The Special Education Child:
A Manual for the Attorney & Advocate
W.D. Wright, Esq. & Pamels Darr Wright, MA, MSW
this page in PDF
The Need to Know
B. Professional role
The Presenting Problem
B. Parent's response
C. Attorney response
Preparing for a Special Education Due Process Hearing
Hazards of litigation
B. Analyze issues
C. Evaluate applicable legal principles
D. Evaluate existing evidence and decide whether additional
evals are needed
E. Chart test data and educational history
F. If tuition assistance case, evaluate child's present
G. Request relief desired from school system
H. If relief denied, request a due process hearing
The Need to Know
is likely that you have or will have a child, grandchild, sibling,
nephew, or niece who has a disability. Or you may have close friends
or neighbors who have a child with a disability. These parents experience
intense emotions, from guilt, sadness, helplessness to anger, and
frustration as they struggle to raise this child while trying to increase
the odds that the child will become an independent, self-sufficient
member of society. The laws regarding services for such children are
complicated. Friends and family will look to you, the attorney, for
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 write a letter or place a telephone call to a school official.
Through these actions, you hope to resolve the problems experienced
by the parents and child. If you give in to this impulse, the parents
and child may get short-term relief, but the real problems will not
be resolved and may be exacerbated. Special education cases can generate
as much emotional intensity as a bitterly contested divorce, and are
complicated by battles between expert witnesses, as in medical malpractice
cases. As an attorney, you must be cautious about assuming that you
can resolve these complex problems with a minimum of effort.
you understand the principles in this outline, you will be able to
field preliminary special education questions. You will know where
to find more detailed answers. You will be able to point parents in
the right direction and help the child receive appropriate special
attorney must approach the special education case as he or she would
approach the bitterly contested divorce with equitable distribution
battle that also has elements of a medical malpractice case.
attorney must be aware that he or she will be involved in the case
for a short time. When the case is concluded, the matter is closed
for you. Yet the impact of the child's disability will continue. The
struggle to secure and maintain an appropriate level of special education
services will continue, often for years. The parents should learn
to deal effectively with school district representatives and should
be able to "break bread" with school staff after the present
legal issue is concluded.
special education matters, it is crucial that the parents develop
a thorough understanding of the nature of the child's disability,
the special education laws, and how to measure educational progress
(benefit) in special education.
represent these clients effectively, the attorney must understand
the nature of the child's disability, effective educational practices,
the special education laws, and how educational benefit is measured.
In many cases, the most perplexing disabilities are not those that
are easily observed (i.e., deafness, blindness, severe orthopedic
impairments, cerebral palsy, or Down Syndrome). Many children have
"hidden handicaps," including language learning disabilities
and attention deficit disorders (ADD), that are caused by neurological
impairments. These "hidden disabilities" can be difficult
to identify and remediate.
The Presenting Problem
The initial phone call.
initial telephone call to an attorney is usually precipitated by a
crisis or emergency at the school. The crisis may be that the public
school says they:
not accept private sector evaluations that identified the youngster
as needing special education services; or that they
that the child's real problem is that the child is not learning
disabled but is emotionally disturbed so the school is changing
or eliminating the child's placement and program; or they
that can be expected of a school system 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 they
not provide intensive one-on-one services to the young child with
autism, but keep the child in restraints all day; or they
provide the same special education services that the child has received
for several years, insisting that the child is "really making
progress," although the child can barely read and has severe
written language problems; or they
that the child's increasing misbehavior is not related to neurological
or educational issues (causal relationship) and insist that the
child's acting out or withdrawal problems must be resolved before
the child will learn. Suspensions have increased and expulsion may
be the next step; or they
a meeting tomorrow, just called the parents today, and the parents
do not know whether they should go to the meeting, or whether they
should they bring you, because the school decided to discontinue
special education services because:
youngster has obtained the maximum benefit from special education,
although can barely read, write and/or do arithmetic; or
child is not benefiting from the program and doesn't need it
school system had a financial shortfall and staff have resigned
or did not have their contracts renewed so the child is better
off not being in special education now; or
services the child needs are not available and the parent needs
to recognize the school's limitations; or
school's new evaluations disclosed that the child's real problem
is that the child is not motivated, or the real problems are
within the "dysfunctional" family which includes a
single parent or a couple with marital problems which is not
an educational issue.
Immediate action is rarely required.
the parent may perceive the situation as a crisis, it is a mistake
to act quickly. Ask the parent to gather all documents about the child,
file the documents in chronological order, and schedule an appointment
with you. Find out when the last IEP meeting was held. Resist the
urge to call school officials at this point, despite pressure from
Check the statute of limitations for requesting due process hearings
in your jurisdiction.
on your jurisdiction, the statute may be as short as 60 days or as
long as two years. In other jurisdictions, limitations are
addressed specifically in the state special education regulations.
situations described above, the normal response from parents is a
big mistake. Feeling angry, helpless and under attack, many parents
want a confrontation. They write nasty letters that come back to haunt
them. They request special education due process hearings, even though
they have no evidence that will prove their case.
of special needs children often experience anger toward their child,
each other, and toward school officials. They feel guilty, confused,
frustrated, helpless, fearful and remorseful. In many cases, the parents
believe that the child has been betrayed by the public school educators.
From their perspective, they relied on the assertions and recommendations
of the school district "experts," perhaps for years. When
they realize that their child has fallen further behind and is worse
off, they shoot from the hip, miss their intended target, and damage
themselves and their child in the process.
Structure the initial interview.
the parent to provide you with a complete copy of the child's special
education file, organized in strict chronological order, oldest document
on top, most recent on the bottom. The parent should provide you with
copies (not originals) of all reports, evaluations, IEPs, notices,
and correspondence that are included in the child's special education
If the parents do not have a copy of the child's special education
file, it is a judgment call as to whether or not they should secure
the file before meeting with you.
Review all documents and reports before face-to-face contact with
Help the parents understand the gray issues in the law, the hazards
of litigation, and that cases are rarely settled unless prepared
for trial. The attorney may want to get involved before the facts
are clear and out on the table. Query: Do you call the insurance
adjuster to demand or force a settlement immediately after the initial
consultation with the personal injury client?
The child's file and the facts of the case are usually disorganized
and hard to understand. Parents need to realize that although they
may believe that the school system committed various legal violations,
their case needs to be simplified and presented in an organized,
Defuse and depolarize emotions.
time parents contact an attorney, the matter is polarized. Emotions
are running high. Parents and school officials are blaming each other
for the child's difficulties. It is essential for parents to join
the educational advocacy organizations related to disabilities. When
they join these organizations, they will receive informational newsletters
from these organizations. They should attend conferences of these
groups when possible. Parents should enhance their understanding of
the child's disability by reading books on the subject.
emotional response is related to feelings of guilt, loneliness, isolation,
and fear of the unknown about their child's future. When they join
organizations and become educated, the parent becomes "empowered."
At this point, they can often initiate a more constructive approach
to securing improved educational services for the child. Ask the parent
to find information that may be useful in educating you.
Secure all documents from all sources.
a global release form to all public and private sector individuals
and agencies that have generated any reports and/or evaluations on
Organize the documents.
the parent use a pencil to date the first page of each document in
the lower righthand
corner, then file all documents in chronological order, oldest on
top, most recent on the bottom. Do not write or use a highlighter
on the documents. The parents can put notes on documents with "Post-it"
notes. If the parent has a computer with a word processing or spreadsheet
program, have them develop a list of documents.
sector eval. WISC-III IQ above avg. WJ-R: 3 years behind in reading,
in resource program; progress measured as 80% on teacher made tests
sector eval including WJ-R, TOWL, K-ABC: no gain in reading and
writing skills (percentile ranks dropped).
in Reading, + Writing. Promoted to next grade..
depressed. Anti-depressant meds increased. MD rec psychiatric hospital
& WIAT; child illiterate; requires direct instruction.
depression from school failure, poor academic skills; needs remediation.
activities allow the parent to DO SOMETHING that will help their child's
case, while also reducing their sense of powerlessness. These activities
(organizing the file, developing lists of documents) help the parent
gain a clearer understanding of the child's problems and needs. Taking
action keeps the parents from focusing on their emotional reactions.
As they organize, they begin to focus on issues, not emotions.
Understand legal and factual issues in special education disputes
issues in special education cases are usually related to procedural
matters, i.e. whether the child is eligible for services, the nature
of the handicapping/disabling condition, timelines violations, inadequate
notice about the school's refusal to provide services, or failure
to implement the child's IEP.
issues are usually related to Individualized Education Programs (IEPs),
the quality of services, "default" by the public school,
reimbursement for a private placement or private therapy, discipline,
or whether the child has benefited or regressed educationally in a
special education program.
Understand the facts so you can identify and target specific factual
You must have a working knowledge about the nature of the disability,
"effective practices" about how the child should be educated,
and an understanding of the objective, standardized tests and measurements
that are used to evaluate progress and regression.
In most cases, the private sector professional who is involved with
the child (often a psychologist or educational diagnostician) can
initiate your education in this area.
Prepare for a Special Education Due Process Hearing
Hazards of Litigation
needs to know that the best course is to prepare for litigation in hopes
of settlement. In some cases, parents want to extract the pound of flesh
to which they feel entitled. They believe that the facts and law are
completely on their side. I explain that the Hearing Officer may have
an unconscious identification with, or reaction against, the parent,
school system or attorney. Because of mannerisms, personality style,
dress and/or appearance, the Hearing Officer may be reminded of a mother,
father, brother, sibling, spouse, or child with whom they had a close
relationship. I explain that this association may be negative or positive.
The parent may remind the Hearing Officer of a person who successfully
sued him or her years earlier.
need to understand that some Hearing Officers view their role as a "gatekeeper"
and protector of tax dollars. Sometimes, the Hearing Officer will have
a child, grandchild, or neighbor who is similar to your client. In these
cases, the Hearing Officer may empathize with the parents and understand
the importance of an appropriate special education. These hidden factors
often affect the outcome of cases.
Spence says, perceptions of the facts and perceptions of the law are
more important than the facts and law. Our perceptions of a fact, evaluation,
or case will differ. Parents must understand that to litigate is to
roll the dice.
Clean single issue; default.
glance, a case may appear to have a single issue (i.e., tuition assistance,
failure to identify the child as handicapped, the child's need for
extended school year (ESY) services). In fact, most cases are multiple
issues cases and need to be simplified into easy to understand cases.
evidence of the public school's "default" by showing that
the child has fallen further behind the peer group while in special
education. This is the norm in public school special education programs.
You accomplish this through your expert who will analyze individualized
and/or standardized testing and chart out the child's test scores
2. Multiple issues.
cases are more complex. You may have 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 which can
include special education services that extend beyond the child's
twenty-second birthday. Had the public school not violated the "Child
Find Mandate" (34 C.F.R. 300.128), the child would have been
identified sooner, received special education services sooner, made
progress, and not required services now.
Develop a Simple Theme
a clear, simple theme of the case. You build on this theme. It is
crucial to structure your theme so the Hearing Officer or ALJ wants
to rule for you. Provide this person with evidence and law that makes
the person want to give you a favorable decision.
Evaluate Applicable Legal Principles
Obtain copies of the State and Federal Regulations and State and Federal
Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400-1485
Code of Federal Regulations 34 C.F.R. Part 300 Appendix A
Your state special education regulations.
Other publications from your state Department of Education and the
state Protection and
Office in regard to the rights of parents and special education children.
Review special education legal publications.
the primary cases in your Court of Appeals, the U. S. District Court
cases from your state, and your state court cases. In addition to
the Wrightslaw site, use versuslaw.com and FindLaw.com to help you
find the primary cases in your circuit.
Wrightslaw: Special Education Law by Peter W. D. Wright and Pamela
Darr Wright (ISBN: 1-892320-03-7) is available from Harbor House
Law Press at (800) LAW IDEA, and from Amazon.com, Barnes and Noble,
and other bookstores. Wrightslaw: Special Education Law contains
the full text of the Individuals with Disabilities Education Act
of 1997, the IDEA regulations, Section 504 of the Rehabilitation
Act, the Family Educational Records and Privacy Act, and U. S. Supreme
Court decisions in special education cases.
Special Education Law and Litigation Treatise by Mark C. Weber (ISBN:
0-934753-64-4), available from the Wrightslaw Bookstore at http://www.wrightslaw.com.
This book is an excellent resource.
The leading legal reporter is the Individuals with Disabilities
Education Law Report (IDELR), available from LRP Publications. Call
LRP at 800-341-7874 and ask for information about their special
education publications and request a sample CD-ROM.
Review special education caselaw.
is a list of cases that triggered passage of Public Law 94-142 and
cases from the U. S. Supreme Court. Citations are in chronological
order. For an overview, read from the most recent case back in time.
This will help you assess the trends and evolution of the law and
predict changes in caselaw. These cases are a minimal listing. Current
cases and leading cases in specific areas are at the Wrightslaw web
the U. S. Supreme Court issued the landmark civil rights decision
in Brown v. Board of Education, 347 U.S. 483 (1954). In Brown, school
children from four states argued that segregated public schools were
inherently unequal and deprived them from equal protection of the
laws. The Supreme Court found that African-American children had a
right to equal educational opportunities and that segregated schools
"have no place in the field of public education." After
the decision in Brown, parents of children with disabilities brought
lawsuits against school districts for excluding or segregating children
with disabilities. The parents argued that by excluding these children,
schools were discriminating against the children because of their
disabilities. (Wrightslaw: Special Education Law, page 8)
the early 1970s, two cases were catalysts for special education law.
Association for Retarded Children v. Commonwealth of Pennsylvania
(P.A.R.C.), 334 F. Supp. 1257 (E.D. Pa. 1971) and 343 F. Supp. 279
(E.D. Pa. 1972)
v. Board of Education of District of Columbia, 348 F. Supp. 866
(D. D.C. 1972)
dealt with the exclusion of mentally retarded children from public
schools. Mills involved the practice of suspending, expelling and
excluding "exceptional" children from the District of Columbia
1972, legislation was introduced in Congress after several:
. landmark court cases established in law the right to education
for all handicapped children . . . In 1954, the Supreme Court of
the United States (in Brown v. Board of Education) established the
principle that all children be guaranteed equal educational opportunity.
The Court stated "In these days, it is doubtful any child may
reasonably expected to succeed in life if he is denied the opportunity
of an education. Such an opportunity . . . is a right which must
be made available to all on equal terms. (Wrightslaw: Special Education
Law, page 9)
S. Supreme Court Decisions
of Education v. Rowley, 458 U.S. 176 (1982)
of Burlington v. Department of Education for the Commonwealth of
Massachusetts, 471 U. S. 359 (1985).
v. Doe, 484 U.S. 305 (1988)
County School District Four v. Shannon Carter, 510 U. S. 7, (1993).
Rapids v. Garret F., __U.S.__ (1999)
NICHY Briefing Papers
Information Center for Children and Youth with Disabilities offers
dozens of free publications that you can order or download from their
website at http://www.nichcy.org/
Understand the history and purpose of the special education law.
the Individuals with Disabilities Education Act was amended. (Note: New 2004 amendments are located at the www.wrightslaw.com website.) Section
1400 includes the history, findings and purpose of the Individuals
with Disabilities Education Act and is the key to understanding the
special education statute. If you are unsure about the purpose or
intent of a code section in the statute or regulation, go back and
re-read Section 1400, especially 1400(d), to understand the statute
IDEA emphasizes accountability and improved results. The law stresses
the need to use "proven methods of teaching and learning"
based on "replicable research." These terms are important.
Children with disabilities should "be involved in and progress
in the general curriculum" to the maximum extent possible and
should be tested on state and district standardized tests. The amended
Disability is a natural part of the human experience and in no
way diminishes the right of individuals to participate in or contribute
to society. Improving educational results for children with disabilities
is an essential element of our national policy of ensuring equality
of opportunity, full participation, independent living, and economic
self-sufficiency for individuals with disabilities.
However, the implementation of this Act has been impeded by low
expectations, and an insufficient focus on applying replicable
research on proven methods of teaching and learning for children
Over 20 years of research and experience has demonstrated that
the education of children with disabilities can be made more effective
having high expectations for such children and ensuring their
access in the general curriculum to the maximum extent possible;
strengthening the role of parents and ensuring that families of
such children have meaningful opportunities to participate in
the education of their children at school and at home;
coordinating this Act with other local, educational service agency,
State, and Federal school improvement efforts in order to ensure
that such children benefit from such efforts and that special
education can become a service for such children rather than a
place where they are sent;
providing appropriate special education and related services and
aids and supports in the regular classroom to such children, whenever
supporting high-quality, intensive professional development for
all personnel who work with such children in order to ensure that
they have the skills and knowledge necessary to enable them-
to meet developmental goals and, to the maximum extent possible,
those challenging expectations that have been established for
all children; and
to be prepared to lead productive, independent, adult lives,
to the maximum extent possible;
providing incentives for whole-school approaches and pre-referral
intervention to reduce the need to label children as disabled
in order to address their learning needs . . .
Purposes - The purposes of this title are-
to ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs
and prepare them for employment and independent living;
to ensure that the rights of children with disabilities and parents
of such children are protected; and
to assist States, localities, educational service agencies, and
Federal agencies to provide for the education of all children
to assist States in the implementation of a statewide, comprehensive,
coordinated, multidisciplinary, interagency system of early intervention
services for infants and toddlers with disabilities and their
to ensure that educators and parents have the necessary tools
to improve educational results for children with disabilities
by supporting systemic-change activities; coordinated research
and personnel preparation; coordinated technical assistance, dissemination,
and support; and technology development and media services; and
to assess, and ensure the effectiveness of, efforts to educate
children with disabilities. (Wrightslaw: Special Education Law,
Evaluate Existing Evidence, Decide Whether Additional Evaluations Are
completed regularly and used as a roadmap to guide the child's special
education program? Did the IEPs include present levels of performance
and ways to measure the child's progress or lack of progress?
the IEP objectives capable of independent verification using standardized
data? Are the IEP objectives "evaluated" by teachers using
"teacher made" tests? Is the wolf guarding the chicken house?
the IEPs comply with Appendix A of 34 C.F.R., Part 300?
private sector evaluations
sector evaluations should use test data to analyze the child's progress
or lack of progress and should spell out exactly what the child needs
is the first psychologist or educational diagnostician who evaluated
the child? Is this person available? Is this person willing to re-evaluate
your private sector evaluation use statistics to prove that the child
has not been properly educated? Does this evaluation include charts
and diagrams of the child's progress or lack of progress? What else
is needed to prove the case? Is the current testing sufficiently comprehensive
to flush out the nature of the child's disability and the necessary
with private sector experts.
private sector expert willing to be involved? Is the expert willing
to testify? Get the experts 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
Chart Test Data and Educational History
Percentile Ranks and Standard Scores on IQ and Achievement Tests
the standard scores and percentile rank scores on the IQ and achievement
tests and subtests. Have the child's test scores improved or declined
during the time the child was in special education?
You must understand statistics, including standard deviations, standard
scores, percentile rank, and grade and age equivalent scores. When you
understand these scoring methods, you can interpret the educational
and psychological tests that are administered to your clients.
school's testing to prove your case.
article "Understanding Tests and Measurements for the Parent and
Advocate" at http://www.wrightslaw.com/advoc/articles/tests_measurements.html
or read Chapters 10 and 11 in Wrightslaw: From Emotions to Advocacy
- The Special Education Survival Guide.
In Tuition Assistance and ABA/DTT/Lovaas Cases, Evaluate Child's Progress
in Present Program
expert(s) has observed the public school and private programs. Your
expert should be familiar with all exhibits.
evaluations and reports from your expert should incorporate the child's
educational history and test results, and should discuss what progress,
if any, the child has made and whether this progress is sufficient.
Request Relief Desired From School System
letter requesting relief.
your client must prepare a detailed letter to the director of special
education in which you outline the issues, including the facts and evidence
that support your case. This letter is a quasi "opening statement"
and should relate to the theme of your case. Your request must be clear.
Give the basis for your request and the legal authority that justifies
your position. Be persuasive and polite. If a stranger read your letter,
the stranger should understand the legal issues and want to provide
the requested relief. In many cases, the author of the letter will be
the parents and the letter becomes an exhibit. (See our articles about
how to write letters at the Wrightslaw website)
recent evaluations and documents to the relief letter.
simply forwarding the recommendations of your experts. Don't let yourself
or your clients be lightning rods. Because the school probably feels
hostile toward your parents, the school may summarily reject anything
requested or suggested by the parents.
give all legal theories; leave some rabbits in the hat to use at trial.
find clear breaches of procedure, alteration of documents, you may want
to hold this information back until cross- examination.
the school district an opportunity to settle without losing face.
Make your case an exception to the general rule because. . . (that
may include your failure to do something or provide something.) Don't
corner them unless you leave a back door slightly ajar (an oversight,
attack the school district directly. Frame the issue so that your
child's handicap is unique or severe. You understand that the school's
program for many children who have similar handicaps may be appropriate.
Unfortunately, your client has so many handicapping conditions or
such severe problems that the child cannot be educated in the usual
special education program.
If Relief Denied, Request a Due Process Hearing
school district denies your request, you may request a special education
due process hearing. Carefully read your state's regulations about due
process hearings, timelines, and required notice from you or the parent
to the school district. The Hearing Officer or Administrative Law Judge
should be appointed within a specific number of days from the request
for a hearing. Unless the timelines are extended, a final decision is
required within 45 days. (34 CFR § 300.511)
witnesses informed. Your witnesses should be advised about developments
in the case and should receive copies of all correspondence, preliminary
briefs, caselaw developments, etc.
exhibit list immediately. Arrange for numbering and copying exhibits,
and delivery of the exhibits to your witnesses, opposing counsel and
the Hearing Officer.
meeting with parents and witnesses. Bring witnesses and parents together
for a meeting. Explain issues, instill fear, and motivate witnesses
to read and become knowledgeable about the exhibits and caselaw.
preparation. Schedule at least two more meetings with witnesses regarding
details of evidence, issues, preparation for direct and cross- examination.
Role play direct and cross-examination with parents and expert witnesses.
as a witness. Decide whether the child should be present for all or
a part of hearing and whether child should or should not testify.
list of questions and outline. During interviews and meetings with
witnesses, develop a master list of questions to ask your witnesses
and witnesses for the school board. Prepare a preliminary outline
for possible opening and closing arguments.
a simple theme. Use a simple theme to make your case easy to understand.
first impressions are important, I prefer to go first. Going first gives
me better control over the speed and tempo and calling of witnesses.
I request that witnesses be excluded.
with strong witness who had involvement with child several years ago.
usually have the expert witnesses (educational diagnostician, psychologist,
private school special ed teacher or administrator, neurologist, speech/language
pathologist, etc.) testify in chronological order of their involvement
with the youngster. I usually have my first expert provide background,
then jump forward in time to the most recent evaluation, then go back
and provide history and information about their earlier evaluations.
Consider using a lay witness who has observed positive changes in
the child after the youngster began receiving services in the private
expert witness. Your last expert witness should be a strong, organized
individual who can testify about the child's present status and do
with parent and maybe child. Remember to save some strong evidence
day rule. Your exhibit list, exhibits, and list of witnesses is due
five administrative working days before the hearing. (34 CFR 300.509)
As part of your witness list, include 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." This language
allows you to call the party representative as an adverse witness.
states, Hearing Officers do not receive exhibits until the day of the
hearing. In other states, Hearing Officers receive exhibits in advance.
I like to provide exhibits ten days or more in advance. When the Hearing
Officer or Administrative Law Judge reads our exhibits ahead of time,
this may create a favorable first impression. The school board attorney
will often decide to supplement our exhibits with a few additional documents,
and not take time to become fully prepared.
2. Due Process Hearing
of presentation v. burden of proof.
of presentation and burden of proof are different concepts. In special
education law, the first to proceed does not necessarily have the
burden of proof. Decide whether the school district or the parents
will proceed first. When you go first, you can structure the trial
and put the district on the defensive. When you go second, you can
counter-punch by moving for summary judgment without calling witnesses.
The other side took their best shot and put on their evidence which
was insufficient so, as a matter of law, you should prevail. When
you make this motion, assume that you will be overruled. This gives
you an opportunity to present your closing argument early and point
out the flaws in their case.
to exclude witnesses.
witnesses are better prepared so they will not contradict one another
if they do not hear other testimony. Parents and a representative
of school board are allowed to remain in the hearing.
call my best expert as my first witness. If you go first, you can
consider calling the school board representative as your first (adverse)
witness to flush out why they believe their proposed program is appropriate.
This maneuver can be dangerous because the witness is being called
as yours so you need to have evidence that is contrary to the witness.
examination: Child's witnesses
Identify witnesses, their educational and professional background,
and their expertise in matters similar to the case at hand.
Have your witnesses explain their involvement with the child prior
to testing, the tests they administered and why, the results obtained,
and the basis for their recommendations.
Have your witnesses discuss the opposition's exhibits and the child's
progress or lack of progress in prior years and why. Have your witnesses
explain why the public school's last, present and/or proposed IEP
is or was not appropriate for the child, and may have caused damage.
Close with a strong point about the importance of an appropriate
program and the nature of the educational gains that can be expected
or have been achieved.
When your witness is being cross-examined, listen carefully for
any points that need to be cleared up during re-direct examination.
Client comments. Your client may want to talk to you during the
examination, interrupting your train of thought and concentration.
Do not allow this. Give your client a pad and pen so they can write
notes to you about the testimony.
Because your parents are well-prepared about the legal and factual
issues and have a good understanding of the documents, you may be able
to use them as assistants during the trial process. During the school
board's direct examination of their witnesses, have your client write
the questions they want you to ask these witnesses, and the expected
should also write the questions they want you to ask them on rebuttal,
and the expected answer.
"Green light questions." Train your witnesses to recognize
that when asked a question that begins with the "5 W's + H
+ E," they can hit a home run on cross-examination.
Body language and eye contact. On direct, your witnesses should
look at you when you ask questions and ALWAYS look at the Hearing
Officer or ALJ when they answer. When asked questions on cross,
your witnesses should NEVER look directly at the school board attorney.
They should visually concentrate on a spot on the wall midway between
the school board attorney and the Hearing Officer/ALJ. On cross-examination,
attorneys often control witnesses by voice inflection, body language,
facial expressions, and their eyes. If your witness avoids eye contact,
you may see opposing counsel get flustered.
School board witnesses
carefully to their testimony. School witnesses often bring notes that
they refer to and often parrot the same theme. Their "theme"
is to blame the parent and/or the child for the child's failure to
have a "successful" educational experience. They may assert
that the child's performance is the best that can be expected. Your
witnesses will have addressedthis
issue on direct. While the opposition's witness is testifying, develop
your list of questions to ask on cross and decide where in the sequence
you should ask these questions.
school board witnesses
Cross-examination of school witnesses is often the most important
part of the trial. With help from your experts, you can usually
use the school's evidence and testimony to build and win your case.
If a witness refers to notes or documents during testimony on direct,
obtain these notes. You will have to decide whether it is more advantageous
to secure the notes at the beginning, or to wait until you are midstream
Prepare draft questions before the hearing. Ask your expert witnesses
to provide you with a list of questions that should be asked. Your
experts should be familiar with the school testing, and should educate
you about the strengths and weaknesses of the tests. Educational
tests often do not measure what they purport to measure but measure
the impact of the child's disability. Copy portions of the test
manuals that may be helpful.
Know every evaluation, report and test in detail. Chart out the
earlier administrations of specific tests given by the opposition's
witnesses. Know dates and scores. Ask your expert to educate you
about the discrepancies between tests. Understand the concepts of
"between test" variability and "within test"
variability. Understand the bell curve, deviation IQ, norm reference
v. criterion reference tests, item analysis, and what different
Log in favorable points. If you establish a favorable point or admission,
log it into your notes. Do not return to this on cross. Save this
for your closing argument. If you have been very successful on cross,
it may be appropriate to end early which will not allow the witness
to regroup and recover. Make sure your client understands this is
an option you may exercise.
Be aware of the emotions 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 annoyed by the expert who has an answer to every
question and is never in doubt? When you read the Hearing Officer,
you will know when to move in and attack the witness and when to
show kindness for the poor witness who (you will later prove) means
well, but just doesn't have it together.
try to humiliate or embarrass a witness, even if the witness may
hurt your case. Example: "You altered the IEP, then lied about
it because you are a liar and perjurer?" or "You altered
the IEP then lied about it because, under the circumstances, you
thought this was the right thing to do?"
Save damaging questions to the end.
Close on an upbeat note. Use a trilogy that parallels your theme.
One, two, three, bang!
Attend seminars about the learned science of cross-examination by
Larry Pozner and Roger Dodd. Pozner and Dodd say, "Great trial
lawyers 'testify' at every trial through carefully crafted leading
questions." Order Cross-Examination: Science and Techniques
by Larry Pozner and Roger Dodd (ISBN: 1-55834-071-8, published by
The Michie Company and available at the Wrightslaw website) and
their video series "How to Dominate a Courtroom on Cross Exam"
(available from Roger Dodd at 912-242-4470).
On cross, never ask who, what, why, when, where, how, or explain.
Use their witnesses to make your case and tell your story.
Avoid "structure bait" and "new bait" offered
by witnesses. (see Pozner and Dodd)
Avoid "Isn't it true that . . ." or " . . . isn't
that true?" Understand the concepts of "primacy"
and "recency" and their use in cross-examination. (See
Pozner and Dodd)
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."
(Pozner and Dodd, page 473)
the pre-trial hearing, determine whether the Hearing Officer prefers
oral closing argument or a written brief after the transcript is completed.
have an oral closing argument, you and your client should record specific
verbatim testimony to use in closing. Compare the facts in your case
to the facts of other similar decisions. In some cases, it is appropriate
to provide the Hearing Officer with these decisions early. In other
cases, it is appropriate to provide the cases at closing. Depending
on your trial strategy, you may provide the landmark cases before the
Hearing. At closing, you can provide additional cases that are directly
Officers prefer written closing argument. In these cases, it is important
that the transcript be prepared so you can quote directly from it. You
prepare the Written Closing Argument as your later record/index in the
event of appeal. Remember your theme. Don't allow yourself to get sidetracked
or bogged down in minute detail. Remember your theme, tell your client's
story, and structure the case so the finder of fact wants to rule for
Emotions and Dependency: Ethical dilemmas and unconscious traps.
divorce cases, it is easy to identify with your client. If you lose
your objectivity, your also lose your tactical and strategic abilities
and may become a liability to the case.
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 parents')
attorney" by his insistence that "they leave the (IEP) meeting
with him at once."
v. Kittatinny Regional High School Board of Education, et. al., 865
F. Supp 1133, (D. NJ 1994)
attorney was assessed $100,000.00 in sanctions because of misconduct
and Rule 11 violations. The District Court found that the attorney's
misconduct cost the school district and other defendants approximately
not settled because an attorney writes a letter to the school district.
Favorable settlements require hard work and preparation.
must assume that they will have to request a due process hearing. They
must assume that before their hearing is held, a law is passed that
prevents parents from testifying. There will be a hearing and they cannot
take this mental step, they begin to prepare. How can they prove their
points independently? They learn to write things down and develop a
paper trail. They get experts involved who can testify on the child's
attorney dots all i's, cross all t's, and prepares the exhibit book
long before the five day rule, you are preparing for trial. When you
prepare for trial, you increase the odds that the case will not go to
trial and you will have a favorable settlement.
Wright was born and raised in Washington, D.C. In third grade,
he was diagnosed with strephosymbolia ("word blindness") and
hyperkinesis. For two years, he received Orton-Gillingham tutoring from
Diana Hanbury King.
Randolph-Macon College in Ashland Virginia where he majored in psychology.
He worked in juvenile training schools as a house parent and counselor
and later as a juvenile probation officer. Pete graduated from T. C.
Williams Law School at the University of Richmond in 1977.
on the boards of several organizations, including the Professional Advisory
Board of the Learning Disabilities Association of America (LDAA) and
the Council of Parent Attorneys and Advocates (COPPA). He is a member
of the American Bar Association, American Trial Lawyers Association,
and Virginia Trial Lawyers Association.
Shannon Carter before the U. S. Supreme Court in Florence County School
District Four v Shannon Carter. Pete is involved in cases around the
country and consults with parents in other countries about educational
Wright is a psychotherapist who has worked with children
and families for more than 30 years.
and experience in clinical psychology and clinical social work give
her a unique perspective on parent-child-school dynamics, problems,
and solutions. She has seen clients in mental health centers, family
guidance and psychiatric clinics, correctional institutions, hospitals,
undergraduate and graduate degrees in Psychology from East Carolina
University. She worked for ten years as a clinical psychologist in North
Carolina before returning to graduate school.
she earned a master's degree in clinical social work from Virginia Commonwealth
University, graduating summa cum laude. Her academic honors include
Who's Who in American Colleges and Universities.
the Wrightslaw web site at http://www.wrightslaw.com/
and publishes The Special Ed Advocate newsletter.
Pam speak at conferences around the country on special education advocacy
Pam co-authored Wrightslaw: Special Education Law, Wrightslaw: From
Emotions to Advocacy - The Special Education Survival Guide and Wrightslaw:
No Child Left Behind.
Copyright © 1999-2014, Peter W.
D. Wright and Pamela Darr Wright.
All rights reserved.