Please recommend an attorney for an odd case

[HaryCalahan]

What is the name of your state (only U.S. law)? Dallas, Texas

Hi I'm having a hard time finding an attorney for an odd case I have. Can someone recommend me one? You can do it in private mail if you like.

Basically, I'm being sued for defamation for internet postings I didn't make, and for filing a complaint against a psychologist (yes, a psychologist is suing me for complaining to the board of psychology! believe it or not). So, I have to defend this defamation thing but also want to sue her for a variety of atrocities during a social evaluation she did for my family a while ago.

Also if anyone knows the extent of a judicial immunity for a social evaluator during a custody case, please let me know. I'm finding conflicting information on the internet, all the way from no immunity all the way to complete immunity.

I've talked to a couple of attorneys and none seem to want to handle this. Thanks

 

[Zigner]

What is the name of your state (only U.S. law)? Dallas, Texas

Hi I'm having a hard time finding an attorney for an odd case I have. Can someone recommend me one? You can do it in private mail if you like.

Basically, I'm being sued for defamation for internet postings I didn't make, and for filing a complaint against a psychologist (yes, a psychologist is suing me for complaining to the board of psychology! believe it or not). So, I have to defend this defamation thing but also want to sue her for a variety of atrocities during a social evaluation she did for my family a while ago.

Also if anyone knows the extent of a judicial immunity for a social evaluator during a custody case, please let me know. I'm finding conflicting information on the internet, all the way from no immunity all the way to complete immunity.

I've talked to a couple of attorneys and none seem to want to handle this. Thanks

Not only is this a duplicate post, but you are still not going to get a referral. Click the "Find an Attorney" link.

 

[HaryCalahan]

I posted in more than one area because this case is a combination of two different things; the defamation defense, and also the litigation part. That's why I'm having a hard time finding an attorney, and hence whey I am posting here, and why the title says this is an "odd" case. And I tried the "find an attorney link" - it was worthless.

I would really appreciate it, if someone would PM me a some referrals.

Also, please only reply if you have some helpful information to post. Thanks

 

[cbg]

The rules of the site prohibit referrals. I don't know how to make it any more clear than that.

 

[Tex78704]

Attorneys for your kind of case are easy to find...if you have the money
If you are looking for one on contingency, you will not likely find one willing to touch your case without a lot of money upfront.

...Basically, I'm being sued ... for filing a complaint against a psychologist (yes, a psychologist is suing me for complaining to the board of psychology! believe it or not)...

What was the outcome of your complaint?

While one generally has immunity from such actions, complaints deemed to be frivolous and made in bad faith might open one up to legal problems. They are not likely using your complaint as a separate cause of action against you, but rather to show a pattern of harassment by you in addition to the defamation suit against you.

... So, I have to defend this defamation thing but also want to sue her for a variety of atrocities during a social evaluation she did for my family a while ago.

Also if anyone knows the extent of a judicial immunity for a social evaluator during a custody case, please let me know. I'm finding conflicting information on the internet, all the way from no immunity all the way to complete immunity...

The psychologist does have immunity (not judicial immunity) from civil actions for anything done as part of the legal proceedings. Any issues should have been raised and addressed to the court during those proceedings.

Unless the board of psychology found against the psychologist, which it apparently did not since you are now being sued by the psychologist, you have a snowballs chance in heck of suing her and prevailing for "a variety of atrocities" as you suggest.

You should be more concerned about defending yourself in this lawsuit than thinking you can do a "right back at you" with a countersuit that would be quickly dismissed based upon immunity.

 

[quincy]

HaryCalahan, you can go to the State Bar of Texas' website, texasbar.com, to help you locate an attorney who can handle your case. The Texas Bar has a lawyer referral service you may find helpful.

As for what type of attorney may be best in your described situation, I am thinking, based entirely on what you have posted here, that you might be wisest to go with an attorney well-versed in defamation law, as defamation cases, especially when they involve internet postings, can get pretty complicated. But, then again, a Family Law lawyer may be better able to address the family evaluator/custody matter.

It really would take a review of all aspects of the legal situation you are dealing with to determine what attorney is best suited for handling your case. This may mean you will have to explore a bit and consult with several attorneys before finally settling on one.

As for whether any judicial immunity would extend to a psychologist who acted as a family evaluator in your custody case, this would depend on what sort of function the evaluator played and if the evaluator was acting as a "fact-finder" for the court or as a personal representative for one of the parties in the action. What matters is not so much who the person is that performs the evaluation, but whether the person is acting as an officer of the court when performing it.

So, unless this has changed substantially in Texas since Antoine v Byers & Anderson, Inc (508 US 429, 113 S.Ct. 2167, 124 L.Ed.2d 391, 1993) - and one of our forum members from Texas can correct me if it has - what a Texas court looks at with judicial immunity and a custody evaluator is whether the evaluator was delegated by the judge or appointed by the judge and in function is acting as an "arm of the court."

In Antoine, the United States Supreme Court echoed earlier Texas court decisions when it stated that judicial immunity extends to officials whose "judgments are 'functionally comparable to those of judges" and who " 'exercise a discretionary judgment' as part of their function."

You may wish to check out the following Texas cases that dealt with judicial immunity:

Clements v Barnes, 834 SW2d 45, 46, Texas 1992.

City of Houston v West Capital Financial Services Corp, 961 SW2d 687, 689 Texas App-Houston, 1st Dist 1998.

Delcourt v Silverman, 919 SW2d 777, 782 Texas App-Houston, 14th Dist 1996.

The Delcourt case was a child custody case and may be of most interest to you.

Good luck.

 

[Tex78704]

OP's term "social evaluator", while loosely coined here, strongly suggests this was a court ordered evaluation, rather than possibly that of retained expert witness employed by the other party. The term suggests that this was likely both a psychological evaluation and social study, which is performed by licensed psychologists.

Although I suggested the psychologist does not have 'judicial immunity', this was not entirely correct, since she does have 'derived judicial immunity' (absolute immunity), if she was court appointed for the purpose of a custody evaluation. And as Quincy already cited, the Clements case in the Texas Supreme court makes this point clear.

 

[quincy]

Whether judicial immunity applies would still depend on the function of the evaluator, however, even if the evaluator were court-appointed.

If a GAL is appointed by the court to look after the best interests of the child, for instance, the GAL may not be entitled to judicial immunity because the GAL could be looked at as a personal representative of the child. See Byrd v Woodruff, 891 SW2d 689, 707, Tex App-Dallas, 1994.

Michigan is slightly different than Texas when it comes to judicial immunity, looking at court-appointed actors as having a quasi-judicial immunity or a qualified immunity, making them open to civil liability for intentional or negligent actions while in performance of their duties.

At any rate, I did not see the evaluator as a "witness" as latigo did in Hary's other thread, at least based on the little information that was provided us by Hary.

 

[HaryCalahan]

HaryCalahan, you can go to the State Bar of Texas' website, texasbar.com, to help you locate an attorney who can handle your case. The Texas Bar has a lawyer referral service you may find helpful.

Tried that; wasn't very helpful. I spent a lot of time talking to alot of lawyers who were just looking for simple, easy cases.

As for whether any judicial immunity would extend to a psychologist who acted as a family evaluator in your custody case, this would depend on what sort of function the evaluator played and if the evaluator was acting as a "fact-finder" for the court or as a personal representative for one of the parties in the action. What matters is not so much who the person is that performs the evaluation, but whether the person is acting as an officer of the court when performing it.

Both parties "picked her from a list" at random - and then, the was "ordered by the court" to do the social study. Ordered by the court was the wording.

And what I'm finding is, they do NOT have "total immunity" - they are not immune from lies, malicous prosecution or misuse of authority. For example, she tried to actually get me arrested for things I didn't do, and we found out after the case was over from my ex that she was actually coaching the other side on what to say to other parties involved in order to "win" against me, and also she even threatened my ex that if she didn't do what was told, she would take the kids away from my ex - this woman was OUT of control and needs to be stopped from doing this role. We are not the only couple she has done this to; it seems to be a pattern.

So, unless this has changed substantially in Texas since Antoine v Byers & Anderson, Inc (508 US 429, 113 S.Ct. 2167, 124 L.Ed.2d 391, 1993) - and one of our forum members from Texas can correct me if it has - what a Texas court looks at with judicial immunity and a custody evaluator is whether the evaluator was delegated by the judge or appointed by the judge and in function is acting as an "arm of the court."

I don't see how there's a parallel between a court transcriber and somoene acting wrecklessly and trying to use their qualified immunity to attack people they don't "like" during a custody case.

And unfortunately, the board said she "met the minimum requirements" - however, that's clearly not correct and they are protecting their own, because she didn't perform a home visit, which is in black and white in the Texas family law code as a clear requirement, and even says the study can't be admitted into evidence if one wasn't performed, and it wasn't. But we never got that far, becuase my ex and I came to an agreement before trial. However, the judge got to read it, which I don't think he should have, considering a home visit wasn't performed.

"Sec. 107.0514. ELEMENTS OF SOCIAL STUDY. (a) The basic elements of a social study under this subchapter consist of:
(1) a personal interview of each party to the suit;
(2) an interview, conducted in a developmentally appropriate manner, of each child at issue in the suit who is at least four years of age;
(3) observation of each child at issue in the suit, regardless of the age of the child;
(4) the obtaining of information from relevant collateral sources;
(5) evaluation of the home environment of each party seeking conservatorship of a child at issue in the suit or possession of or access to the child, unless the condition of the home environment is identified as not being in dispute in the court order requiring the social study;
(6) for each individual residing in a residence subject to the social study, consideration of any criminal history information and any contact with the Department of Family and Protective Services or a law enforcement agency regarding abuse or neglect; and
(7) assessment of the relationship between each child at issue in the suit and each party seeking possession of or access to the child.
(b) The additional elements of a social study under this subchapter consist of:
(1) balanced interviews and observation of each child at issue in the suit so that a child who is interviewed or observed while in the care of one party to the suit is also interviewed or observed while in the care of each other party to the suit;
(2) an interview of each individual residing in a residence subject to the social study; and
(3) evaluation of the home environment of each party seeking conservatorship of a child at issue in the suit or possession of or access to the child, regardless of whether the home environment is in dispute.
(c) A social study evaluator may not offer an opinion regarding conservatorship of a child at issue in a suit or possession of or access to the child unless each basic element of a social study under Subsection (a) has been completed. A social study evaluator shall identify in the report any additional element of a social study under Subsection (b) that was not completed and shall explain the reasons that the element was not completed."

Thanks for the info

 

[quincy]

If you are having a difficult time finding an attorney, Hary, it could be an indication that your case does not have merit - or enough merit, at any rate, to support the costs that must be incurred to help you pursue or help you defend against a civil action. Ease or difficulty of an action will generally not play as much of a role in an attorney's decision to accept a case as will the attorney's weighing of benefits versus costs.

"Ordered by the court" does not really give much of an indication as to the particular function this evaluator performed for the court. But I am not sure this really matters much at this point, because you say everyone agreed on the evaluator and you settled the case prior to a trial on the matter, so the study was never admitted into evidence.

Absolute immunity (or judicial immunity) is, by the way, a bit of a misnomer, as there really is no such thing as an absolute immunity. Even judges can be sued over what they say or do in court. The circumstances that lead to such suits are just exceedingly rare.

The Antoine case has a different set of facts than what you present as the facts of your situation - it is not the specific facts that are looked at but rather the law that forms the basis of the court's opinion.

I'm afraid I don't know what to tell you, Hary. What is required is a look at ALL of the facts of your situation, and only an attorney in your area can do that. This is beyond what forum members on FreeAdvice can offer. Yellow Pages, legal aid clinics, law schools....all can be checked out if the Texas Bar wasn't helpful.

Sorry.

 

[Tex78704]

I agree with Quincy that if you are having a difficult time finding an attorney, then most likely your case lacks merit to support any causes of action against the psychologist, much less provide the relief you seek.

It is not true that attorneys are only interested in "simple easy cases". If you have the money to bankroll a long complicated case, there are no shortage of attorneys more than happy to take your case... if your case has at least some merit to it.

The psychologists role in the Delcourt case appears to be very similar to that in your own case. In this instance the psychologist DOES HAVE derived judicial immunity. And in Texas, this is essentially absolute immunity.

Any attempt to sue would likely move quickly to summary judgment, and the case dismissed in favor of the psychologist.

In Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex.App.-Houston [14th Dist.] 1996, writ denied), the Fourteenth Court of Appeals followed the analysis of the federal courts and used the “functional approach” in determining whether a party receives the benefit of derived judicial immunity.  This functional approach looks to whether the person seeking immunity is intimately associated with the judicial process and if that person exercises discretionary judgment comparable to that of the judge.  Id. (“[A] party is entitled to absolute immunity when the party is acting as an integral part of the judicial system or an ‘arm of the court.’ ”).

Delcourt involved a child-custody dispute.  After a mother's efforts to modify custody of her child proved unsuccessful, she sued the court-appointed psychologist and the guardian ad litem alleging that their participation in the trial gave rise to various tort claims.

The defendants answered that they were entitled to derived judicial immunity. The trial court agreed and granted their summary-judgment motions. In affirming the summary judgment on appeal, the court of appeals first extended derived judicial immunity to the psychologist who had been appointed under Texas Rule of Civil Procedure 167a(d)(1).1  

The court of appeals reasoned that mental-health professionals appointed by the trial court to examine the child and parents in a custody proceeding are acting as a factfinder for the court. Delcourt, 919 S.W.2d at 782-83. Thus, “[t]he court relies on the professional to provide information essential to the decision-making process. Without the protection of absolute immunity, such professionals would be, at the very least, reluctant to accept these appointments. This would in turn inhibit judges from performing their duties.” Id.

Because the judge appointed the psychologist to evaluate the physical and emotional state of the parties so as to better inform the custody decision, the psychologist acted as a “functionary” of the court. Id.

No.?01-0784. - DALLAS COUNTY v. HALSEY - TX Supreme Court

 

[HaryCalahan]

I agree with Quincy that if you are having a difficult time finding an attorney, then most likely your case lacks merit to support any causes of action against the psychologist, much less provide the relief you seek.

No, what is the case is that most attorneys want a quick buck and with the modified immunity the ones I've spoken with are scared to take it on; it may be that this hasn't been done before and it's a novel/groundbreaking case.

 

[Zigner]

No, what is the case is that most attorneys want a quick buck and with the modified immunity the ones I've spoken with are scared to take it on; it may be that this hasn't been done before and it's a novel/groundbreaking case.

Or it could be that you don't have a case