The Proof Shall Set You Free

Published on July 28, 2009 by Jennifer Laviano

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One of my favorite movie lines is from A Few Good Men, when accused Marine Lance Cpl. Dawson asks his lawyer, Lt. Caffey (a/k/a Tom Cruise) whether or not he believes him.  His ultimate reply:  “it doesn’t matter what I think, it matters what I can prove!” is something I think of often in my special education law practice.  Many of the parents I speak with are eager to share with me precisely “what happened” in their case, and, especially when I am interviewing them to decide whether to take their case, to convince me that their position is the right one.   While there is nothing wrong with that, I routinely have to remind clients that facts are over-rated.

Truth matters more than facts do.

What do I mean by this?  When a situation morphs from a disagreement between two parties to potential litigation, many facts are disputed.  Even when they’re not, their legal implications most certainly are.  So, when a parent says to me “I have been so cooperative with them, I didn’t once disagree with the services they recommended all of these years and now my child can’t read!”, I am anticipating how this can be used against the parent in a Due Process Hearing.  I can just imagine the cross-examination of the parent: “and you agreed with those IEPs, didn’t you, you didn’t object, right?  And NOW after agreeing with all of those programs for all of these years, you are saying that your child didn’t make progress?”

Sometimes an event occurs and yet can be interpreted in wildly different ways by each side.

Many times parents will share with me conversations that they had with their child’s teachers, and they will think that some statement made to them is the “smoking gun” in their case.  I hate to have to burst their bubble that this is rarely so.  Take a situation where a parent informs their child’s special education teacher that they have decided to remove their child from the public schools and place him in a private special education program.  The teacher listens, and responds “I understand, as parents, we have to do what is right for our kids.”  The parent may interpret this as an agreement that this decision is necessary, whereas the teacher may not.  And even if she does, when called to testify, she is likely to say that she was just being sympathetic, or that she still believes her program was approrpiate and met the student’s special education needs.

Everything that has happened between you and your school district can both help and hurt your special education case.

Parent attorneys obviously focus on different facts than Board lawyers do, and both sides will try to minimize those events which reflect poorly on their clients.  In the example given above, the fact that the parents agreed with the programs offered by the district shows to me that they were trying to work with the school; the same fact will be used by the school’s attorney to demonstrate how shocked and betrayed the school staff felt when the parents brought the Hearing.  But the TRUTH is this:  the student can’t read.  Why this is true and whether it reflects more on the child or the school district is what Due Process Hearings are for.

Lady Justice may hold the scales in one hand and a sword in the other, but that sword has two edges.

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I point this out not to depress anyone, or to suggest that it doesn’t matter if you document your interactions with your school district.  Not at all; in fact, I highly recommend documenting all important communications you have with your school, because you can’t prove a case without proof!  Rather, I want parents to try, if they can, to train themselves to consider how their actions, and ultimately their case, might look to the other side.  I often tell my clients that I listen to what they tell me with one ear that is a parents’ attorney, and one ear that is a school district’s attorney, and that this how I can protect them.

There is always more than one side to a story, but there is only one truth.

If you find yourself in litigation, that’s what should really matter.

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