Should You Hire an Education Lawyer or a Non-Attorney Parent Advocate? Part Two

The Role of a Non-Attorney Parent Advocate.

Unlike attorneys, no certification exists for non-attorney parent advocates. (I’ll just use the word “advocate” from here on.) But many advocates have years of experience and training. You should choose one who has such experience and training. And you should not hesitate to ask a potential advocate what experience and training she has. Especially ask about experience advocating for children who are not their own, and how long the advocate has been working for others’ children for pay. Remember, you are the one hiring. Ask questions.

More to the point, though, in my view, a good advocate is a problem solver. She or he (I’ll just say “she” from now on.) should be someone who knows special education in its substance, and also knows the IEP process inside and out. She should know, for example, the difference between a neuropsychological evaluation and a psychiatric evaluation. She should be at least somewhat familiar with your child’s diagnosed disabilities, and especially the educational implications of it (although I don’t argue that a detailed understanding of your child’s medical condition is necessary – she’s not a healthcare provider), or at least able to get up to speed on it quickly. She should be able to explain to you the implications of resource room placement for part of the day, and (in rough terms, at least) the legal issues about placement in the least restrictive environment.
But at least as important, maybe more so, she should be thoroughly familiar with the IDEA process. She should understand the makeup of the IEP team (which includes you!), and be able to explain your procedural rights under the process, for example how much notice you’re entitled to before an IEP meeting, and the timelines governing your right to request an independent evaluation or request mediation. A good advocate should be able to sit down with you and the pamphlet summarizing your legal rights under the special education law (in New Jersey, it’s called the PRISE, i.e., Parents Rights in Special Education), and walk you through it step by step, answering any and all questions to your satisfaction.

A good advocate will use all of the above background, experience, and expertise to be your guide through the process. She should be on call to answer your questions about it. She should be willing (depending on your cost concerns) to attend meetings with you and the school, most significantly IEP meetings. And she should leverage her background, experience and expertise to advocate for you at those meetings, helping you to convince the school district to meet you in the middle as to any disagreements.
Maybe most of all, an advocate should know when she’s in over her head. She should know when the collaborative process has turned irrevocably into a legal dispute, and when it’s time to call in a lawyer. And, in a perfect world, she should have at least one education attorney on her speed dial, if not literally then metaphorically.

The Role of an Education Attorney.

Ever see the pilot episode of Scandal? Check out this excerpt here. (Start at 1:00) An attorney is a “gladiator in a suit.”

What does that mean? It means that your education attorney is not merely your advocate, but your champion. As implied above, it’s important for the advocate to cultivate relationships with the child study team, develop good will with the school district, and be careful not to step on toes to protect her ability to cajole, wheedle, exhort, coax, inveigle, and sweet-talk the District on behalf of your child. It’s important that she has the credentials, background and experience that they will take her seriously, so that she can persuade the district to properly serve your child.

But an attorney will likely have no relationship with the school district personnel whatsoever. The attorney comes on the scene after the school has made it clear (either expressly or by stubborn refusals) that it has no intention of providing your child with what you believe are the necessary services. So the education attorney needs a different skill set, different background, and different experience.

First of all, your education attorney should be committed to this area of legal practice. Ask when you interview him or her (let’s call this one “him,” since I’m an education attorney and I’m a him) what percentage of his practice education law represents. If you have any doubts, ask him to tell you in writing. (Attorney malpractice insurance requires attorneys to estimate this for each area of their practice.) If the attorney’s practice is less than a third education law (without an explanation satisfactory to you), you should be careful that the attorney may be a dilettante.

It’s important for your lawyer to be committed to education law as a substantial practice area for a variety of reasons. First of all, under a common law system (i.e., one like ours, inherited from the Brits, that considers prior judicial decisions to be binding on courts, under the rule called “stare decisis.”), the controlling rules of education law is constantly changing as new decisions are issued by courts. A lawyer who is committed to education law as a substantial area of legal practice will spend the time necessary to stay current on new developments.

Second, an attorney who practices in education law will know the lawyers who generally represent school districts. While no rule prevents any New Jersey school district from hiring any lawyer to represent it in a legal dispute, in practice only a handful of firms that specialize in school law represent the vast majority of New Jersey’s approximately 600 school boards. An attorney who devotes less than a third of his practice to education law won’t know the “usual suspects.” And this will put him at a disadvantage, both in terms of championing your rights, and creating a strategy.
And third, an education attorney will know the inner workings of the Office of Administrative Law (OAL), which is where these disputes are resolved in the first instance in New Jersey. He’ll know the reputations of the Administrative Law Judges (ALJs), and may know many of them well from his many appearances before them. And they will know him. Your lawyer’s credibility with the ALJ assigned to your case can be very important to obtaining the result you want.

Like a good advocate, your education attorney should also have at least a passing familiarity with your child’s disability, or an ability to get up to speed on it without too much trouble. But this is less important for your attorney than it is for your advocate. An advocate will be engaging with the school district to persuade them to compromise with you. Your attorney will be using the legal process to force the school district to comply with the law.

In order to do that, your attorney needs to understand the IDEA dispute resolution process inside and out. Overlapping with the advocate, this includes your procedural rights before a dispute, e.g., notice requirements for meetings, timelines for independent evaluations, and the like. But the dispute resolution process is the attorney’s primary focus, and he should be able to explain to you the resolution session, your options for mediation (and the cost implications, both pro and con, of this optional part of the process), the “due process” hearing process, appeals to court (usually federal court, sometimes state court), and appeals from the trial court to an appellate court.

Your education lawyer also needs to understand procedure, in a way that your advocate need not. In New Jersey, for example, which sends due process petitions to the OAL, your attorney needs to know the limited scope of discovery in that forum, as well as the inclusive rules of evidence there. He needs also to be comfortable and familiar in “real court,” i.e., state court or federal court. That means he needs to also know the New Jersey Rules of Court and the Federal Rules of Civil Procedure.

But most important, your attorney needs to be able to do three things well for you. First, he needs to be able to write well, and persuasively. Most of the persuasion that goes on in the litigation process (including in settlement discussions with the school district, when they’re represented by lawyers) is done in writing. (It’s not by accident that most legal employers want to see a writing sample before hiring an experienced attorney.) If you are not an attorney yourself, and have not previously hired one, you may be at a disadvantage in evaluating your potential lawyer’s writing, because legal writing is dense and difficult for non-attorneys to parse. But a good stand-in for writing is intelligence, not in the “street smart” sense, but in the “book smart” one. If you think the lawyer is very bright, then even if you don’t feel equipped to judge his writing, you can probably assume that he can write a good letter or brief. This is very important.

Second, your lawyer needs to be able to engage in oral advocacy. This can be at a formal “oral argument,” i.e., a court hearing where the judge asks each lawyer to defend his position. But it is equally important that the lawyer can advocate for your position on a conference call with the court, or even in informal discussions with opposing counsel. Also, if you go to mediation, you’ll want your lawyer to passionately state your case to the mediator. Even though, in private, your lawyer should fully apprise you of the weaknesses of your legal position, when he argues on your behalf he should be totally committed to your argument.

Finally, your lawyer needs to be an expert negotiator. Litigation is expensive, stressful, burdensome, time-consuming, and sometimes seems to be never-ending. Virtually any alternative to litigation that you can live with is better than actually suing your school district. Once you’ve gotten to the place where it’s time to hire a lawyer, the only alternative to litigation is often negotiation and compromise.

My next blog post will look closely at the process of deciding who you need on your team.

This is a different kind of compromise to the sort that should happen in IEP meetings. A good litigator will have a good intuitive sense of the factors in play, e.g., what kinds of things motivate the decision-maker on the school district side, and how to leverage whatever power you may have to obtain a settlement. Your lawyer should also have a creative approach to settlement, thinking “outside-the-box” to get to an outcome that you can live with, and maybe the district can live with as well (especially after your lawyer leverages whatever variables he can to bring them to the table).