The law provides specific rights and protections to assure students with disabilities have equal access to a Free and Appropriate Education (FAPE). Much like speed limits, everyday all across our country those laws are violated. Parents, and even advocates, all too often think that just pointing out to the school that they are violating the law will make them beg forgiveness and fall into compliance. Unfortunately, all too often schools are well aware they are violating the law, and will ignore you. Other times they interpret the law differently and feel they are actually complying. In those times of frustration and anger they will look for an attorney to lay waste to their evil school personnel. A feeling I both sympathize with and have personally felt. But, using an attorney effectively is vital to a satisfactory result. Here are a few ways people screw up and end up disappointed with both their attorney and the results.
- Picking The Wrong Attorney – The law is a diverse and high specialized. Just because someone is licensed to practice law, doesn’t mean they are competent to represent you in a special education matter. The old joke “a generalist knows nothing about everything, a specialist knows everything about nothing” has a basis in fact. Don’t hire a divorce, criminal, or PI attorney and expect good results in a special education matter. Do your homework. Is the attorney a member of COPAA (Council of Parent Attorneys and Advocates)? Are they known and well regarded in the field (Special school, parent support groups, Yelp reviews can all be good places to check)?
- Wasting Expensive Time – Attorney’s “product” is their time. It is what they sell, it’s expensive and it should be used wisely. Using your $250-$500 an hour attorney to vent frustration, as a therapist, or to pursue minimal gains (an extra 1/2 hour of speech, fine tune goals, or mediate personality conflicts) is a waste of your money and the attorney’s time. Good attorneys are busy and will let you know when your “target” is too low a value to justify retaining them. You should expect a good return on investment for your attorney fees. I routinely get clients placements in good/expensive schools and programs along with related services or supports worth 10s or even 100’s of thousands of dollars for out of pocket fees (after reimbursement) of only a few thousand. Occasionally, I can secure reimbursement of all their fees, if those fees are “reasonable”. Your judicious use of your attorney’s time greatly influences that reasonableness determination.
- Conceal/Withhold Information – There are at least two sides to every legal conflict. Usually, each side feels they are right. Knowing what the opposition is going to use to prove their position is vital to being successful. Telling your lawyer only the strength of your case, but not the weaknesses is a knife in the back. Be open with potential negative information so your attorney can plan how to deal with it. Being surprised by damaging evidence in the hands of opposing counsel can be devastating to the case, the fees, and the relationship. Don’t sabotage your child’s hopes by keeping information from your attorney.
- Act Independently – If you really want to screw up your child’s case jump in and do things without talking to your attorney first. Fire off an angry, expletive laced letter to the entire school board, withdraw them from school, register them for an expensive private school or program assuming you will be reimbursed. Do you really want to pay your attorney to try to fix your ill-conceived, emotion driven impulses? You can’t un-ring a bell. And the impact of some actions may be unrecoverable.
- Explain the Law to Them – It’s amazing how many parents want to pay me to listen to them explain the law to me. This may shock you but competent, experienced attorneys (see item #1) not only know the “law,” but they know things beyond the law. Like how local judges interpret that law and what facts are given the most weight. What schools do and do not tend to take cases to trial. What lawyers represent the school, and if they are good or bad, swamped with other cases, have just had a new baby or are going through a divorce. A good poker player plays the cards, a great one plays the players. It is no different in law.
- Be Unreasonable – Expect the moon and stars and refuse all compromises. Few cases go to trial for a good reason. Trials are expensive, stressful, and you place your fate in someone else’s hands. The threat of trial, coupled with a reputation of willingness to go to trial, and success at trial is important to achieving a good resolution before trial. But, mediation, negotiation, and resolution sessions are the places you still have control of your fate. Going in expecting you will get everything you want, without an effective strategy of how to achieve that is a recipe for disaster. It often comes down to how much you are willing to give up to remain in control of your child’s fate. Like “The Gambler” you’ve not only got to “know when to hold them, know when to fold them,” but be prepared to do either based on the way the cards are playing out.
- Be Inconsistent – Make it clear to your attorney what your “target’ is, specifically the combination of placement, services, supports, and accommodations that will allow them to thrive. Working for months to achieve your desire only to have you completely change your mind will frustrate your attorney, waste your money, and damage your child’s hopes for an education or even a future. Coming in with a strong case and getting your demands met can quickly turn to begging for scraps if you vacillate on what you want.
- Take Out Your Anger and Frustration on Them – This may shock you, but attorneys are mostly human. Working hard long hours fighting for your client only to have them turn on you and criticize or abuse you is painful. It saps your motivation and undermines your faith. As a special needs parent you have, by necessity, become a warrior. But, fight the common enemy, not your attorney. If you are angry write a chain of consciousness email but don’t send it. Give it a day, re-read it and then write a rational email covering your major, factual concerns. The breakdown in attorney client relationship is grounds for withdrawing from a case. An abusive rant can give your attorney the right to “fire” you as a client. It’s something no attorney wants to do, but push them far enough and you may find yourself unrepresented.
- Don’t Pay Them– No attorney gets into special education to get rich. It’s a stressful, difficult, and unprofitable area of law. They are in the field because they care enough to turn from the lure of big dollars to help disabled children. Many will be very flexible and offer sliding fee scales, payment plans, etc. Often they assume much of the cost and risk of litigation hoping to get reimbursed a fraction of their actual fees. Stiffing them for their fees may be enough to push them out of the field, or even put them out of business. When you cheat your attorney out of earned fees you not only hurt them, but all special needs kids and parents who may find there is no one left willing to help them.
When your child needs a special education attorney, nothing else will really do. But a large part of their success, and your child’s hopes depends on you. No one actively decides to obstruct or sabotage their child’s progress, hopes or future, but all too many parents unintentionally do. This may read like a rant, and in a way it is. As a special needs parent I’m sharing with you issues that damage or destroy a special education attorney’s chances to be successful for your child. It’s insight few attorneys will share. The choice of how you proceed, as always, is yours.