LAW: SPECIAL EDUCATION DUE PROCESS PREPARATION FOR TRIAL Tuition Assistance Case by Peter W. D. Wright, Attorney at Law, Richmond, VA Compuserve 75116,364 Neither parents nor an attorney should ever request a special education due process hearing until they are in fact ready for trial. In the heat of anger, parents, advocates and attorneys frequently request a hearing before they have truly prepared the case to give themselves the best possible odds that they will prevail in such a hearing. When the threat of hiring a lawyer or requesting a due process hearing is issued, too often the process starts and the child becomes the victim, all because of temper, emotions, and lack of preparation. This outline was originally prepared for use in training attorneys in the mechanics of a special edu- cation due process hearing. It is oriented toward a tuition assistance case, however the principles are similar for other issues. As an aside, I assume you would prefer to settle without litigation. But do you want a settlement that will provide your child with an appropriate education? Then prepare for trial. Cases are settled when the opposition believes you stand a good chance of prevailing at trial. A. Initial Interview with parents. 1. The attorney should review all reports before face to face contact with the parents. 2. Help parents understand gray issues, hazards of litigation. Cases are not settled unless prepared for trial. 3. Evaluate parents as witnesses, intentions, and amount of polarization in the case, hidden agendas. B. Analyze issues 1. At first glance, case may appear to be a single issue case such as tuition assistance or failure to identify child as handicapped or need for ESY. 2. Frequently, issues may be more complex, such as failure to completely evaluate child in prior years and breach of pro- cedural rules. But for this breach/oversight the child may have progressed and not be in need of the desired service. 3. Start to develop an overall theme of the case that will be built upon over time. You must structure and format the case so that the finder of fact truly wants to rule for you. This is absolutely critical! Your job is to provide that person with the evidence and law that will allow them to give you a favorable decision. C. Evaluate applicable legal principles 1. Regulations a. Try to find breaches of regulations b. Look carefully at IEP's. Were they completed regularly and truly used as a road map to evaluate the child's progress or lack thereof? c. Were the objectives capable of independent verification using standardized data or simply evaluated by the teacher using "teacher made" tests? Was the wolf guarding the chicken house door? 2. Case Law a. Understand the existing case law on the issues and where it is headed. Check IDELR Topical Index from past to current issue. Provide parents with copies of the cases and question them about factual similarities of their case to the published decision. b. As a part of your theme, present your facts in a light similar to the well known landmark case of so-and-so. D. Evaluate existing evidence and additional evidence that is needed. 1. Request copies of child's entire file from all agencies 2. Determine evaluations 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? 3. Is there documentation showing that the child has not been properly educated? What else is needed to prove the case? E. Chart test data and educational history with a spreadsheet and for use as a trial exhibit. 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? F. If a tuition assistance case, evaluate present progress using standard measures. 1. Have your evaluators observe the present and the proposed program and be familiar with all of the documents, not just their own reports. 2. Have your evaluators prepare reports incorporating the child's prior educational history and describe what progress, if any, child has made and amount of progress child should have made. G. Request relief desired from school system. 1. 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 your request clear and give the basis for it and the legal auth- ority justifying your position. 2. Attach the new reports to your letter. 3. Don't give all reports/data/procedural irregularities, i.e. evidence, at that time-leave some "rabbits in the hat" to pull out at trial. If you don't plant rabbits and surprises ahead of time, they won't pop out at trial. 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. Permitting the opposition to lawyer bash is an excellent opportunity to settle a case!) b. Don't attack the school system directly, (i.e., their program for most children who have the same handicap is very good, it is a shame that your client has so many other handicapping conditions and problems that are so severe that the child cannot be educated in the regular special ed program.) H. Preparation for Due Process If the proposed program is denied, request a due process hearing. In your cover letter refer to your earlier letter and attach it as an exhibit. Assert that your request for a due process hearing is pursuant to both the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act. When you send your letter requesting a Due Process Hearing to the Director of Special Edu- cation, request that the Director forward a copy of your letter and all attachments to the Hearing Officer so that person will know exactly what issues are being litigated. Copy all letters to your parents and potential witnesses. 1. Keep all witnesses closely informed as to developments. Be sure schedules are clear. 2. Meet with parents and have them develop the exhibit list, arrange for numbering and copying of exhibits and delivering all to witnesses, opposing counsel and Hearing Officer. 3. Have an initial joint meeting of parents and witnesses, explain issues, inject fear, and motivate everyone to read and become familiar with all exhibits. 4. Have a follow-up meeting with witnesses regarding details of evidence, case-law, issues, preparation for direct and cross- examination. 5. Determine whether child should be present for all or a part of hearing and whether child should or should not testify. 6. During interviews and meetings with witnesses, start developing master list of questions that you will be ask your witnesses, school board witnesses, and prepare outline for possible oral closing argument. 7. Develop order of witnesses a. Open with strong witness who had initial involvement with child several years ago. b. Use other professionals such as the educational diagnostician, psychologist, special ed teacher, neurologist, speech/language pathologist, etc. probably in chronological order of involvement with youngster. c. Consider using a lay witness who is not classified as an expert but has had the opportunity to observe significant change in the youngster since the new educational program was implemented. A Sunday School teacher or minister who has known the child for several years and previously saw regression in the public school program and has more recently seen signficant improvement in the new special education program is an excellent witness. d. The last expert witness should be a strong figure who is well-organized and can do clean-up and bring the data and child's status forward to the present. e. Close with the parent and maybe the child. Instruct parents not to wipe away any tears as they testify. They must be prepared to continue with their testi- mony and allow their tears to drip onto the table, all the while keeping their hands in their lap or on table and away from their face. If opposing counsel proposes a short recess, the parent must insist on continuing with the testimony. f. As counsel, you should have role-played direct and cross-examination with each witness. You must be brutal with your own witnesses on cross. I. Due Process Hearing 1. Determine whether school system or parents will proceed first. Who has the burden and who will have the right to rebut? Going first allows you to better structure the trial and put the opposition 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 their evidence on, and it was insufficient and, as a matter of law, you should prevail. When you make that motion, assuming you will be overruled, you have the opportunity to present your closing argument and point out the flaws in their case prematurely. 2. Move to exclude witnesses. Your witnesses will be better prepared and not contradict each other if they do not hear the testimony. Parents and a representative of the school board will be allowed to remain in the hearing. 3. If parents go first, consider calling school board repre- sentative as first witness and flush out why their proposal is believed to be appropriate. However, this can be a dangerous maneuver since the witness is being called as your own and you have to live with the unrebutted evidence. 4. Direct examination - child's witnesses. a. Identify witness, educational and professional background and expertise with matters similar to the case at hand. b. Have witness explain their involvement with child from the beginning to the present. What tests did they administer, why, results obtained, and basis for their recommendation. c. Have witness comment about opposition's exhibits and child's progress or lack thereof in prior years and why. d. Close with strong point about importance of an appropriate program for the child and overall positive economic impact on society. e. While your witness is being cross-examined, listen carefully for any points that may need to be cleared up on re-direct examination. 5. Cross-examination a. Have your initial draft of questions already prepared before the hearing. Have your expert witnesses provide you with questions that should be asked of the opposition's witnesses. b. Know every exhibit in extensive detail. Frequenty there are 100+ in an average two day trial. Chart out all prior administrations of specific tests given by the opposition's witnesses. Know dates and scores. Have your witnesses explain to you the discrepancies between the tests. Understand the between test variability and within test variability. (Note: While being previously familiar with each exhbibit, I usually review all of my exhibits and the opposition's exhibits the morning of the trial. This is usually a three to four hour process. I usually begin my re-review at 4:00 a.m. the morning of trial. This process results in a photographic memory of each test ever administered to my client, down to the details of the subtest scores, percentile rank and, with the Woodcock and Wechslers, even the raw score changes over time. Your incredible familiarity with the exhibits causes the school board's witnesses to demonstrate uncertainty and unfamiliarity with the test scores and findings after having previously testified on direct that their recommendations were based in part upon a review of the file. You can usually flush out that their review was fairly minimal since they do not really expect you to under- stand the tests results anyway! c. Listen carefully to their testimony on direct examination. 1. When their witness is testifying to matters that are damaging to your case and you do not have strong rebuttal on that point, then, very politely, appear disinterested and distracted. Instruct your client to not show any visual concern. 2. When their witness is testifying on points that are not really related to the case, look intently at the witness, take notes, appear concerned, and the witness will frequently continue on and on. As the witness continues, the Hearing Officer will question the value of all of their witnesses. 3. Do not let your client distract you when the opposition is testifying. Give the client a notepad and pen and insist that they write you notes and perhaps questions they would like you to ask on cross. d. 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. e. Once you have established a favorable point, concession or admission, covertly 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. Often, after a significant point or favorable admission, the witness may be able to regroup and recover if you continue with your remaining questions. Stop - say "Thank you" very politely - smile - state "I have no further questions of this witness." Know when to shut up and sit down. One question too many is usually worse than being one question short. f. Be sensitive to the emotions the 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 offensive belligerent manner of the expert who has all of the 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, in contrast, when to show kindness for the poor witness who, you will later show, means well but just didn't have it all together. For some reason, unknown to you, the school system did not give the witness the very early evaluations and also the most recent ones done by your experts. g. Save your damaging final questions for the very end and close your cross-examination on an upbeat note. I. Closing Argument a. Oral 1. During the course of the hearing, in your notes, you should have recorded verbatim specific parts of testimony that you can quote, word for word. Those quotes will conclusively establishes your client's entitlement to the desired relief. Remember the theme of the case. Structure it so that the Hearing Officer really wants to rule in your favor. In your own heart, temporarily set aside an intellectual analysis of the law and the facts, forget the "justness" of your cause, step off the pedestal, make deep eye contact, and let it flow. If you prepared, you will mesh it all together. 2. At some point, compare your case to the facts of the other similar published decisions that you have with you. In some instances it may be appropriate to have furnished them to the Hearing Officer prior to the Hearing, in other cases it may be appropriate to provide them at closing. Sometimes the landmark cases should be mentioned in the Opening Statement and then, the later cases that are directly on point and match your facts, should be saved for closing. b. Written 1. Some Hearing Officers prefer that the attorneys provide written closing arguments. In that instance, you may want to have the transcript prepared and 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 that is present in all litigation, special ed or otherwise. 2. Immediately after the Hearing, meet with your clients, have a tape recorder and prepare a stream of conscious tape regarding the critical points in the testimony and issues to stress in the written argument. You probably will not receive the tran- script for several weeks and your memory will have failed you, losing the emotional high points of the case. A special education due process hearing is an exhaustive, expensive process. For every hour of trial, expect to spend five hours of preparation. The average case is usually two days in length. Prevailing at a Due Process Hearing may have positive implications not only for your client, but for many other children similarly situated. If the case goes up higher on appeal, it becomes an opportunity for even more children to benefit. Just ask Shannon Carter. __________________________________________________________________________ Prepared by: Peter W. D. Wright, Attorney at Law and Shannon Carter's attorney before The United States Supreme Court Courthouse Commons 4l04 East Parham Road Richmond, Virginia 23228-2734 OFFICE: (804) 755-3000 Voice Mail Box: (804) 342-0732 Fax (804) 755-3003 Compuserve 75116,364 Copyright 1993 by Peter W. D. 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