DOE: Using Your Senses Against You

Recently, I’ve spotted a new trend at impartial hearings: The Department of Education (DOE) seems to have only one litigation strategy.

Even a casual observer can see that the DOE representatives are, on average, far too busy to prepare in advance for hearings. For instance, it's apparent that the disclosure of documents is routinely handled by an office worker or a paralegal, not the person responsible for the hearing itself. Indeed, it frequently appears that the representatives who show up at these hearings are seeing the evidence packages for the first time.?

The DOE’s strategy to make up for its systemic lack of preparation is to try to intimidate our witnesses.

During cross-examination of a parent witness, there are 10-15 questions that always seem to get asked, but these never lead anywhere. Oftentimes, however, the DOE will then move on to other questions — but with a severe tone of voice that implies that the witness has done something wrong or has otherwise made a mistake. The DOE representatives seem to hope this will lead the witness to feel anxiety or trepidation, or become cagey or defensive — if they’re unprepared for it, of course.

Notwithstanding the arched tone of voice in which the questions are asked, more often than not they have no legal significance.

When being cross-examined by the DOE, as counterintuitive as it may sound, shamelessness is the order of the day. I tell my witnesses that they should trust me to object to questions that are objectionable — and to keep quiet when a question is insignificant, no matter how significant it may seem.

I always remind my clients that we can clear up any waters muddied during cross-examination with redirect. Redirect allows the presenting attorney to recall their witness and ask questions about the cross-examination.

The takeaway is to be prepared for testimony. It’s human nature to shy away when someone is yelling at you, but sometimes you have to grin and bear it if you want to use the court system. For more information, contact us.??

Marc Gottlieb

Partner

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