Advocacy in Practice: Silence is Golden
It’s impossible to know what sorts of personalities are going to be involved in an impartial hearing. As a litigator, my job is to get the judge on my side and then, frankly, shut up. Recently I made a hearing appearance where I did just that — and then witnessed an interesting clash of personalities between the hearing officer and another attorney who hadn’t yet learned this invaluable lesson.
The case involved a student who was approved for placement at a state-approved private school. The DOE had sent the student’s file to numerous schools, several of which reached out to my client, but none of them were appropriate. Fortunately, we found a non-approved school that was a great match and filed a claim for reimbursement of the student’s tuition there. The DOE rarely offers anyone a seat at one of these “approved non-public schools,” so its attorney proved unwilling to settle. Indeed, he was fighting us with tooth and nail.
That morning, we had convened to discuss a subpoena the DOE had submitted to the hearing officer for her review. This subpoena sought 1) all correspondence that had passed between my clients and the Department of Education regarding its efforts to find a state-approved private school; and 2) all correspondence that had passed between my clients and the state-approved private schools that had reached out to them.
The first request was absurd on its face. The DOE’s lawyer was seeking all of my clients’ emails with his office. Obviously, he should have access to them without needing our help. The second request, however, was harder to discount, as it concerned something that he had no control over; these approved schools don't work for the DOE, and they aren't necessarily obligated to respond to any requests for records.
The hearing officer began her questioning with me. She quickly agreed to reject the DOE’s first request, but the second seemed reasonable. What, she asked, was the harm in simply complying with the subpoena?
I countered that this was the wrong question, akin to ‘why won’t you let the police search your house without a warrant?’ This abrupt demand that my clients preemptively disclose their emails was prejudicial, as it implied (without any supporting evidence) that they had something to hide and, worse yet, that they might try to withhold it from the hearing officer! If the DOE’s lawyer could prove that my clients didn’t cooperate with these approved schools, fine — let’s each produce our evidence and let the hearing officer decide. But to say that we should produce our records for his advance review? Totally unnecessary.
To my relief, the hearing officer came around! She began asking the DOE’s attorney why he even needed these emails in advance: why shouldn’t everyone wait until the hearing, where both sides could make their case?
The DOE attorney grew more and more livid as the hearing officer spoke. He began interrupting her and repeatedly told her that she was wrong. It became fairly uncomfortable when the hearing officer cut to the chase and asked the DOE attorney if he doubted her impartiality. (There may have been some degree of sexism at play here. The reality is women in the law face an extraordinary amount of discrimination — but that is a whole discussion unto itself.)
That the DOE would even think to file a motion on this issue shows that the attorney was trying to pull out some fancy footwork. That kind of gung-ho attitude is not common at all among my colleagues from the DOE. I've had about three subpoenas in my 10 years of practicing.
In the adversarial system in which we operate, the opposing side will absolutely try to get you to make their case for them. That’s why effective counsel has to be ready, willing, and eager to potentially litigate against any number of speed bumps thrown down by the DOE — in addition to being ready, willing, and able to stay-tight-lipped and let the other side do our work for us.
Marc Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY 11201
Marc@GottliebFirm.com
(646) 820-8506