Pro Bono Materials
Are you an attorney who took on a pro bono case (like the legal rockstar you are) and now you're feeling in over your head? (If you are doing a case for pay and glomming off the site, I will let it slide so long as you immediately go out and take a pro bono case because, otherwise, karma will get you.)
Along with some brilliant law students in the Rutgers Law School Constitutional Rights Clinic, I have represented pro bono clients in Federal District Court. In the course of our representation, we have picked up a few things which we offer here to other attorneys undertaking pro bono assignments (as well as anyone who stumbles across this page).... The below materials are current through the 2016-2017 judicial year, but I would suggest that if you're going to heist words, ideas, legal arguments, discovery requests, etc. (which we encourage) you re-research the law and issues to make sure the precedent is still current. The below documents and references were amassed and/or created during three cases: 1) an ADA and civil rights case for a disabled prisoner; 2) an ADA and civil rights case for a wheelchair-bound arrestee; and 3) an excessive force case against an NYPD for excessive force used in the arrest of our client. Because there are some commonalities in discovery concerns and objectives, I treat shared issues in lump.
THE COMPLAINT - AMEND IT
It is highly likely that your client has filed a pro se complaint - generally handwritten. We have found that the first and most important task is to amend the complaint and to put it in a form that clarifies the facts, streamlines the causes of action and makes it clear to the court both the allegations and relief sought. Many pro se plaintiffs do not understand the causes of action (nor should they) and they have likely incorporated noisy facts that only distract from their most meritorious claims. Many pro se plaintiffs have also failed to perfect their state law claims (by filing a notice of tort claim) or failed to exhaust their administrative remedies if they are in prison. Help your client and the court by getting rid of the noise. If the complaint is necessarily lengthy, I recommend a table of contents. There are no rules against it and it can be incredibly helpful when addressing claims later in the litigation.
DISCOVERY - PAY ATTENTION!
The largest ramp-up in these cases involves knowing what materials to request, what will help your client's case and what to keep from your adversary.
PERILS AND PITFALLS:
Releases and Waivers for Medical Records: As soon as your client filed suit, it is likely adversary's counsel swooped in and presented him/her with a HIPAA release and waiver for medical records. Your client, wanting to move his/her case along signed them and your client may have inadvertently provided a waiver for his/her mental health records. If so, you need to immediately rescind that waiver in writing, citing the fact that your client did not have counsel. Why don't you want your adversary to get your client's mental health records? Because 1) they're privileged under Fed. R. Evid. 501; 2) if your client is in prison I guarantee there are things in those records you'd like to keep out of your adversary's hands. I have never seen a prison psychiatrist or social worker's notes that read, "Patient is a lovely, well-balanced, mentally competent person who is innocent of his/her alleged crimes." Mental health professionals in prisons are there to record mental health problems and they often record very personal details of your client's past and family; 3) your client may have used mental health to get needed medical attention for other ailments. For example, I had a client who broke his leg in three places while in prison. The prison staff would not take him to the infirmary despite two days of complaints. He then told a Corrections Officer that he was feeling suicidal because they MUST take a prisoner to the hospital to get treatment if the prisoner reports suicidal thoughts. When my client arrived at the hospital, his broken leg was finally treated. This is a pretty standard story. Despite no true suicidal tendencies, the mental health records would show both suicidal tendencies and perhaps a tendency to lie and manipulate. Neither assessment would be fair, so why risk putting the records in the hands of your adversary? Don't put your clients mental health into play and don't waive the privilege. Below are two brief memos on the issues. Both are public record, neither is perfect, but each got the job done:
NYPD counsel will insist you sign a Stipulation of Confidentiality regarding NYPD materials, including Patrol Manual Procedures, etc. The justifications will be tepid, but there is not much use fighting it. HOWEVER, ensure that the Stipulation proffered to the judge to be So Ordered includes a provision for the modification of the Order upon your motion.
ROSARIO FILE / BRADY MATERIALS:
If the allegations of your complaint spring from your client's arrest, go find his/her Rosario file! Find it now! Find your client's criminal defense attorney, take him/her out for a drink, take him/her out to dinner, show up at his/her office, write him/her imploring e-mails and do what you need to do to get a copy of that file. The Rosario file contains all the documents related to your client's arrest and the underlying criminal case that were turned over to your client before his/her criminal trial, including relevant Grand Jury testimony, etc. The Rosario file is your best shot at getting necessary discovery. Some of the forms/discovery you need will be in the Rosario materials. Others will not be.... If they are not, ensure you request the necessary documents in your discovery demands:
Especially relevant to any EXCESSIVE FORCE OR ARREST-RELATED CLAIMS will be:
1) Medical treatment of prisoner forms - If your client was treated by EMTs or in a hospital, the cops had to fill out medical treatment of prisoner forms, find them. Procedurally, there should be one treatment form for each medical incident.
2) DD5s - These forms memorialize any interviews or activities conducted by the police related to your client's case, including reports containing follow-up information, etc.
3) Officer Memobooks - each detective or NYPD officer keeps a memobook memorializing their whereabouts or actions, but don't stop there! MANY TIMES the memobook only contains perfunctory notations. Many detectives also keep a spiral or steno notebook with their case notes. You need to request any and all notes taken by the officers. I have found out during depositions that the officer in question had all his relevant notes in another notebook and not in his memobook.
The memobooks contain lots of esoteric acronyms. We've compiled a list of the most frequent/important here for your translating pleasure:
4) Stop, Question and Frisk Form - this is a handwritten form that should have been filled out by the arresting officer. It contains lots of interesting information such as type of force used (if any). If there was no stop and frisk this form may not exist.
5) On-Line Booking System Arrest Worksheet - this is also filled out by hand by the arresting officer. It contains much of the same information as the SQ&F form and is completed before the actual arrest worksheet is filled out in the computerized arrest system.
6) Arrest Report - This is the on-line generated arrest report.
7) Police Desk Log Entry (sometimes called "Command Log") - this is filled out by the Desk Officer in the precinct when the arrestee arrives. It should note his physical condition, the arresting officer, when and where he is transported (hospitals, etc) and other relevant information. There may be more than one entry for your client. Ask for any and all entries as well as the Desk Officer's name who made the entries.
8) FDNY Pre-Hospital Care Report - Many of the precincts call the FDNY EMS units when a prisoner requires medical attention. Subpoena the FDNY for any and all records. When they arrive at the precinct they fill out this report. It will detail your client's condition. It MAY not be in the NYPD case file or the hospital file. If the FDNY EMS was not summoned, find out which EMS/EMT service was used and subpoena it.
9) Arrest Activity Report - this can be a very informative document. It records the time at which certain on-line arrest related documents were created. IT IS CREATED BY CENTRAL BOOKING and you will need someone from Central Booking to authenticate it. Officers will say they know what it is but that they did not create it and don't know who does.... This document also records a prisoner's whereabouts, if they were moved to hospitals, between precincts, etc.
10) Mug shots - usually taken at Central Booking. You want to know when they were taken.
11) Sprint Reports - invaluable discovery. They are word for word recordings of the 911 calls and the dispatch of police and ambulances. If an FDNY ambulance was also dispatched to an arrest or incident scene the NYPD will have one sprint report and the FDNY will have another. In large part they will match, but get them both. They show when officers arrive on scenes, who's responding, etc.
12) Prisoner Tracking Log - while the prisoner is in custody, someone checks on him/her every 30 mins and must log his/her condition. You not only want the log, you want to know the identity of the officer recording the condition of the prisoner.
13) Medical Records - Subpoena them from hospitals. DO NOT rely on your adversary's copies that they have requested.
14) Medical Bills - sometimes have to be subpoenaed separately as they are created and maintained separately from the medical records division.
15) NYPD PATROL MANUAL PROCEDURES - Counsel guard these like gold and redact them within an inch of incoherence. We found an entire copy of the 2014 NYPD Patrol Manual so you can see which procedures you might want to request. The Patrol Guide does not change that often. You need the procedure that was promulgated for the year in which the allegations took place, otherwise the procedure is not relevant. When they redact things, make them justify the redactions. I have also included a few new procedures related to Use of Force from 2016.
For cases in which the allegations spring from CONFINEMENT IN PRISON:
1) Disciplinary ticket: When a prisoner breaks a rule, they get a "write up" or disciplinary ticket. There will be a separate ticket for each incident/charge.
2) Entire grievance file: your client should have filed a grievance about the conduct. The grievance file should include: the grievance; the IGRC (Internal Grievance Response Committee) response; the Superintendent's response. In some cases, your client may have filed a Article 78 proceeding in state court. If not, find out if he/she should have....
3) Medical records - REQUEST THEM IN CHRONOLOGICAL ORDER (they delight in producing the records in a jumbled mess); DO NOT REQUEST NOR HAVE YOUR CLIENT FILL OUT A WAIVER THAT INCLUDES A WAIVER FOR MENTAL HEALTH RECORDS! Trust me! (More on this later....) Medical records include:
a) Medical request slips (often the medical records will not include these and you have to request them from the individual prison. If your client needed medical attention they filled out a request form.
b) Ambulatory Health Records Progress Note: These memorialize your client's condition, medications, changes in prescription, etc. BE CAREFUL: Do not assume they record your client actually saw a medical practitioner because there is a progress note. The prisoner often did not see anyone, but rather the record is of a medical decision that is just based on a prisoner's request, not an examination.
c) Treatment and Medication Record: Records when the patient was administered medications.
4) Minutes and/or recordings of disciplinary hearing: If your client had a disciplinary ticket, they also have had a disciplinary hearing to adjudicate the charges. It was recorded! They will create "minutes" which is essentially a transcript. Request both the minutes and the recording. Your client has certain due process rights at these hearings.
5) One-on-one log: If you client was on one on one watch ("1:1") for contraband or suicide or any other reason, an officer was posted outside his/her cell and had to record all the comings and goings of anyone going to the cell, any tests conducted, etc. Get the log.
6) Infirmary records: there are no video cameras in infirmaries due to HIPAA. Unfortunately, a lot of things happen in the infirmary due to the lack of cameras. Make sure you get any and all records from the infirmary. Often these records are kept separate and apart from regular medical records.
7) Disciplinary history: DOCCS can create a disciplinary history record for each prisoner. This shows all history of discipline and tickets. This can be very, very useful.
8) Transfer history: A prisoner's transfer history memorializes each and every transfer between prisons and sections within a prison. Get it.
9) Reasonable accommodation requests and responses: If your client is disabled, they have to fill out and file a reasonable accommodation request at each prison and the ADA coordinator must respond.