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Pete Answers Questions About Special Ed Litigation & Attorneys Fees

03/15/09
by Pete Wright

Pete Wright in due process hearingToday, I answered another HELP!!!! email from a parent  who requested a due process hearing and doesn’t know what to do next.

Yesterday, I answered an email from a parent who initiated a due process hearing and lost. The parent filed an appeal in federal court and wanted advice about how to write a legal brief.

These emails led me to offer some advice about litigation.

Neither of these cases are likely to have a good outcome.

Before initiating litigation, parents need to spend time learning how the legal system works.

If you are not familiar with the law and litigation, consider taking a few courses. You need to know the rules of court, how to do legal research, etc.

In all litigation — criminal, civil, personal injury, breach of contract — there are many issues that can be presented by each side and argued vigorously. In special education litigation (as in a divorce, child custody case), the parents and school often have a laundry list of complaints and grievances that go back for years.

Most of my cases have multiple violations. As a lawyer, I must organize a mountain of confusing facts and make them clear and simple. I try to focus on my “gut” issue, the issue that will make a neutral person biased in our favor.

Develop a compelling theme of the case. Make your case clean and simple.

Decisions by judges, hearing officers and juries are rarely based upon the facts and law of a case. Instead, the decision-maker wants to rule for one party, then finds facts and law to support the decision.

To learn more about this strategy, I recommend you read How to Argue and Win Every Time by Gerry Spence. This book is not about arguing. How to Argue is about story telling and oral persuasion — the art of getting others to see things through your eyes.

Legal Fees

I also answered email from a parent who complained about the high costs of legal counsel.

Several factors contribute to this problem. Very few attorneys represent children with disabilities, primarily because they cannot make a living in this field. Like parents, attorneys have to make a living. If they can’t make a living representing children with disabilities, they will leave this area of law.

Attorneys are appointed to represent indigent criminal defendants. That’s about all in our system of justice.

Some ask if taxpayers should pay the attorneys who represent both sides in special education and other kinds of litigation. These questions involve public policy issues that are beyond my competence to answer.

What can parents do?

Out of every ten parents who consult with me, only one needs an attorney. The parents have a disagreement or dispute with the school about their child’s special education program or placement. They don’t know what to do.

Their emotions drive them to do SOMETHING.

Parents often request a special education due process hearing when they have no idea what they are getting into.

If you are in this position, read Emergency! Crisis! Help! at
http://www.wrightslaw.com/advoc/articles/Crisis.html

Most parent-school disputes can be resolved without litigation, especially if you have an attorney who can provide advice about what to do and not do.Parents at due process hearing

If you are thinking about requesting a due process hearing, consult with an experienced special education attorney before taking that step.  Consultation fees are usually low, especially when you consider the cost of litigation. The attorney can give you advice about how to proceed without shooting yourself in the foot.

I have another piece of advice for parents who are considering a due process hearing.Surviving Due Process DVD

Watch the Surviving Due Process: Stephen Jeffers v. School Board DVD. This DVD is a realistic depiction of what happens in a due process hearing, and it’s based on a real case.

Legal Tip: Some  Protection and Advocacy agencies (also called Disability Rights agencies) do an excellent job of representing children with disabilities in special education cases.

The South Carolina P & A was involved in the Florence County v. Shannon Carter case from the review hearing, through appeals to the District Court, the Court of Appeals for the Fourth Circuit, and U. S. Supreme Court.

Their assistance was invaluable, and I will always be grateful to them.

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23 Comments on "Pete Answers Questions About Special Ed Litigation & Attorneys Fees"


11/19/2014

Hello, I am an educational advocate in California who represents children with disabilities. It is extremely important that you document everything and what you have a complaint on, is proved through paper trail. If you don’t have any, start now by writing your concerns and asking your school for help. Put it in writing and keep a copy.

Lizzy
04/03/2014

I’ve contacted Disability Rights & other advocacy agencies, each one stated that they do not have the resources for due process hearings & to consult with an attorney that specializes in these cases. It’s been almost a month since my daughters IEP & the school district is ignoring my phone calls, emails & letters. This was our first & my daughter hasn’t had any therapy since her 3rd birthday 3 weeks ago.

01/21/2014

Pete Help!!!

I am working on an advocacy where the parents are employed by the school district their child attends. There is a chance that a due processing hearing may be necessary to ensure the student receives accommodations; however, the parents do not want to threaten the school with any legal action. I am concerned that without some type of threat the school is unlikely to move forward with the needed assistance and I do not want to make any empty threats. Do you know of any case law that protects the parents jobs? Or if the teachers unions have some type of code that would protect them? They are in the state of Pennsylvania. Thank you in advance for your assistance.

Picasso
01/19/2014

I am a mother of three. Two are low functioning non verbal autism and one is high functioning autistic. My child was sexually abused by an older classmate while during school hours with three special ed teachers supervising. My son should never have been left alone and unsupervised. I have had my son speak with the district crisis counselor who confirmed the act. My child has been out of school/instruction for approximately 2 wks. The school insists my child must be returned to school. However, the older child remains in the class room and in the program. I fear that this has made affects on my son. Furthermore, I cannot return my son to the same environment if the school was negligent and allowed in-proper supervision of our children. What rights does my son have. I have two other disabled children in the same district pending IEPs.

Melissa
03/30/2011

After many IEPs and situations becoming worse, I see us possibly moving in the Due Process direction. My son was bullied and tormented, physically touched and finally assaulted at the end of 8th grade. He was moved to a new school and now in the 11th grade. He has NO friends. As students become more sophisticated, my son with a language based LD and PDD-NOS is alone, miserable, scared and sometimes harassed. He does not want to go to school. Any thoughts? We are having another IEP soon and I don’t know what is next.–Due Process? (And yes, his education is being impacted.)