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Representing the Special Education Child:
A Manual for the Attorney and Lay Advocate

by
Peter W. D. Wright, Esq.
Deltaville, Virginia

Print this page

Outline 

I. The Need to Know
A. Personal impact
B. Professional role

II. Presenting the Problem
A. Crisis! Emergency!
B. Parent's response
C. Attorney response

III. Preparing for a Special Education Due Process Hearing
A. Hazards of litigation
B. Analyze issues
C. Evaluate applicable legal principles
D. Evaluate existing evidence and decide whether additional evaluations are needed
E. Chart test data and educational history
F. If tuition assistance case, evaluate child's present progress.
G. Request relief desired from school system.
H. If relief denied, request a due process hearing

Appendices
Ethical considerations

For starters, you will need a copy of the Second Edition of both of our books, Wrightslaw: Special Education Law, and Wrightslaw: From Emotions to Advocacy. The first editions refer to the old IDEA 97 law, the newest editions contain IDEA 2004.

Wrightslaw: Special Education Law includes the full text of the IDEA 2004 statute with our comments and analysis, the federal special education regulations, Section 504 of the Rehabilitation Act, portions of the No Child Left Behind Act, FERPA, the McKinney Vento Homeless Assistance Act, and decisions by the Supreme Court in special education cases.

Wrightslaw: From Emotions to Advocacy ("FETA") is a tactics and strategies advocacy manual for attorneys, advocates and parents. Attorneys and advocates must insist that parents have both books and follow the steps laid out in From Emotions to Advocacy. The parent must learn how to organize the child's file, write good evidence letters, write "SMART IEPs," effectively control school meetings, so the school provides the child with the services he or she needs, without having to resort to costly litigation..

I. The Need to Know

A. Personal Impact

1. It is quite possible that you now have or will have a child, grandchild, sibling, nephew, or niece who has a disability. Or, you may have neighbors or close personal friends who are raising a disabled child. Parents of these children experience a range of emotions including guilt, anger, frustration, and helplessness as they struggle to raise this child while also working to increase the odds that their child will become an independent, self-sufficient member of society. The laws regarding services for such children are diverse and complicated. Friends and family will look to you, the attorney, for guidance. 

2. When you are consulted about a special needs child, you will probably feel empathy and an immediate desire to help. Your first impulse may be to jump in and write a letter or place a telephone call to the specific school official and, by your actions, resolve the problems experienced by these parents and child. Giving in to this impulse may give short-term relief to parents and child, but will usually do little to resolve the real problems. You must realize that special education cases can generate as much emotional intensity as a bitterly contested divorce, and are further complicated by a battle between expert witnesses, as in a medical malpractice case. As an attorney, you must be cautious about assuming that you can actually resolve these complex problems with a minimum of effort.

3. When you understand the principles contained in this outline, you will be able to field preliminary special education questions. You will also know where to look to find more detailed answers to point you and the parents in the proper direction-- to ensure that the child will receive appropriate special education services. 

B. Professional Role

1. The attorney, whether consulted in the role or capacity of a family member, friend, or attorney, must approach a special ed case as one would approach a messy divorce, custody, equitable distribution divorce that has merged with a medical malpractice case being litigated in federal court. 

2. The attorney must be aware that he or she will only be involved in the case for a short period of time. When the case is concluded, the matter is closed. Yet the impact of the disability will continue. The parents' struggle to secure and maintain an appropriate level of special education services will continue, often for many years. The parents must learn to deal effectively with the school system-- and should be able to "break bread" with the school staff after the present legal issue is concluded. 

3. In special education matters, it is absolutely crucial that the parents develop a clear understanding about the nature of the disability, the laws, and how to measure educational benefit after a child is in a special education program. 

4. To effectively represent these clients, the attorney must also understand the nature of the disability, the special education laws, and how educational benefit can be measured. In many cases, the most perplexing disabilities are not the easily observed ones -- being deaf or blind, having severe orthopedic impairments, cerebral palsy, or Down Syndrome. The "hidden handicaps" such as learning disabilities and attention deficit disorder (ADD) are related to neurological impairments. These educational and language learning disabilities can be difficult to identify and remediate. A child with autism presents incredible challenges to parents and educators. 

Top of Page

II. Presenting the Problem

A. Crisis! Emergency!

1. The parent's initial telephone call to the attorney is almost always precipitated by an emergency situation. Most calls are preceded by one of the following incidents. The crisis may be that the public school has stated that they: 

a. Will not accept the private sector evaluations which identified the youngster as being in need of special education services; or that they 

b. Have realized that the child's true problem is that the child is not learning disabled but is instead emotionally disturbed, and thus the child's placement and program need to be changed or eliminated altogether; or that they 

c. 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 the necessary skills to become an independent, self-sufficient functioning member of society, despite the intellectual ability to do so; or that they 

d. Plan to continue providing the same special education services and programs that the child has been receiving for the past several years because the child is "really making progress" even though the parent recognizes that the child can barely read and continues to have significant written language problems; or that they 

e. Assert that the child's increasing misbehavior is not related to any neurological or educational issues (causal relationship) and instead insist that the acting out or withdrawal problems need to straightened out before they can reasonably expect the child to learn. Suspensions have increased and expulsion may be the next step; or that they 

f. Scheduled a meeting tomorrow, just called the parents today, and the parents do not know if they should go to the meeting, or whether they should they bring you, since the school system has 

g. Decided to discontinue special education services because: 

i. The youngster has obtained the maximum benefit from special education, (although is still barely able to read, write and/or do arithmetic); 
ii. The child is not benefiting from the program and doesn't really need it anyway; 
iii. The school system has had a financial shortfall and certain staff have resigned or have not had their contracts renewed, and besides, the child is better off not being in the special ed program now; 
iv. The services the child needs are simply not available at the school and parents need to recognize the school's limitations; 
v. 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 school system's "experts" is not an educational issue.
2. Immediate action is rarely required. 

While the parent perceives the situation as a major crisis, to act quickly is often a mistake. Request that the parent gather together all documents, place them in chronological order and schedule an appointment. Do not call or write to the school officials at that point, despite the parent's urging. 

B. Parent's Response

In the situations as described above, the normal and immediate response by most parents is usually a big mistake and self-destructive! Feeling angry, helpless and under attack, parents often want to force a confrontation, write a nasty letter, or request a special education due process hearing. 

Parents of special needs children often experience anger toward the school officials, each other, and even the child. They feel guilty, confused, frustrated, helpless, fearful and remorseful. 

In many cases, parents also feel that they and their child have been betrayed by the public school educators. From the parents' perspective, they have relied upon the assertions and recommendations of the "expert" school officials for years. When they realize that their child has regressed, has fallen further and further behind and is worse off than before, they frequently shoot from the hip, miss their intended target, damaging themselves and their child in the process. The intense anger, feelings of victimization and subsequent polarization must be defused if parents are to become effective partners with you and effective witnesses.

C. Attorney's Response

1. Initial Interview 

a. Before face-to-face contact with the parents, review the documents first, in chronological order, oldest first, most recent last. 

b. Help the parents understand the gray issues in the law, the hazards of litigation, and that cases are rarely settled unless prepared for trial. At this point the attorney may want to become directly involved before all of the facts are clear and on the table. Query: Would you call the insurance adjuster and demand and force a settlement during or immediately after the initial consultation with the personal injury client? Of course not. 

c. The parent's file and the facts of the case are usually disorganized, disjointed, and hard to assess. Parents need to understand that while they may believe that the school system has committed numerous legal violations, the case needs to be simplified and presented in an organized, cohesive manner.

d. As you review the file, assume, for discussion, that parents will not be permitted to testify. Given that, how will you be able to prove the case? What outside evaluations do you have that will validate the claims? How can you use the school systems own test data to prove that the child has fallen further and further behind the peer group? How can you use their files to prove that the school did not comply with or implement the IEP? What kind of a paper trail is in the file? Look carefully at the case from that perspective, that parents will be unable to testify, even though they will.  

2. Defuse and depolarize the case. By the time parents contact the attorney, the matter has become polarized. Emotions are running high. Parents and school officials are blaming each other for the child's difficulties. It is absolutely imperative that the parents locate and join the educational advocacy organizations related to disabilities and begin receiving the informational newsletters provided by these organizations. Parents also need to develop an understanding of the disability by reading current books on that topic. 

Part of the parents' emotional response is related to feelings of guilt, loneliness, isolation, and fear of the future for the child. By joining organizations and becoming better educated, they will begin the process of becoming "empowered." At that point, they will be able to initiate a more logical and less self-destructive approach toward securing improved services for the child. Instruct the parent to locate information among the books and other publications that may be useful to educate you. 

3. Even though you might believe that you have reviewed the entire file, often critical documents are missing. Send out a letter and global release form to all agencies and individuals that may have any documents, evaluations and reports related to the child and family. 

4. Organization of the documents. As the documents come in, have the parents organize them and date each document in pencil in the lower right hand corner and place all documents in chronological order, the oldest on top, the most recent on the bottom. Parents should not write on any of the documents or use a yellow highlighter. Notes from the parents to you about a specific document can be made on the document, using "Post-it" notes. If the parents have a computer with a word processing or spreadsheet program, have them develop a list of documents.

These activities will help the parents in at least two ways. First, they will have an opportunity to "Do Something" which will help their child's case and will also reduce their sense of powerlessness. At the same time, these activities (organizing the file, developing lists of documents) will help the parents to develop a broad overview of the child's problems and needs, instead of focusing excessively on the emotions generated by the immediate crisis. You should closely compare the duplicates and check for alterations. 

5. Develop an understanding of the law so that you can identify the specific legal and factual issues 

a. Legal issues in special ed cases are usually related to procedural matters, i.e. whether the child is eligible for services, and the nature of the handicapping/disabling condition, violations of timelines, and failure to implement an IEP. 

b. Factual issues are usually related to Individualized Education Programs, the quality and extent of services, "default" by the public school, tuition reimbursement for private school, and whether the child is educationally benefiting or regressing under the public school's special education program. 

6. Develop an understanding of the facts so that you can identify and target the specific factual issues. 

a. You will need to have a working familiarity with the nature of the disability, educational methodology for working with the child, and an understanding of the objective tests and measurements that are used to evaluate progress and regression. 

b. In addition to the Internet, the private sector professional who is involved with the child (often a psychologist or educational diagnostician) is your best resource to help educate you in this area. 

To Top

III. Prepare for a Special Education Due Process Hearing

A. Hazards of Litigation

Discuss with the parent that the best course is to prepare for litigation in the hopes of settlement. In many cases, parents want to extract the pound of flesh to which they feel entitled and believe that the facts and law are wholly on their side. I explain to parents that Hearing Officers may have an unconscious identification with, or reaction against, either the parent, school system or attorney. Because of mannerisms, personality style, dress and/or appearance, the Hearing Officer may be reminded of a recently deceased mother, father, brother, sibling, spouse, or child to whom they were very close. Or the association may be negative. The parent may remind the Hearing Officer of the person who successfully sued him or her many years ago. 

Parents also need to understand that some Hearing Officers may perceive their role as that of a financial gatekeeper, protecting the public's tax dollars. Or the Hearing Officer may have a neighbor or a grandchild much like your client and may empathize with the parents and recognize the value of an appropriate special education. These are often hidden factors that affect the outcome of the case. 

As Gerry Spence has said, more important than the facts and the law, are the perceptions of the facts and perceptions of the law. Our perceptions of the same object, fact, evaluation, and case law differ widely. Parents need to understand that to litigate is to roll the dice. 

B. Analyze Issues

1. Clean single issue - default theory 

At first glance, the case may appear to have a single issue such as tuition assistance, failure to identify child as handicapped, or a need for Extended School Year (ESY) services. These cases are often more than single issue matters, but may need to be simplified to an easy to understand case. Try to establish evidence of "damage" by the public school and show that, despite years of special education services, the child has fallen further and further behind the peer group. This can be done easily by using individualized standardized testing by your expert coupled with a charting out of test scores over time. (Refer to our tutorials about graphing out test scores with PowerPoint using the school's own test data as your evidence!) 

2. Multiple Issues - Violation of Child Find Mandate 

Frequently the issues may be more complex, such as the failure of the public school to properly evaluate the child in prior years and breach of procedural rules. The child may be entitled to compensatory education, i.e., a special education program that may extend beyond the child's twenty-second birthday. Had the public school not violated the "Child Find Mandate" the child might have been identified as a special education child, received appropriate special education services, progressed, and not even need desired services. (See the Draper case on our website.) 

3. Theme of Case

Start to develop an overall theme of the case that is clear, simple and which you can build upon over time. You must structure and format the case so that the Hearing Officer truly wants to rule for you. This is absolutely critical! Your job is to provide this person with the evidence and the law that will allow them to give you a favorable decision. 

C. Evaluate Applicable Legal Principles

1. Obtain a copy of your State Regulations and cross reference them with IDEA and Federal Regulations in Wrightslaw: Special Education Law, 2nd, Ed

a. Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400-1485 (This is available on our website at http://www.wrightslaw.com/idea/index.htm

NOTE: The statute, regulations, and U. S. Supreme Court decisions are in Wrightslaw: Special Education Law

b. Code of Federal Regulations 34 C.F.R. Part 300

c. Download the U. S. Department of Education's Analysis and Commentary issued on August 14, 2006 about the IDEA 2004 Regulations at: http://www.wrightslaw.com/idea/commentary.htm

d. Obtain all publications from your state's Department of Education and the Protection and Advocacy Office in regard to the rights of parents and special education children. 

2. Review special ed publications. 

a. Special Education Law and Litigation Treatise by Mark C.Weber, available from LRP Publications (800) 341-7874 

b. Wrightslaw: Special Education Law is available from the Wrightslaw store and from other online bookstores including Amazon.com

c. The Topical Index of Individuals with Disabilities Education Law Report (IDELR), LRP Publications 

3. Review the special education case law. All of the U.S. Supreme Court cases and many critical Court of Appeals decisions are on our website at:
http://www.wrightslaw.com/caselaw.htm
U.S. Supreme Court cases through June 26, 2006 (Arlington v. Murphy) are in our Wrightslaw: Special Education Law book. The first two cases below triggered the passage of Public Law 94-142, now known as IDEA.

Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (P.A.R.C.) v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971) 

Mills v. Board of Education
, 348 F. Supp. 866 (D. D.C. 1972)

To gain an overview of special education law and history and learn more about the PARC and Mills cases, in addition to the initial chapters in our law book, you will want to read Pete Wright's National Council on Disability monograph "Individuals with Disabilities Education Act Burden of Proof: On Parents or Schools? which was filed with the U. S. Supreme Court in the Schaffer case.
The URL is: http://www.ncd.gov/newsroom/publications/2005/pdf/burdenofproof.pdf

4. Understand the History and the Purpose of the Special Ed law discussed in the preceding article. Be sure to read the most recent Winkelman v. Parma case at:
http://www.wrightslaw.com/law/caselaw/ussuptct.winkelman.pdf
and my analysis about that landmark decision about parent rights at:
http://www.wrightslaw.com/law/art/winkelman.pwanalysis.htm

 

D. Evaluate Existing Evidence and Decide Whether Additional Evaluations Are Needed

1. Look carefully at the IEPs. Were they completed regularly and truly used as a road map to evaluate the child's progress or lack thereof? 

a. Were the objectives capable of independent verification using standardized data or were they simply evaluated by the teacher using "teacher made" tests? Was the wolf guarding the chicken house door? 

b.
Do they comply with Section 1414(d) and the Regulations 300.320 - 300.328? 

2. Determine whether additional evaluations are needed. 

a. Who was the first psychologist / educational diagnostician / etc. that ever evaluated the child. Is that person still available and willing to re-evaluate the child? 

b.
Do the present private sector evaluations use statistics and charts to prove that the child has not been properly educated? What else is needed to prove the case? Is the testing comprehensive enough to flush out the true nature of the disability and specific remediation techniques? 

3. Meet with the private sector professionals. Are they committed to becoming involved and testifying?

Obtain their recommendations and suggestions regarding evidence and evaluation issues.

Ask the expert to educate you about the child's test scores using the bell curve, percentile rank and deviation IQ charts.

E. Chart Test Data and Educational History

1. Compare standard score / percentile ranks re: IQ and Achievement. 

2. Have the achievement scores / standard scores / percentile ranks continued to drop steadily while the child was presumably in an"appropriate" special education program? 

3. 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 clients.

(Note: Chapters 10 and 11 in Wrightslaw: From Emotions to Advocacy are devoted to testing, how to use test data and how to chart test scores)  

F. If Tuition Assistance Case, Evaluate Child's Progress

1. Have your evaluators observed both programs and are they familiar with all of the exhibits? 

2. Your experts should prepare their reports which will incorporate the child's prior educational history and describe what progress, if any, the child has made and amount of progress the child should have made. 

G. Request Relief Desired from the School District

1. I usually have the parents prepare a detailed documented letter to the Director of Special Education outlining issues, facts and evidence supporting the case. The letter becomes a "quasi opening statement" related to your "theme" of the case. Make the request clear, and give the basis for it and the legal authority justifying their position. It should tell a story using visual imagery, create empathy, and be polite. It should follow the model of our "Letter to the Stranger" at:
http://www.wrightslaw.com/advoc/articles/Letter_to_Stranger.html.
For examples, see:
http://www.wrightslaw.com/advoc/stranger/joejames.ltr.pdf
http://www.wrightslaw.com/advoc/stranger/brody.html

2. Attach recent evaluations and corroborating documents to your letter. Don't let yourself or your clients be the lightning rods, you are simply forwarding the recommendations of your experts. Since the school probably feels hostile toward the parents, you need to keep them out of the loop. 

3. Don't give all legal theories at that time, leave some rabbits in the hat to use at trial. If you find clear breaches of procedure, alteration of documents, hold that information back until cross-examination. 

a. Provide the school system with an opportunity to settle gracefully, making your case an exception to the general rule because of . . . (Such as your own failure to have done something or provided something.) Do not corner them unless you left them (as an oversight, of course) a back door, slightly ajar. 

b
. Don't attack the school system directly, i.e., their program for most children who have a similar handicap may be appropriate, however it is a shame that your client has so many other handicapping conditions and problems that are so severe that the child can't be educated in the regular special ed program. 

H. If Relief is Denied, Request a Due Process Hearing

1. Pre-trial Preparations

a. Keep all witnesses closely informed as to developments. They should receive copies of correspondence, briefs, caselaw developments, etc. and made to feel that they are a member of the "Team." Be careful about inadvertent waiver of attorney client privilege. Share with your witnesses that their files will probably be subpoened so that they are not caught by surprise. Explain that a Hearing Officer is to be appointed within five days of the request. 


b
. Meet with the parents and if possible, have them develop the exhibit list. Arrange for numbering and copying exhibits, and delivery of all to the witnesses, opposing counsel and Hearing Officer. 


c.
Have an initial meeting of parents and witnesses, explain issues, inject fear, and motivate all to read and become familiar with exhibits and case law. 


d.
Have a follow up meeting with witnesses regarding details of evidence, issues, preparation for direct and cross-examination. 


e.
Determine whether child should be present for all or a part of hearing and whether child should or should not testify. 


f.
During interviews and meetings with witnesses, start developing a master list of questions that will be asked of your witnesses and school board witnesses. Begin to prepare your outline for possible oral closing argument. 


g.
Remember your theme, and always make your case simple to grasp. 


h.
Develop the witness order. 

  i.
Open with strong witness who had initial involvement with child several years ago. 
  ii. Usually you will want to have your witnesses, (educational diagnostician, psychologist, private school special ed teacher or administrator, neurologist, speech/language pathologist, etc.) testify in chronological order of involvement with the youngster. 
  iii. Consider using a lay witness who is not classified as an expert but who has had the opportunity to observe significant change in the youngster since the new private school special educational program was initiated (if this is a tuition assistance case.) 
  iv. The last expert witness should be a strong figure who is well organized and can do clean up, bringing the data and child's status forward to the present. 
  v. Close with parent and maybe child. Remember to save some evidence for a strong rebuttal.

i. Your list of exhibits, the exhibits themselves and your list of witnesses is due five administrative working days before the hearing. Include on your list of witnesses a statement to the effect that you "reserve the right to call any of the school board witnesses that are on their list of proposed witnesses." With this language you may call the party representative as an adverse witness. 

2. Due Process Hearing

a. Order of presentation v. burden of proof. These are different concepts and in special education law the first to proceed does not necessarily have the burden of proof. Determine whether the school system or parents will proceed first. Going first allows you to better structure the trial and put the school on the defensive. Going second allows you to counter-punch and move for summary judgment without calling a witness. In other words, they had the best shot, put the evidence on, and it was insufficient and, as a matter of law, you should prevail. When you make that motion, (assuming that you will be overruled,) you have the opportunity to present your closing argument and point out the flaws in their case prematurely. Despite the Schaffer case law, always assume you have the burden of proof.  

b. Move to exclude witnesses. Since your witnesses are better prepared, they will not contradict each other if they do not hear the testimony. Parents and a school board representative will be allowed to remain in the Hearing. 

c. If parents go first, consider calling school board representative as your first witness (adverse) and flush out why they believe that their proposal is appropriate. This can be a dangerous maneuver since the witness is being called as your own and you will need to have evidence that is contrary to that witness. 

d. Direct examination: child's witnesses 

i. Identify witness, educational and professional background and expertise with matters similar to the case at hand. 
ii. Have witness explain their involvement with child prior to testing, what tests they administered, why, what results were obtained, and the basis for their recommendation. 
iii. Have your witness comment about opposition's exhibits and child's progress or lack thereof in prior years and why. Explain why the public school's last, present and / or proposed IEP was not appropriate for the child and may have created damage. 
iv. Close with a strong point about the importance of an appropriate program for the child and the nature of educational gains that can be expected.
e. Cross-examination: Child's witness 
i. While your witness is being cross-examined, listen carefully for any points that may need to be cleared up during re-direct examination. 
ii. At that point your client may interrupt your train of thought and concentration and make comments to you about the examination. Do not permit this. Have an extra pad and pen for the parents to use to write notes to you. (Since your parents now have an excellent grasp of the documents and legal and factual issues in the case, they can become helpful assistants to you during the trial process. During the school board's direct examination of their own witnesses, have your client write questions that the parent would like you to ask the witness and the expected answer. Too often the question starts with "Why" and is not usable. After the hearing you can explain to your client why you did not use that question, but, because of their note, it triggered you to ask another question. During this time, your client's brain is in high gear. Have the parent write you questions that they want you to be sure and ask them on rebuttal and the expected answer.
f.Direct-examination: School board witnesses 

Listen carefully to their testimony. Often the witnesses will have written notes that they are referring to and parrot the same theme. Frequently the theme will be to blame the parent or child for the child's failure to have a successful educational experience. It will also be asserted that the child's performance is the best that can be expected. Your witnesses will have already addressed that issue on direct. As the opposition's witness testifies, develop other questions to ask on cross and determine where in the sequence you need to ask the question.

g. Cross-examination: School board witnesses 

i. This is perhaps the most important stage of the trial. With the earlier advance help from your own experts, you want to use the school's own evidence and testimony to build and win your case! If the witness referred to notes or documents during the testimony on direct other than the trial exhibits, obtain them at some point. Assess whether it is advantageous to secure them in the beginning or to wait until you are midstream in cross. 

ii. Have an initial draft of questions already prepared before hearing. Have your expert witnesses provide you with questions that should be asked of the opposition's witnesses. Your witness should be familiar with the school's test instruments and educated you as to strengths and weaknesses of the tests and make suggestions for cross. 

iii. Know every evaluation and test report in extensive detail. Chart out all prior administrations of specific tests given by opposition's witnesses. Know dates and scores. Have your expert witnesses explain to you the discrepancies between tests. Understand the "between test" variability and "within test" variability. Know and understand the bell curve, deviation IQ, norm reference v. criterion reference testing, and what the subtests actually measure. 

iv. If you have established a favorable point or admission, log it in on your notes and do not return to it on cross. Save it for closing argument. On occasion it may be appropriate to terminate cross early if you have been very successful. The witness may be able to regroup and recover. Be sure that your client understands that this is an option you may exercise. 

v. Be sensitive to the emotions that each witness generates within the Hearing Officer. Is the Hearing Officer a rescuer who comes to the aid of a witness who is being chewed up on cross? Is the Hearing Officer offended by the annoying manner of the expert who has all answers to all questions and is never in doubt? Read the Hearing Officer and know when to move in on the witness and attack and when to show kindness for the poor witness who, you will later prove, means well but just didn't have it all together. 

vi. Save your damaging final questions for the very end and close on an upbeat note with a trilogy that will parallel your theme. 

vii. Do attend seminars about the learned science of cross-examination offered by Larry S. Pozner of Denver, Colorado and Roger J. Dodd of Valdosta, Georgia. "Great trial lawyers 'testify' at every trial through carefully crafted leading questions" Obtain their publication Cross-Examination: Science and Techniques published by The Michie Company and their videotape entitled "How to Dominate a Courtroom on Cross Exam" available from Roger Dodd at 912-242-4470. 

viii. Do not ask questions that begin with the "5 W's + H + E" (Who, What, When, Where, Why, How, and Explain.) As you, the lawyer, "testify" on cross, use their witnesses, and build and tell the story, by your questions. 

ix. From Posner and Dodd, learn how to develop the use of simple loops, double loops, chaining loops and spontaneous loops. 

x. Learn how to avoid "structure bait" and "new bait" when offered by the witness. 

xi. Avoid the use of "Isn't it true that . . ." or " . . . isn't that true?" Become aware of the concepts of primacy and recency and their use in cross-examining a witness. 

xii. Use trilogies. "The use of trilogies - which are borrowed from literature and history - is a keystone to the cross-examiner's ability to build drama and to make more memorable the cross-examination." (Dodd and Pozner, page 473) Build your case using their witnesses and their exhibits.

h. Closing Argument 
At the pre-trial hearing determine if the Hearing Officer prefers an oral closing argument at the conclusion of the testimony or a later written brief after the transcript has been completed. 
i. Oral - During the course of the hearing, you and your client should record verbatim specific parts of testimony that you can quote in closing that conclusively establishes your client's entitlement to the desired relief. Compare your case to the facts of the other similar decisions that you have with you. In many instances it may be appropriate to have previously furnished them to the Hearing Officer. In other cases it may be appropriate to provide them at closing, dependent upon trial strategy. Sometimes the landmark cases can be provided prior to the Hearing and hold until oral argument the additional cases that are directly on point for the closing argument. 

ii. Written - Some Hearing Officers prefer that the attorneys provide written closing arguments. In that instance it is important to have the transcript prepared and you may want to quote directly from it. You are preparing the Written Closing Argument as your later record/index in the event of appeal. Remember your theme and do not get bogged down in the tremendous detail. Immediately after the Hearing, meet with your clients, and develop notes about the critical points in the testimony and issues to stress in the written argument. You probably will not receive the transcript for several weeks and your memory will have failed you about the emotional high points of the case. Develop a theme, tell a story, and structure the case so that the finder of fact truly wants to rule for your clients!

Ethical Considerations

Advocacy, Emotions and Dependency: Ethical dilemmas and unconscious traps. 

Ryan K., et. al. v. Puyallup School Districts, 35 F. 3d 1396, 21 IDELR 664, (9th Cir. 1994) This case involved the discipline of a youngster with Tourette's Syndrome and an attention deficit disorder. The District Court and the Ninth Circuit discussed the "counterproductive stance taken by (the parent's) attorney" and his insistence that "they leave the (IEP) meeting with him at once." 

Giangrasso, v. Kittatinny Regional High School Board of Education, et. al., 865 F. Supp 1133, (D. NJ 1994) The parent's attorney was assessed $100,000.00 in sanctions because of his misconduct and Rule 11 violation. The District Court found that the misconduct by the child's attorney cost the school system and other defendants approximately $132,500.00.

Note: This Seminar was initially presented at the Virginia Trial Lawyers Association's Annual Civil Rights and Constitutional Law Seminar entitled "Representing the Special Education Child" on April 12, 1995. The program was repeated at a Continuing Legal Education Training Seminar for Legal Aid and other attorneys in Virginia who earned educational credit in conjunction with the Virginia Poverty Law Center, Inc. on June 29, 1995 at the University of Richmond, Richmond, Virginia. 

On December 11, 1996, the program was given as part of a comprehensive six hour Continuing Legal Education program. The training was sponsored by the Professional Development Network for attorneys representing special education children in Virginia. In conjunction with this outline, the attorneys and advocates also learned how to use computer spreadsheets to interpret educational and psychological tests for use as evidence in special education due process hearings. 

Since December, 1996, this training program has been given in Continuing Legal Education Seminars for attorneys in different states. This outline is included in one of our publications that is geared to help the inexperienced attorney through the first special education case. 

Closing Comments

This manual, our WebEx Training Modules and our books, Wrightslaw: Special Education Law and Wrightslaw: From Emotions to Advocacy are all designed to help parents and lay advocates become partners with the attorney when preparing a case for trial.

Parents and attorneys must prepare for trial. They must dot all i's, cross all T's, and prepare the exhibit book long before the five day rule. Parents must assume that they will be going to a due process hearing. They must also assume that, on the day of the hearing, suddenly a new law was passed, that parents are absolutely prohibited from testifying in their own case.  This concept is discussed in Chapter 21, entitled The Rule of Adverse Assumptions in Wrightslaw: From Emotions to Advocacy.

Make those assumptions! You will go to a due process hearing, there will be no appeal from that point, and you, the parent, cannot testify. Start out with that mindset. You will think through how to prove your points without being able to testify. You will develop a paper trail. You will have experts testify on your child's behalf. 

You will prepare for trial. When you have prepared for trial, you have increased the odds that you will not go to trial and that you will have a favorable settlement. Cases are settled with favorable terms after cases were prepared for trial. These cases are not resolved by a letter from an attorney to the school district. They require hard work and preparation. 

last revised: 01/21/09

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