The Choreography of Trial Preparation
by Barbara J. Ebenstein, Esq.
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is the art of making dances. The choreographer arranges movement, lights,
and sound in a deliberate manner to convey a concept, set a mood, or tell
Trial preparation is like a choreography in that it is a deliberate arrangement
of elements to convey a concept and tell a story from a particular point
of view. Both choreography and trial practice rely on the skill of a performer,
either a dancer or litigator, to effectively communicate with an audience
or a hearing officer.
the dancer is at the peak of his power, he has two lovely, fragile,
perishable things. One is spontaneity, . . . the other is simplicity . . . "
Martha Graham, A Dancer's World, a film produced by Nathan Kroll
trial practice requires those same two attributes. The litigator's need
for spontaneity is obvious to anyone who has participated in a hearing
or trial. She must object to inadmissible evidence, change prepared cross
and redirect examination based upon direct testimony given, and constantly
revise plans based on what is happening in the proceeding. The litigator
must live in the moment.
The litigator's need for simplicity is perhaps less obvious but equally
important. She must keep the story simple, the facts coherent, and the
issues specific in order to communicate clearly.
student once asked me to recommend a course that he should take to prepare
for law school. My immediate reply was, "Choreography". He chortled,
but I was serious.
As a former dancer/college dance professor/ choreographer turned attorney,
I know that choreography and trial preparation are both creative endeavors
and that the creative process is identical whether you choreograph a dance,
paint a picture, compose music, sew a quilt, or prepare for a trial. Only
the medium is different. The choreographer's chief medium is movement,
the artist works with paint, the composer uses sound, the quilter works
with fabric, and the litigator uses information derived from documents
and the testimony of witnesses.
Documents and Policies
task is to obtain as many school documents and as much information as
possible. You may decide not introduce every document into evidence, but
you want to review all of them.
Be sure that you request all school-held documents. Obviously, get all
special education files. The preschool special education file may be kept
separately from the regular special education file so be sure to get them
both. School nurses and principals keep their own files on each child.
Get all discipline records. Get all evaluations, including raw data. Get
notes and reports of related service providers. Be sure that you have
all report cards.
Get documentation from activities outside school, such as progress reports
from religious school, summer camp records, and documentation of sports
or club participation. Get evaluations, letters, and insurance reports
of all private therapists. A hospital discharge summary can be very useful.
district documents related to any hearing issues. For example, if the
hearing involves a paraprofessional, get a copy of the school district's
contract with aides and teaching assistants.
Each school district has a huge notebook of their local policies covering
every imaginable subject. Get a copy of the school district policy related
to any relevant issue. For example, I had a client whose child had been
left back twice. I reviewed the school district policy on leaving children
back, and discovered that the school had violated its own policy. It was
a dramatic piece of information.
Go through each document carefully. Compare IEPs from one year to the
next. Note changes in placement and services, and the documents on which
decisions were made.
Check the goals and objectives carefully. I had one case in which the
goals and objectives had been duplicated from one IEP to the next for
several years. One can easily infer a lack of educational progress. I
had another case in which four IEPs provided essentially the same placement
and related services, but the most current IEP included twenty-six new
objectives in math without any additional services to address them in
a mainstream class. The hearing officer agreed.
An artist must consider "negative space", i.e., the area not
occupied by the object being drawn. The choreographer considers the space
around the dancer. So the litigator needs to be aware of what the documents
do not reveal - the information that is not there.
For example, are there test results from state and districtwide exams
that the student was supposed to take? Were all necessary members of the
IEP team present at all meetings? Was an IEP generated at each meeting?
Are there reports and records from all related service providers?
Missing records may indicate that an IEP meeting was not actually held
or related services on the IEP were not really provided.
Does the district annually publish the name, address, and phone number
of the Section 504 compliance officer as mandated?
Prepare to establish that each procedural error led directly to a denial
of a substantive "free appropriate public education". For example,
show that the lack of a regular education teacher at the IEP meeting influenced
a decision of the committee. Establish that had the parents did not file
their complaint earlier because they never saw a published Section 504
was a personal injury attorney for over sixty years and my law partner.
His advice to me was always, "Read law".
Years ago when I was assigned as guardian ad litem for children being
adopted by gay couples, he directed me to "read law". Still
a disobedient child, I informed him that there was no law on the subject.
He admonished me to read whatever law I could find. I read law about adoption,
paternity, and the licensing of sperm banks. Sure enough, what I needed
was there. So my advice is to "read law".
Read not just special education law, but also education law, state rules
concerning confidentiality, and the rights of teachers. You must know
law thoroughly in order to look for procedural and substantive errors
made by district. You can use a violation of state education law to establish
that the child was denied a "free appropriate public education"
pursuant to the IDEA.
For instance, if the school district violated state law involving school
discipline, that violation may have an impact on the student's receipt
of a "free appropriate public education" pursuant to the IDEA.
Some errors will be facially obvious in the documents, but most errors
will involve missing information, ie. the artist's negative space.
The second task is to organize the information in chronological order
to create a detailed timeline. Review the timeline and the documents carefully.
For example, school progress reports and report cards not only indicate
grades but also provide teacher comments that can be helpful. You may
even be able to use teacher comments on report cards to impeach the creditability
of a district witness.
Discern patterns and trends. Are test scores improving? Is the child becoming
more socially withdrawn? Have teachers reported behavior problems that
were ignored over a period of years? Have the parents review the timeline
and particular documents with you? Ask them about each suspected substantive
and procedural violation of statute and regulations. Be sure that you
have as much information as possible.
As the choreographer decides who will dance each role, so the litigator
must decide which witness to question about each piece of information.
Sometimes the choice is obvious. The psychologist who tested the child
can be asked questions about his own evaluation.
But remember the artist's negative space. Remember to use what is not
there. You may want to present the hearing officer with someone who knows
nothing but should have known something. You may want an IEP team member
to reveal his or her lack of understanding of the psychologist's testing.
Ask the teacher about the nature of the child's disability if you are
sure that the teacher does not understand it. You might ask a director
of special education to explain the meaning of a relevant term or about
a procedure that eludes him.
I had a case in which a school district had failed to conduct a triennial
review for five years. I asked the director of special education how to
calculate when a triennial review is due. She then proceeded to misquote
the law for the hearing officer and miscalculated the date the student's
triennial review had been due by two years.
Dancers always perform the roles they are assigned to the best of their
ability. Unfortunately, some witnesses are reluctant performers. The litigator
then must be sure that each one knows the part and does not have an opportunity
to improvise during the proceeding.
Experts can be difficult performers. First, the expert is often someone
your client chose to work with the child years ago. The private psychiatrist,
psychologist, or tutor may be an experienced person in his field or may
be a novice who has never testified before. They can be unreliable on
the witness stand. Second, the expert may have already communicated with
the school district in letters and reports prior to the parents retaining
counsel. Those previous documents will be used by the school district
in the hearing.
Recently, I had a case in which the child's psychiatrist was a very well-respected
professional who had treated the student for ten years. Unfortunately,
he had written a letter to the school district in which he stated, "The
best program for him is a boarding school that will address his difficulties."
In his decision, the hearing officer included the psychiatrist"s
entire letter and cited Second Circuit case law that "federal law
does not secure the best education money can buy . . . "
testimony can be powerful. I use the standard text or manual in the field
to question experts -- mine and theirs. For instance, I use the DSM-IV
when I question a psychiatrist or psychologist ("The Diagnostic
and Statistical Manual of the American Psychiatric Association"
current fourth edition). I go over the diagnostic criteria for the disability
with the expert and ask him to provide specific examples of how the child's
behavior fits each criteria and how it relates to the child's education.
like to take a few minutes to go through the diagnostic criteria for
Asperger's Disorder. In looking at A, the qualitative impairment, it
suggests at least two of the four criteria. Can you relate those criteria
then launched into two and a half pages of impressive detailed information
that could only be provided by someone who had worked with this student
for many years. Direct examination continued:
look at Part B, restrictive repetitive and stereotyped patterns. . .
Does W.H. exhibit any of these four criteria?
us about it.
A. . .
. When he was young I mentioned that he used to be interested in . .
continued for another page of testimony. I had the doctor explain his
treatment plans as provided to the family's insurance company. We reviewed
a document that was five years old to establish a long-standing disability.
Q. In looking
at the upper right corner of the first page, you have a DSM-IV diagnosis?
you explain what the first axis is on a DSM-IV diagnosis?
one is a psychiatric syndrome. That is the diagnosis of what is the
current difficulty the person has.
at that document, can you tell us what 314.01 is?
stands for attention deficit disorder. 300.4 stands for dysthymic disorder
and 300.3 stands for social phobia.
I also have
the expert review evaluations and relate test scores and other school
information directly to the child's disability.
Your Theme and Repeat
You now have your information and cast of dancers. You are ready for the
true art of litigation. Like music, classical choreography is based on
general principles of form, such as theme and variation. The choreographer
develops a movement theme and repeats it again and again varying it according
to dynamics, rhythm, and other elements. Yet, the dance progresses towards
a conclusion. It may build in intensity or flow slowly towards but surely.
So the litigator develops a theme and repeats it in the testimony of witnesses.
She finds it in documentary evidence. The litigator controls the flow
of the legal proceeding towards the desired conclusion.
Your Opening Statement as an Opportunity
In one of my first hearings, I made no opening statement. It was a strategy
gone bad, but I learned my lesson. The opening statement is a terrific
opportunity to tell the full story. From then on, the hearing officer
will only hear fragments of it.
Focus on the child and keep the story simple. Be sure to maintain your
the magic words a parent must utter to obtain a special education evaluation?
Must a parent be familiar enough with special education law to state:
I want to convene the CSE to determine my child's eligibility under
IDEA, classify him ED, and obtain a special education placement for
him? Isn't it enough that the parent tells the school psychologist and
the principal that he or she needs help with a child whose emotional
and behavioral problems have been well documented over a long time?
v. Greenburgh Central No. 7 School District,
Do not lose
your spontaneity. In New York, the school district puts its case on first
as it carries the burden.
I had a hearing in which the school district's attorney began her opening
statement with: "This is a case about LRE." I changed my beginning
on the spot to start off: "Contrary to what you have heard, this
hearing is not about LRE. This hearing is about a child and his name is
statement is a "mini brief" and serves as an outline for the
entire hearing. I list all suspected violations quoting statutes, regulations,
and case law. I state that "each and every one of these, and other,
violations of federal and state statutes and regulations have directly
contributed to the denial of a free and appropriate public education to
the child." I then respectfully request specific relief.
I use the list of suspected violations in my opening to prepare direct
and cross examination of witnesses. The list of violations will change
during the hearing as evidence proves and disproves facts. I use the final
list as an outline for my brief.
I choreograph a hearing. I develop a theme of the case based on the patterns
I have discerned and the errors made by the district. I state the theme
in a few brief sentences or phrases as part of my opening statement. I
make sure that each of my witnesses is familiar with the exact wording
of the theme.
Once your witnesses use the theme on direct, opposing counsel will have
to use it on the cross examination of your witnesses. When you use the
theme to question district witness, opposing counsel will have to use
it on redirect. Once you name it, it is yours.
For instance, I had a hearing in which the school district had placed
a severe time restriction on the parents' right to request a due process
hearing. I referred to it as "a five day window". I named it
in my opening statement, questioned witnesses using it, and soon it was
a term used by opposing counsel and the hearing officer. As "a five
day window" is blatantly illegal, the concept that there was a serious
violation permeates the entire hearing.
and Cross Examination of Witnesses
I let my own witness tell the story in their own words on direct examination.
I don't over-prepare them for direct, but I spend most of my time preparing
them for cross examination.
I focus on my cross examination of the school district's witnesses. As
the school district presents their case first in New York, I have an opportunity
to cross examine their witnesses before many of them have even guessed
the true nature of the parent's case. I have often been offered a settlement
after opening and the testimony of one or two district witnesses.
Leads to Settlement
Just as an experienced person can identify a Martha Graham dance, an impressionist
painting, or an Amish quilt, so school attorneys and hearing officers
should become familiar with a litigator's style. I like to think that
I have my own hearing style.
A school attorney who had litigated against me on a previous case, recently
walked into a hearing and asked me whether I had prepared an opening statement
with "all of those violations." I responded that I had. She
requested a copy of it, and we settled the case after she reviewed it.
The best result you can obtain from excellent trial preparation is settlement:
litigation. Persuade your neighbors to compromise whenever you can.
Point out to them how the nominal winner is often a real loser -- in
fees, expenses, and waste of time. As a peacemaker the lawyer has a
superior opportunity of being a good man. There will still be enough
business." - Abraham Lincoln, "Notes on Lawyers",
ca. July 1, 1850
Barbara J. Ebenstein
J. Ebenstein is a private attorney who represents families in special
education matters in New York and Connecticut. She is an adjunct associate
professor at New York University School of Education where she teaches
a graduate course in education law.
Barbara has written a series of articles on special education law for Exceptional Parent Magazine. She moderated an online newsgroup
for advocates for LRP Educational Administration Online and has lectured
on special education law to parent groups, physicians, teachers, psychologists,
of three daughters, two of whom have disabilities, Barbara has an essay
in You Will Dream New Dreams, edited by Stan Klein and Kim
Schive and published by Kensington Publications in 2001. Barbara served
on the Board of Directors of NPPSIS ("National Parent to Parent Support
and Information System") and now serves on the Board of Directors
of the Children's Dream Foundation, which supports medical services for
children in the Hudson Valley of New York State.
Barbara has a B.A. from Boston University, and M.A. from Teachers College
of Columbia University, and a J.D. from Pace University School of Law.