Tag Archives: appeal

Important things to know when hiring a special education attorney

We at the Leigh Law Group know hiring a special education attorney can be (wait,… is) daunting.  You have to face trusting your child, that precious gift that changed your life more than any one single thing, to someone you only barely know.  Here are some things you should know:

1. Some attorneys have never taken a case to due process.  They will talk tough at an IEP, or maybe take the case to mediation, but they will never take that extra step to convince districts who truly do not want to comply with the law that you are willing to fight.

2. Some attorneys have never taken a case to the appeal process.  Parent success before the California Office of Administrative Hearings is notoriously elusive (we are being nice here). The appeal from a due process proceeding is taking a case to federal or state court.

3. Some attorneys have never taken a case to the Ninth Circuit Court of Appeals.  Judges in state and federal court, the vast majority of which are well meaning, are both overburdened and lacking in specific training under the IDEA.  Appealing to appeals court, or having an attorney who has done so, gives your case credibility in the trial courts and before the administrative hearing office.

Leigh Law Group, special education, education and civil rights attorneys in the San Francisco Bay Area, have successfully taken special education cases to all of the above levels.  We have prevailed in due process proceedings.  We have settled cases in federal court obtaining substantial services for our clients’ children even in the face of a loss at the due process level.  We have argued and received favorable ruling from the Ninth Circuit Court of Appeals on cases which have made law for all families in California, even in the face of federal trial court judges telling our clients they had no case.

Because we have taken cases to every level of the court systems (short of the Supreme Court of the United States), school districts know that we are in the case for the long haul, for the families we represent.  We don’t pass a case off when the going gets tough.  We get tougher.  We zealously advocate our clients’ meritorious cases as long as our clients desire us to do so and as long as it is in our clients’ interest to do so.

We did an informal count recently, and realized that we have represented no less than eight other families of attorneys’ children who have needed special education or education assistance.  Those attorneys have uniformly recognized that our expertise and skill is unmatched.  We also looked at how long some of our clients have been with us and found that some of our clients have been with us for 8 years or more – using our assistance when necessary to guide their children through their school career.  We’ve seen students go from fourth or fifth grade through high school — graduating when no one thought they would.

Our experience allows us to work reasonably with school districts to obtain services to which your child is entitled.  We have our own kids and care about kids.  Let us guide you and your family through this difficult process and toward a result that your child deserves.  One of dignity in a society that sometimes has to be reminded that the smallest, quietest, shyest, and most awkward can grow into a shining example of humanity.

Leigh Law Group is a special education, education, civil rights, disabilities rights and business law firm in San Francisco and Marin Counties.  We were established in 2004 by a daughter who is a former school teacher turned lawyer who aspires to be a singer/songwriter and teachers’ son (mother and father) who aspires to do well by doing good.

 

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The Up’s and Down’s of an Employment Discrimination Case

The Second California Appellate District sitting in Los Angeles issued an opinion yesterday which discusses a host of issues in connection with an employment discrimination and retaliation case, not all of which will be touched upon here.

In McCoy v. Pacific Maritime Association, the plaintiff, McCoy had worked for many years as a clerk at a port facility when she along with other co-workers filed a federal lawsuit for discrimination. That lawsuit was settled and as a result McCoy was promoted.

In her new position, however, McCoy complained of retaliation due to the filing of the previous lawsuit, sexual harassment and related tort claims.  She filed suit and prior to trial, the Defendants moved for summary judgment/adjudication, which is an attempt to resolve a case against a plaintiff prior to trial  The Court granted summary adjudication as to all of McCoy’s claims except for her retaliation claim based on the previous federal lawsuit.  So at that point McCoy experienced the down slope of an adverse decision by a trial judge. But, she is left with her retaliation claim, so the case moves to trial.

Prior to trial, the Defendants filed what are called motions in limine – motions that seek to categorically exclude certain items from being introduced into evidence. The Defendants won on all three motions and excluded evidence of racially derogatory remarks of a supervisor as evidence of retaliation; evidence that other employees had also been retaliated against as a result of the previous federal lawsuit; and evidence as to the claims which the court had summarily adjudicated.  Again, McCoy’s case is trending downward.

Her attorney, likely frustrated with the adverse rulings, decided to push the envelope at trial by referencing matters which were excluded by the trial judge and by showing the jury an inflammatory photograph which had not been previously listed as evidence or shown to counsel for the Defendants.

The attorney’s aggressive gamble worked – at least fleetingly.  The jury returned a verdict for McCoy of $660,000 in economic damages and $540,000 in emotional distress damages.

After that decided upswing, the Plaintiff’s celebration was short lived.  The Defendants filed post-trial motions – another chance for a trial judge to apply the law to a case.  The judge granted motions which allowed one of the defendants off the hook entirely, found that plaintiff had not presented sufficient evidence to prove her retaliation case and, for good measure, granted a new trial in the event an appellate court found sufficient evidence of retaliation.  McCoy’s $1 million+ award is erased with a pen stroke, and she is about as low as one can go in a case.

McCoy then appeals and receives a mixed opinion from the appellate court.  It breathes new life into her case by finding sufficient evidence of retaliation was presented but finds her attorney’s “misconduct” in referring to excluded evidence and making other improper arguments justified a new trial.

So, McCoy’s remedy is to go through trial, again, with the same judge (most likely unless that judge retired or was reassigned), but without the inflammatory evidence presented in the first trial.  Will the next jury be so moved to award her a large verdict?  Time will tell.

The lessons to be learned from McCoy’s ups and downs are not that a person who has been discriminated against or retaliated against should refrain from proceeding to court if necessary to vindicate his or her rights.  The lesson is proceed with realistic expectations of the justice system which involves the interplay between laws which are intended to be predictably applied and discretion of a judge and a jury which are subject to the human condition of varied opinion and judgment which can lead to unpredictability.  An attorney’s role is to navigate that zone of uncertainty and to convince the judge and the jury of the merit of the client’s cause.

The Leigh Law Group is a law firm, based out of San Francisco and Marin County, comprised of attorneys striving to litigate cases in the education law (higher education, special education and general education), employment law, civil rights and business litigation arenas in a way that does does justice to a client’s cause and does not subject clients to unwarranted uncertainty.  That method requires attention to the client’s individual circumstances but also to the realities – to the strengths and weaknesses – of our judicial system.      

Contact:

Leigh Law Group

870 Market Street

Suite 1157

San Francisco, CA 94102

415-399-9155

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