Even a Broken Clock…

Published on March 25, 2010 by Jennifer Laviano

Broken Time

One of the hardest things about being a parents’ special education attorney is that there are times where you realize that the success or failure of the child’s case may depend on how capable the parent is at testifying.  That’s a tough pill to swallow.

But every once in a while, you have a moment where the parent is such a compelling witness, that you can’t help but smile when you see it dawn on the school’s attorney that the witness is winning the battle.

Several years ago, I had a special education Due Process Hearing which was one of those unfortunate cases where the relationship between the parents and the school district became extremely acrimonious.  The mother, who was incredibly insightful about her child’s disabilities and educational needs, was on the stand for days.  There wasn’t a thing she could say that didn’t generate hours of cross-examination by the school district’s very aggressive attorney.

At one point, at the end of a very long day of cross-examination, the mother casually noted in her testimony that a particular medical test had been suggested by one of the child’s private therapists.

She was asked if she’d ever had the test performed, to which she honestly answered she had not.  This led to nearly an hour of questioning by the Board attorney, all of which was designed to imply that this “failure to follow up” was alleged “evidence” of the mother’s inadequate parenting.  It was much ado about nothing, since there really could be no doubt that this particular mother was quite dedicated to her child.  Plus, nobody in the school had ever once asked about this test, or suggested that it be done, prior to the Hearing.  But the questions did make the mother feel awful.

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The day ended, and since cross-examination was not over, another Hearing date was agreed upon for a few weeks out.

Now, once your client is under cross-examination, it’s unethical for you, as a lawyer, to discuss their testimony with them.  This is an obligation I take very seriously, and my client knew it.  So she did not run by me her decision…which was to quickly get this one little medical test done before the next Hearing date.

So, here we are a few weeks later at the next Hearing session, and we pick up on cross-examination of the mother.  The Board’s attorney starts by reminding her where we were when we last left off in her testimony, and refers back to the medical test in question.

It went something like this:

“And you agree with me that you never had that test done, right?”

“No,” the mother says.

“No?”  the Board attorney asks.

“It has been done,” the mother says.

Well, this leads to fifteen minutes of “remember when you were here last and you said,” and “do I need to remind you of your testimony,” and “you testified when we were here last that you had never had that test done, was that not accurate?” until finally, the mother drops the bomb:  “yes, that was accurate as of the time you asked me the question at the last Hearing.  It is no longer accurate.”

“Are you saying you have had this test done since you were here last?”

“Yes,” the mother said.

“Why?” the school’s attorney asked.

“Because it was suggested that it was a problem that it hadn’t been done,” she replied.

By whom was it suggested it was a problem that it hadn’t been done?” the lawyer asked.

“Well…by you,” the mother said.

By this point I’m on the verge of laughing out loud.

The Board’s attorney couldn’t leave it alone:  “are you saying, ma’am, that you got this test done because I asked you about it on cross-examination?”

To which the mother said:  “Yes.  I’ll take help for my son from wherever I can get it, even from you.”

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We won almost all of the Issues in the case.  And as it turned out, the medical tests did reveal some information which proved useful in planning for the student.

Hey, even a broken  clock is right twice a day.

You just never know from what source good ideas might come!

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