A good lawyer is a good problems solver and story teller. A special education lawyer combines the skills of capable counsel with a knowledge of the special education laws and procedures, an understanding of the practical realities of the system, and a feel for working with public school people. Sometimes when I tell people that a lawyer must be a good story teller, they do a double-take. I assure them that being a story teller doesn’t mean telling tall tales, though a good lawyer may have talents in the realm of fiction. It means telling the human story of his client. In the world of special education, that means telling your child’s story, emphasizing his or her uniqueness, struggles and successes, and in the process helping to remind the public school personnel why they went into education – to help children.
A special education lawyer’s role in your effort to obtain appropriate education for your child, will vary depending on your particular situation. Sometimes, especially if your work with the school system is going smoothly, your lawyer can work behind the scenes, advising you on the best way to approach school personnel, helping to ensure that letters from you and reports by your consultants are written clearly and persuasively, explaining the law to you as needed, and helping you to prepare for meetings with school personnel or participation in a TEAM meeting. If you and your lawyer believe it will be helpful, your attorney will let the school officials know he is representing you. Once your attorney has formally announced his representation, he will typically attend certain key, but definitely not all, meetings with school personnel. Your attorney will communicate in writing, as needed with the school system, and review and comment on reports, proposed IEPs and other relevant written documents.
While the vast majority of special education cases are resolved through a process of discussion, collaboration or negotiation, sometimes more formal procedures are required. The Bureau of Special Education Appeals (BSEA) offers a mediation process when both parties agree to it. A mediation is a negotiation session presided over by an employee of BSEA, who is trained in helping parties to bridge differences and to achieve a mutually acceptable result. The BSEA has had great success with its mediation program. Whether or not your attorney represents you at the mediation depends on the facts of the case. If you are clear on the services you seek, fully understand the school’s position, and believe that the gap between you and the school system is sufficiently modest that a nudge by a skilled neutral person can reach agreement, attorney representation at the mediation may be unnecessary, though your attorney can help you prepare for the mediation. In more complex cases or when the difference between what you seek and what the school system is offering, seems large, attorney representation is probably advisable, even if that means the school’s attorney will be present.
Mediation sometimes has a seemingly magical ability to create resolution when none seemed possible. It has the advantage of being completed, almost always, within a matter of hours, and results in a written, legally binding agreement between the parents and school system. When negotiation and mediation fail to bring agreement, parents have the right to a due process hearing before a BSEA Hearing Officer. The Hearing Officers are attorneys with a comprehensive knowledge of special education laws and practices. While attorney representation is not legally required, you will want to be represented by counsel if you proceed to a hearing. The hearings are administrative trials, relatively formal and often complex, consisting of evidence presented through documents, and live testimony with direct and cross-examination allowed. Only a very small percentage of rejected Individualized Educational Plans result in BSEA hearings, usually when the special education services sought by the parents would be a great expense for the school system.
Many parents achieve satisfactory results in the special education process without an attorney, either dealing with school personnel themselves or with the help of a non-attorney special education advocate. Advocates are typically individuals, sometimes former educators, who are familiar with the special education system and as their title suggests, help families advocate for their child. Advocates are typically less expensive than attorneys. Some families, if they have the means, employ an advocate for direct communication with school personnel, and an attorney to advise on the law, strategy, and working with experts for the most effective reports and presentations. If you are unsure whether to retain a lawyer, you should always call a special education attorney to discuss the possibility. An ethical lawyer will candidly explain the potential benefit and costs of his involvement, as will tell you when he does not believe retaining an attorney is necessary.