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The parent’s initial telephone call to the special education attorney is almost always precipitated by an emergency situation. The crisis may be that the public school has stated that they:

1. Do not recognize the private sector evaluations that identified the youngster as being in need of special ed services; or that they

2. Have realized that the child’s true problem is that the child is not learning disabled but is emotionally disturbed, and needs to have the placement and program changed; or that they

3. Are doing everything that can be expected of a school system and have tried everything and it is not their fault that the child will not acquire skills to become an independent, self-sufficient functioning member of society, despite the intellectual ability to do so; or that they

4. Are going to continue with the same special ed services and program that the child has been receiving for the past several years because the child is "really making progress" even though the parent has recognized that the child still can barely read and has significant written language problems; or that they

5. Assert that the child’s increasing misbehavior is not related to any neurological or educational issues (causal relationship) and insist that the acting out or withdrawal problems need to straightened out before anyone could reasonably expect the child to learn. Suspensions have increased and expulsion maybe the next step; or that they

6. Have scheduled a meeting tomorrow, just called you today, and you are not sure you should go, should you bring an attorney; since they

7. Have decided to discontinue special ed services because:

a. The youngster has obtained the maximum benefit, (though still barely able to read, write and/or do arithmetic).

b. The child is not benefiting from the program and doesn’t really need it anyway.

c. The school system has had a financial shortfall and certain staff have resigned or have not had their contracts renewed, and besides, your child is better off not being in the special ed program now.

d. The services your child needs are simply not available at the school so you need to recognize their limitations.

e. The new triennial evaluations have disclosed that the true problems are that the youngster is not motivated, that the real problems lie within the dysfunctional family, which is composed of a single parent or a couple with marital problems, which according to the "experts" is not an educational issue.

In these situations, the normal response by the parent is usually a big mistake and self-destructive!

Parents often experience anger toward the child, each other, and toward the school officials. They feel guilty, confused, frustrated, helpless, fearful and remorseful. Frequently, they also feel betrayed by the public school. From their perspective, parents have relied upon the assertions and recommendations of the "expert" school officials for years and now realize that their child has regressed, and is worse off than before.

With such emotional turmoil, quick action is tantamount to shooting wildly from the hip, before aiming, expending all of your ammunition before the opposition has fired its first shot. When they do open fire; you will be exposed, vulnerable, and your child will suffer.

As parents, it is your job to slow the action down, regroup, hold your fire, analyze the battleground, determine the weapons that will be used, and locate the high ground. Only then can you plot your strategy so that you can take the hill, and prevail, without firing a single shot or taking any casualties!

Prepare for Litigation

This approach to special education advocacy, relying heavily on the use of tactics and strategy, is not unique to special education issues. It is the normal common-sense preparation for any type of civil litigation, whether the issues involve a personal injury automobile accident, medical malpractice, divorce with equitable distribution, child custody, or breach of contract.

There is absolutely no justification for treating special education cases less seriously than any other type of civil litigation. The dollars available for intensive special ed remedial services are finite. Special ed litigation, as is the case with most litigation, is about money and access to costly limited resources.

Special ed litigation and due process hearings are usually far more difficult than most other types of litigation. The legal issues are usually complicated by intense emotions of anger, betrayal and guilt (as in divorce), coupled by the battles between expert witnesses (as in medical malpractice cases).

The key to success in all civil litigation, including special ed litigation, is preparation, preparation and more preparation!

Civil cases that are well-prepared for trial are usually settled and rarely go to trial.

After the initial consultation, the personal injury plaintiff’s attorney does not simply make a financial settlement demand upon the defendant’s insurance carrier, claims agent or attorney. Plaintiff’s counsel prepares the file and case for trial. The facts are determined, the laws of liability, negligence and damages are researched, all before the first offensive action is taken. Only after the case has been fully prepared does the attorney fire the first shot across the bow. Sometimes a settlement proposal letter is sent to the insurance carrier. On other occasions, depending upon appropriate tactics and strategies, and to ensure that the opposition realizes that the attorney is not simply "blowing smoke," a lawsuit will actually be filed, prior to the settlement proposal being presented.

These are the usual and customary steps in civil litigation. The same rules also apply in special ed litigation. The best way to settle a case and ensure a fair settlement, is to prepare for trial. By following these steps, trial does not occur as often, but if it does, you have given yourself and your child the best chance for success.

In all litigation it is essential to understand that the outcome of the case is not based solely upon the law and the facts. For example, assume that just as an automobile accident occurred, a television crew coincidentally happened to film it. Assume that there were absolutely no personal injuries, "no pain and suffering," but that property damage to the vehicle was exactly $25,000.00. What is settlement value of the case? In most automobile accident cases, the prevailing party will not recover attorneys fees and costs. Given the above facts, the presence of TV crew, etc. the plaintiff would win a case like that four out of five times and recover the full $25,000.00, but would not win all five times at trial. But why wouldn’t the plaintiff win a case like that all five times? Outcome prediction may be the single most perplexing question to the parent and lay advocate.

Outcome Prediction

The outcome of a litigated civil case is based upon three primary variables; the quality of the attorneys, the law and facts of the case, and the nature of the individual or jury who determines the outcome of the case. The Rodney King v. Los Angeles Police Department and Chief Gates case involved state court criminal litigation regarding the police officers’ use of excessive force, a federal court civil rights case regarding the violation of King’s civil rights, and, later, a civil personal injury case against the City of Los Angeles, individual police officers, and Chief Gates. The crucial facts of these three separate cases were captured on a video camera! Yet, the outcomes of the cases have differed widely.

First variable - the quality of the attorneys in the case

Is the school system’s attorney a skilled civil litigator who understands tests and measurements, the special ed law, has good cross-examination skills, and makes powerful opening and closing statements? Can the same be said of parents’ attorney? If the quality of the attorneys is equal, then that variable becomes less important and the playing field remains reasonably level. However, if the degree of expertise is unequal, there may be a weighing of up to one-third in favor of the more skilled attorney.

Second variable - the law and the facts of the case

In the Rodney King case, the videotape and the facts remained the same. Although the legal issues in the first trial and second trial were similar, very different outcomes resulted. Facts are important and the law is important. Standing alone, neither will win the case. Despite your opinion regarding favorable facts and favorable law, both parties believe, from their unique perspective, that the facts and the law are on their side! The cumulative total, if the law and facts are truly on your side, can be given a one-third weight!

Third variable - the decision-maker (characteristics and qualities of the individual or jury who determines the outcome

Again, in the King case, the first jury clearly supported police officers while the second jury supported Rodney King. Both juries viewed the same video tape and heard essentially the same evidence.

Many judges, jurors and hearing officers will have an unconscious identification with, or reaction against, either the plaintiff, defendant, or an attorney. Because of mannerisms, personality style, dress and/or appearance, is the juror, Judge or Hearing Officer reminded of their recently deceased mother, father, brother, sibling, spouse, child, to whom they were very close? Or is the association negative? You may remind them of that person who successfully sued them many years ago!

Does the Hearing Officer/Administrative Law Judge believe that special ed issues are time-wasting cases? Or that he or she has more important things to do today than hear this stupid case brought by a whiney parent? Is the Hearing Officer a gatekeeper, protecting the public’s tax dollars? Or, does the Hearing Officer have a brother, sibling, spouse, child, grandchild, nephew, niece, or godchild who is almost identical to your child? Could it be that the Hearing Officer understands your struggles and empathizes with you, believing that you are right? These hidden factors represent the third element in the outcome of a case and are more significant than the law and the facts.

Now, let’s re-examine the issues in the $25,000.00 automobile accident property damage case. I asked, "What is settlement value of the case? . . . In most jurisdictions, the plaintiff would win a case like that four out of five times and recover the full $25,000.00, but would not win all five times at trial. Why not all five times?" Answer - because of interplay between the three variables discussed above.

Settlement value incorporates another concept known as the "Hazards of Litigation" rule. Cases that should be won are lost and cases that should be lost are won. This is the hazard of litigation. In the $25,000.00 case, assume the odds of losing, due to the three variables, are one out of five times, i.e., 20% of the time. Then the quantifiable "hazard of litigation" variable is one fifth of the normal verdict amount of $25,000.00, i.e. $5,000.00. Settlement value would be approximately $20,000.00! Other economic factors not discussed here involve costs of discovery, witness fees, legal fees, etc.

Prevail Without Casualties

How is this relevant to you and your child? You must understand that you should not start a battle to secure an appropriate special education for your child until you know that you have the best chance to prevail and can do so without damaging your child.

You reply: "But look at the damage they are doing right now, it must stop immediately!" My response, "And to start the fight now, when you don’t have the ammunition, guns are not loaded, you have not assessed their own weapons and location, and you don’t know where the high ground is, will be even more damaging to your child in the end." To initiate a suicide charge in an attempt to take the enemy hill, just for the sake of responding quickly and aggressively, is self-defeating. And, all too often, this is the course that parents take in attempting to advocate for services. Children are usually far stronger and more resilient than we realize and can usually continue to endure short-term pain to realize long-term benefit.

Long-Range Planning

So, an emergency/crisis has hit. What do you do? For the next day or two, do nothing. Read and re-read the literature you have received from me. Then you need to focus on short-term solutions and long-range planning. Do your long-range planning first. You must begin to embark on a course of self-study to learn all that you can about the law, about the nature of how your child learns differently, and what is the best way for your child to be educated—to read, write and do arithmetic. To learn how to best help your child, you must join, for at least one year, a number of the national organizations related to special education.

With a child who has either a Learning Disability (LD) or Attention Deficit Disorder (ADD), or both, I recommend that parents join the following organizations. These groups provide a wealth of literature and information that is useful to parents and children with all kinds of handicaps, not just LD and ADD. As you begin to become educated about disabilities, handicaps, legal rights, and educational remediation techniques, you will find that membership in multiple organizations will be especially helpful. Besides those listed below, there are many others out there that I am not as familiar with.

Get Educated

Join several organizations (i.e., The Learning Disabilities Association, the International Dyslexia Association, Children and Adults with ADD, the Association for Retarded Citizens (ARC), the Association for Persons with Severe Handicaps (TASH), the United Cerebral Palsy Association, The Autism Society of America, Tourette Syndrome Association, etc.)

When you do this, you will receive regular local, state, and (most important), national newsletters of these organizations. The information will place you on the cutting edge of new educational, scientific and legal developments in this field. The cost of membership will be repaid hundreds of times over to the benefit of you, and your child’s future career.

You must read about and understand the law. You should be familiar with the November 9, 1993 U. S. Supreme Court’s Florence County School District Four v. Shannon Carter case and its "default" theory. See if a nearby law school subscribes to the publication entitled "Individuals with Disabilities Education Law Reporter" (IDELR) published by LRP Publications in Horsham, Pennsylvania. The "topical index" in IDELR will provide you with many cases similar to your issue.

You need to read and understand the new IDEA 97. Information about the new statute is posted on our website, at the U. S. Department of Education’s website, and at http://www.edlaw.net and http://www.ldonline.org

You need to understand how to write an Individual Educational Program (IEP) and be familiar with Appendix C of the Special Education Regulations regarding goals and objectives in IEPs. You need to read "Your Child’s IEP: Practical and Legal Guidance for Parents" written by Pamela Darr Wright. It is available on our website, at http://www.ldonline.org, and in the Legal and Advocacy Library of the ADD Forum of CompuServe. You will need to understand tests and measurements, the bell curve, standard scores and percentile ranks.

In summary, you will need to become an expert in the global nature of your child’s abilities, disabilities (i.e., the facts of the case), the law, IEPs, and understand tests and measurements.

You will want to call your State’s Department of Special Education and obtain all literature, brochures, and material they have in regard to special education, IEPs and Section 504 Rehabilitation Act requirements. You will want information from your State’s Protection and Advocacy Office. Many other state and local jurisdictions have other groups that will provide information to parents. LONG-TERM PLANNING

Thus, your first steps are to call the organizations mentioned above, and request membership material and listings of publications that they have available for sale. Second, call your state and local departments of education and the protection and advocacy agencies and request information that they may have. Third, request a complete copy of your child’s entire cumulative and confidential file from your child’s public school, the Central administrative office where the special education department is located, and from all other public and private sector agencies and individuals that may have any information on your child.

Organize the File

I recommend that the parent organize all evaluations, IEPs, reports and other documents in a loose-leaf three ring notebook in chronological order. Do not sort by type of document - IEP, evaluations, letters, etc. When you place materials in chronological order, this provides a clearer history and it is easier to organize information this way. The date should be lightly pencilled on in the lower right hand corner of each documents like this: 11/9/03.

Do not relinquish your copies to anyone, ever! Make photocopies available. Since you will often need to make copies of the documents, do not mark your master copies with yellow highlighters, red pens or even write on them.

Develop a "List of Documents"

Initially, to ensure that you become organized, you may want to delete the time consuming column entitled "Significance" and just be sure you log in the date, author and description. Read How to Organize Your Child's File Download Sample Document List

Make an additional list, in chronological order, of the dates, names and scores of all individualized and standardized tests administered to your child.

Take your notebook, now called "The File" and your test history list to your private sector educational diagnostician or psychologist and ask this individual to explain the significance of the test scores by using percentile ranks. Ask the professional to use the Bell Curve chart that includes standard deviations, standard scores, and percentile ranks. Be sure that you have a copy of the Bell Curve so you can study and understand it. If the professional is willing, it may be helpful to tape record this portion of the session since it may be your first introduction to statistics.

Learn About Tests & Measurements

It is important to understand statistics - i.e., the interrelationship between standard deviation, standard score, percentile rank and grade and age equivalent. With this knowledge, you will always be able to interpret the educational and psychological tests administered to your child. If someone says to you, your child scored two standard scores above the mean on the Similarities subtest of the Wechsler, but scored three standard deviations below the mean on the spontaneous writing sample of the TOWL, you need to be able to understand that statement and why it relates to your child acting out in school.

Read our article, Understanding Tests and Measurements. You need to become familiar with the different scoring methods - age and grade equivalents, standard scores, and percentile ranks. Grade equivalent can help you see where your child is scoring, compared to other children in the referenced grade equivalent score. Percentile rank can help you see if your child is catching up with the peer group or falling further and further behind, using pre-test and post-test data. With the statistical knowledge understood, you can accurately assess your child’s progress or regression. Many special educators are confused by percentile ranks and standard scores and leave that domain to the school psychologist. The parent who understands the concepts will be in a superior position.

By using the preceding "Document List" format, you can provide copies of "The List" and "test history" to the appropriate individuals and then furnish copies of specific selected documents from "The File." On your computer, bold in the names of test instruments for a quick reference. As said before, never release your originals! Keep the book current. If your case goes to a Due Process Hearing, you already have your exhibits and exhibit list, and, using the word processor, simply delete the column entitled "Significance" before releasing the list and exhibits to opposing counsel.

The above file should only include information related to your child. In a separate file you can keep educational and legal information that you receive.

Taking these steps as a part of your long range planning will get you going in the right direction so that future crises and emergencies, as presented now, are neither. Future similar incidents which have motivated the present contact with an attorney can be artfully turned, by the skilled educated parent, into an opportunity and sword to acquire even better services for your child! To do so requires knowledge, tactics, strategy and skilled advocacy without placing your emotions in front of you for the world to see and attack. Your emotions must be placed behind you, into the knapsack on your back, and be used as the motivating driving force that keeps you advancing, step by step, toward that high ground.

Short-term Temporary Solutions

Now, let’s look at short-term temporary solutions, i.e., Band-Aids.

It is important to place your child’s self-esteem at the top of the list. The child must know you love and care for the child, though some of the behaviors may be unacceptable. You will probably need to consult with a private sector educational diagnostician, psychologist, psychiatrist, clinical social worker, to reduce the present stress. Often additional private sector testing is necessary to develop base-line data about what is going on and why. You will also need to depolarize the emotions between yourselves and the school if they have gotten out of hand, which is the usual case when a parent calls an attorney. This does not mean acquiescence to their position or assertions, but removing the emotional element, even if the school officials are fanning the flames!

(Note: at this point, some parents will have read the first couple of pages of this article, skipped the middle, and jumped to this section. Stop. Go back and read the entire article. Take your time. It is very easy to obtain temporary short term relief but also exacerbate the situation and damage your child.

Educational materials are available from organizations. Parents and child can often experience relief by viewing these materails and starting on a course of self-study together.

It is also important to understand that what appears to some as a disability, may, in fact, have a corresponding powerful ability that goes hand in hand with the "disability." For example, the ADD distractible child can also "hyperfocus" in a manner far more intense than other children. These children learn differently and need to be taught differently, but they may not necessarily be "disabled" or "handicapped" except for legal purposes and entitlement to services.

KNOWLEDGE
equals
EMPOWERMENT
equals
SUCCESS!

In essence, short-term relief, as in many medical matters, is to relieve the painful impact of the present severe symptoms and begin a diagnostic study of the cause and embark upon long term treatment to cure the problem and reduce the probability of its reoccurrence. However, this time it will be different. You will become the expert about the disability, educational/remediation techniques, how to measure educational progress or regression, IEPs, the Law and how to artfully advocate! The child’s present severe symptoms are often a battered self-esteem and fighting within family and between family, child and school system. Lance that infection, defuse the case, and, simultaneously, start that march toward the high ground! Good Luck!

Last revised: 02/03/07

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