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Small Client, Big Victory

November 27, 2006
Globally Noted — Pro Bono Matters
John D. Rue

While there is general agreement that it "takes a village to raise a child," sometimes it takes a global law firm to champion the rights of a child in a village.

Erica K. (not her real name) is an emotionally disturbed teenager in a town in New Jersey. She had been in and out of the public school system in her town, but she was never really able to adapt. She did poorly in school, and was often unable to even attend because of her repeated panic attacks. The future did not hold out much hope.

Then, in 2004, after bouncing around in the special education system for years, her town's school board finally approved placement at an alternative school that specializes in dealing with students with similar issues, and she became a new person. The student who rarely attended class in the past won a perfect attendance award. And though she had routinely failed classes in her old schools, she now received top grades and was twice named Student of the Month.

Finishing her second to last year of high school in the spring of 2006, it seemed that the unthinkable just might happen — Erica would graduate on schedule, and was talking seriously about college. Just then, the school district decided to stop paying for her to attend the alternative school and demanded that she go back to the regular high school in the fall.

Terrified, confused and unable to attend class, Erica lapsed back into her old state. Her mother did the best she could to fight the school board's decision, but she was clearly in over her head. The most significant impact of the mother's attempt to represent Erica was ignoring a notice of change to Erica's educational plan that needed to be disputed within 15 days, but unfortunately letting six weeks lapse. Things were not looking good.

Erica's mother reached out to Volunteer Lawyers for Justice — a New Jersey-based special education advocacy group, which in turn contacted John Rue (New York), a third-year litigation associate. John had previously taken a CLE course offered by VLJ on special education law. The course is given for free, but participants are then expected to handle a special education case for an indigent client. This was John's opportunity to make good on his promise.

White & Case on the Case
John was contacted on a Friday evening, and a due process hearing was already scheduled for the following Thursday. "To compound matters, the family's failure to initiate a dispute by the deadline resulted in Erica shifting from defendant to plaintiff," says John. "So the burden was now on us to prove that the current placement -- at the public high school -- was inappropriate, and that the previous placement was appropriate. But with Erica not even attending class it would be difficult to prove anything of the kind."

After conferring with litigation partner Rob Milne and senior associate Jack Pace, as well as the outside mentor (a special education law expert) assigned to him by VLJ, John went to work. First, he contacted opposing counsel to determine the chances for a reasonable settlement, but had no luck at all. Not only was the school district unwilling to send Erica back to the school where she had done so well, it wouldn't even provide an interim tutor for home schooling while the dispute was pending. Their unyielding position was that because Erica had not shown up at the public school (the very thought of which caused her to experience panic attacks) after the change in her program, she was simply truant, and had no rights at all in the matter. There seemed to be no room for a compromise.

So, with only two more days before the scheduled hearing, John asked the New Jersey Administrative Law Judge assigned to the case for a two-week adjournment. During a telephone conference with the judge and opposing counsel to discuss the requested delay, the judge was clearly not pleased to hear that Erica was not currently being educated at all. One hour after the phone call, in which the judge granted the request for a postponement, opposing counsel contacted White & Case with a unilateral change of position on home schooling -- Erica would at least get daily tutoring until the dispute was resolved.

Next, John assembled a team: Hunter Murdock, a second-year litigation associate, Heather Burke and Megan DePasquale, both first year-litigation associates, first-year tax associate Melissa Laferrierre and legal assistant Kelly Bonner. In preparation for the anticipated two day hearing, they met with the girl and her parents; pored through her educational history; read the transcripts of previous proceedings in the matter; conducted extensive research on the governing law (the federal Individuals with Disabilities Education Act, related state regulations, evidentiary rules in the forum, and case law relevant to each); interviewed, selected, engaged, and scheduled expert witnesses; selected and scheduled friendly witnesses; subpoenaed those witnesses not expected to be friendly; and created several trial exhibits showing Erica's progress at the private school over the previous two years. A hearing strategy was developed by the team to prove that not only had the private school been and continued to be an appropriate placement for Erica, but also that the public school was an inappropriate placement.

Whereas the school board had previously been doing battle with Erica's mother, they were now dealing with White & Case. On the first of the two days the matter was scheduled to be heard in court, and after a full day of negotiations at the courthouse, actively mediated by the ALJ, the school board settled.

A Win — Win Result
Erica has since returned to the alternative school and is now receiving the specialized counseling that she needs. Since her return, Erica has made the honor roll for two consecutive marking periods, has received several awards (both behavioral and academic), took the SATs, and is currently in the process of applying to colleges and touring their campuses. It is expected she will graduate on time.

Using our legal skills to effectively represent large multi-national corporations is what makes us a global law firm. Sometimes, using those same legal skills to help an emotionally disturbed teenager is what makes us better lawyers.

Update:

For his work on this case, John received the Pro Bono Attorney of the Year award from VLJ.

Globally Noted is White & Case's internal newsletter.