Prehearing Conferences

What are Prehearing Conferences?  How do they Work? How do I Prepare?

A prehearing conference typically takes place between 7 to 10 days before a hearing.  Prehearing Conferences are only held on a Monday or a Friday.  The date and time of the prehearing conference is stated in the scheduling order sent to the parties at the beginning of the case and is usually either 10:00 a.m., 1:00 p.m., or 3:00 p.m.  If the dates in a case change, a new order will be sent to the parties identifying the new dates and times.

A prehearing conference is conducted by videoconference using Zoom software.  During the prehearing conference the ALJ and the parties will discuss and clarify the due process hearing issues, will identify the witnesses that will be called, and discuss other prehearing matters.  The prehearing conference will be initiated by the ALJ.

Each party is required to submit a Prehearing Conference Statement at least three business days before the date on which the prehearing conference is scheduled.  The Scheduling Order, which is sent out at the beginning of a case, contains a list of things that each party should state in their Prehearing Conference Statement.

The calendar and the name of the ALJ assigned to the case are posted on OAH’s website on the Calendar page. To find dates for your case, go to OAH’s website page titled “Special Education Hearing and Mediation Calendar.”  You may get to this website page by copying and pasting into your browser the URL shown below, or by clicking on the link.  On the left side of the page is a contact box titled “Special Education Calendar.”  In that blue box are the words “Access Calendar” written on it. Click on this blue box.  The URL for OAH’s Special Education Calendar page is: https://www.dgs.ca.gov/en/OAH/Case-Types/Special-Education/Calendar .

It is recommended that you read the information on the webpage before clicking on the blue button and accessing the calendar.

It is a good idea to check the calendar before the prehearing conference because the assigned ALJ might change from time to time.  To object to the assigned ALJ, a motion called a “Peremptory Challenge” must be filed.  Any peremptory challenge to an ALJ must be made before the prehearing conference begins.

For more information on motions please OAH’s website page “Motions.” To access the Motions webpage copy and paste into your browser the following URL or click on the link: https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Self-Help/Motions.

OAH conducts prehearing conferences through Zoom.For more information on using Zoom, https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Self-Help/Virtual-Prehearing-Conferences-and-Hearings

The day before the prehearing conference, OAH will send an email invitation to the parties or their attorneys to join the prehearing conference. The participants are not to use this email to correspond with OAH or the Administrative Law Judge, or ALJ. If you have any questions, please contact the assigned OAH case manager.

At the designated time for the prehearing conference, click on the blue “Join" button in the Zoom email invitation. You do not need to download Zoom to participate in the videoconference. Pressing the “Join” button will automatically connect you to the meeting. Please enter your first and last name where indicated so the ALJ knows that you want to join the prehearing conference. You will see a message informing you that you will be allowed to enter the meeting shortly. The ALJ will open the meeting to you. It is very important to participate in the prehearing conference.

The ALJ has experience conducting prehearing conferences with parents and will ensure that everything that needs to be discussed will be covered. The conference call is recorded to make an official record of the prehearing conference. Participants are not allowed to record the prehearing conferences without the ALJ’s permission.

All prehearing motions, including requests for continuances, shall be served upon the opposing party and filed with OAH, Special Education Division.  Prehearing motions include motions for continuance, dismissal, stay put, or any other request for a ruling by an ALJ, which affects the rights of the parties.  A party’s opposition to a motion must be received by OAH no later than three business days after service of the motion on the other parties in the case.  If a party’s opposition to a motion is sent to OAH by U.S. mail, by messenger service, or personal delivery it must be received at OAH’s Sacramento location no later than three business days after service of the motion on the other parties in the case.

Prehearing motions must be filed with OAH on or before the date the prehearing conference statements are due to OAH.  (As stated in the above “Prehearing Conference Statements”, the prehearing conference statements must be filed with OAH at least three business days before the prehearing conference.)  If the party fails to file a prehearing motion on time, then the party filing the pretrial motion must demonstrate good cause explaining why it was not possible to file the motion on or before the required date.  Absent an order continuing the matter, the prehearing conference statement must be filed, even if there is a pending motion to continue.

If a party wishes to continue the due process hearing or prehearing conference, the party must file a request in writing with OAH.  This type of request is called either a “motion to continue” or a “request to continue.”  The parties are encouraged to communicate and agree (this is called “meet and confer”) as to the dates the parties wish to continue the due process hearing.  If the parties agree on dates, a form is available on OAH’s website for purposes of submitting this request or motion.  This form is called “Request for Continuance of Due Process Hearing Dates” and may be found by copying and pasting into your browser the following URL or by clicking on the link: https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Forms/Request-to-Continue-Due-Process-Hearing-Form

The ALJ will discuss and plan the due process hearing with the parties.  The discussion will include:

• the date and time for the hearing ;
• the projected length of the hearing;
• the issues presented in the request for due process hearing;
• the proposed resolutions for the issues for due process hearing;
• for student filed cases, whether the district filed its response to student's complaint with OAH;
• the requirements for submitting exhibits to Case Center, which is the software application used by OAH for managing exhibits for hearings;
• the witnesses who are expected to testify at hearing and whether the district will be able to make district employees available to testify without subpoenas;
• whether any witness is unavailable or if a party is requesting permission to have a witness testify by telephone;
• any motions that need to be considered such as a motion to change the dates of the hearing, to privately record the hearing; or to limit evidence;
• if there is a need for interpreters or other accommodations for disabilities; and,
• Instructions the parties should follow if the parties reach a settlement agreement between the time of the prehearing conference and the date of the hearing.

Special education hearings are closed to the public unless a student’s parents want it to be opened to the public.  During the prehearing conference, the ALJ will ask if the parents want an open or closed hearing.  If the parents ask for the hearing to be open, the hearing may remain open as long as the proceedings are not disrupted.  The ALJ will keep control over the hearing so that everyone is provided with due process of law.

When you prepare for the prehearing conference you are actually beginning to prepare for the hearing.  You should start preparing for the hearing as soon as you file your case.  Contact witnesses and gather all the documents needed as early as possible.  Parents should allow themselves enough time to meet the requirements for the prehearing conference.  The last day for you to identify your witnesses and the evidence you want to present at the hearing is shortly after the prehearing conference.  Completing the required preparations for the prehearing conference will help you prepare for the final evidence and witness disclosures that are required before the hearing begins.

Read the information sent with the Scheduling Order.  The information and the Scheduling Order are sent to all parties shortly after the case is filed. 

The information sent with the Scheduling Order contains important information about the prehearing conference.  The scheduling order has information about how to:

• Reach someone who can answer questions;
• Prepare for the prehearing conference;
• Prepare witness and exhibit lists;
• Prepare a prehearing conference statement; and,
• How to change the date and time of the hearing, or prehearing conference.

The information sent with the Scheduling Order also explains the deadlines for filing the prehearing conference statement, witness and exhibit lists, and for exchanging copies of exhibits with other parties.

To make sure a witness will be at the hearing, parents may need to get a subpoena from OAH.  A subpoena is a legal document that requires someone to provide testimony at the hearing.

There are two reasons to get a subpoena: (1) if the witness may not want to provide testimony and (2) if your witness needs to show an employer a subpoena as a condition for missing work.  Parents may want to discuss subpoenas with the ALJ during the prehearing conference. 

How to get a subpoena is described in the Subpoenas section of this website.  You can access the Subpoena information on the website by copying and pasting into your browser the following URL, or by clicking on the link: https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Self-Help/Subpoenas

OAH has two separate subpoena forms: (1) to require just the witness to appear at the hearing, which is called “Subpoena for Witness Testimony”; and (2) to require documents to be provided as evidence, which is called “Subpoena for Production of Documents and/or Thing.”  The Subpoena for Production of Documents and/or Thing is also called a “Subpoena Duces Tecum.”  The subpoena Duces Tecum can also compel a witness to appear if that person is considered the “custodian of records” for those documents.  Each Subpoena form has additional information regarding completion of the subpoena and service of the subpoena. To access the forms use the above link.

Each party is required to submit a Prehearing Conference Statement to OAH at least three business days before the prehearing conference, along with their Witness List and Exhibits List.  Prehearing Conference Statements must be filed with OAH on time even if there are pending pretrial motions, such as a request to continue the hearing.  The only exception to filing the Prehearing Conference Statement at least three business days before the prehearing conference is if there is an order from OAH continuing the prehearing conference and the hearing.

The “Prehearing Conference Statement” shall include:

1. each party's estimate of the time necessary to complete the due process hearing;
2. A concise statement of the issue or issues raised in the due process hearing request that remain to be decided at the due process shearing and the proposed resolution of such issues;
3. the name of each witness the party may call at the due process hearing and, for each witness, (1) a brief summary of that witness's expected testimony; and (2) a description of the issue to which their testimony is related;
4. the name and address of each expert witness the party intends to call at the due process hearing and, for each expert witness, (1) a brief summary of that expert's expected opinion, and (2) a description of the issue to which their testimony relates
5. a list of the documentary evidence that the party intents to present, and a description of any physical or demonstrative evidence;
6. a list of subpoenas for witnesses for testimony or documents that have been issued or served; and,
7. whether an interpreter or special accommodation at the due process hearing will be needed. 

All parties must file their Prehearing Conference Statements, witness lists and exhibit lists with OAH.  Do not send copies of your evidence to OAH.  You will bring those documents to the hearing.  These required prehearing conference documents must be filed on or before the date identified in the Scheduling Order, a date which is at least three business days before the prehearing conference.  Parents must also send copies of this information to all other parties with a proof of service.  The district and any other parties will also send their statement, exhibits, and list of witnesses to parents.  Parents should read these documents, so that they can talk about them with the judge during the prehearing conference.

As previously stated, the Prehearing Conference Statement, along with the Exhibit List and the Witness List, must be filed on or before the date identified in the Scheduling Order, a date which is at last three business days before the prehearing conference.  Parents must also send copies of this information to all other parties with a proof of service.

The district and any other parties will also send their Prehearing Conference Statement, Exhibit List, and Witness List to parents.  Parents should read these documents, so that they can talk about them with the judge during the prehearing conference.

Do not send copies of your evidence to OAH.  You will upload the evidence documents to Case Center, which is a software application, during a specific period of time after the Prehearing Conference.  The ALJ will explain this process at the Prehearing Conference.

Additional information about uploading documents into Case Center may be found in this handbook in the “Preparing for Hearing” section and on OAH’s website.  To access the “Preparing for Hearing” section copy and paste the following URL into your browser, or click on the link: https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Self-Help/Electronic-Submission-of-Witness-Lists-and-Evidence-Through-CaseCenter.

The Prehearing Conference Statement, along with the Exhibit List and the Witness List, must be filed on or before the date identified in the Scheduling Order, a date which is at last three business days before the prehearing conference.

The judge will prepare a written order after the prehearing conference.  The order will be sent to all parties.  The order will discuss the things discussed during the prehearing conference and any directions that must be followed.  The Order Following Prehearing Conference will repeat the specific directions about how parties must prepare the evidence they wish to submit at the hearing.

All parties must comply with the order.  There may be sanctions or penalties for failing to follow the prehearing conference order, including the possibility that evidence will not be allowed to be submitted or witnesses not being allowed to testify.  For example, if a party does not provide copies of their exhibits to the other parties at least five business days prior to the due process hearing, the judge might not allow those documents into evidence during the due process hearing.

When the Order Following Prehearing Conference is issued, parties that are registered in the Secure e-File Transfer (SFT) system  will get an email from OAH telling them that they have a new document in their file.