Mar 24, 2015
Police Misconduct & Civil Rights
Police officers generally have broad powers to carry out their duties. The Constitution and other laws, however, place limits on how far police can go in trying to enforce the law. As the videotaped beating of motorist Rodney King, in Los Angeles' and several recent cases in – to include the recent indictment of a Maryland police officer for viciously assaulting an innocent citizen with his service pistol, police officers sometimes go too far, violating the rights of citizens. When this happens, the victim of the misconduct may have recourse through federal and state laws. A primary purpose of the nation's civil rights laws is to protect citizens from abuses by government, including police misconduct. Civil rights laws allow attorney fees and compensatory and punitive damages as incentives for injured parties to enforce their rights.
Overcoming Immunity
Being stopped and questioned by police in connection with a crime is an unsettling experience for most anyone. As long as the officer is performing his job properly, however, there is no violation of a suspect's rights. In fact, police are immune from suit for the performance of their jobs unless willful, unreasonable conduct is demonstrated. Mere negligence, the failure to exercise due care, is not enough to create liability. Immunity therefore means that in the typical police-suspect interaction, the suspect cannot sue the police. Civil rights remedies come into play for willful police conduct that violates an individual's constitutional rights.
Civil Rights Laws and Police Misconduct
A statute known as Section 1983 is the primary civil rights law victims of police misconduct rely upon. This law was originally passed as part of the Civil Rights Act of 1871, which was intended to curb oppressive conduct by government and private individuals participating in vigilante groups, such as the Ku Klux Klan. It is now called Section 1983 because that is where the law has been published, within Title 42, of the United States Code. Section 1983 makes it unlawful for anyone acting under the authority of state law to deprive another person of his or her rights under the Constitution or federal law. The most common claims brought against police officers are false arrest (or false imprisonment), malicious prosecution, and use of excessive or unreasonable force.
False Arrest
The claim that is most often asserted against police is false arrest. Persons bringing this claim assert that police violated their Fourth Amendment right against unreasonable seizure. If the officer had probable cause to believe the individual had committed a crime, the arrest is reasonable and the Fourth Amendment has not been violated. Police can arrest without a warrant for a felony or misdemeanor committed in their presence. (Some states also allow warrantless arrests for misdemeanor domestic assaults not committed in the officer's presence.) Even if the information the officer relied upon later turns out to be false, the officer is not liable if he believed it was accurate at the time of the arrest. To prevail on a false arrest claim, the victim must show that the arresting officer lacked probable cause, that is, facts sufficient to cause a reasonable person to believe that a crime had been committed.
Malicious Prosecution
A malicious prosecution claim asserts that the officer wrongly deprived the victim of the Fourteenth Amendment right to liberty. To win this type of claim, the victim must show four things: 1) the defendant police officer commenced a criminal proceeding; 2) the proceeding ended in the victim's favor (that is, no conviction); 3) there was no probable cause; and 4) the proceeding was brought with malice toward the victim. As with false arrest, this claim will fail if the officer had probable cause to initiate criminal proceedings.
Excessive Force
Excessive force claims receive the most publicity, perhaps because the results of excessive force seem the most outrageous, involving serious physical injury or death. Whether the officer's use of force was reasonable depends on the surrounding facts and circumstances. The officer's intentions or motivations are not controlling. If the amount of force was reasonable, it doesn't matter that the officer's intentions were bad. But the reverse is also true: if the officer had good intentions, but used unreasonable force, the excessive force claim will not be dismissed.
Failure to Intervene
Officers have a duty to protect individuals from constitutional violations by fellow officers. Therefore, an officer who witnesses a fellow officer violating an individual's constitutional rights may be liable to the victim for failing to intervene.
The Qualified Immunity Defense
Defense attorneys representing a police officer for any of these claims will raise a defense of qualified immunity. This defense exists to prevent the fear of legal prosecution from inhibiting a police officer from enforcing the law. The defense will defeat a claim against the officer if the officer's conduct did not violate a clearly established constitutional or statutory right. In other words, the specific acts the officer prevented the individual from engaging in must be legally protected, otherwise there is no civil rights violation. In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that the actions of the police exceeded reasonable bounds, infringed the victim's constitutional rights, and produced some injury or damages to the victim.
Police Misconduct: If You Have Been Affect
Civil rights claims are an important part of our legal system, providing a balance between the duty of law enforcement to uphold the laws, and the rights of individuals to be free from police misconduct. Yet cases against police officers can be difficult. Officers may be immune from suit, even though an individual feels he or she was mistreated. Claims against police departments can also be expensive to bring because a lot of evidence must be secured, including records, statements of police, statements of witnesses, and various other documentation, to prove the misconduct.
The evidence supporting your claim is the most important element in a police misconduct suit. If you feel you have been the victim of police misconduct, contact our office promptly at 301-218-9400 so that we can act to protect your rights. If anyone in the area may have taken video, such film is critical to success. Many successful prosecutions of police misconduct arise from video evidence. Take photographs of any injuries or damage caused by the police, and set aside clothing or other objects that was torn or stained with blood from the incident. Try to get the names and addresses or telephone numbers of anyone who may have witnessed the incident. Also, write down exactly what happened as soon as you can, so that you don't forget important details.
Jan 25, 2015
WHEN IS A GIFT NOT A GIFT?
By Evann O'Donnell, Esq.
When you receive a gift, do you expect to give it back?
Generally, a gift is given without expectation of reciprocation or further action on your part- you could throw it out, sell it, or even re-gift it (hopefully not back to the same person!). A contract, on the other hand, is a bargain for exchange: you trade a good or service for something of similar value.
But what if you receive a gift… that has a condition? A conditional gift is one that is subject to or dependent on a condition. Maryland common law holds that conditional gifts must be honored, but thankfully these gifts-with-strings-attached do not happen often in our culture. In order for the condition to be enforceable in a court of law, it must be clearly expressed or known prior to transferring the gift. If you accept the gift knowing the condition, you have accepted the condition as well. An example of an expressed conditional gift could be:
- “I’m giving you this car on the condition that you pass your first semester of college.”
- “My estate will transfer to you in the event that the Detroit Tigers win the World Series by 2020. If they do not, it will go to your sister.”
- “I leave Melissa my very best sewing machine, on the condition that she sews one new quilt a year for five years. If she does not, it will transfer to Jake.”
The “expression” can be either written or oral, though it is much easier to enforce (or protect) a conditional gift when the condition is in writing and signed by the giver.
But what about the second way a condition is given- where it is simply “known”? This is very rare in our culture. The most common (and frankly, one of the only well-known) implied conditions is the engagement ring. When you accept an engagement ring, you have agreed to the condition to marry the person who proposed. Maryland has found that this amounts to an implied conditional gift. And so if the recipient of the engagement ring breaks off the engagement... that’s right, in Maryland you have to return the ring!
But the important element of the conditional gift is that both people know of the condition, whether it is simply known or stated outright, prior to the gift. When a condition is not stated, but is simply known, you may have a much more difficult time proving that the condition was known if the receiver of the gift later fails the condition and refuses to return the gift, resulting in large legal fees and major headaches. For instance, what if you believe the implied condition of the gift you gave is known in your religion- and that of the receiver of the gift- but they later claim they never heard of that particular religious teaching? You may need to hire a religious scholar to testify at your trial to convince the court that the condition is so well known in your religious community that the receiver could not possibly be ignorant. As you can imagine, it is difficult to prove what someone may or may not know- especially where they may have the motive to lie in order to claim a conditional gift was unconditional. Other examples of implied conditional gifts:
- Sarah’s family has a generations-long tradition that everyone in the family follows: you are given a car when you turn 16, but if you ever miss the Sunday family meal, it is revoked. Sarah has seen several family members miss the meal and then lose their car. Sarah is given the keys to a new car at age 16, but no mention of the well-known condition is necessary.
- Andre is a part of a religious group with a well-known tenet that wedding gifts are conditioned on the marital success-- meaning, you never divorce. Should the parties divorce, all gifts are revoked. Andre has been raised in this religion since birth and has read the religious texts that mention this tenet.
Once you have satisfied the condition, whether implied or expressed, the giver cannot revoke the gift later. The condition is the only obstacle to acquiring your gift. So to go back to the engagement ring example: if you marry, but later divorce, do you have to return the ring? No: you have satisfied the implied condition: to marry. Just because you may later disappoint the giver does not mean they can demand a return of a gift.
If you have questions about a gift that you believe may be conditional, do not hesitate to call our office at 301-218-9400. In an increasingly diverse society - with different religions such as Hinduism introducing new customs of gift giving to our culture - we have had the opportunity to address the issue of dowry (marriage related gifts) at trial. In doing so we have used expert testimony to ensure our clients prevail. We can assist in determining whether a gift is conditional, or help you put your conditions into writing to prevent misunderstandings and litigation later. Preparation can ensure your wishes are carried out exactly as you hoped.
Jul 25, 2012
The Law of Visitation Rights Grandparents, Siblings & Domestic Partners
Often third parties such as grandparents, stepparents, and domestic partners of a biological parent have established a relationship with a minor child and desire to continue that relationship through regular contact with the child. The standards considered by the court in determining whether to award third parties visitation access to a minor child are discussed below. Essentially, the natural parent's proposed schedule of access is deemed to be presumptively in the minor child's best interest, and a third party has to show either parental unfitness or exceptional circumstances warranting visitation or custody rights exist. If the third party demonstrates either parental unfitness or exceptional circumstances, then the court will consider what schedule would be in the minor child's best interest.
FL § 9‑102 provides that an equity court may consider a petition for reasonable visitation of a grandchild by a grandparent; and if the court finds it to be in the best interests of the child, grant visitation rights to a grandparent. The statute applies to intact family situations also, there is no presumption in favor of grandparent visitation. In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), the Court of Appeals held that “there must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis. Accordingly, we overrule the portions of Fairbanks, Maner, Beckman, Herrick, and Wolinski that are inconsistent with this holding.” The Court of Appeals in Koshko noted in footnote 23 that “At any evidentiary hearing on a petition, the petitioners must produce evidence to establish their prima facie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor.” In Janice K. v. Margaret
K., 404 Md. 661, 948 A.2d 73 (2008), the Court of Appeals held that Maryland does not recognize "de facto" parenthood status and held that in order to overcome the "constitutional rights of a legal parent to govern the care, custody, and control of his or her child, even a person who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances" or parental unfitness as a prerequisite to the court's consideration of the best interests of the child.
A natural parent’s proposed schedule of visitation is entitled to a rebuttable presumption that it is in the best interests of the child. Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997). In Brice v. Brice, 133 Md. App. 302, 754 A.2d 1132 (2000), the Court of Special Appeals reversed a trial court’s order establishing a visitation schedule between the paternal grandparents and the child that was against the mother’s wishes. Under the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed. 49 (2000), application of FL § 9-102 violated mother’s constitutional due process right, i.e. her fundamental right to rear her child, where there was no showing she was unfit and mother did not oppose some visitation with the paternal grandparents. The appellate court did not invalidate the Maryland statute. The Court of Special Appeals, in In re: Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), analyzed Troxel v. Granville and applied the principles to a sibling visitation matter. “We conclude that the state’s interest in the protection of a minor child who has been removed from her parent’s care is sufficiently compelling to justify overriding her parent’s opposition to visitation with her sibling, if there is evidence that denial of sibling visitation also would harm the sibling whom the separated child seeks to visit.” In Herrick v. Wain, 154 Md.App. 222, 838 A.2d 1263 (2003), the Court of Special Appeals affirmed a Circuit Court for Montgomery County Order granting maternal grandmother visitation; trial court had considered surviving father’s concerns and the evidence rebutted presumption that father’s preferred schedule was in child’s best interest. See also Frase v. Barnhart, et. al., 379 Md. 100, 840 A.2d 114 (2003).
Both parents are necessary parties to the third party's action, pursuant to Maryland Rule 2‑211.
FL § 9‑102 provides that an equity court may consider a petition for reasonable visitation of a grandchild by a grandparent; and if the court finds it to be in the best interests of the child, grant visitation rights to a grandparent. The statute applies to intact family situations also, there is no presumption in favor of grandparent visitation. In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), the Court of Appeals held that “there must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis. Accordingly, we overrule the portions of Fairbanks, Maner, Beckman, Herrick, and Wolinski that are inconsistent with this holding.” The Court of Appeals in Koshko noted in footnote 23 that “At any evidentiary hearing on a petition, the petitioners must produce evidence to establish their prima facie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor.” In Janice K. v. Margaret
K., 404 Md. 661, 948 A.2d 73 (2008), the Court of Appeals held that Maryland does not recognize "de facto" parenthood status and held that in order to overcome the "constitutional rights of a legal parent to govern the care, custody, and control of his or her child, even a person who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances" or parental unfitness as a prerequisite to the court's consideration of the best interests of the child.
A natural parent’s proposed schedule of visitation is entitled to a rebuttable presumption that it is in the best interests of the child. Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997). In Brice v. Brice, 133 Md. App. 302, 754 A.2d 1132 (2000), the Court of Special Appeals reversed a trial court’s order establishing a visitation schedule between the paternal grandparents and the child that was against the mother’s wishes. Under the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed. 49 (2000), application of FL § 9-102 violated mother’s constitutional due process right, i.e. her fundamental right to rear her child, where there was no showing she was unfit and mother did not oppose some visitation with the paternal grandparents. The appellate court did not invalidate the Maryland statute. The Court of Special Appeals, in In re: Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), analyzed Troxel v. Granville and applied the principles to a sibling visitation matter. “We conclude that the state’s interest in the protection of a minor child who has been removed from her parent’s care is sufficiently compelling to justify overriding her parent’s opposition to visitation with her sibling, if there is evidence that denial of sibling visitation also would harm the sibling whom the separated child seeks to visit.” In Herrick v. Wain, 154 Md.App. 222, 838 A.2d 1263 (2003), the Court of Special Appeals affirmed a Circuit Court for Montgomery County Order granting maternal grandmother visitation; trial court had considered surviving father’s concerns and the evidence rebutted presumption that father’s preferred schedule was in child’s best interest. See also Frase v. Barnhart, et. al., 379 Md. 100, 840 A.2d 114 (2003).
Both parents are necessary parties to the third party's action, pursuant to Maryland Rule 2‑211.
Mar 3, 2012
Dec 25, 2011
Annulments
Even though it makes headlines when celebrities get an annulment of their marriages based on fraud or inability to perform, annulments are relatively rare.
Fraud is usually the basis for an annulment. Examples are failure to disclose a previous marriage, criminal record, infectious disease, the inability to have children, or the desire not to have children. Annulments have also been granted where a spouse mistakenly believes they have been divorced or widowed when in fact they are not, or the spouses are too closely related, or one party is underage, and did not obtain appropriate parental consent.
In Maryland, a marriage which qualifies as one suitable for annulment means there is some legal defect that invalidates the marriage such as a spouse that is married to someone else at the time of the second marriage or the parties are blood relatives or one is underage. You do not need to file a petition for an annulment with the court in the case of a void marriage although it may be wise to do so anyway so that you have a court order of annulment.
A voidable marriage, on the other hand, can only be annulled by filing a petition for annulment with the court and having a judge declare the marriage not to have happened. Examples of voidable marriages are sham marriages or joke marriages where the parties did not really intend to marry. You can also ask the court for an annulment if you or your spouse were incapacitated at the time of marriage, as in insanity, intoxication, fraud or duress. Fraud can be hard to prove to a judge especially when the annulment is contested, so most people opt for a divorce instead. A divorce says the marriage is over. An annulment says it never happened.
Sep 21, 2011
Caribbean Glory
Caribbean Glory; a ceremony honoring our Carribbean brethren who fought a valiant effort in WWII. Dominican and British West Indian Soldiers of yesteryear sought to preserve our today with their honor, courage, and commitment to King & Country.
Caribbean Glory on YouTube
Please enjoy this along with many other related videos on our YouTube channel
(You can read more on the service and sacrifice of the the British West Indian Military in my book "For King & Country", available on amazon.com)
~GJC
Sep 15, 2011
All About Expert Witness Testimony
The days of Perry Mason and the surprise witness are long gone. Today, more and more litigation centers around expert witness testimony.
"Objection overruled." Slowly all eyes turn toward you. It's time to answer. You, after all, are the expert witness. Despite your sweaty palms and pounding heart, an entire courtroom awaits your answer. Now if only you could remember the question. If only you could remember your name.
Serving as an expert witness can be a nightmare for the unprepared. Doctors, lawyers, C.P.A.'s and mental health professionals all experience anxiety when not fully prepared for the courtroom. The witness stand, however, doesn't have to be a source of fear. The following pages are designed to help demystify the legal process and provide the helpful, necessary tips a professional needs when called to the stand.
Discovery Lately, more and more professionals have been finding themselves involved in litigation as expert witnesses. For some, serving as an expert is a component of their professional practice. For others, it is a means of further assisting a client or patient involved in a legal dispute. Whichever is the case, an understanding of the overall process is critical.
Many first-time expert witnesses tend to think that the litigation process takes place in the courtroom. The reality, however, is that litigation begins months or even years before witnesses take the oath. The first step of this lengthy litigation process is called discovery.
Discovery is a phase of litigation that allows each side to prepare for court by exchanging documents and asking questions of the opposing party and witnesses. Expert witnesses become involved in the discovery process in two ways. First, many experts serve as advisors during discovery to help the attorney ask the right questions and request the appropriate documents. Second, the expert witness is likely to be subjected to a deposition by the opposing attorney. Here, the expert is asked questions, under oath, by the attorney while answers are recorded by a court reporter.
Since depositions are considered "behind the scenes" litigation, the expert is often unaware of this stage until faced with it. It is essential, however, that the expert be well prepared for this part of the process. Since parties oftentimes settle disputes as the strengths and weaknesses of the case become apparent, the deposition is often the single most important aspect of litigation.
As a professional, understanding why lawyers conduct depositions gives you a broader set of defenses and survival skills. As you might guess, the reasons are many. For example, an attorney conducting a deposition is often preparing for trial as well as the future cross examination of the expert. With a deposition the lawyer can quickly determine an expert's opinion as well as the background analysis that led to it. Furthermore, the attorney is also assessing the expert as a trial witness. How will the expert impress the judge or jury? Does he or she present an authoritative opinion or is the presentation evasive? Does the witness become confused when asked about the particulars of a report? Often the deposition is the attorney's first opportunity to assess the trial outcome for the client.
In most situations, the deposition is the first opportunity an attorney has to fully evaluate the issues in the case. Evaluating a dispute and making solid recommendations to the client is difficult when hearing only one side of the story. By hearing the facts from an expert, rather than the client, the attorney is better prepared to advise the client on the probability of a successful outcome. For example, the client in a child custody dispute usually represents a biased view. In this case the deposition of the custody evaluator would offer a clearer picture of the facts and a more realistic prediction of the trial's result.
Depositions are also used for strategic reasons. In a courtroom, deposition testimony may be used to impeach witnesses who have contradicted their prior testimony. Sometimes an ill-prepared expert will say one thing at the deposition and another thing at the trial. The attorney then confronts the witness with inconsistent statements to challenge the validity of the testimony. For this reason an expert witness should review the deposition transcript before trial, especially since several months often pass between the deposition and the trial. Lawyers also use depositions to search for unknown information. The attorney representing a parent in a child custody case, for example, might depose the child's pediatrician in an attempt to discover as much as possible about the child's behavior and relationship with the parents. The hope is to discover a contradiction, evasion or other fact that would help the attorney prove the case.
Expert Participation A question often asked by professionals is, of course, "Do I have to go?" The answer is generally simple. Yes. If a subpoena is duly served upon you according to the North Carolina Rules of Civil Procedure, you are required to appear. The sanctions for noncompliance include contempt of court and fines. In many cases, the attorneys gently request the aid of an expert witness without the need for the mandate of a subpoena. Nevertheless, a party is authorized in most cases to subpoena a witness who has material knowledge of the disputed issues. In such a case, the witness will only be excused if the court deems it appropriate.
The next and often more important question asked by professionals is, "Do I get paid?" The answer to this question is not as simple. Under the North Carolina General Statutes, a witness under subpoena of the court is entitled to a nominal fee of five dollars. However, an expert's fees are paid in the discretion of the trial court. This means the trial judge will decide the appropriateness of the fee and who should pay it based on a variety of factors.
In an equitable distribution case, the judge might consider the reasonableness of the fee based on the time spent valuing the business, the difficulty of the valuation, whether the expert was agreed upon by both parties or whether one spouse hired the expert for the valuation of the business interests. In a child custody evaluation, the fee is often determined before trial so that one or both parents assure the expert that they will pay the bill. In any event, the professional who testifies should assure that fee arrangements have been made before providing expert services. This is generally accomplished before the court appearance by either obtaining a court order providing for payment of fees, or by entering into a fee arrangement with one or both parties.
One final question often asked is, "How long will this take?" Obviously this varies from case to case. There are, however, a few simple ways to minimize the amount of your time required. First, before appearing in court, arrange with counsel to reduce your waiting time. Often a subpoena will direct you to appear on the first day of trial even though your testimony takes place several days later. Just ask the attorney to phone you when you are needed. It's not uncommon for counsel to work with you to avoid protracted delays. In fact, a considerate attorney might even work around your schedule to reduce the disruption to your practice. Put simply, there is no reason to hesitate asking the attorney for help with scheduling.
The Trial Although an overwhelming number of contested disputes are settled before the time of trial, the day will come when you are asked to step up on the stand, take the oath and render your expert opinion. It all begins with the direct examination. Trial attorneys often quip that they win cases on direct examination and lose cases on cross examination. The attorney preparing your direct examination is acutely aware of that adage and will bolster your examination in every way possible. The time spent preparing your testimony with the lawyer will prove enormously helpful when faced with the weight of testifying as an expert.
The first hurdle for any expert witness to overcome is the qualification phase. In this phase, the attorney presents evidence of the witness' professional and educational qualifications prior to the judge hearing an opinion from that expert. Often attorneys will agree before the time of trial to the qualification of an expert.
On the other hand, in a hotly fought child custody case a clinical psychologist's expert qualifications may be disputed if the psychologist lacks detailed child development expertise. Likewise, the impressive qualifications of an experienced business valuation expert may be contested when the court is seeking the expert's valuation of an unusual commercial venture.
The following information is often sought when establishing the qualifications of the expert:
Where did you obtain your professional training? What degrees have you obtained and on what dates? What certifications and licenses do you hold? Are you a member of any professional organizations? How many years of experience do you have in your field? What is your area of practice and degree of specialization? How familiar are you with the major research in your field? Are you a published author in your field? Do you have teaching experience? Have you been an expert witness before? How many similar cases have you been involved in? Once the witness is qualified as an expert, the attorney will proceed to question the expert's opinion and basis for that opinion. At this point, the expert's ability to convey the information in a reasonable and credible fashion is paramount. With that in mind, it helps to follow three simple but critical guidelines.
First, speak clearly and slowly. Anxiety on a courtroom witness stand is normal and expected. That anxiety is lessened when you focus on your word choice and slow down your testimony.
Second, listen to the question carefully and answer only the question put to you. The attorney's job is to ask careful, directed questions. Let the attorney play that role and answer only the question asked. The goal is to present the testimony in an orderly manner so that the judge is better able to understand information. When a witness responds to a question that was not asked it may lead to an objection by the opposing attorney and disrupt the flow of information. Further, the witness may unintentionally provide ammunition for cross examination. Always let the attorney conducting the direct examination orchestrate the flow of information by responding only to the questions presented.
Third, if you don't know the answer to the question, say so. Do not guess. The attorney conducting the examination may be allowed to help you refresh your memory with prior statements or notes. If you make the mistake of guessing and you guess wrong, your credibility evaporates immediately. Instead of benefiting your client or patient, you have become a huge liability. So don't let professional pride force you onto thin ice: the text of prior deposition testimony may come back to haunt you as a contradiction. It should also be noted, of course, that stating you do not remember something when in fact you do is a violation of your oath. Just answer every question truthfully.
Cross Examination Cross examination is the portion of the trial that most expert witnesses dread. But once again a few pointers will provide you with the skills to face even the most talented of litigators.
First, answer fair questions directly and honestly. Not every question is intended to trip up the witness. Some questions are merely laying groundwork for upcoming questions. Also, some questions, especially when posed by an inexperienced cross examiner, are simply off the mark and not calculated to gain anything at all. Remember, few trial attorneys dispute that cross examination is a difficult task. If you decide to answer every simple question by splitting hairs, you may be discrediting your prior testimony without realizing it.
Second, do not argue. This is a trap. The skilled cross examiner will win an argument with a witness. So simply do not participate. Remember to remain calm, composed and focused on the knowledge you possess. If you begin to appear impassioned about the argument, your credibility as an impartial observer or evaluator is diminished. You want to convey that you are someone with information whom the court needs in order to make an accurate decision, not someone who is advocating a position and/or person.
Third, pause before you answer. Often the examiner will attempt to engage the witness in the cadence and rhythm of the questions so that the witness will answer quickly without thoroughly thinking. "You did meet the mother, right? You met with the father too? And you pride yourself on the thoroughness of your custody evaluations, correct?"
If you begin answering the questions even before the examiner has completed the entire question, you know you are caught in the examiner's web. Try to imagine the attorney/witness exchange as a tennis match. Every time a question is served to you, carefully set yourself in position, get your racket in place, your feet in place, your body properly aligned. Then you are prepared to respond. The wonderful distinction between tennis and cross examination is that the courtroom is a much slower place. Take all the time you need, have some water, take a breath; then, when fully prepared, answer the question. As long as you are preparing yourself for your response and thinking completely about the best way to volley the ball back to your cross examiner, you will survive with your testimony and dignity intact.
Conclusion For an expert witness, the courtroom can certainly be an intimidating environment. It can also be an exciting forum in which the witness plays a critical and often pivotal role. Preparation and knowledge are the keys to assuring that your appearance on the stand is an effective one.
~GJC
"Objection overruled." Slowly all eyes turn toward you. It's time to answer. You, after all, are the expert witness. Despite your sweaty palms and pounding heart, an entire courtroom awaits your answer. Now if only you could remember the question. If only you could remember your name.
Serving as an expert witness can be a nightmare for the unprepared. Doctors, lawyers, C.P.A.'s and mental health professionals all experience anxiety when not fully prepared for the courtroom. The witness stand, however, doesn't have to be a source of fear. The following pages are designed to help demystify the legal process and provide the helpful, necessary tips a professional needs when called to the stand.
Discovery Lately, more and more professionals have been finding themselves involved in litigation as expert witnesses. For some, serving as an expert is a component of their professional practice. For others, it is a means of further assisting a client or patient involved in a legal dispute. Whichever is the case, an understanding of the overall process is critical.
Many first-time expert witnesses tend to think that the litigation process takes place in the courtroom. The reality, however, is that litigation begins months or even years before witnesses take the oath. The first step of this lengthy litigation process is called discovery.
Discovery is a phase of litigation that allows each side to prepare for court by exchanging documents and asking questions of the opposing party and witnesses. Expert witnesses become involved in the discovery process in two ways. First, many experts serve as advisors during discovery to help the attorney ask the right questions and request the appropriate documents. Second, the expert witness is likely to be subjected to a deposition by the opposing attorney. Here, the expert is asked questions, under oath, by the attorney while answers are recorded by a court reporter.
Since depositions are considered "behind the scenes" litigation, the expert is often unaware of this stage until faced with it. It is essential, however, that the expert be well prepared for this part of the process. Since parties oftentimes settle disputes as the strengths and weaknesses of the case become apparent, the deposition is often the single most important aspect of litigation.
As a professional, understanding why lawyers conduct depositions gives you a broader set of defenses and survival skills. As you might guess, the reasons are many. For example, an attorney conducting a deposition is often preparing for trial as well as the future cross examination of the expert. With a deposition the lawyer can quickly determine an expert's opinion as well as the background analysis that led to it. Furthermore, the attorney is also assessing the expert as a trial witness. How will the expert impress the judge or jury? Does he or she present an authoritative opinion or is the presentation evasive? Does the witness become confused when asked about the particulars of a report? Often the deposition is the attorney's first opportunity to assess the trial outcome for the client.
In most situations, the deposition is the first opportunity an attorney has to fully evaluate the issues in the case. Evaluating a dispute and making solid recommendations to the client is difficult when hearing only one side of the story. By hearing the facts from an expert, rather than the client, the attorney is better prepared to advise the client on the probability of a successful outcome. For example, the client in a child custody dispute usually represents a biased view. In this case the deposition of the custody evaluator would offer a clearer picture of the facts and a more realistic prediction of the trial's result.
Depositions are also used for strategic reasons. In a courtroom, deposition testimony may be used to impeach witnesses who have contradicted their prior testimony. Sometimes an ill-prepared expert will say one thing at the deposition and another thing at the trial. The attorney then confronts the witness with inconsistent statements to challenge the validity of the testimony. For this reason an expert witness should review the deposition transcript before trial, especially since several months often pass between the deposition and the trial. Lawyers also use depositions to search for unknown information. The attorney representing a parent in a child custody case, for example, might depose the child's pediatrician in an attempt to discover as much as possible about the child's behavior and relationship with the parents. The hope is to discover a contradiction, evasion or other fact that would help the attorney prove the case.
Expert Participation A question often asked by professionals is, of course, "Do I have to go?" The answer is generally simple. Yes. If a subpoena is duly served upon you according to the North Carolina Rules of Civil Procedure, you are required to appear. The sanctions for noncompliance include contempt of court and fines. In many cases, the attorneys gently request the aid of an expert witness without the need for the mandate of a subpoena. Nevertheless, a party is authorized in most cases to subpoena a witness who has material knowledge of the disputed issues. In such a case, the witness will only be excused if the court deems it appropriate.
The next and often more important question asked by professionals is, "Do I get paid?" The answer to this question is not as simple. Under the North Carolina General Statutes, a witness under subpoena of the court is entitled to a nominal fee of five dollars. However, an expert's fees are paid in the discretion of the trial court. This means the trial judge will decide the appropriateness of the fee and who should pay it based on a variety of factors.
In an equitable distribution case, the judge might consider the reasonableness of the fee based on the time spent valuing the business, the difficulty of the valuation, whether the expert was agreed upon by both parties or whether one spouse hired the expert for the valuation of the business interests. In a child custody evaluation, the fee is often determined before trial so that one or both parents assure the expert that they will pay the bill. In any event, the professional who testifies should assure that fee arrangements have been made before providing expert services. This is generally accomplished before the court appearance by either obtaining a court order providing for payment of fees, or by entering into a fee arrangement with one or both parties.
One final question often asked is, "How long will this take?" Obviously this varies from case to case. There are, however, a few simple ways to minimize the amount of your time required. First, before appearing in court, arrange with counsel to reduce your waiting time. Often a subpoena will direct you to appear on the first day of trial even though your testimony takes place several days later. Just ask the attorney to phone you when you are needed. It's not uncommon for counsel to work with you to avoid protracted delays. In fact, a considerate attorney might even work around your schedule to reduce the disruption to your practice. Put simply, there is no reason to hesitate asking the attorney for help with scheduling.
The Trial Although an overwhelming number of contested disputes are settled before the time of trial, the day will come when you are asked to step up on the stand, take the oath and render your expert opinion. It all begins with the direct examination. Trial attorneys often quip that they win cases on direct examination and lose cases on cross examination. The attorney preparing your direct examination is acutely aware of that adage and will bolster your examination in every way possible. The time spent preparing your testimony with the lawyer will prove enormously helpful when faced with the weight of testifying as an expert.
The first hurdle for any expert witness to overcome is the qualification phase. In this phase, the attorney presents evidence of the witness' professional and educational qualifications prior to the judge hearing an opinion from that expert. Often attorneys will agree before the time of trial to the qualification of an expert.
On the other hand, in a hotly fought child custody case a clinical psychologist's expert qualifications may be disputed if the psychologist lacks detailed child development expertise. Likewise, the impressive qualifications of an experienced business valuation expert may be contested when the court is seeking the expert's valuation of an unusual commercial venture.
The following information is often sought when establishing the qualifications of the expert:
Where did you obtain your professional training? What degrees have you obtained and on what dates? What certifications and licenses do you hold? Are you a member of any professional organizations? How many years of experience do you have in your field? What is your area of practice and degree of specialization? How familiar are you with the major research in your field? Are you a published author in your field? Do you have teaching experience? Have you been an expert witness before? How many similar cases have you been involved in? Once the witness is qualified as an expert, the attorney will proceed to question the expert's opinion and basis for that opinion. At this point, the expert's ability to convey the information in a reasonable and credible fashion is paramount. With that in mind, it helps to follow three simple but critical guidelines.
First, speak clearly and slowly. Anxiety on a courtroom witness stand is normal and expected. That anxiety is lessened when you focus on your word choice and slow down your testimony.
Second, listen to the question carefully and answer only the question put to you. The attorney's job is to ask careful, directed questions. Let the attorney play that role and answer only the question asked. The goal is to present the testimony in an orderly manner so that the judge is better able to understand information. When a witness responds to a question that was not asked it may lead to an objection by the opposing attorney and disrupt the flow of information. Further, the witness may unintentionally provide ammunition for cross examination. Always let the attorney conducting the direct examination orchestrate the flow of information by responding only to the questions presented.
Third, if you don't know the answer to the question, say so. Do not guess. The attorney conducting the examination may be allowed to help you refresh your memory with prior statements or notes. If you make the mistake of guessing and you guess wrong, your credibility evaporates immediately. Instead of benefiting your client or patient, you have become a huge liability. So don't let professional pride force you onto thin ice: the text of prior deposition testimony may come back to haunt you as a contradiction. It should also be noted, of course, that stating you do not remember something when in fact you do is a violation of your oath. Just answer every question truthfully.
Cross Examination Cross examination is the portion of the trial that most expert witnesses dread. But once again a few pointers will provide you with the skills to face even the most talented of litigators.
First, answer fair questions directly and honestly. Not every question is intended to trip up the witness. Some questions are merely laying groundwork for upcoming questions. Also, some questions, especially when posed by an inexperienced cross examiner, are simply off the mark and not calculated to gain anything at all. Remember, few trial attorneys dispute that cross examination is a difficult task. If you decide to answer every simple question by splitting hairs, you may be discrediting your prior testimony without realizing it.
Second, do not argue. This is a trap. The skilled cross examiner will win an argument with a witness. So simply do not participate. Remember to remain calm, composed and focused on the knowledge you possess. If you begin to appear impassioned about the argument, your credibility as an impartial observer or evaluator is diminished. You want to convey that you are someone with information whom the court needs in order to make an accurate decision, not someone who is advocating a position and/or person.
Third, pause before you answer. Often the examiner will attempt to engage the witness in the cadence and rhythm of the questions so that the witness will answer quickly without thoroughly thinking. "You did meet the mother, right? You met with the father too? And you pride yourself on the thoroughness of your custody evaluations, correct?"
If you begin answering the questions even before the examiner has completed the entire question, you know you are caught in the examiner's web. Try to imagine the attorney/witness exchange as a tennis match. Every time a question is served to you, carefully set yourself in position, get your racket in place, your feet in place, your body properly aligned. Then you are prepared to respond. The wonderful distinction between tennis and cross examination is that the courtroom is a much slower place. Take all the time you need, have some water, take a breath; then, when fully prepared, answer the question. As long as you are preparing yourself for your response and thinking completely about the best way to volley the ball back to your cross examiner, you will survive with your testimony and dignity intact.
Conclusion For an expert witness, the courtroom can certainly be an intimidating environment. It can also be an exciting forum in which the witness plays a critical and often pivotal role. Preparation and knowledge are the keys to assuring that your appearance on the stand is an effective one.
~GJC
Sep 8, 2011
Aug 19, 2011
Immediate Opening
Bowie, MD Civil Litigation firm has an immediate opening for an Associate with 2-3 years experience, with a background in family law. Applicants should be a member of the Maryland and D.C. bars or Maryland bar with a potential to waive into D.C. bar. Candidates should be entrepreneurial, committed to client development and professional growth. Send resume, writing sample, transcript of law school grades and salary requirements to Gabriel@gclawmd.com.
Jul 9, 2011
Meeting with Gabriel Christian at his law office
Gabriel has offered to to do all the necessary paper work to register
EverLIGHT East Africa LLC in the state of Maryland
EverLIGHT East Africa LLC in the state of Maryland
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Apolo Karemera Ndyabahika
President
East African Cooperation Forum-Diaspora
President
East African Cooperation Forum-Diaspora
The Childrens book written by Samora and Makonnen Christian, made the news back in 2005.
When Samora and Makonnen Christian set out to write about their summer vacation, their effort went far beyond the typical back-to-school, ‘‘What I did on my summer vacation” essay.
Their book about their visit to Dominica titled ‘‘Our Visit to the Island” was published last summer.
The Upper Marlboro residents got the idea to writing a book for their age group (6 to 12) after visiting their parents’ homeland last year for the first time.
On several occasions, parents Joan and Gabriel Christian had described Dominica to the children prior to their visit.
‘‘It was very beautiful. It was how I pictured it. It inspired me so much that I wanted to write about it so others would know,” said Samora, 9, a fourth-grader at St. Ambrose School in Cheverly.
‘‘Also, I wanted to write it so others could be inspired to write a book themselves.”
Although their parents thought the idea was cute at first, they also said they didn’t want to discourage the children from a worthwhile effort, which turned out to be less difficult than they initially thought.
‘‘As parents, you want to encourage your children. Some are athletic, some are musical. She wanted to write a book, so we did it,” Joan Christian said. ‘‘I feel extremely proud of her and her brother.”
Gabriel Christian immigrated to America 22 years ago; Joan Christian immigrated 12 years ago.
In describing how they divided up the responsibilities, Samora said she made sure the photographs and words matched.
Makonnen, a 6-year-old first-grader at the school, drew some pictures so illustrator Michael A. Williams could have an idea of what Dominica looked like, she said. Makonnen shyly said he did not want to be interviewed.
Samora said she wasn’t intimidated by writing the book because her father is also an author who has written some fiction and about the history before and after the island’s independence at a young age.
Although Samora likes writing, that also proved to be the hardest part of the book because she had to tear herself away from her cartoon shows, one of her favorite pastimes. But she liked working with Williams on the illustrations.
‘‘It was fun doing it, but it was hard because I had to concentrate and focus,” she said of the effort, which lasted about two months.
The book pays special tribute to the Roseau Public Library’s centennial. The authors included it because the library is a central meeting place in the town, Samora said.
The 26-page book, published by Pont Casse Press and the University of Toronto Press, sells for $10 as a paperback and $15 as a hardback. St. Ambrose families can get the hardback for $12.
The book is on sale at Karibu Books and online at www.caribbeansupplies.com. Twenty five hundred copies were printed, and 500 have been sold so far, Joan Christian said.
Samora said she and Makonnen also realize the importance of giving back, so they are donating some of the proceeds to the St. Ambrose library.
Carl Berger said he heard about the book when he arrived at the school as its new principal in August, but didn’t realize it would look so professional.
Berger said he would like the proceeds to be earmarked toward the library’s expansion of books about other countries, which Samora said was cool.
And Samora already is looking to the future, with more ideas for other books in the works, possibly about music.
E-mail Jennifer Donatelli at jdonatelli@gazette.net.
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READ THE STORY HERE: http://ww2.gazette.net/stories/101305/landnew213754_31892.shtml
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Jun 22, 2011
Preliminary Hearings in Maryland Criminal Cases
In the Maryland criminal justice system, a preliminary hearing may occur when a defendant is charged with one or more felonies. The practice in most other Maryland counties is to only schedule a preliminary hearing upon request of the defendant. Criminal defendants must make the request within ten days of the arrest or file a motion for good cause with a judge.
Preliminary hearings are conducted in the Maryland District Courts. If a judge finds probable cause, the case is sent (held over) to the Circuit Court for arraignment and possible trial. If the judge does not find probable cause that a felony has been committed by the defendant, then felony is dismissed. If a defendant is also charged with one or more misdemeanor, those charges remain and will be set for trial on another day at the District Court level.
Simply put, a District Court judge must find some link between the felony and the defendant. In most preliminary hearings in Maryland, the arresting officer will take the stand and read from his/her police report. The standard of review in a preliminary hearing is in the “light most favorable to the state”. In simple terms, the judge will give the prosecuting attorney the benefit of the doubt when determining if the defendant has committed the crime.
The defense attorney is permitted to ask limited questions pertaining to the facts. An experienced criminal defense attorney will try to obtain as much detail from the police officer, under oath, for use down the road at trial. For such reasons, holding a preliminary hearing may be useful to the defense-even if the judge does not dismiss the felony charge(s).
Often times a defendant will show up for court expecting a preliminary hearing, only to find that 1) the case has been indicted by a grand jury, 2) the prosecutor has exercised his/her discretion and dropped the felony(s), or 3) the entire case has been dropped (nolle pros) or placed on the stet docket (indefinite postponement). Often, an experienced criminal defense attorney can sway the prosecutor into dropping the charges even before the preliminary hearing is held.
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For more information on a criminal defendant’s rights and the strategy of holding a preliminary hearing in Maryland, please contact the Law Offices of Gabriel J. Christian & Associates, LLC at 301-218-9400 for a free consultation.
Jun 16, 2011
Be Aware - Texting while Driving is a crime in Maryland
List of New Laws in Maryland: DWI Consequences Influenced
As the month of October begins at full-speed, Maryland residents must become aware of new laws that have been introduced in the State. These new regulations are being enforced to help prevent crime and injury, especially when it comes to being behind the wheel. According to a times-news.com report, one of the new laws will affect those arrested for DWI. The new law states that within a span of five years, if a person hits their second DWI arrest, he or she will face an obligatory license suspension for one year.
According to the article, another new law that has taken affect in Maryland is an official ban against texting while driving. If you are convicted of texting while driving, you may face a steep fine of $400 in addition to having one point added to your driving record. Considering that the law will make exceptions for emergencies, cases involving texting and driving may present some complications given that one person’s definition of an emergency may differ from another’s.
In relation to the new DWI law, having your license suspended can impose many inconveniences in limiting your ability to secure timely and reliable transportation to and from work, school, and other important locations. To face the chance of enduring this penalty for an entire year can add to an experience that is already overwhelming when an individual is arrested for DWI.
If you have been arrested for DWI in Maryland, you don’t have to go through this challenging time alone. In many cases, those facing DWI charges find that they benefit from seeking the assistance of a skilled Maryland DWI defense lawyer with experience handling such cases. Aside from facing a one-year license suspension, other DWI consequences may involve multiple points on your driver’s license, hefty fines that may compromise your financial stability, and even a prison sentence.
Especially if you have prior DWI arrests or convictions, it may be in your best interest to contact a criminal defense attorney. One of the things a DWI defense attorney can do is conduct a thorough investigation of your arrest to determine if law enforcement followed proper procedure when stopping you and conducting sobriety tests. The charges against you may be reduced or even dropped if it is found that your rights were violated or if the officer failed to adhere to required procedure.
Jun 14, 2011
Domestic Violence - PASSED
Bills supported by WLC
- 534/SB 329 - Domestic Violence - Protective Order - Extension allows a court to extend a protective order for up to two years if the respondent commits a subsequent act of abuse while the protective order is still in effect.
- 1382/SB 554 - Rental Housing - Protection for Victims of Domestic Violence and Sexual Assault provides protections for victims regarding their landlord/tenant relationships. The law provides that if the victim/tenant has obtained a final protective order or peace order, the victim may terminate the lease in order to relocate; the landlord must change the locks upon request of the victim at the victim's expense, and creates a rebuttable presumption that the victim is not in breach of the lease if the landlord is attempting to evict the victim for the behavior of the abuser.
- 1149/SB 935 - Denial or Dismissal of Peace Order or Protective Order Petition - Shielding of Records allows a respondent in a protective order or peace order case that has been dismissed or denied to request the court to remove from judicary case search and other public access all records relating to the proceeding. Domestic violence advocates, judges and law enforcement officals would have access to the shielded records. Although the Women's Law Center opposed the expungement of domestic violence records, this final version of this bill included important protections for victims.
- 661 - Arrest - Violation of Protective Order provides that an officer shall arrest with or without a warrant for a violation of a protective order.
- 905/SB 22 - Criminal Law - Prohibitions on Wearing, Carrying or Transporting Firearms - Exception establishes an exception to the prohibition against transporting a firearm for a respondent who is surrendering a weapon.
- 60/SB 618 - Criminal Procedure - Violation by Child Sexual Offender of Pretrial and Posttrial Release No Contact Order ("Alexis's Law") allows the police to make a warrantless arrest if they have probable cause to believe the person has violated a no contact order in a crime against a minor.
- 665- Prince George's County - Domestic Violence - GPS Tracking System Pilot Program for Offenders and HB 1336- Washington County - Domestic Violence - GPS Tracking System Pilot Program for Offenders authorize pilot projects in Prince George's and Washington Counties that will monitor domestic violence criminal offenders using GPS tracking systems.
- 625 - Domestic Violence - Domestic Violence Central Repository requires the creation of a Domestic Violence Central Repository to store civil domestic violence orders.
- 534/SB 329 - Domestic Violence - Protective Order - Extension allows a court to extend a protective order for up to two years if the respondent commits a subsequent act of abuse while the protective order is still in effect.
- 1382/SB 554 - Rental Housing - Protection for Victims of Domestic Violence and Sexual Assault provides protections for victims regarding their landlord/tenant relationships. The law provides that if the victim/tenant has obtained a final protective order or peace order, the victim may terminate the lease in order to relocate; the landlord must change the locks upon request of the victim at the victim's expense, and creates a rebuttable presumption that the victim is not in breach of the lease if the landlord is attempting to evict the victim for the behavior of the abuser.
- 1149/SB 935 - Denial or Dismissal of Peace Order or Protective Order Petition - Shielding of Records allows a respondent in a protective order or peace order case that has been dismissed or denied to request the court to remove from judicary case search and other public access all records relating to the proceeding. Domestic violence advocates, judges and law enforcement officals would have access to the shielded records. Although the Women's Law Center opposed the expungement of domestic violence records, this final version of this bill included important protections for victims.
- 661 - Arrest - Violation of Protective Order provides that an officer shall arrest with or without a warrant for a violation of a protective order.
- 905/SB 22 - Criminal Law - Prohibitions on Wearing, Carrying or Transporting Firearms - Exception establishes an exception to the prohibition against transporting a firearm for a respondent who is surrendering a weapon.
- 60/SB 618 - Criminal Procedure - Violation by Child Sexual Offender of Pretrial and Posttrial Release No Contact Order ("Alexis's Law") allows the police to make a warrantless arrest if they have probable cause to believe the person has violated a no contact order in a crime against a minor.
- 665- Prince George's County - Domestic Violence - GPS Tracking System Pilot Program for Offenders and HB 1336- Washington County - Domestic Violence - GPS Tracking System Pilot Program for Offenders authorize pilot projects in Prince George's and Washington Counties that will monitor domestic violence criminal offenders using GPS tracking systems.
- 625 - Domestic Violence - Domestic Violence Central Repository requires the creation of a Domestic Violence Central Repository to store civil domestic violence orders.
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