May the Odds Be Ever in Your Favor
April is always my busy month for hearings. Everybody hopes that their case is going to settle in the fall, and a lot of them do. Come February and March, schools start talking about down payments on the next year's tuition. So it's always the case that I get a lot of parents reaching out to me saying, "Let's take a serious look now at litigation, because I want to get this show on the road."
Predictably, then, I had a number of hearings this past April, and each time I was surprised at just how unprepared the DOE was. In one case, the DOE had brought in three witnesses: a school psychologist, a special ed teacher who had been at the IEP meeting, and the principal of the proposed placement along with the school psychologist from the proposed placement. The psychologist was not an identified witness, so I objected and sought to have the DOE defaulted. The hearing officer declined, saying she wanted to be understanding of the chaos that everyone's in with the quarantine, so she gave us another date.
On that date, the DOE showed up with the school psychologist — who didn't remember the IEP meeting at all, couldn't explain any of the reasons behind any of their decisions or recommendations, etc. Her testimony was more-or-less useless.
Then the DOE announced the school’s parent liaison. I objected; again, they had not identified this person as a potential witness. The hearing officer agreed, and the DOE was defaulted on the issue of their proposed placement.
That was probably the most prepared of any hearing that the DOE did in the whole month of April. One attorney, who had nearly gotten into a shouting match with the impartial hearing officer at a pre-hearing conference in the beginning of April, showed up completely unprepared for the hearing itself. He didn't make an opening statement, didn’t venture any cross-examination questions, and didn't bother with a closing statement.
The lesson here is simple. Never forget that you’re playing an opponent. It doesn't matter how marginal you think your position is, if the other side shows up completely unprepared, you're going to win. I didn't win these because I'm a great attorney. Now, as it happens, I am a great attorney, and to be sure, I did everything I had to do to win these cases. In these cases, though? I didn’t win — the DOE lost.
Not that I’m complaining.
Marc Gottlieb
Partner
195 Montague Street
14th Floor
Brooklyn Heights, NY 11201
Marc@GottliebFirm.com
(646) 820-8506