This policy is intended to assist parties, counsel, and the courts in working with electronic evidence and is not mandatory. For purposes of this policy, “electronic evidence” is evidence created, transmitted, or stored in digital form.
1. When electronic evidence is used during trial, the submitting party/counsel should provide the court with
(a) the original evidence, as amended through trial, on its submitted storage device with data preserved in its native format; and
(b) a duplicate copy of the evidence, that shall be
(i) formatted as an Adobe Acrobat PDF file (in read only format), a comma delimited data file, an XML file, a JPEG, an MPEG, or an MP3 audio file;
(ii) provided on a secure and protected media storage device; and
(iii) identified with an adhesive label that shall be affixed to each storage device legibly identifying the case caption, docket and page or case numbers, disk number (1 of 2, etc.), and the format(s) used.
2. Such storage devices shall be for the exclusive use of the courts and authorized court personnel, unless otherwise ordered.
1. The Clerk of the Court shall preserve electronic evidence in the following manners:
(a) the native form of the evidence shall be preserved as submitted with the bill of exceptions, pursuant to the existing rules of evidence;
(b) the duplicate media storage device shall be preserved as submitted with the original form of the evidence with the bill of exceptions; and
(c) the data stored on the accompanying storage device shall be transferred to the court’s server and stored with any electronic oral evidence. The server shall
(i) possess an architecture structure to provide easy access to files and allow for easy determination of files eligible for purging;
(ii) have adequate backup and disaster recovery procedures in place to protect the data; and
(iii) convert documents on file as necessary to current forms of software so that any future data extracted from the server shall not be provided in an antiquated format.
2. Upon request of a party or counsel, the court may provide, at such party’s or counsel’s expense, a copy of any electronic evidence, as well as any electronic oral evidence. Such evidence shall be provided in the format as preserved or on a storage device that is not antiquated by current technology standards.
The Guidelines for Electronic Evidence shall be reviewed on a biannual basis by the Administrative Office of the Courts, which shall recommend any necessary updates to the formats, storage devices, and processes in the guidelines. The Administrative Office of the Courts shall also recommend any necessary file conversion of existing files to avoid obsolescence.
(Guidelines for Guardians Ad Litem for Juveniles in Juvenile Court Procceedings adopted July 18, 2007.)
The purpose of these guidelines is to ensure that the legal and best interests of juveniles in dependency and abuse/neglect proceedings initiated under the Nebraska Juvenile Code are effectively represented by their court-appointed guardians ad litem. These guidelines are also intended to ensure that such interests of juveniles involved in delinquency, status offense, or other proceedings initiated under the Nebraska Juvenile Code are effectively protected when a guardian ad litem has been appointed. The provisions of these guidelines, unless otherwise noted herein, set forth “best practice” recommendations only and are not intended as Supreme Court rules.
A. In accordance with the Nebraska Juvenile Code, specifically Neb. Rev. Stat. § 43-272(3), only a lawyer duly licensed by the Supreme Court of Nebraska may be appointed to serve as a guardian ad litem for a juvenile.
B. When feasible, the duties of a guardian ad litem should be personal to the appointed lawyer and should not normally be delegated to another person or lawyer.
C. Any lawyer who serves as a guardian ad litem should fulfill the training requirements described in the Nebraska Supreme Court Rule Regarding Guardian Ad Litem Training for Attorneys.
A. Neb. Rev. Stat. § 43-272(3) authorizes a guardian ad litem in juvenile proceedings to fulfill a “dual role” with respect to the juvenile, that is, to serve as:
1. An advocate for the juvenile who is deemed as the parent of the juvenile and charged with a duty to investigate facts and circumstances, determine what is in the juvenile’s best interests, report to the court and make recommendations as to the juvenile’s best interests, and take all necessary steps to protect and advance the juvenile’s best interests; and
2. Legal counsel for the juvenile.
B. Where a lawyer has already been appointed to represent the legal interests of the juvenile, for example in a delinquency case, another lawyer appointed to serve as a guardian ad litem for such juvenile shall function only in a single role as guardian ad litem for the juvenile concerning the juvenile’s best interests, and shall be bound by all of the duties and shall have all of the authority of a guardian ad litem, with the exception of acting as legal counsel for the juvenile.
C. Accordingly, the following shall apply:
1. In serving as advocate for the juvenile to protect his or her best interests, the guardian ad litem shall make an independent determination as to the juvenile’s best interests, by considering all available information and resources. The guardian ad litem’s determination as to best interests is not required to be consistent with any preferences expressed by the juvenile.
2. Upon making such determination, the guardian ad litem shall make such recommendations to the court and shall take the necessary actions to advocate and protect the best interests of the juvenile.
3. As legal counsel for the juvenile, the guardian ad litem shall be entitled to exercise and discharge all prerogatives to the same extent as a lawyer for any other party in the proceeding.
4. Where the juvenile expresses a preference which is inconsistent with the guardian ad litem’s determination of what is in the best interests of the juvenile, the guardian ad litem shall assess whether there is a need to request the appointment of a separate legal counsel to represent the juvenile’s legal interests in the proceeding. In making such assessment, the guardian ad litem shall consider:
a. The juvenile’s age,
b. The juvenile’s capacity,
c. The juvenile’s level of maturity, and
d. The nature of the inconsistency between the juvenile’s expressed preference and the guardian ad litem’s determination as to the juvenile’s best interests.
5. After making such assessment, the guardian ad litem shall request the court to make a determination whether special reasons exist for the court to appoint separate legal counsel to represent the legal interests of the juvenile where the guardian ad litem determines all of the following:
a. That the juvenile’s expressed preference represents a communication that is made by a juvenile of sufficient age, capacity, and maturity;
b. That the juvenile’s expressed preference is of significance to other matters or issues in the case affecting the juvenile, and is within the bounds of law and reality; and
c. That the guardian ad litem believes that it would be a conflict of interest for the guardian ad litem to continue to act as legal counsel for the juvenile in light of the preference expressed by the juvenile.
6. In any situation where the guardian ad litem has been appointed to represent more than one juvenile within the same case, the guardian ad litem shall ascertain throughout the case whether the guardian ad litem’s advocacy of the legal and best interests of any one juvenile would be adverse to or conflict with the legal and best interests of any other juvenile represented by the same guardian ad litem. Where the guardian ad litem reasonably believes that to continue as guardian ad litem for all of the juveniles would be problematic in this specific regard, the guardian ad litem shall apply to the court for the appointment of a separate guardian ad litem and/or legal counsel for the juvenile(s). Where any juvenile has expressed a preference or position regarding a certain matter or issue, the guardian ad litem shall utilize the standards set forth in guideline III.C.5 above.
7. If the court exercises its statutory authority to appoint separate legal counsel, such counsel shall represent the juvenile’s legal interests. The guardian ad litem shall continue to advocate and protect the juvenile’s social and best interests as defined under the Nebraska Juvenile Code.
A. Access to Information and Juvenile
1. The guardian ad litem is entitled to receive all pleadings; notices, to include timely notices of change of placement; and orders of the court filed in the proceeding, and should make reasonable efforts to obtain complete copies of the same.
2. The guardian ad litem is entitled to receive copies of all case plans and court reports prepared by the Nebraska Department of Health and Human Services, the Nebraska Foster Care Review Board, and any Court Appointed Special Advocate (CASA), as well as reports, summaries, evaluations, records, letters, and documents prepared by any other provider which the guardian ad litem deems relevant to the best interests or legal rights of any juvenile represented by the guardian ad litem. Where these documents are not provided as a matter of course to the guardian ad litem, they shall be provided upon the request of the guardian ad litem.
3. The guardian ad litem, standing in lieu of the parent for a protected juvenile who is the subject of a juvenile court petition[1] shall also have the same right as the juvenile’s legal guardian to (1) obtain information from all professionals and service providers, including but not limited to verbal communications and written reports, summaries, opinions, and evaluations, and information regarding the juvenile’s placement; and (2) to receive notice of and participate in all conferences, staffings or team meetings, and hearings relating to the juvenile’s health, education, placement, or any other matter which in the opinion of the guardian ad litem is relevant to, or which affects, the best interests or legal rights of the juvenile.
4. The guardian ad litem is authorized to communicate with and respond to inquiries for information regarding the juvenile made by the Nebraska Foster Care Review Board, the Department of Health and Human Services case manager, or CASA.
5. The guardian ad litem is authorized to make announced or unannounced visits to the juvenile at his or her home or placement or at any location at which the juvenile may be present.
6. The court should facilitate the guardian ad litem’s authority to obtain information regarding the juvenile by including the following language, or language substantially similar thereto, in its initial order of appointment of the guardian ad litem:
“The guardian ad litem appointed herein by this Court shall have full legal authority to obtain all information which relates to the above-named juvenile.
“To that end, the guardian ad litem is hereby authorized by this Court to communicate verbally or in writing with any agency, organization, person, or institution, including but not limited to any school personnel, counselor, or drug or alcohol treatment provider; or police department or other law enforcement agency; any probation, parole, or corrections officer; any physician, psychiatrist, psychologist, therapist, nurse, or mental health care provider; or any hospital, clinic, group home, treatment group home, residential or mental health treatment facility, or youth rehabilitation treatment center; any social worker, case manager, or social welfare agency, including the Nebraska Department of Health and Human Services and its employees and administrators; any person or agency or institution charged with supervising visitation; or any family member, guardian, foster parent, or any other person.
“The guardian ad litem is further hereby authorized to obtain from all persons, organizations, or entities, including but not limited to those described in the paragraph above, all information, including but not limited to the inspection of, and obtaining of complete copies of records, reports, summaries, evaluations, correspondence, written documents, or other information, orally or in any media form, which relate to the above-named juvenile even if such information concerns his or her parents, or any other person or any situation that the guardian ad litem deems necessary in order to properly represent the juvenile’s interests.”
[1] Neb. Rev. Stat. §§ 43-272(2) and 43-272.01(2)(a) (2004).
A. Consultation With Juvenile
1. The phrase “consultation with the juvenile,” as used in the Nebraska Juvenile Code, generally means meeting in person with the juvenile, unless prohibited or made impracticable by exceptional circumstances, as set forth in guideline V.A.4 below.
2. The guardian ad litem should consult with the juvenile when reasonably possible and at those times and intervals as required by the Nebraska Juvenile Code.[1]
3. In addition to the statutorily required intervals for consulting with the juvenile, when possible, the guardian ad litem should consult with the juvenile when:
a. The juvenile requests that the guardian ad litem meet with him or her;
b. The guardian ad litem has received notification of any emergency, or other significant event or change in circumstances affecting the juvenile, including a change in the juvenile’s placement; and
c. Prior to any hearing at which substantive issues affecting the juvenile’s legal or best interests are anticipated to be addressed by the court.
d. The guardian ad litem should make every effort to see the juvenile in his or her placement at least once, with respect to each such placement.
4. Where an unreasonable geographical distance is involved between the location of the juvenile and the guardian ad litem, the guardian ad litem should explore the possibility of obtaining from the court an advance determination that the court will arrange for the payment or reimbursement of the guardian ad litem’s reasonable expenses incurred in connection with the travel to meet with the juvenile.
5. “Exceptional circumstances” generally include, but are not limited to, those situations where an unreasonable geographical distance is involved between the location of the guardian ad litem and the juvenile. Where such exceptional circumstances exist, the guardian ad litem should attempt consultation with the juvenile by other reasonable means, including but not limited to telephonic means, assuming that the juvenile is of sufficient age and capacity to participate in such means of communication and there are no other barriers preventing such communication. Where consultation by telephonic means is also not feasible, the guardian ad litem should seek direction from the court as to any other acceptable method by which to accomplish such consultation with the juvenile.
B. Inquiry and Consultation With Others
1. The guardian ad litem is required to make inquiry of the juvenile’s caseworker, foster parent, or legal custodian and any other person directly involved with the juvenile who may have knowledge about the case or the development of the juvenile. The guardian ad litem should also make inquiry of any other persons who have knowledge or information relevant to the juvenile’s best interests.[2] The guardian ad litem may obtain such information through the means of direct inquiry, interview, or the discovery process.
2. The guardian ad litem has a duty to read and comprehend the court reports prepared by the Nebraska Department of Health and Human Services, the Nebraska Foster Care Review Board, the CASA volunteer, and from all other persons or providers assigned to the case who prepare and present such reports to the court.[3]
C. Report and Recommendations to Court
1. The guardian ad litem has a duty to make written recommendations to the court in the form of a report regarding the temporary and permanent placement of the protected juvenile.[4] Because the guardian ad litem is also required by statute to consider any other information “as is warranted by the nature and the circumstances of the particular case,”[5] the guardian ad litem’s report should include written recommendations to the court regarding any other matter that affects or would affect the legal and best interests of the protected juvenile.
2. The guardian ad litem is required to submit a written report to the court at every dispositional hearing and review hearing.[6] The information contained in the report of the guardian ad litem should include, but is not limited to, the following information:
a. Dates of, and description of, the type of contact and communication with the juvenile;
b. Listing of documents reviewed;
c. The guardian ad litem’s concerns regarding any specific matters or problems which, in the opinion of the guardian ad litem, need special, further, or other attention in order to protect or facilitate the juvenile’s legal and best interests; and
d. The guardian ad litem’s assessment of and recommendations regarding the juvenile’s placement in light of his or her needs and legal and best interests.
3. To assist the guardian ad litem in preparing the written report, the guardian ad litem may use the “Report of Guardian Ad Litem” form found at Appendix 1.
D. Participation in Court Proceedings
1. The guardian ad litem shall attend all hearings unless expressly excused by the court.
2. The guardian ad litem may testify only to the extent allowed by the Nebraska Rules of Professional Conduct.
3. Where the guardian ad litem is unable or unavailable to attend a hearing due to reasons such as personal illness, emergency, involvement in another court hearing, or absence from the jurisdiction, such guardian ad litem may make proper arrangements for another attorney to attend the hearing as long as no other party objects and as long as the hearing is not anticipated to be a contested evidentiary hearing. In such a situation, the guardian ad litem does not need to be excused from attendance at the hearing.
4. The guardian ad litem should advocate for the juvenile to be present at all court hearings as appropriate and take steps where necessary to ensure such attendance on the part of the juvenile.
E. Duty to Provide Quality Representation
1. Any attorney appointed by the court to serve as a guardian ad litem for a juvenile, or to provide guardian ad litem services for juveniles, is expected to provide quality representation and advocacy for the juveniles whom he or she is appointed to represent, throughout the entirety of the case.
2. To that end, a guardian ad litem should not accept workloads or caseloads that by reason of their excessive size or demands, including but not limited to factors such as the number of children represented at any given time, interfere with or lead to the breach of the professional obligations or standards required to be met by a guardian ad litem by statute or by court rules.
3. Attorneys should not accept caseloads or appointments to serve as a guardian ad litem or to provide guardian ad litem services that are likely to, in the best professional judgment of the appointed attorney, lead to the provision of representation or service that is ineffective to protect and further the interests of the juvenile, or likely to lead to the breach of professional obligations of the guardian ad litem.
Rule V(C)(3) amended November 21, 2012.
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[1] Currently, the Nebraska Juvenile Code requires a guardian ad litem to consult with the juvenile within the 2 weeks after his or her appointment and once every 6 months thereafter. Neb. Rev. Stat. § 43-272.01(2)(d) (2004).
[2] Neb. Rev. Stat. § 43-272.01(2)(d) (2004).
[3] In re Interest of Antone C., 12 Neb. App. 152, 699 N.W.2d 69 (2003).
[4] Neb. Rev. Stat. § 43-272.01(2)(f) (2004).
[5] Neb. Rev. Stat. § 43-272.01(2)(g) (2004).
[6] Neb. Rev. Stat. § 43-272.01(2) (f) (2004).
A. The authority of the guardian ad litem shall commence upon appointment by the court and shall continue in that case until such time as the court terminates its jurisdiction.
B. The guardian ad litem may voluntarily withdraw from representation in any case where the guardian ad litem files a motion to withdraw, and the court, in its discretion, enters a corresponding order granting such withdrawal.
C. A guardian ad litem may be removed from a case by the court for cause, where the court finds that the guardian ad litem’s performance is inadequate, that the guardian ad litem has substantially failed to discharge duties or act to protect the best interests of the juvenile(s) for whom the guardian ad litem was appointed, or that any other factor or circumstance prevents or substantially impairs the guardian ad litem’s ability to fairly and fully discharge his or her duties. In determining whether removal of the guardian ad litem is warranted in a particular case, the court should assess the guardian ad litem’s performance under the requirements and standards of practice imposed upon a guardian ad litem by both the Nebraska Juvenile Code as well as by these guidelines.
A. The Supreme Court may establish a statewide uniform minimum hourly rate of compensation for guardians ad litem.
B. Generally, no distinction should be made between rates for services performed in and outside of court, and the same rate should be paid for any time the attorney spends traveling in fulfilling his or her obligations as the guardian ad litem.
C. Guardians ad litem shall be compensated for all hours reasonably necessary to provide quality legal representation as documented in fee applications submitted by the guardian ad litem.
Nebraska county governments are responsible for the costs of court-appointed counsel for indigents in certain criminal and civil judicial proceedings. Indigent defendants charged with an offense which may result in imprisonment are entitled to court-appointed counsel. Even absent statutory authority, the courts have the inherent authority to make such appointments. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975). Court-appointed counsel is entitled to be paid reasonable attorney fees and expenses. See Neb. Rev. Stat. § 29-3905. Additionally, in some civil proceedings, such as actions under the Nebraska Juvenile Code, see, e.g., Neb. Rev. Stat. § 43-272, a juvenile has the right to counsel at county expense if the child or the parents are indigent.
The Nebraska Supreme Court is vested with the inherent authority to do all things necessary for the proper administration of justice and equity and the constitutional power to promulgate uniform rules for the effectual administration of justice. These powers include the authority to establish a statewide uniform compensation scheme for court-appointed attorneys. Such a mandatory system could become necessary where inadequate compensation of court-appointed counsel by county governments begins to impair the right to effective assistance of competent counsel. At present, the Court concludes that such a system may be premature. In the alternative, however, in order for this Court to fulfill its duty to ensure that indigent persons are provided with competent, effective counsel, the Court hereby adopts the following guideline for statewide monitoring of court-appointed attorney fees and expenses paid by the counties:
Judges of the Nebraska judicial system may, in writing, request an inquiry by the Nebraska Supreme Court into inadequate compensation of court-appointed attorneys by counties within their judicial district. Written requests for an inquiry shall be presented to the Chief Justice and shall include sufficiently specific information to allow an initial assessment as to the adequacy of compensation practices of the county or counties at issue. Upon a showing of good cause, the Chief Justice shall appoint a representative of the Court who shall contact the appropriate county officials regarding the county’s alleged failure to meet its financial obligations to indigent persons in judicial proceedings. In the absence of satisfactory explanation by the county of its practices, the Court may take whatever action it deems appropriate in order to compel compliance with the law.
Adopted January 24, 2008; amended March 12, 2008.
The purpose of these guidelines is to indentify for the Nebraska courts appropriate and recommended technology for use in the courts and to provide guidance to the practicing bar in accessing and using such technology.
These guidelines establish three (3) classes of courts, with two (2) levels of services in each class. The classes of courts are:
I. Minimum services class - Minimum technologies that should be available in all courts, available to be used by the bar or parties. The technologies in these courts may be lower than standard due to low volume, technical barriers, or other extenuating circumstances.
II. Standard services class - Technologies which should be available in most Nebraska courts. These technologies are those anticipated to be used on a regular basis by the bar and parties, if available in the court.
III. Advanced services class - Technologies that are emerging for courtroom use and are being adopted by the bar and parties for use in courtrooms. These technologies are used in more complex litigation or to resolve logistical problems regarding distance and schedules.
Two (2) levels of services are identified in each class. Class 1 services are available daily without any advanced notice; and Class 2 services are available with advance notice as defined in the accompanying tables.
The goals of these guidelines relate to both the bench and the bar and are as follows:
- Provide members of the practicing bar with guidance on how they will be able to make courtroom presentations around the state.
- Allow for better preparation and less chance of “technical difficulties” or incompatibilities at court proceedings.
- Identify for the state courts minimum technologies to have available as soon as possible.
- Identify technologies to be available in the “average” Nebraska courtroom (aiding in budgeting and decisionmaking on how to best improve the trial courtrooms).
- Designate “leading edge” technologies that have shown promise in aiding courtroom presentations, and trial management.
- To provide incentives for counties to upgrade courtrooms to qualify for higher courtroom service designation.
Upon approval and implementation of these guidelines, all courts should do an initial assessment/report on a form to be provided by the Administrative Office of the Courts (AOC). These reports should be reviewed and verified by the Information Technology Division of the AOC.
Upon completion of the initial assessment, a master “Court Technology Services” listing should be prepared and posted to the Web site of the Nebraska Supreme Court. The listing should include addresses and telephone numbers used by the courts for court proceedings. The Nebraska State Bar Association should also be contacted and offered an opportunity to place a link to the “Court Technology Services” listing on its Web site. The “Court Technology Services” listing may be footnoted to indicate special procedures, notice, or other information applicable to a particular court, including a notation of whether “technical support” is available and any special contact numbers. However, such deviations should be reserved for very unusual situations in order to maintain the goals of providing uniformity and consistency.
In addition to the “Court Technology Services” listing noted above, an additional section may be included on the Nebraska Supreme Court Web site with these guidelines for “Court Construction/Renovation Resources.” This section may include links to these guidelines and the review and verification procedures of the AOC; to material such as Judge Alan Brodbeck’s video of the Holt County Court renovation project; and to national courtroom technology Web sites such as those at the National Judicial College at Reno, Nevada.
Judicial Branch Education (JBE) should be advised of these guidelines so that programming may be developed or modified as necessary. Education should be available to aid court personnel in their ability to operate and maintain the hardware and programming contemplated by these guidelines.
Level I Courts – Minimum Services Class – [Courts with minimum available technology] | ||
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Class 1 Services | Cost Estimate | |
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1 | Speakerphone for teleconferences | $50-750 |
2 | Television/monitor | $600-1,000 |
3 | DVD/VHS player | $75-100 |
4 | Electrical outlets for use at counsel table |
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5 | Electrical outlets for use in well of court/jury presentations |
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6 | Internet access for counsel use (somewhere in courthouse) | $13.50/mo |
7 | Printer access | $0-200 |
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Class 2 Services | (Upon 2 full business days’ notice) | |
1 | SKYPE capability | $100-150 |
2 | Cassette players (full and micro) | $50-75 |
| Level II Courts – Standard Services Class – [Courts with most widely available technologies] | |||||||||||
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Class 1 Services | Cost Estimate | ||||||||||
Courtroom in general |
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1 | All service in Level I, Classes 1 & 2 |
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2 | Audio system including microphones, speakers, amplifiers, | $750-1,000 | |||||||||
| recording inputs/outputs |
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3 | Audio cassette players (full & micro) | $50-75 | |||||||||
4 | Digital projector or large screen monitor (42" or greater) |
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5 | Personal computer or laptop computer with capability: | $50/mo | |||||||||
| To display video/audio output on Item No. 4; and |
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| To display/play the following file types: |
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| MP3, WAV, JPEG, PDF, TIFF, AVI, MPEG4, WMV, xls, xlsx, doc, docx, ppt, pptx, mov, vob, wma, html, flv (flash player) |
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Class 2 Services | (Upon 5 full business days’ notice) | ||||||||||
1 | Document camera | $1,200-1,500 | |||||||||
2 | Video/audio feed connections for media-supplied gear |
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3 | Laser pointer and wireless advance for PC presentations | $75-150 | |||||||||
Level III Courts – Advanced Services Class – [Courts with current and cutting edge technologies] | ||
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Class 1 Services |
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Courtroom in general |
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1 | All service in Level II, Classes 1 & 2 |
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2 | Video monitor @ bench, counsel table & jury | $800 |
3 | Video switcher/controller | $300-800 |
4 | Video cameras w/ remote control (for media/overflow) | $150 |
5 | Video conferencing capability (three sites minimum) | $5,000-7,500 |
6 | Document camera | $1,200-1,500 |
7 | Internet access for counsel (at counsel table) | $13.50/mo |
8 | Laser pointer and wireless advance for PC presentations | $75-150 |
9 | Real time transcription @ bench & counsel tables |
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Class 2 Services | (Upon 10 full business days’ notice) | |
1 | Annotation system/whiteboard | $2,500-4,500 |
2 | Color printer | $150-300 |
3 | Video/audio feed to overflow site |
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