Due Process Hearings

When parents hire an attorney for the hearing, parents must notify the district at least 10 days before the due process hearing.  An attorney must file a “notice of representation” with OAH and must serve all other parties with this notice.  If parents hire an attorney less than 10 days before the due process hearing, the attorney may request a continuance of the hearing.

OAH has a list of attorneys who have agreed to provide legal services free or at a reduced cost.  List of Low Cost or Free Attorneys or List of Low Cost or Free Advocates

The hearing is a trial-like proceeding.  All parties have the opportunity to present their evidence and arguments.  All witnesses are placed under oath.  Each party may testify, ask witnesses questions, and present their evidence.  Usually, the party that filed the complaint goes first.

The Location of the Hearing

Hearings take place at a location convenient to parents.  A convenient location is often a district office or a school.  Some hearings take place at OAH hearing rooms in various locations.  If a party wants to change the location of the hearing, they may send a written request to OAH and ask for a different location.  All hearing locations are required to be accessible to those with mobility needs.  If a hearing is held at a school district's offices or a school, the school district is required to submit a document certifying the accessibility of the location.

Issues and Burden of Proof

The hearing will focus on the issues in the due process request.  The evidence offered by each party must be relevant to those issues.  “Relevant evidence” means evidence that has a tendency to prove or disprove a fact that is in dispute in the case.  The judge will allow only relevant evidence during the hearing.  The judge will not accept evidence that is not relevant.

 
The party that filed the request has the burden of proof.  The burden of proof refers to which party must produce enough evidence to prove their case.  For example, if parents have filed the due process request, then parents have the burden of proof.  If the district filed the due process request, then the district has the burden of proof.

How much evidence is needed to win the case is called the standard of proof.  The standard of proof is a preponderance of the evidence.  A preponderance of the evidence is a measurement that compares the evidence from both sides to see which side is stronger.  Some people describe a preponderance of the evidence as the 51 Percent Rule, or, as if a scale tips slightly in one direction.  If the party with the burden of proof does not meet their burden, they do not win the case.  The judge decides if the burden has been met.

The Judge Conducts the Hearing

The judge that conducts the hearing has extensive training in special education law.  He or she also has specialized training in how to conduct hearings.

Keep in mind that the judge hearing the case will not know the details of the case until the evidence is presented.  The complaint and response are not evidence so you must prove each piece of your case during the hearing.  You are telling the judge your side of the story and showing any documents you have that prove what you are saying is the truth.  The other side will do the same.  The judge will listen to the evidence and read the documents.  Some documents will be “admitted” into evidence.  Those are the documents the judge will consider in making the decision.  Some documents may not be admitted, usually on the ground that the judge does not think they are relevant.  If that happens, the documents will be returned to the parties at the end of the hearing and will not be considered in making a decision about the case.

Judges do not work for districts and they do not have access to student records.

Judges do not decide the case until they have heard all the evidence.  The only facts the judge has about a student or the student’s program come from the testimony and evidence the judge has accepted into evidence at the hearing.

The Judge Records the Hearing

The entire hearing is recorded. OAH uses digital equipment. The recording is the official record of the hearing.  At the beginning of each day, the judge will start recording and say something like “We are on the record.” The judge will state the name and number of the case, identify him or herself, and the date and time.  This is called “opening the record.”

The judge will ask the parties to state their “appearances” at the beginning of each day.  Each person then takes turns stating their full name, spelling their name and stating whom they represent.    

Occasionally, an administrative detail that does not have to be on the record will be discussed or there will be a short delay while a witness is located and brought into the hearing.  On those occasions, the judge will announce she is going “off the record” and turn off the recorder.  The judge will say "on the record" when the judge turns the recording back on.  This will happen throughout the day.  At the end of the day the judge will "go off the record" and turn off the recording.  If parties have been granted permission to make their own recordings of the hearing, they are required to go off the record when the judge goes off the record and only turn their own recordings back on when the judge announces she is back “on the record”.

Opening Statements

Parties may make an opening statement at the beginning of the hearing. An opening statement is a short summary of your case and it is optional.  Although an opening statement is not required, it does help the judge understand what the evidence and witness testimony will show.  The opening statement is not evidence.  The purpose of an opening statement is to give the judge an idea of what each party expects the evidence to show.  

Witnesses

Witnesses wait outside the hearing room until it is time to testify.  Except for the parties, witnesses are usually not allowed to sit in the hearing room and hear the testimony of other witnesses. The judge will administer an oath or “swear in” each witness and party before their testimony.  Generally, the witness will go to the witness stand where they will remain standing until the judge swears them in.  The judge will ask the witness to raise their right hand, and swear to tell the truth.  The person who called the witness to the hearing will start the questioning.  Once that person is finished asking questions, one person from the other side may ask questions of the witness.  Questioning may go back and forth a few times as questions asked by one side might raise questions in the mind of the other side.  So long as the questioning is relevant and adding new information to the case, the judge will usually allow the parties to ask questions until they are finished.  The judge may also ask questions of the witness occasionally.  When a judge asks questions of a witness, the parties may make objections to the questions and ask follow-up questions.

Exhibits

When a witness is shown an exhibit, the judge will put a sticker on the exhibit.  Each sticker has an exhibit number.  These exhibit stickers indicate which exhibits were admitted as evidence at the end of the hearing.

When the party is finished questioning a witness about a document, the party who wants to have an exhibit entered into evidence will ask the judge to admit the exhibit into evidence.  The legal term for this is to "move the exhibit into evidence."  Parents do not need to say the right words; they may simply ask the judge to put the exhibit into evidence.  Usually, people say, “your honor, I move that this document be admitted into evidence”.   The Judge will respond by asking the other  side if they have an objection.  Often there is no objection, and the attorney or other representative will say, “no objection.”  The judge will then say, “Exhibit (for example, D-1 or Exhibit S-14) is admitted into evidence."  It is important that the rules for preparing exhibit binders be carefully followed so the judge can properly identify your evidence for the record.

Parents that are uncertain about how, or when, to put their exhibits into evidence may ask the judge how to do it.  Judges cannot give legal advice but they can explain the process to parents.  If the party who is not asking to admit the document into evidence has an objection, they must state the legal reason for their objection.  Often that reason is that the document is unreliable for some reason, is incomplete or is not relevant to the hearing.  Objections are usually stated by saying, “Objection- relevance;” or “objection, lacks foundation” - (because the person did not show that the document was a complete copy to begin with or came from a reliable source).  The judge will let the parties know whether the judge wants to hear more detail about the parties' arguments on the objections.  The judge decides which evidence is admitted into the hearing.  Once the judge’s ruling is made, the case proceeds.

Objections

A party may object to evidence if there is a question about its relevance, reliability, or admissibility.  When parents testify, they have the right to object to the questions asked of them by the other party’s attorney and to object to documents shown to them by the other party’s attorney.

A common objection is “lack of foundation.” “Lack of foundation” means a document has not been established to be authentic or from a reliable source.  It can also mean that a witness does not have personal knowledge about the subject.  If the judge “sustains” the objection (agrees with it), the judge will give directions if more information is needed to establish a proper foundation. If directed by the judge, a party can ask more questions to establish whether the witness knows what the document is, the basis for their personal knowledge about the subject or their knowledge about the source of the document. If the judge does not agree with the objection, he or she will say “Objection overruled.”

Another common objection is “relevance.” Relevant evidence is something that tends to prove or disprove a fact that is at issue in the case.  If the judge sustains a relevance objection, it means the judge agrees the evidence is not relevant.  That evidence is not discussed any further and everyone moves on to the next question.

The formal rules of evidence do not apply in an administrative hearing.  For instance, hearsay (testimony by one person about what they heard another person say) is allowed in an administrative hearing if the judge determines it is reliable information or the kind of information on which people base serious decisions.  

Sometimes the judge will admit evidence at the hearing but when considering the case will evaluate it’s “weight”, that is, how persuasive it is.  For instance, a document may be admitted into evidence, but a judge might determine that the facts disclosed about how it was discovered or  created are suspect, ultimately giving it little weight when making the decision in the case.  In response to an objection, you might hear the judge say, “Overruled-that goes to the weight of the evidence, not its admissibility.”

Parents who are not represented by an attorney will be allowed to object to documents and to questions of witnesses by saying “objection” and briefly telling the judge the reason for the objection.  If parents do not know a legal basis for an objection, the judge might ask the parties to explain why the evidence should or should not be allowed.  The judge will decide if the evidence is allowed to become part of the record.

Whenever a witness is testifying, it is important to listen carefully to the questions that are asked.  A parent may object to the way a question is asked.  The objection must be made after the question is asked but before the witness starts to answer the question.  Parents may also object to a document when a witness is asked about it.

Judges say "sustained" if the judge agrees with the objection.  Judges say "overruled" if the judge does not agree with the objection.  The judge will then tell the witness to answer or not to answer the question.  The judge will also tell the parties whether or not the evidence will be admitted.  Admitted means that evidence will become part of the official record and considered by the judge.

Cell phones

All cell phones should be turned off and put away during the hearing.  Even if a cell phone is just vibrating, it can be disruptive.  Cell phones may not be used for recording unless the judge has given someone permission to record the hearing in advance.

No Eating or Drinking During the Hearing

Food and drinks are not permitted in the hearing room.  Water is provided for all hearing participants.  Breaks are scheduled throughout the day including a lunch break.  Any hearing participant with special medical needs may make a request for a reasonable accommodation. Instructions for doing so are included in the prehearing conference order, on OAH’s website or by calling the case manager.

What to Bring to the Hearing

Bring all exhibit binders.Before the hearing starts, parents should give one exhibit binder to the judge and put another of the exhibit binders by the witness table.  Similarly, the district will give one of the district’s exhibit binders to the judge and put the district’s other exhibit binder by the witness table.  Each party should have already sent or given a copy of their evidence binder to all the other parties at least five business days before the start of the hearing. How to prepare an exhibit binder is discussed in the portion of this website, Preparing for Hearing.

What to do if you are Late to the Hearing

Anyone who is going to be late to the hearing must call the Sacramento OAH office as soon as they know they will be late.  If the party who filed the complaint is late and does not call OAH, the case may be dismissed.  If the district filed a complaint against parents, and parents are late, the judge can hear the district’s side of the case without the parents present.  Similarly, if a district filed a complaint against a student and the district’s attorney is late, the judge can hear the parents’ side of the case without the district’s attorney being present.  Therefore, it is important to appear in person and on time at the due process hearing.  The Sacramento OAH Office will let the judge assigned to the case know if anyone is running late.

Sample Questions - How to Question Witnesses

If you want to prove something during your hearing, it is best to have witnesses testify who actually saw or have personal knowledge of the events you want to prove.  It is not a good idea to rely on witnesses who “heard” about the events from another person.  That kind of evidence is called “hearsay.”  The definition of “hearsay” is testimony by someone who heard a statement made by someone who is not testifying.  The person testifying wants to tell the judge the other person’s statement and that the statement is true.   Generally, the judge will consider hearsay to be very weak evidence unless it is supported by other evidence.  A judge will not rely on hearsay when making their decision unless the hearsay is reliable. Reliability must be proven. Therefore, it is always better to get witnesses who actually made the statement to come in and testify.

As discussed above, questions should be carefully planned in advance.  Think about your case and the facts you need to prove to win the case.  Who can testify to those facts?  What do they need to say?  Are there documents that could help prove the facts you need to show?  Who could testify that the documents are genuine and reliable and explain to the judge why they are important?

When writing your questions, use these tips:

Ask simple questions.  After the witness takes the oath and is seated, ask them to identify themselves and ask basic questions to show the basis for their personal knowledge about the subject.  For example:

Q.  What is your name?

Q.  Do you know [child's name]?

Q.  How do you know [child's name]?

Then, consider what facts you need this witness to tell the judge.  Are they a doctor who can testify about the child’s disability and how it affects their ability to learn?  Is the witness a teacher who sees the limits of the child’s attention span?  Is the witness a tutor who has used some strategies for helping the student with success?  List the information you need the witness to talk about and then write questions to have the witness tell that information to the judge.

You might ask questions about a person’s participation in an IEP meeting to show the judge what happened at the meeting or who was present at the meeting.

Q.  Have you attended any IEP team meetings for [child's name]?

Q.  Did you attend the IEP team meeting on [date]?

Sometimes it helps to focus on who, what, when, where and why.  For example:

Q.  Who was at the IEP team meeting?

Q.  What did these individuals say to you?

Q.  What did the IEP team discuss about [child's name]'s physical therapy needs?

Q.  Were you able to provide your input to the IEP team?

Keep in mind that you do not need to prove the same fact several times.  One good piece of evidence, either testimony or a document or some other kind of evidence, is enough to establish a fact.

How to Question Expert Witnesses

Expert witnesses are usually professionals.  Their job is to explain something or give an opinion about something.  In special education, experts are often doctors, psychologists, speech pathologists, occupational therapists and the like.  Parents should contact a potential expert as early as possible.  Experts usually charge a fee to testify and require that parents confirm they are needed in advance so they can put the hearing on their calendar.  Parents are required to put their experts on their witness list and discuss their testimony at the prehearing conference.

Focus on the expert's training, experience, and knowledge.  Always ask for your expert’s resume or Curriculum Vitae (CV-another name for professional resume.)  You can add this to your exhibits and use it to help establish the expert is qualified to give an opinion.  Once you establish their credentials and that they examined or worked with your child, ask the expert to give their opinion.  For example:

Q.  What do you do for a living?

Q.  What is your educational background?

Q.  Is this your resume?

Q.  Is everything in this resume accurate?

Q.  Have you received any other training in this area?

Q.  Do you know [child's name]?

Q.  How do you know him or her?

Q.  (Have them describe the work or evaluation they did with the child.)

Q.  Do you  have an opinion [for example, recommended amounts of services (such as speech therapy or occupational therapy or behavioral therapy); or about placing the student in the placement being recommend by the school or the placement parents prefer, etc.] 

Q.  What is your opinion?

Q.  What is the basis of that opinion?

Parents' Testimony

Parents do not have to ask themselves questions.  Parents may tell the judge about the events and facts that they know and what they need to establish to prove their case.  The judge may ask parents questions while they are testifying, and might ask parents some questions at the beginning of their testimony to get them started.  Another way for a parent to testify is by giving the judge a list of questions.  The judge asks the questions and the parent can answer them.  Other parties may call a parent as a witness.  The attorney for the other party will ask the parent questions first, and then the parent will have the opportunity to testify about any matters relating to those questions.

Once the parent finishes asking questions of their witness, the attorney for the district has a chance to ask questions if they want.  This is called “cross-examination.”  Parents will also have a chance to ask questions of the people the district calls as witnesses.  The judge will often ask the witnesses questions as well.

How to Put Exhibits Into Evidence

To have an exhibit from their binder “admitted into evidence,” parents must show that the document is “authentic.”  This means that the document is what it says it is and that it is an accurate, unaltered copy.  Parents may prove this through their own testimony or with the testimony of another witness (as discussed in the next paragraph).  Before testifying about an exhibit or questioning a witness about an exhibit, parents should ask the judge to mark the exhibit for identification.  The judge will then put a sticker on the exhibit and write the exhibit number on the sticker.

A document must be “authenticated” before it may be admitted into evidence.  This means that a witness must testify that it is what it appears to be.  A document is authenticated by showing the document to a witness.  Ask the witness (1) if he or she recognizes it, (2) to identify and describe it, and (3) if the document appears to be a correct copy.

Another way to authenticate some kinds of documents is to show that a government agency or a company kept them in the regular course of business.  For example, sometimes a school keeps attendance records.  To have a record like that admitted, ask the witness if the information was recorded by a person with knowledge of the routine for keeping the records and in the regular course of business.

After the exhibit has a numbered sticker and has been authenticated by a witness ask the judge to admit the exhibit into evidence.  The judge may ask the other side if he or she has any objection to the document coming into evidence.  Parents may need to respond to the objections by telling the judge what the document is and why they want it admitted into evidence.  Parents do not need to know the law or rules of evidence.  Technical rules of evidence do not apply in due process hearings.  Parents may simply offer an exhibit and let the judge decide if it should be admitted.

How to Present an Audio Recording at a Hearing

A portion of an audio recording of an IEP team meeting may be played as evidence in a hearing if the judge agrees. This is usually only allowed if the recording offers important evidence that cannot be provided with testimony by the person who attended the meeting.  In order to have a  portion of an audio recording admitted, the exact date and minutes of the recording the party wants admitted must be identified; and the person speaking must be identified.  Usually, a written transcript of the portion of the recording being offered is required.  The person who prepares the transcript will need to submit a declaration stating their name, who they are, the date the transcript was prepared, and that the transcript offered is an accurate transcript of the recording.  Both the transcript and the recording are exhibits and should be included on your exhibit list. If they are not, the judge may not allow the recording to be submitted. Whether any part, or how much of the recording, may be played is up to the judge.

What to do at the End of Each Day

At the end of each day, the judge will ask about the witness schedule for the next day.  The judge and the parties may review which exhibits have been admitted or may defer that review to the end of the hearing.  The judge may also talk with the parties about other scheduling or evidence issues that have come up during the day.  The judge cannot give legal advice.  The judge may answer questions about the hearing procedures.

After the hearing day ends, parents should call the witnesses they have scheduled for the next day to let them know what time to appear for hearing the next day.  It is a good idea to go over the questions you have prepared to ask the witnesses for the next day, and the exhibits you plan to ask the witnesses about. 

What Happens on the Last Day of the Hearing

Evidence Reconciliation

Once all testimony is finished, the judge and the parties will review the evidence that has been admitted.  Everyone will confirm the exhibits from each sides that were admitted.  This is done by the judge going through each binder and stating which exhibits her records show were admitted.  If one party or the other has a different record, notes and the hearing recording can be consulted to make a determination of what was entered as evidence.  In some cases, an exhibit that was not admitted can be admitted at the end of the hearing on request of the party.  However, it is best to ask to have the exhibit put in evidence when it is discussed in case there is an objection that needs to be cleared up.  

Some exhibits may not have been admitted.  The judge will return all evidence that was not offered as an exhibit.  It is not uncommon to include documents in the exhibit binder that a party decides not to use as evidence during the hearing either because it turned out it was not needed or was a duplicate of a piece of evidence introduced by the other side.  After completing the review of the exhibits, the judge will ask the parties to remove the exhibits (or portions of exhibits) which were not entered into evidence from both copies of their binders but to leave the tabs in the binders so the judge knows which documents were removed.  

The judge will keep any evidence that was not admitted due to an objection in the exhibit binder. The document will be marked as “not admitted” so it is not relied on as evidence when the judge makes her decision.

The judge and the parties will review the evidence that has been admitted.  Some exhibits may have a sticker but were not admitted because there was an objection.  The judge will return to the parties all evidence that does not have a sticker or was not admitted.

The last thing the parties and judge discuss are closing arguments.  The judge will ask the parties if they want to make written or oral closing arguments.  Oral closing arguments are made at the end of the hearing.  If oral closing arguments are made, the official record ends on the last day of the hearing and the case is submitted to the judge for decision.

Most people prefer to submit written closing arguments.  Written closing arguments are sometimes called "closing briefs."  A written closing argument allows you to think about the evidence presented by both sides and take your time to tell the judge why your evidence proved your case and why the other side’s evidence did not prove their case.  The judge usually gives the parties a couple of weeks to write and submit their closing argument.  Sometimes, a longer period is allowed if there is a good reason to ask for a longer time.  The judge will tell the parties the date their written closing arguments must be filed with OAH and served on the other parties.  The case is continued until the deadline for the written arguments.  The official record is closed on the date the written closing arguments are due and the case is considered submitted to the judge for decision.

A written closing argument does not have to be submitted in any particular format.  Parents who are not represented by attorneys may write a letter.  Usually the judge will give the parties a page limit for the closing briefs.

A closing argument is a summary of the evidence.  Good closing arguments highlight a party’s most favorable evidence, and states why the evidence shows the judge should decide in favor of the party writing the brief.  Closing arguments explain why a witness is credible or why one witness should be believed instead of another.  Closing arguments should discuss only the evidence that was presented at the hearing.  It should not attempt to offer new evidence.  The closing argument should end by telling the judge what the judge should do about each issue.

Closing arguments may discuss what law applies.  However, parents who do not have an attorney are not expected to know all the law that applies to their case.  The judge is an expert in the law that applies.  Therefore, parents are able to make very good closing arguments even if they are not familiar with legal vocabulary or special education law as the most important information to discuss is the evidence that was presented and why it proved your case.

Written closing arguments must be filed and served by the due date and must include a proof of service.  If your written closing argument is late, it may not be considered by the judge.