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Litigation Support: The Educator Expert

As originally published by Bar Bulletin, September 15, 1997.

By: Dr. Edward Dragan
Tel: (609) 397-8989
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Abstract: Examples of consultations serve as an illustration of how a consulting education expert can assist lawyers who are working on school and education related cases. One example deals with a special education dispute involving inclusion and the other deals with liability for student injury and a settlement of $850,000.

As a consulting and testifying expert, the educator has become one of the most important tools that an attorney can use in the dispute resolution process involving schools. Recent studies indicate that, in a school district with 3,500 students, there will be approximately one law suit per year. Special education and negligence litigation has risen considerably over the past ten years. Whenever new laws are passed increases in litigation are likely.

This was true following the passage, in 1975, of the Education of the Handicapped Act which provided for the education of students with disabilities. With the recent signing of the Individuals with Disabilities Education Act Amendments of 1997 it is likely there will be a resurgence of litigation in this area. Although special education matters are numerous, negligence suits constitute the largest category and continue to grow.

The implementation of federal and state laws and regulations within the school system are not always smooth. The culture of schools, how they work, the delivery of curriculum, the reaction of teachers to pupils with disabilities, accountabiliry issues relating to supervision, and new teaching methodologies all establish how the laws and regulations must be understood. In many cases, the understanding and impartial investigation of issues may necessitate the use of an educator expert who is familiar through knowledge, experience, training, and education with schools and the administrative enforcement of the laws and regulations.

The education expert may be called upon to assist in all phases of litigation support in cluding investigation, preparation of interrogatories, discovery, observation at trial, and provision of expert testimony. In many cases, the effectiveness of the consultant will determine the outcome of the controversy.

Examples of consultations serve as an illustration of how aconsulting education expert can assist attorneys. One case involved two pupils with disabilities in a public school in a'segregated class within a special education building. The class was being relocated to a school building with no special education programs where the pupils would interact with their non-disabled peers. This, after all, is the intent of the federal law requiring the education of pupils with disabilities in the least restrictive environment.

The attorney representing the parents of students in the segregated class wanted to block the school from materializing this plan. Providing consultation to the attorney, exploring the case, and developing an investigation and gathering a data plan became paramount. As a consultant to the attorney, the expert reviewed the case and advised the lawyer on its merits. Also, the consultant was able to develop a case theme and action plan with the attorney.

Mter spending time reviewing board of education and student records, observing the program, interviewing administrators of the two schools, and the classroom teachers, it became clear to the consultant that the school wasn't taking its individual pupil's needs into account. Rather the school treated them as a group. This is in opposition to the federal law requiring individualized education programs. At this point, the pivotal issue in the case was recognized.

Therefore, the principle of individualization became the central theme of the case. As a result, the case development plan was established around the theme. The rest of the consulting expert's job was gathering and organizing data, writing the report, and communicating with the attorney on a regular basis.

As the data was gathered and the report written, itwas concluded that the school acted inappropriately. Theattorney asked the consulting expert to act as a testifYing expert. As an expert witliess, the consultant provided an opinion, based up~n obserVation, interview, record review, and other research. The judge presiding over the case agreed with the argument and ordered the school to conduct' individualevaulations with the focus on the potential effect of the proposed change. During cross examination, the opinion was credible and impenetrable in the eyes of the judge.

In another case a five year old student with autism tried to move a four foot high television cart with a 26-inch television on top. The 50 pound television fell and struck him on the head. On behalf of their ~hild, the parents sued the school board, alleging negligent supervision and failure to remove the cart i and television when n~t in use.

Consultation on this case involved a review of the school board policies, student records, including, special education plans, review and analysis of transcripts of depositions, and development of an expert report, The expert opinion developed was that the school district was negligent in many areas, As a result, the parties sttuctured a settlement before trial with a present value of $850,000.

The consulting and testifYing expert effectively worked along with the attorneys in both of these cases, assisted the judge in making a decision, and encouraged a settlement in the best interest of the student.

Dr. Edward Dragan, provides education expert consultation for high-profile and complicated cases. As an educator and administrator, he has more than 35 years' experience as a teacher, principal, superintendent and director of special education. He also has served as a state department of education official.

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