1. DEFENDING A DFPS CASE : TRIAL: PARENTS CASE
By Brian Fischer

2. JURY TRIAL FEES
. IF YOUR CLIENT WANTS A JURY TRIAL YOU MUST PAY THE $30.00 JURY FEE AND FILE A REQUEST FOR JURY TRIAL AND SERVE A COPY OF THE JURY REQUEST ON ALL COUNSEL OF RECORD

3. MOTIONS IN LIMINE
The motion in limine can limit what evidence DFPS and other parties can be permitted to offer before the jury

4. MOTIONS IN LIMINE
. When drafting the Motion in Limine when representing parents it is also essential that you include not only DFPS but the attorney ad litem, guardian ad litem, other parents and intervenors if they are parties.

5. MOTIONS IN LIMINE
The Motion in Limine must be filed prior to the commencement of trial and usually is dealt with at the pre-trial conference. If there is not a pre-trial conference setting in the case then the Motion in Limine must be presented prior to the Jury being brought into the courtroom for voir dire.

6. MOTIONS IN LIMINE
Failure to present the Motion in Limine prior to the empaneling of the jury may result in matters presented to the jury panel that you desired not to be presented to the panel.

7. VOIR DIRE
Prior to the jury panel being brought into the courtroom the jury list and the jury questionnaires will be provided to the attorneys. Although there is not usually a great deal of time to review the juror questionnaires prior to the jury panel being brought into the courtroom, it is essential that you review the information.

8. VOIR DIRE
During voir dire always identify the juror you are questioning by juror number. This is necessary so that the record is clear as to which juror you are speaking to and so that the juror’s answer can be identified in the record.

9. VOIR DIRE
If there are questions asked by any party during voir dire that are improper you must object to improper voir dire or any error will be waived. Judges generally will avoid ruling on objections. It is imperative that you secure a ruling from the judge on your objection on the record. Failure to obtain a ruling from the court will result in the objection being waived.

10. VOIR DIRE
In order to preserve a motion to strike a prospective juror for cause you must secure a statement from the prospective juror that the juror cannot be fair or impartial to your client.

11. VOIR DIRE
At the conclusion of voir dire, strikes for cause will be made before the bench.
In the event that there is a disagreement regarding the strikes for cause, then it is the burden of the proponent of the strike for cause to request that the juror be brought before the bench and to question the juror to substantiate the grounds for the strike for cause. Texas Rules of Civil Procedure Nos. 228, 229 and 230 provide the statutory guidance for strikes for cause.

12. VOIR DIRE
After the strikes for cause are concluded then the parties make their peremptory strikes. If there has been no alignment of parties, each party gets six peremptory strikes. If there as been an alignment of parties then the strikes can be allocated among the aligned parties. Texas Rules of Civil Procedure Nos. 232, 233 and 234 provide the statutory guidance for peremptory strikes.

13. OPENING STATEMENT
Opening statement is made prior to the presentation of evidence. The Rules of Civil Procedure provide that the party shall state to the jury briefly the nature of his claim or defense and what the party expects to prove and the relief sought. Texas Rules of Civil Procedure No. 265.

14. TRIAL
The trial of a DFPS case in representing a parent procedurally is the same for both a court trial and a jury trial concerning the presentation of evidence. Since the burden of proof is on DFPS they are first in the presentation of evidence. The order of proceedings is covered in Texas Rules of Civil Procedure No. 265.

15. TRIAL: INVOKING THE RULE
. If you are concerned at trial that DFPS witnesses or other witnesses should not remain in the courtroom during trial you may pursuant to Texas Rules of Civil Procedure No. 267 invoke the rule and exclude all witnesses until called to testify.

16. PRACTICE TIPS FOR TRIAL
I have found the use of an easel with large paper that is bound so that you can write on the paper with a sharpie most effective in presenting a case to the jury. I have used the easel while questioning witnesses to summarize specific points on the paper.

17. PRACTICE TIPS FOR TRIAL
As I make specific points and want the document in evidence I will ask the witness if the writing on the easel is an accurate summary of what the witness has testified to, mark it as Exhibit ____ and offer it into evidence. I have been advised by jurors after trial that they found it useful in their understanding the testimony and in their deliberations.

18. PRACTICE TIPS FOR TRIAL
Another effective tool is the use of photographs of the parent and the child or children. I have always had an 8X10 photograph framed, offered it into evidence after authenticated and used it in closing argument. Additionally, the compilation of a book of photographs admitted into evidence and published to the jury is a most effective way to present your client’s case.

19. PRACTICE TIPS FOR TRIAL
Regarding publishing evidence to the jury, Patrick Hauptman and Dean Hobbs, the bailiffs in the 313th District Court have asked me to point out that the proper method for publishing evidence to the jury is to hand the evidence to the bailiff and have the bailiff tender the evidence to the jury. Texas Rules of Civil Procedure No. 283 provides that only the officer attending the jury is authorized to have contact with the jury.

20. PRACTICE TIPS FOR TRIAL
Additionally, depending on the facts of the case and the evidence the client has, I have found that DVDs offered into evidence and played for the jury are extremely
effective in the presentation of the case to the jury.

21. PRACTICE TIPS FOR TRIAL
With respect to the presentation of the client himself or herself, depending on the employment of the client, insure that the client is clean and presentable and hopefully able to wear different clothing each day for trial.

22. EFFECTIVE ASSISTANCE
Effective assistant of counsel at trial requires that counsel pay attention, question all witnesses vigorously, and cross examine all DFPS witnesses. Additionally, insure that only competent admissible evidence is admitted into evidence before the court and/or jury.

23. EFFECTIVE ASSISTANCE
The DFPS case file is not admissible as a business record because it contains hearsay upon hearsay and unless both levels of hearsay meet exceptions to the hearsay rule. Texas Rules of Evidence Additionally, a business record which meets the business record exception to the hearsay rule may not be admissible if he information contained in the record is inadmissible hearsay. Texas Rules of Evidence 805.

24. JURY CHARGE
After the close of evidence and closing argument the jury charge is presented to the jury. Texas Rules of Civil Procedure Nos.271 and 272. The best practice is to have the jury charge ready prior to voir dire so that the practitioner knows what the jury is going to use in deliberations. In a DFPS case the county attorney usually prepares the charge.

25. JURY CHARGE
If you want an issue or question submitted to the jury that is not included in the charge you must do so in writing and present it to the court for inclusion in the charge. Texas Rules of Civil Procedure Nos.272, 273 and Failure to submit your written request for inclusion in the charge will waive your objection.

26. JURY QUESTIONS
After the jury has been read the charge and retired to the jury room to deliberate they may communicate to the court through written question. Texas Rules of Civil Procedure No The judge must then summon all the attorneys, read the question and then respond to the question in writing. If there is a disagreement as to the evidence the jury may communicate in writing to the court their disagreement and have that portion of the testimony read to the jury. Texas Rules of Civil Procedure No.287.

27. JURY VERDICT
When the jury has reached a verdict they will communicate that fact to the bailiff and the jury returns into open court for the judge to read the verdict. Texas Rules of Civil Procedure No At that time any party may request that the jury be polled to determine if the verdict is, in fact, their verdict. Texas Rules of Civil Procedure No The best practice is to always poll the jury in the event that it is not the verdict of those jurors who signed the verdict. Stranger things have happened.

28. CPS STATUTORY CHANGES
Texas Family Code Sections ,0132 and 0133 now set out requirements for Appointed Attorneys for Parents and alleged fathers.
See my paper for specific new requirements of ad litems.

29. CONCLUSION
Trying DFPS cases representing parents is both challenging and rewarding. It is imperative in representing parents that you be both zealous and effective in your representation. Go forth and try those cases.