Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
I drive the speed limit; I drink only in moderation; and I attend church every Sunday. Given that I try so hard to live right, I was surprised and upset when a state marshal arrived at my school yesterday to serve me with a subpoena to appear in court.
As it turns out, the case involves two parents who are involved in a divorce, and they are in a bitter struggle over custody of their one child together. Both parents are constantly haranguing me about how bad the other is, and I have tried my best to stay neutral. To make matters worse, the subpoena requires that I bring with me the various school records that I have received, including emails that they have sent to me about the other.
In short, I want no part of this court battle. Do I need a lawyer? Do I need insurance? Help!
Take a deep breath and relax. School administrators are subpoenaed to court hearings or depositions with some regularity. You certainly don’t need insurance, but you should consult promptly with your superintendent and, through him or her, with district legal counsel, who can guide you through the process.
Often the lawyers simply want the educational records. Conn. Gen. Stat. Section 10-15b(c) sets forth a procedure whereby school records that are subpoenaed can be delivered to the court without requiring that a school official testify in court to authenticate the records. Let’s hope that the lawyer just wants the records and does not need your testimony.
The first step is to contact the lawyer issuing the subpoena, either directly or through legal counsel for the district. If the lawyer indeed just wants the records, with the help of school legal counsel, you can provide the records without having to appear in court. Specifically, Section 10-15b(c) provides that you may deliver the records to court in a sealed envelope, “which shall indicate the name of the school or student, the name of the attorney subpoenaing the same and the title of the case referred to in the subpoena.” The records should be delivered to the clerk of the court along with an affidavit from you or some other person responsible for the records. By statute, the affidavit should indicate “that such record or copy is the original record or a copy thereof, [that it was] made in the regular course of the business of the school, and that it was the regular course of such business to make such record at the time of the transactions, occurrences or events recorded therein or within a reasonable time thereafter.” The district’s legal counsel can help you get the wording right for the affidavit. The clerk will then provide you with a receipt for the records.
Legal Mailbag certainly hopes that the lawyer just wants the records, but sometimes the lawyers will want administrators or teachers to testify. If you have information about one of the students in your school and a party to a court case wants you to testify, most likely you will have to do so. When the case is between parents, you have nothing to worry about, but you will want to chat with district legal counsel for guidance. It may be possible for legal counsel to arrange for you to be on call so that you do not have to spend hours in court waiting for the case to be heard. Also, in many cases, you will just need some coaching about how best to testify (be honest, listen carefully to the question, answer only the question, do not speculate, etc.). However, in particularly contentious cases, it may be best for district legal counsel to accompany you to court to assure that things go smoothly.
You will be fine.