describe the exact steps you used to attempt to issue the subpoena.

[dipper]

You are right soc - I dont have a clue.  I have filed for income information years ago against my ex, but that is it.

We went to the J&D court, asked the clerk for the subpoenas and she gave us the papers.  It was not the 'clerk of court' but a helper.  

this was a younger lady who was nice in explaining how to fill out the form.  We told her that the subpoenas were for evidence in a hearing on August 9.  We were told to fill out the left side of the page, which included what information you were actually looking for.  We wrote 'discipline records for CHILD to include dates and offenses as well as action taken.'

Then on the right side of the page, the helper said to put dh's info and in the re/v area, put the name of the CHILD and the child's address.  Below that in the custodian area, put the name of the school that is to honor the subpoenas.

We did all of this and then I took it back today, the clerk was there and said it could not be done.  She said that discipline records are personal and therefore, we cannot ask for them even to be used as evidence.  Of course, we can subpoena ss' records, but those of his friends.

[socrateaser]

Well, I don't really know how the VA subpoena system works, but in CA, for example, you get a "subpoena in blank," like you did, then you fill it out, then you SERVE it on the party from whom you want the records, then you file the subpoena and the proof of service with the court (I'm skipping an important CA consumer notice, but only because I have no idea if it's relevant to VA). If the court clerk refuses to file the document, that's irrelevant, because the school's already served, and they would probably produce the records, because they don't know that the clerk refused to file.

The clerk is unlawfully practicing law, and she may be right or wrong for VA, which does seem to have some rather antiquated civil procedure rules.

[dipper]

Thank you for explaining

[dipper]

Thank you for explaining