the Documents Speak for Themselves?
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article is primarily intended for non-attorney advocates who assist parents
and attorneys in preparing to present a child's case at an IEP meeting,
mediation or a formal due process hearing. Regardless of the forum, these
concepts about evaluating and using documents are the same.
- there they are - boxes, three-ring binders, school records, and other
stuff written on paper - paper that is occupying a disproportionate amount
of floor space.
sit, growing as if the little monsters have some sort of expansionism
population policy. Sometimes the little monsters obstruct pathways to
other parts of the room in which they reside. I like to use them as footstools
or convenient places to set a coffee cup. At least they have some utilitarian
value. Over time, they take on a comfortable patina.
on the floor, occupying space, while we concentrate on the more interesting
aspects of the case. We know these papers contain some sort of mystical
potential. But, we rationalize, we will dig around and find what we need
when the "right time" presents itself.
Everyone knows the real stuff of advocacy is doing battle with "them"
"real" battle, we will rely on our hottest documents and our
superior argumentative skills to zing the other side because the documents
speak for themselves, right?
Addressing the "document speaks for itself" concept in his decision
in Mid-Continent Resource Recovery, Inc. v. Shred Pax Corp., No.
94 C 6689, 1995 WL 12229 (N.D. Ill. Jan. 10, 1995), Judge Shadur noted
that the "Court has been attempting to listen to documents for years
in the forlorn hope that one would indeed give voice."
Witnesses and trial advocates give voice to the evidence contained in
documents. The experienced trial advocate artistically weaves these silent
documents into compelling testimonial evidence through sound planning
and tactical choices.
the Battle-Winning Theme
exception, current deficiencies with regard to the appropriateness of
a child's IEP, placement, or classification are related to early events
that followed the initial evaluation of the student. Sometimes the problem
relates to the initial contact at a new school after the child transfers
from another school, town, or state.
Because human memories are fallible, we must rely on information contained
in the child's education records. To
unravel the facts and to develop a compelling and easily understood theme
for the story that we will eventually present to a decision-maker, we
must learn to love reading documents.
sit. Fourteen billion pieces of paper stuffed into boxes or notebooks
designed to hold only a tiny portion of fourteen billion pieces of paper.
"Well," you say, "the school district's attorney will not
look at each one of these papers. Besides, everyone knows that school
district attorneys do not look at the records until a week or so before
Let me dispel this myth.
district's attorney, unlike the you and me folks out here, have legal
assistants and paralegals who sift, sort, put into chronological order,
categorize, summarize, copy, identify, and neatly store the stuff in numbered
boxes and folders.
Some school attorneys even have former special educators, nurses, and
other professionals on their staff who can help them analyze these fourteen
billion documents. Some school district attorneys have lower level associate
attorneys who do preliminary legal research (uninteresting work for grunts).
If you and
I had that kind of support, we too could blow into a meeting room looking
like Perry Mason.
We do not, so we must even the odds by making fact-finding one of our
documents and other potential evidence that supports and diminishes
the value of your case. Become knowledgeable about every possible
defense that the school district has available.
the strengths and weaknesses of your case. This knowledge is the
key to formulating a credible argument. Good advocates do not enter
into serious discussions with the other side without knowing both sides
of the issues in question.
your information in a usable, easily referenced manner. If you do
not do this, your case is doomed to spend its natural life in a quagmire
of petty argument.
a method to organize and analyze information in the file. Special
education matters are paper intensive.
down your evidence documents to a precious and lovely few.
Common Fact-Finding Blunders
We want to
trust other folks, and we generally do. We learned to trust good old "Dr.
Says." When we trust Dr. Says, our trust manifests itself in dangerous
behavior if we skim over reports.
Train yourself to read every line of every document or report. Read the
documents without a preconceived notion of what those papers contain.
Look at them with child - like enthusiasm. Hunt for inconsistencies, obscure
conclusions supported with mostly subjective reasoning. Learn to look
for patterns of "cut and paste" observations, conclusions, etc.
Often, evaluators carry forward erroneous information from early parent
or teacher comments. When these "cut and paste" statements are
included in a critical evaluation or report, we need to be able to show
that the information is erroneous - and where it came from.
Correctly identify the date of the document. Who among us has not mistaken
the date of the report for the date of the evaluation? You can eliminate
these kinds of mistakes by careful reading and use of checklists.
In our society,
we learn to trust Mr. or Ms. School Says. I do not want to suggest that
all school folks are untrustworthy individuals - far from it.
For a moment, let's play "what if." What if a parent is beginning
to have a dispute with the school, and Mr. School Says asks for a release
so the school can bring its records up to date? Consider the following
excerpt from Special Education Law and Practice, published
for school attorneys by LRP Publications:
documents that have been previously released by third parties to the
district are those that were selected by the third party for release
that relate only to "education." Typically, however, there
is additional information contained in the third party's files, including
psychiatric and other medical information that could be significant
to the defense of the school district's case. Thus, it is extremely
important that all documentation is obtained from third parties to the
parents have not yet initiated a due process hearing and the parties
are in the process of discussing parental concerns, it is important
for district representatives, not the attorney, to request that the
parents execute a release that would allow the district to obtain copies
of all of the child's records from third parties. Obviously, the district
would assume the responsibility for securing the documents, copying
the documents and providing copies of the documents to the parents if
Education Law and Practice: A Manual for the Special Education Practitioner,
Chapter 9, Section II (A), ((2001 Ed.) Gary M. Ruesch, Editor, LRP Publications,
attorneys read these two paragraphs, I suspect most expressed a few "Hmmmmms".
a Document That Appears Identical for a Useless Copy
assume that two identical appearing documents are indeed identical. Look
carefully. Do not do a screening peep to determine if two documents are
You will often find text differences. Sometimes a handwritten notation
appears on one document, but not on the other. These differences turn
what appear to be identical documents into documents that are different.
Compare the dates. Look for evidence of the creative "white out"
snooker. Only by developing a discipline will we be able to be certain
that the document we are relying upon is actually the document we believe
it to be. Analyzing documents is a learned skill.
those fourteen billion documents is the first step to understanding what
is in the documents.
too many methods for organizing documents to list here. I suggest that
you look at how successful advocates and attorneys do this. You need to
devise a way to know where your evidence is and how to retrieve it when
you need it. Nothing makes weary bones quicker than realizing that you
spent two hours to find a document that required only 10 minutes to use.
Here are some tips:
working copies of documents that you will use for study or note
documents with total objectivity. Do not look for what you would
like to find. Look for what is there.
and use a good dictionary if you do not own one.
the Oxford American English Dictionary and Thesaurus a combined
work that is not expensive. Get the paperback version of this dictionary.
Carry it with you. Add yellow stickies, write in it, circle stuff. Above
all, check every word, term, concept, or utterance that you hear or the
school district uses.
Do not - Do not - Do not assume that you understand a term, no matter
how familiar you THINK you are with the meaning of the term.
tell us that all the records are in one folder. Consider this excerpt
from the Special Education Law and Practice Manual:
As an initial
step, the school attorney should request that the client collect all
school files relating to the child. Caution must be exercised in this
area because many schools maintain separate files, e.g., the "main
file," the attendance file, the school file, the teacher's file,
the psychological services file, the health services file, the special
education file, etc. Thus, the school attorney should ensure that the
district has identified all files generated or maintained that relate
in any way to the child and/or to the child's family.
to educational records, the files maintained in a particular case frequently
contain documentation from third parties, such as physicians, hospitals,
residential and private treatment centers, or other public schools.
Because documentation from third parties often contains information
critical to the district's case, it should be determined whether and
how such documentation can be obtained.
Education Law and Practice: A Manual for the Special Education Practitioner,
Chapter 9, Section II (A), ((2001 Ed.) Gary M. Ruesch, Editor, LRP Publications,
eyes and your hands on the entire educational record. Provide the school
with a written request for access to the records. After you have access
to records, use these steps to review and copy records:
What follows sounds like a lot of work and a lot of time - and it is.
If you can do this, you may be able to prove your claims without much
expense. If you need to hire an attorney later, you have saved yourself
a wad of money because organizing documents is a major pre-hearing expense.
If you do this, you may get hooked on document peeping and find that you
have volunteered to help other parents prepare their files.
school personnel as if they want to help. Give them a chance to
help you. Do not go in with an attitude of blame and hostility - they
have not let you down yet.
the school for a private room. You do not want someone who is looking
over your shoulder to intimidate or frustrate your review. Have these
tools: plenty of sticky notes for marking pages you want to copy; plenty
of paper for your personal notes; patience.
the file in order. Go through the file, page by page. You do not
need to read every document while you are at the school because you
can get copies of everything.
an inventory of all documents in the file.
When school provides you with a copy of the file, you will know if the
file has been vacuumed or sanitized.
all documents in the file. School people often make notes on stickies
and attach these notes to documents. Make a note all documents that
have sticky note attached to them. Make a note of what was on the sticky
note. A copy machine may not pick up or show highlighted portions of
documents. Or the highlighted portion may turn into a black, opaque
unreadable mark on your copy.
the file folder. You will often find handwritten notes on the front,
back, or inside covers of the file. Make a note of everything written
on the file. A telephone number or obscure comment may correlate with
a nice piece of evidence later.
for a contact log. Education records often include a contact log
or record of incoming and outgoing telephone calls, letters, etc. relating
to the student. These logs often contain interesting information. Note
the "tone" of comments. For example, you may find an entry
that reads,"Ms. Gripealot called AGAIN and was told you were NOT
for letters to or from the school's attorney. If you find correspondence
with the school attorney, there are several things you can do. You may
put flags on this correspondence and ask that this not be copied for
your use. The information in these letters or other communications may
be protected by a privilege. Unless you are a lawyer, you may not know
how to determine this. Do make a note for yourself about each of these
letters. Your note should contain the date, the author, the recipient,
and the subject (not a word-for-word recitation) of the letter(s). If
you follow this practice, you will demonstrate to the school board attorney
that you are honest and worthy of respect.
assume that the school provided you with the entire record. Schools
file documents in different places. You may find files in the office
of the 504 coordinator, the school nurse, the special education director,
and so forth. These files may include documents that are not in the
child's "main" or cumulative file. (Refer to the quotation
from the LRP publication above).
which support staff seems to be the ramrod support person. Before
you leave, ask this person if you can have a copy of the school's 504
policy, attendance policy, and other policies that you know about. These
documents are the stuff of which due process dreams are made.
at posters, inspirational quotes, and brochures. You may find delightful
quotes or policy statements that run counter to how school personnel
are handling your child's education. Look for warm, fuzzy statements
that are printed and displayed for all to see. Write down what the poster
says, where it was displayed, and the date you saw it. Don't forget
to pick up brochures about the school or school district. The people
who write these things tend to go overboard when they say "No student
is left behind," etc.
To Do When Your Documents Arrive
a second set of copies to use as your working copies. Bind the
original copies with a rubber band. Attach a note that includes the
date you received the copies and from whom you received them. Do not
mark, write on, spindle, mutilate or otherwise disturb these original
documents from the school. If you need to prepare for a hearing, these
are the documents you will use.
your working copies chronologically. File the oldest document
on top, most recent document on the bottom.
Do not organize documents by category. Do not file IEPs, letters, or
evaluations together. Instead, file documents in chronological order.
This will give you a clean picture of events.
Some documents have more than one page. For example, most IEPs have
many pages. These pages may have different dates. Find the date of agreement
or execution that relates to the entire document or set of pages. Use
this as the date for the document or set of pages.
documents to make a timeline. Make an index of the documents
by listing the date, author, and a brief description of the subject
matter of the document. For example, a letter may be described as follows:
Letter, dated ***, written by ***, sent to ****, subject: notice of
IEP meeting date. This process will save you many hours. When you use
this process, you avoid the headaches that you would get if you had
to dig through piles of papers to find the "smoking gun" document
you recall seeing several months ago.
each document carefully.
Look at the dates. Are there discrepancies? Do the date sequences follow
For example, if the document about the initial placement decision is
dated before the initial evaluation report, BINGO. Is the date
on the IEP before or after the date on the notice of the meeting?
Check everything. Take nothing for granted. We have fallen into the
trap of reading documents with an uncritical eye when we assume that
all evaluators are qualified and all dates are correct.
of whether your claim will be resolved informally by mediation or negotiation
or in a formal due process hearing, you must understand the basis of the
claim and prepare to present your claim.
Having to plow through and understand hundreds or thousands of documents
is time-consuming and exasperating. But the payoff comes when you know
the real facts and issues and how to prepare, when you can show evidence
that supports your perception of how the facts apply to your issues.
Above all, this process provides parents and non-attorney advocates with
the tools you can use to avoid case-killer arguments. What are case-killer
evaluator was a bozo"
that looks like Latin and is not a misspelling of a perfectly good word
may I suggest that learning how to evaluate and use documents takes great
patience and discipline? Others can help you with the learning process.
Join organizations like the Council
of Parent Attorneys and Advocates (COPAA).
Read articles about these and other topics by attorneys and advocates
begins by understanding that rights are never bestowed; they are claimed."
Tony Coelho, author of the Americans with Disabilities Act
lives in Benson, Vermont. In addition to his work as an active non-attorney
advocate, Mr. Palmer is managing editor of The Beacon and pens
from the Transom.
Mr. Palmer has written many articles about advocacy, including:
to Prepare Your Case
to Negotiate is Part of the Advocacy Process
and Why to Tape-Record Meetings
to The Beacon
Copyright © 1999-2018, Peter W.
D. Wright and Pamela Darr Wright.
All rights reserved.