How to Find and Use Professionals for Your Case
By: Roger Meyer
Shopping for and Working with a Special Education Lawyer or Advocate
- Meet the lawyer or advocate personally. Get a feel for how s/he works. Ask lots of questions about the nature of her/his practice. The following items give you an idea of what you should have on your shopping list of questions.
- How long has the professional had a special education practice, and what percentage of the professional's caseload consists of special education matters?
- Has the attorney ever represented school districts, school employee unions, school personnel, school administrators, or acted as counsel to such persons, entities, or the state? If the answer is "yes," ask how recently. If "yes," does that person intend to return to such representation in the future?
- If the lawyer has an active special education practice, ask to see the law library. Does the attorney subscribe or have access to such special report services as IDELR and ECELR? Does the attorney attend continuing education classes in the field?
- Ask the attorney how familiar s/he is with special education law. This means IDEA 2004 and its regulations. Ask the lawyer how familiar s/he is with the your state's statutes and administrative rules governing special education. The same holds true for FERPA, Section 504 of the Vocational Rehabilitation Act of 1973 as amended, and ADA, 1990
- Ask specifically about her/his knowledge of the new federal regulations which implement IDEA 2004, and (if you have the nerve) the US Department of Education General Adminitrative Rules (EDGAR). These laws and rules are at the core of special education practice.
- Take a list of attorneys known to be practicing in the field of special education law with you. Ask the attorney who s/he knows in that field. If the lawyer or advocate is hesitant in identifying known specialists in the field or doesn't know them, that's a yellow flag.
- Ask the attorney about her/his experience in direct client representation at IEP and 504 meetings, mediations and due process hearings. How many parents and children has the attorney represented? How many formal complaints to the State Department of Education has s/he drafted? If the attorney has "won at due process or through a state complaint and finding, ask to read the order of the hearing officers and the contents of any state complaint findings in which the lawyer was the litigant's attorney.
- Ask the lawyer whether s/he knows the identity of prevailing parties in hearings where you live. Don't ask for their names. Ask further whether s/he tracks the decisions of Hearing Officers likely to be assigned to your case. Some lawyers do, and they are in a good position to determine the relationship between the Hearing Officer and your
district. Sometimes, that relationship is suspiciously cozy, in which case the HO can be challenged and a substitute HO can be assigned to the case. Ask the attorney whether s/he has ever challenged a mediator or HO.
- Ask whether the lawyer has worked collaboratively with other attorneys on a special education case.
- Ask the attorney how closely clients can work with him/her. Ask if you can do some legal work, such as collecting documents for your own case, and finding articles and books descriptive of your child's disabilities. Ask whether you could contact proposed expert witnesses if they are necessary for your case presentation.
- Ask how the lawyer or advocate intends to keep you informed of progress in your case. Check around to find out whether your professional returns phone calls and messages promptly. Ask the attorney how close to calendar dates s/he files pleadings, interrogatories, depositions, and other discovery materials.
- Ask the attorney whether her/his approach to due process is to get all causes of action on the record in the earliest stage of representation, or whether the attorney favors a piecemeal, multiple hearing process. At the same time, ask whether the attorney is willing to go to the wall for you, or whether s/he is known in the field as a deal-maker. In giving you the answer, the attorney should inform you of the advantages and disadvantages of both approaches, and ask YOU whether you trust him/her to accept his/her call. (Some attorneys always go for settlement prior to a hearing, or are forced into that position either by their clients or the offer of the school authorities too attractive for the client to refuse. Others are known as bulldogs: they don't relent even in the face of the towel being thrown in the ring by their opponents.) Ask yourself which temperament appeals to you. Also ask yourself which approach is likely to win your case with the facts you have, the players on the stage, and the future you and your child face after matters are resolved.
- Ask whether the attorney ever uses substitute or assistant counsel in pursuing a case. Use of substitutes or assistants may result in additional billable hours and less adequate representation. Caution: this is a yellow flag issue.
- Ask the attorney or advocate how the professional fee structure is set. Get this information in writing, and ask the professional to show you an example of a typical invoice to a client. Determine whether the attorney requires a retainer or monthly fee. Ask whether the professional allows reimbursement over time. Ask what the attorney does in cases where the client may run out of money in the midst of handling a case.
- Finally, ask what the average case of the kind of case you are presenting costs, overall. Be prepared for a shock. Have the professional break down the costs, and show you where some costs can be pared without compromising your case. Inquire whether there are things you can do to reduce the attorney or advocate's expenditures. If appropriate, ask whether the professional would be open to barter or in-kind services exchange, providing you have something of value to offer. If you start to get a strange feeling in your gut from the answers you hear, leave. Your gut can tell you more in two seconds than an additional hour of talk.
- Insist that the professional accompany you personally to all hearings and meetings where a lawyer or advocate is requested. If they don't agree to that, move on. Substitute counsel or advocates don't work. Do not pay for services you do not receive. As a client, you have contract rights. If the lawyer is late or cancels appointments with insufficient warning, tell the lawyer you will bill him/her for your time. (In one case, a lawyer was to meet with a client a half-hour before meeting with the IEP team. By the time she arrived, 22 minutes late, the client was beside herself with anxiety and couldn't settle down in time for the hearing. The attorney hurriedly briefed the client, and then proceeded to represent the client in a haphazard, ramshackle way in the IEP meeting, and forced the meeting's premature end because she had to leave "early." In this case, the client refused to pay on the grounds of "No performance, no pay." The lawyer, knowing she had done just about everything wrong an attorney could do with a client, later left the agency. She was not paid for her "work" on this case.)
- Do not let friendship, personal or professional unrelated contacts influence your decision in choosing an attorney. Regardless of your personal or professional past with this person, if they aren't equipped to deal competently with your case, don't select them.
- Whatever you do, don't panic and choose just any lawyer, no matter how short the deadline. Getting an attorney or advocate well in advance of an appearance, meeting, hearing or other formality will save you much grief. A professional-client relationship should "click" from the beginning. To choose a professional in haste without the opportunity for each person to check out the other is a trainwreck in the making. Just as there are exceptions to every rule, there are deadline extensions to every date and time. Substantive due process is your friend, and it's because of this principle that dates and times are never cast in stone. If you need more time, notify the responsible parties, and take it.
- If you are incompetently represented by a lawyer or advocate you get from referrals, or free, or from a clinic, the same four warnings above apply. Professionals shouldn't have to learn the law on your time, but many do. If they know nothing about your child or his/her disability, and if you have time to educate them and they are willing to learn, that is OK. If you have neither the time nor expertise to do that, you may not be ready for anyone to represent or assist you. If the lawyer or advocate knows nothing about the relevant law or administrative practices in special education, you've chosen the wrong person. Persisting with a bad choice once you know you've made one is your problem, not that of the advocate or attorney.
- You may want to report the attorney or advocate. Do that only after you have finished your case, not during the case. Doing so will distract you, and color your relationship with any good professional you find after you have fired the first one. Whatever you do, don't dwell on the other professional's limitations in your contact with the new person. Keep your mind clear and your mouth shut. This is important in maintaining a professional working relationship. In the instance of an incompetent attorney or advocate, DO report their bad service or unprofessional conduct to referral agencies, non-profits, and other service providers who recommended or referred them. If you don't share your concerns in a responsible and measured way, such organizations will have no way of assessing their attorneys' or advocates' value to clients. Such information puts the agencies on notice and may place the attorney or advocate on their "watch list." If the organizations persist in using paid or volunteer staff in the face of consumer complaints, such behavior demonstrates managerial or programs incompetence. Such agencies or sources should be avoided. Within the limits of the law of libel and slander, you are free to publicize such information. If you do so, before you write or utter a word, consult an attorney experienced with this area of the law.
- During the running of your case, keep your perspective. This is known as 'having a life." Some parents are so consumed with their case they totally lose their sense of what is going on about them. Your other responsibilities -- to work, a marital or other partner, your friends - your family and children, and the community -- are going to be the only things keeping you from being overwhelmed by your case. When you "vent," spread it around so the same persons do not become distanced by what seems like a blow by blow description similar to the stories of teenagers about their social problems. In the end, remember WHY you are venting. It is to solicit emotional support, not attend a pity party. The sooner you are up on your feet and running again, the better everyone feels.
Updated April, 2006
Roger Meyer (1999)