Diary of a Part-Time Special Education Lawyer

Transcript

ABA Law Student Podcast

Diary of a Part-Time Special Education Lawyer

06/07/2018

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Intro: Welcome to the official ABA Law Student Podcast, where we talk about issues that affect law students and recent grads. From finals and graduation to the Bar exam and finding a job, this show is your trusted resource for the next big step. You are listening to the Legal Talk Network.

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Caitlin Peterson: Hello and welcome to another edition of the ABA Law Student Podcast here on Legal Talk Network. I am Caitlin Peterson, Delegate of Diversity for the Law Student Division and a 2L at Washington League University in Lexington, Virginia.

Joining us today is Ms. Melissa K. Waugh. Ms. Waugh works part-time from home, at her own law firm, specializing in legal education because she is caring for two special needs children of her own. She has been in this field for a long time and is quite the expert on it at this point; so Ms. Waugh, we thank you for joining us today.

Melissa K. Waugh: Thank you for having me.

Caitlin Peterson: So, Ms. Waugh, what first got you interested in Special Education Law?

Melissa K. Waugh: Well, the way I got into this area, I had been practicing for about 10 years when my husband and I decided to adopt two children from foster care, and they both came to us with a thing called an IEP, an Individualized Education Plan.

I had no idea what that was or what was going on, but as the children were placed with us and as I started meeting with the school and trying to advocate for my kids, the very first time you go to your IEP meeting with the school, they hand you this booklet about a half an inch thick, double-sided booklet and they said, oh, here are your rights. Oh, thanks. And so, it’s about six months later when I finally found the time to get through that whole thing, I was thinking to myself, oh my goodness, how are we expecting lay parents, A, to read through all this; B, understand it, and C, be able to pull out the specific parts applicable to their own child, and adequately and effectively advocate for that child based on their unique circumstances? And as long and convoluted as that was in saying, it’s worse in living.

It is hard to advocate appropriately and effectively for a child with special needs in the educational system in our country and the laws are very detailed, they are very complicated, they change, and because the appeal process in special education involves administrative appeals before you actually get into a court of law, there is a lot of gray area in these administrative hearings. So, there’s gray and how the schools themselves interpret and then at the first level of appeal in the administrative hearing level is a lot of gray and how the hearing officers interpret the law and the regulations, which again are many.

And so, it is a very difficult area of the law to understand, to comprehend, and to effectively advocate in; and yet, we are expecting as a country as a society lay parents with no legal training. Many of whom haven’t even graduated high school themselves are sometimes single parents working two and three jobs with a special needs child, usually more than one child, and somehow they are supposed to navigate this crazy path of advocacy for a special needs kid and education, and it’s just realizing what it was really like and the need for help for these parents is what led me to now, ultimately, practicing exclusively in the area of special education law.

So, I represent the children with disabilities and their families, and I guess, my opposing party would be the School Districts and I do try to help educate the parents on the law and what their rights are, try to train them, so that they can swim on alone once I step out of the picture. But, usually they come to me in a crisis and so I help them navigate through a crisis that they are having with the School District.

Caitlin Peterson: And as you just said, this is exclusively what you do, so that’s pretty unique actually I think for a lot of lawyers to focus exclusively on one area of law and that be their day to day. So, what is it like to focus on one area of law as opposed to when you are working in a law firm at an office, what is the difference between working in the law firm in an office and probably working on multiple areas of law versus working on just Special Education Law now?

Melissa K. Waugh: Well, the advantages of being specialized in one unique area is that you develop a greater depth of expertise and experience in that area and as I mentioned before the area of Special Education Law is governed by multiple regulatory agencies, there are state and federal laws, there are multiple federal laws that come into play, they have their own federal regulations. So, it’s a very complicated area of the law.

(00:05:13)

So, being able to specialize I think helps the attorney be able to, like I said, have a broader breadth and a deeper depth of knowledge of a very complicated area of law.

Now, my background before coming to Special Education Law I originally went to Law School to educate myself to be and did actually practice in the area of Health Care Law, which also is a pretty niche area and is very regulatory heavy and very complicated and constantly changing. So I did have some experience in dealing with this kind of area of the law. But just like with Health Care Law specializing the necessity, that is not an area of the law that you would be doing as a journalist, because it is very complicated and the stakes are very high because the penalties are high if you screw it up.

Things aren’t quite so high in Special Ed monetarily, but they are high in Special Ed because we are talking about children and their entire lives. The education that they get now through our public school system or otherwise is what prepares them to be productive members of our society, which is important not only for the health and well-being of that child, but also of that child’s family and also of our society.

The reason behind so many of the federal laws that protect people with disabilities was to fight against this idea that people with disabilities had no value in our society and we’re just meant to be taken care. First of all that’s a colossal disservice to the person with a disability, and second of all that is a price tag that I don’t think any American would want to have to pay, especially unnecessarily. And so, the public policy behind all of these laws that protect the civil rights of individuals with disabilities are to ensure that we’re producing as a society productive members who can contribute and not only support themselves but give back to our society.

And so, as you can tell it’s an area of the law I’m very passionate about and while the immediate monetary stakes aren’t quite as high as it would have been in my old health care days to a hospital system, for example, given multi-million dollar civil money penalties, I think those financial stakes to individuals and their families and our society are just as high and just as significant.

Caitlin Peterson: Definitely, I agree, and Melissa, you have talked about this before because I’m very interested in this law field. So, definitely, I agree with you that it’s children and they’re the future so the stakes are, maybe some people would say, not as high as life and death, but sometimes it kind of is for the future.

So, in terms of working part-time at this or from home, can you kind of go through your day to day and you kind of already have given us idea of what you do, but from a day-to-day basis what do you do working from home part-time in this field?

Melissa K. Waugh: Well, I do have my own home office and so I do put in a certain number of hours per day in the home office. It varies. At this point in my career, I have by choice very part-time. I limit the number of cases that I take, simply because I went in earlier I have two children with special needs and as they are getting older you think things would get easier. They don’t. The kids do become even more needier it seems when they start hitting their teen years, and so, for a myriad of reasons as a family we decided that I would close down my law practice, my external law practice, and would begin practicing from home part-time so I could be more available for the children. And in a few years when they go off to college then Lord willing that happens, then I’ll be able to expand my practice again.

So, on a day-to-day level like I said it varies how much time I spend because for example I have one client we are in the middle of a due process, hearing and getting that resolved with a five-day hearing or now in the middle of the hearing officer has reviewed briefs that I submitted and that the school counsel submitted regarding their motion to strike, so we’re waiting for a resolution on that issue and then we’ll continue.

So, at this point I have a break, so I’m not working as many hours right now as I was in the run-up to a five-day hearing, as you can imagine, and during the hearing. So, being part-time, it’s not like working at a restaurant part-time or you have 8 to 12 hours, some hours are 18-hour days and sometimes it might be 30 minutes in a day, there’s not much going on that particular day, it varies a lot.

Caitlin Peterson: And you said that you made this choice to help your family, so have you found that working part-time as opposed to working in a law office has indeed helped your family or had the impact that you thought or just what is your work to family life balance then since switching to part-time?

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Melissa K. Waugh: Right, yes, it has, for us it’s been successful. For some people they can make it work, some people can’t. It really depends on the individuals in the situation, but for us it has worked and it’s been wonderful to be able to have this flexibility to do what I need to do for the kids, but yet still be able to pursue my passion, which is helping other families get through this maze of special education. So it has worked. It’s not always easy.

I can’t tell you how many times I’ve been on a conference call and the kids forget and come barging into my office. I think I’ve given them that — be quiet, fine, and whatever. So, it’s not perfect, but I will say the nature of the area of law that I work in. I’m working with other parents of kids with special needs, so I usually explain upfront at an initial consult with the client my situation. I’m part-time. I have two kids with special needs. They might interrupt us. I might have to reschedule a meeting because I have an emergency doctor’s appointment. Any of these things are possible and because my clients are facing the exact same issues they not only understand, they appreciate that they are working with an attorney who really gets them and understands their life because I’m living it too.

Caitlin Peterson: What you said about your kids interrupting never reminds me of that famous BBC newscast now where the father is speaking to the news and then his children come bursting in and it’s the mom who kind of has to come in and take those kids out so he can continue that call.

A lot of people will probably know what I’m talking about with that one, but I’ve always thought that was very interesting and funny amusing clip, but with that said like as women in the legal field were expected to become mothers and caretakers for our family as well, so as a woman and a mother in the legal field what do you see as unique challenges that are facing women and mothers in the legal field?

Melissa K. Waugh: Well, it’s balance; what it all comes down to is balance. How do we balance the challenges of working in a legal profession? Just like I mentioned before, this is a job that varies in your time commitment and sometimes are heavier work than other times. So, it’s all about balance and how do you do that in it.

A lot of it is just being prepared and making sure you have backup contingency plans. If you have a spouse, can your spouse fill in for you when you have to be at meetings and yet the kids have to be picked up from school? Do you have babysitters lined up who are ready at the drop of a hat to come fill in? Do you have neighbors who can step in?

So, a lot of that balance is preparation. You know these things are going to happen, you know there’s going to be emergencies, so you just have to be really efficient and plan ahead for these contingencies.

Caitlin Peterson: Exactly. Having a strong support system, I think is important for every lawyer and law student, but especially, again, as women and mothers and when you have children and other responsibilities that are just as important, it’s so important to have a support system that you can lean on and have them help you in times of need, especially in times of greater need; so, I agree with that advice.

Melissa K. Waugh: Exactly.

Caitlin Peterson: Do you have any other advice for law students who may be interested in this type of legal field?

Melissa K. Waugh: Yes, for law students that are interested in pursuing a career in Special Education Law, I will say, well, it is a very niche area of the law, it is also a very needy area of the law. We don’t have nearly enough attorneys that are practicing in this area across the country, so it’s an area of great need which means it’s the area of great financial potential.

Personally, I don’t advertise at all, just having been in this field for about — just Special Education for about eight years now. My name is out there and I have to turn clients away, because again, I’m part-time, but the work is there. The difficulty is the lack of people to help families get through it, and once you start practicing in the area or you team up with a firm who already is established in the area, the word gets out very quickly through parent networks as to who can help and when people have issues with the schools.

So, it is an area of great need, something I highly recommend; but, because it is so niche you may not have courses in Special Education Law at your Law School as an option, in which case I highly recommend going outside of your Law School to get the education, to prepare you to be a Special Education lawyer, and some of the educational opportunities, I would suggest, there is a national organization called COPAA and that sounds for the Council of Parent Attorneys and Advocates. That is a natural organization. Well, if you do the two days of pre-conferences, it’s a four-day conference every year. It usually occurs in March. It’s not inexpensive but they do have scholarships for students, law students, to be able to attend. So I highly recommend their training.

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They have a great LISTSERV, that if you have specific questions about special ed issues, you post that up and other attorneys and advocates, or if you are in the attorney LISTSERV, then the other attorneys then are chiming in.

For a student just to peruse or be a member of that LISTSERV and then just listen to the questions and the answers and the sites that are being given is an education in and of itself, even if you were never to post a question, so that’s one resource.

Another resource that I would give students interested in this field is a website called  HYPERLINK “http://www.wrightslaw.com” wrightslaw.com and it is Pam and Pete Wright. He is an attorney. I believe she was a school counselor, I could be wrong about that. But this is their life, doing special education law and they have for many, many years and they produce this website. It’s  HYPERLINK “www.wrightslaw.com” www.wrightslaw.com.

That website, while it’s not fancy, I will give you that, it’s a little hard to navigate, but it is a wealth of free information and resources related to special education, so highly recommend that; I do to all my clients as well.

Wrightslaw also sells books and they are not very expensive, especially for our law students who are used to paying $200, $300 for a textbook; these will look dirt cheap to you, but believe me would provide as much value as those law school textbooks that you have been purchasing. But they do have books. The one that I recommend most highly is their book called From Emotions to Advocacy. It’s written on probably about a sixth grade level. It’s very easy reading, big print.

It’s intended for laypeople, but it is a wealth of knowledge for someone just starting out in the area of special education law to get a good 10,000 foot view of what this is all about and the law behind it.

They have a second book called Special Education Law, which has the primary laws, regulations, federal level regulations, some of the most important cases, Supreme Court cases that are involved in special education law. It’s not complete, there are other things, but it’s a good start. And the value of that book is the index.

So if you have a client or you have a question about independent educational evaluations or IEE, you go to the index, you look for IEE and it points you to the right laws and regs and things, at least at the federal level that you can look at, so that’s a nice tool.

Another big piece of special education law is understanding psychological and educational assessments. And yes, that means statistics and math. I always joke with people I went to law school for a reason, no math on the LSAT, and I assume that’s still the case.

But anyway, math is not my gift, but I had to make it a gift because being able to read and interpret and understand psychological and educational assessments and the test data, the results that come from those is vitally important in doing special education advocacy.

So Wrightslaw again has a great book, very easy to read and understandable, but on reading and interpreting these educational assessments. And there are a lot of other resources out there as well. And believe me, I get no kickback. I have never even met Pam and Pete Wright, but it’s a resource I myself use constantly and refer to my clients all the time.

Two more resources I want to give real quick; I am not sure how much time we have, but one of them, every state is required to have a Parent Educational Advocacy Training Center or PEATC. It’s required by law and so you just have to do a google search and find that for your state.

The whole point of this organization, this PEATC, this training center is to provide training resources to include seminars and oftentimes free seminars. I am attending one that our Virginia PEATC is putting on next week; the travel, the conference, the food, even being able to stay overnight, so you don’t have to — if you are coming from far away to attend this conference is all free. It’s all paid for. So these are great opportunities for law students to be able to get further education, resources and connect with people through their PEATC in their state.

The other final resource that I want to give and I can’t vouch for every other state, but here in Virginia, our Virginia Department of Education website is also a plethora of information and resources related to special education. They put out lots of guidance documents on very specific issues, like how to do a functional behavioral assessment and develop a behavioral intervention plan, very important in special education law.

They put out guidance documents on how schools can help children with dyslexia. They put out guidance documents on how do you determine if a child should be eligible for extended school year services. So again, it’s a wealth of knowledge and information through your State Department of Education. That’s a possible resource.

(00:19:56)

Our Virginia Department of Education also puts on free or very inexpensive seminars all throughout the state on various special education topics. So finding opportunities that are inexpensive or free or a lot of times if you call up the providers of these trainings and explain that you are a law student looking at going into this area of the law, sometimes they will comp the conference or give you a deep discount or you only pay for the books and the materials and nothing else.

When I was in a law school and planning to go into health care law, I did that constantly. Any CLE that I got cheap or free that had to do with health care law, I went. And so that’s something I strongly recommend. Not only is that going to help build your expertise in this very niche area of the law, but that also looks really good on a résumé.

Look, I didn’t just show up at law school like every other law student trying to get you to hire them, I went above and beyond the call of duty and here are the 13 conferences that I attended at my own expense or on my own initiative in this very unique and niche area of the law. So it can be very helpful on a résumé as well.

And then the, not so much for training, but for resources, for information to educate yourself, the U.S. Department of Education, there are two divisions under the U.S. Department of Education that deal with special education. There is Office of Civil Rights and they have a website with lots of resources and materials on it. And the U.S. Department of Education’s Office of Special Education Programs and Services (OSERS) I believe, that they also deal with special education matters and have guidance documents and Dear Colleague Letters and things like that that can be helpful.

And the last one I was going to mention at the federal level, the U.S. Department of Justice, their Office of Civil Rights also enforces certain laws that are applicable in special education, such as Section 504 the Rehabilitation Act, The Americans with Disabilities Act. So there’s a lot of good information on the U.S. Department of Justice Office of Civil Rights, on their website as well.

Caitlin Peterson: See, you guys, I have brought in an expert on this field because she just gave a lot of great information about types of resources and what it takes to get into this field, so I thank you for that Ms. Waugh.

Melissa K. Waugh: Absolutely.

Caitlin Peterson: And why I have always liked talking to you is that you very much know your audience, as you say, you know how to talk to laypersons or your clients in one way, speak to law students like me in another way and then relate to attorneys and judges and people with even more legal education and expertise in a totally different way, so you always know how to relate to your audience.

So before we get off the show I just want to say thank you so much for coming on the show and sharing with us so much information and your experience, especially for what you just gave us right now.

Melissa K. Waugh: Absolutely. Very happy to do it.

Caitlin Peterson: And so my second to last question will be in kind of talking about how you know how to talk to your audience. You said yourself that you are a type of attorney who very much has to have good relations with their clients because a lot of word-of-mouth gets out about you from your client. So what do you think would be good advice for fostering good relationships with one’s clients as a law student or as an attorney?

Melissa K. Waugh: Well, I think the number one thing is do a good job for your client; it seems obvious, but that’s the thing. Clients are going to remember who did a good job for them. And that doesn’t always mean who got me everything I wanted. Part of doing a good job and being a good advocate is creating appropriate expectations with your client.

As I mentioned before, this is a very complicated area of the law, with a lot of gray, so a lot of what we have to do is negotiating, creating alternatives that are easier for the school, but yet achieve the parents’ objective. It’s a lot about being creative.

So parents may come to me with a list of four or five things that they want and I have to be really upfront with them about what the chances are that we can get all five or maybe one in two are kind of the slam dunk and that shouldn’t be a problem at all, can’t make any guarantees, but those are usually pretty simple, but number five is extremely unlikely.

So when you create the right expectations upfront about what’s possible and you always hedge with, because this is the truth, particularly in my area of the law. I mean there are no guarantees. I could have 16 school districts who find issue A to be a no-brainer and one that they clearly are going to provide for the child without question and this school district number 17, that’s the sword they have chosen to fall on. So you never know. You can’t make guarantees, but you try to create realistic expectations for the parents on what you can achieve.

And so then when you go into the process with the parent and come out on the other side, a good result doesn’t necessarily mean you got them everything they came to your door wanting, but it means you got them a good IEP or a good private placement or good additional services that that child needs, and that’s what they are going to remember is a good outcome at the end, that their child got what their child needed.

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So I think that’s mission critical in developing good relationships and a good rapport with your clients. Again, I try to educate clients. I try to be more value-added than just we are going to put this fire out that you came to me with, but I am going to in the process try to train you, I am going to give you templates, I am going to send you to resources like Wrightslaw or Virginia Department of Education’s website where you can get additional information when the next fire pops up. So maybe you won’t have to spend a couple of thousand dollars or more to be able to fix that fire. Hopefully I can give you enough that you can put that fire out yourself.

And my parents seem to really appreciate that, because the reality is if the parents really could afford me, then they have enough resources, they would just pull their kid from private school and privately place them or home-school them or find a private educator, they are just going to pay to fix it, and that’s fine. That’s a perfectly legitimate option.

But the people who come to me aren’t those folks. The people that come to me are just working Joes like me, who don’t have a bunch of money laying around that they could flop down $5,000 or $10,000 for an attorney they may never see again, that money or they might not even recover that money back, but simply because they need services or supports or whatever or a private placement for their disabled child.

So I try to be very conscious about cost. And luckily, part-time working from home, my expenses are low and I have that flexibility, but I think that’s something else that my parents appreciate. They know that I am not just there racking up the bill so I can get more money out of them.

I give them lots of choices, these are your options. This option is going to cost you about that. This option is going to cost you about this much. So it’s just providing them with as much information as possible to make good, sound decisions for their family.

Caitlin Peterson: So being personable, honest and upfront. That sounds like great advice for any law student or legal attorney to take with their clients.

So again, just want to thank you for coming on the show. I will ask my last two questions now, fun one and a serious one. So fun one I guess is working from home and you kind of mentioned maybe some mishaps that you have had, but have you ever had any like really funny or interesting stories of balancing your kids and working from home that you would like to share with us?

Melissa K. Waugh: Funny, I can’t really think of anything funny that sticks out, because frankly that’s my whole life, everything. You just have to be so flexible. But again, I am lucky because this field of the law lends itself to clients who totally get it.

I have had clients who have had three, four kids that came to the meeting with all four in tow and that’s interesting when you have no staff or anyone to entertain them, so that gets very interesting in dealing with the kids. What do they always say in theater or the movies, you never want to deal with animals or kids, that’s what you are going to do in this area of the law. And so it’s interesting, but one particular funny one doesn’t stick out. It’s just, life is crazy.

Caitlin Peterson: That’s great. Thank you for sharing that with us Ms. Waugh. Okay, so final question is, so we have been talking about how you have been involved in sort of what’s considered niche law, such as health care law, now specialized education law and so a lot of people consider these areas niche, and there’s a few more that I know I have been getting into through the ABA such as space law is becoming a real thing, some even special niche areas of health care law. So in the future, do you see these types of areas of niche law becoming more or less important to the legal field?

Melissa K. Waugh: I think that it has been becoming more and more important over the years and a lot of that is because of the amount of regulatory interventions with regulatory agencies. It’s not just one law; it’s lots of laws, and again, the stakes in some of these areas are so high that there is a real need for specialization in some of these areas.

There is a long history of that. There are other areas where people generally have specialized in, whether it was divorces or even patent law, so I think there’s a strong precedent there for this, but I think we are going to see it more and more, just the volume of information, the volume of the regulations, the legal interventions, the laws themselves that are being passed in these certain areas. It just I think becomes more efficient for the attorney, but also for the client to have someone who has, as I said earlier, the broader width and the deeper depth of knowledge in these very complicated areas of the law.

Caitlin Peterson: Well, thank you so much Ms. Waugh for joining us today. It has been a real pleasure to have you on the show today.

Melissa K. Waugh: Thank you so much for having me. I have really enjoyed it and I hope that this information is not only helpful, but will inspire some of these law students out there to consider special education law as a field of expertise.

Caitlin Peterson: Oh, I am definitely sure it will be.

Well, that’s it for us today on the ABA Law Student Podcast on Legal Talk Network. Thanks again to all our listeners for joining us. Be sure to hop on iTunes and check out and rate our page in the podcast, and you can also reach us on Twitter.

Until next time, I am Caitlin Peterson. Thanks for tuning in.

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