Preparing for Hearing

Information about subpoenas, interpreters, exhibits and more.

Administrative Law Judges, or ALJs, are accustomed to working with parents who represent themselves.  This section and the next section are offered to help parents who represent themselves and their child.  Preparation and organization are critical.  Do not leave it to the last minute as proper preparation for hearing takes a considerable amount of time.  Preparation begins with the prehearing conference and ends with closing arguments at the end of the hearing.  It is best to prepare your exhibits prior to the prehearing conference as preparing them properly takes several hours.

Steps to Prepare for Your Hearing

  1. Read the Prehearing Conference Order.  Be sure all the instructions in the order are followed.  This order tells you exactly how evidence must be prepared in order to submit it for consideration at hearing.  Failing to follow these instructions may result in your evidence being excluded.

     

    Contact witnesses, including any experts. It is best to do this by writing them an email or a letter.  Let all witnesses know what day and time they should be present at the hearing.  Let them know where the hearing will take place.  Exchange witness lists with the district, and any other parties, at least five business days before the hearing.

  2. Due process hearings are conducted in English.  If parents or any of the witnesses do not speak English well or at all, or are Deaf or hard of hearing, an interpreter will be provided at the hearing free of charge.  Parents may request an interpreter in the due process request or at the prehearingconference.  If the district filed the complaint against the parents, parents should call or write to the OAH Special Education Division to request an interpreter as soon as possible after parents receive the district's complaint.

  3. It is best to contact witnesses as soon as you know you will need them to testify by writing them an email or a letter so they have something in writing with all of the hearing details.  Let all witnesses know what day and time they should be present at the hearing.  Let them know where the hearing will take place.  

     

    a)  Subpoenas Requiring Witnesses or Evidence at Hearing

    Consider whether you need to have a subpoena issued to require witnesses to appear at the hearing or produce documents.  A subpoena is an order requiring people to provide documents or testimony.  Attorneys are allowed by law to issue subpoenas to compel people to appear at a hearing or produce documents.

     

    Parents not represented by an attorney can obtain subpoenas from OAH before the due process hearing by requesting them in writing or by telephone from the OAH case manager assigned to the case.  Tell the case manager whether the subpoenas are for a person to testify or for documents, or for both.

     

    The OAH case manager will prepare the subpoena forms to be sent to parents.  Parents must then fill in the subpoena details such as the name of the person being required to come to court or a description of the documents being requested before submitting it to OAH to obtain an ALJ’s signature.  The subpoena must be signed by an OAH ALJ or by an attorney representing parents prior to being sent to the witness or person who has documents needed.

     

    b) Subpoenas for Documents
    The subpoena must also say why the documents are necessary for the case.  The person producing the documents should produce them at the hearing on the first day of the hearing.  Subpoenas for documents must comply with strict timelines to obtain the documents and some subpoenas seeking personal documents are required to be sent a longer time in advance of the hearing.

     

    Subpoenas for documents may be served by mail.  If serving by mail add five days to the service time.  Service by fax or email is only allowed if you get written permission agreeing to fax or email service from the person being served prior to the subpoena being sent.

     

    c) Subpoenas for Witnesses

     

    Subpoenas for people to testify must name the person and the time, date and place of the due process hearing.  If the hearing is continued and the witness is subpoenaed for the incorrect hearing date, parents must get a new subpoena with the correct hearing date, or reach an agreement with the witness to appear on the new date. If you have such an agreement, be sure it is in writing.

     

    Subpoenas to have a person testify do not need to be served any particular number of days before the day the person is scheduled to testify.  However, it is best to give as much notice as possible to the witness you subpoena. Subpoenas must be properly served.  In general, personal service is required for a subpoena that requires someone to testify. Personal service means handing the subpoena to the person.  This is important because unless the person had actual notice of the hearing, and the person issuing the subpoena can prove they had notice, it is difficult to make the person attend.  The person serving the subpoena should complete a Proof of Service so the party issuing the subpoena has proof it was delivered.  Generally, the subpoena should be served (handed to the person you want to testify) by someone other than the party requiring the witness's attendance.

     

    The law requires payment of witness fees and mileage to witnesses who are compelled to attend a due process hearing by subpoena.  Parents are responsible for paying the witness fees and mileage of any witnesses the parent subpoenas to the hearing, unless the witness waives them.  If it becomes necessary to obtain a subpoena after the hearing has begun, the judge who is conducting the due process hearing can sign the parents' subpoena form.

     

    A subpoena can be enforced by seeking a contempt order from the Superior Court in the county where the hearing is held.  Because obeying a subpoena is required by state law, they cannot be enforced by OAH in the administrative process.

     

  4. You will have prepared a witness list for the Prehearing Conference.  You may use this for the hearing if it is complete.  You are entitled to add names to the list up to the time you exchange evidence as required by California Law.  Your witness list and exhibits must be exchanged five business days prior to the hearing.  Witness lists must list each witness you are calling, who they are, and a short statement of what topic they will testify about.  If you do not include a name on the witness list, you may not be able to call the person to testify so it is best to include a name even if you are not certain you want them to testify.  Not every person listed is required to testify.  You can change your mind as the hearing proceeds.

  5. Exhibits are the documents you intend to use at the due process hearing.  Exhibits typically consist of IEPs, assessment reports, school records, and other documents.  At least five business days before the hearing, each party must give all other parties a copy of the documents they intend to use as exhibits.  

     

    For instructions on submitting exhibits and witness lists electronically please see Electronic Submission of Witness Lists and Evidence Through Case Center which may be found at https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Self-Help/Electronic-Submission-of-Witness-Lists-and-Evidence-Through-Case-Center.

     

    Important Tips for Preparing Your Exhibits

    • Read the Amended Order Setting Procedures for Filing Exhibits Electronically and the Order Following Prehearing Conference.  Carefully follow the directions on how to put together your exhibits.  Approximately one week prior the the hearing, the parties will receive an invitation from OAH to upload their documents into Case Center.  Each party will have the ability to view their own exhibits as well as any exhibits submitted by other parties in the case. 
    • Make sure that all of the exhibits are complete and have the correct naming and numbering. For example, if the student is uploading their exhibits to Case Center the student would select the Students Exhibits section and ensure that the uploaded exhibits are named and numbered in the following format, S1 12 01 2019 Psychoeducational Assessment. 
    • Make sure all copies are readable. The ALJ may not accept an exhibit with a page that is not readable.
    • Be sure to deliver your exhibits and witness list to the other side on or before the deadline, which is five business days (weekends and holidays add extra days to the number) prior to the first day of hearing.  For Example: if your hearing begins the Tuesday following a Monday holiday, you would have to deliver the exhibits and witness list to the other side more than a week before the first day of hearing.  Postmarks do not count. The exhibits and witness lists must be received by the deadline.  This can be achieved by uploading your documents to Case Center.  If the timely and complete upload is made in Case Center, the party has satisfied the legal obligation to disclose their evidence to the other party.
    • If parents want to use an audio recording of an IEP team meeting, parents will need to provide a copy of the recording and a written transcript of the relevant portions with parents' exhibits. Pay attention to the prehearing conference order that states you must identify both the exact date and minutes on the tape that are relevant and the person speaking during the hearing to be allowed to introduce an IEP recording. If using an audio recording it will need to be uploaded to Case Center in the same manner as document file.  Please keep in mind that larger files may take longer to upload to Case Center so you will want to allow yourself plenty of time when uploading documents or audio files to Case Center. 

  6. Consider Possible Objections to the Document 

    Review the exhibits from all the other parties to make sure that documents are complete.  Read the documents contained in the sections of other parties and think about whether you have an objection to the documents they are offering. An objection based on the fact that the document is not in your favor is not a proper objection.  Proper objections include a question about the authenticity of the document or whether it is relevant to the questions being decided in the hearing. Not everything offered by the other side is objectionable.  It is not unusual for the other side to offer documents that are helpful to you or which you also believe the judge should consider in deciding the case.

     

    Consider Questions You Have for Witnesses About the Documents

    Questions for each witness should be prepared and written down before the hearing starts.  The point of asking witnesses questions is to have their answers establish facts that prove your case. 

     

    As you read the documents from the other side, consider what kind of information you want the ALJ to consider about the documents.  Does the document show something about an IEP meeting the judge should know?  Does it show a statement by someone that supports your case?  Those facts are pointed out by asking a witness questions.  You are allowed to ask “leading” questions of witnesses from the other side.  So, it is permissible for you to ask questions like, “Isn’t it true that the IEP notes for the May 24, 2016 IEP meeting state that the Speech Therapist agreed with us that Susie needed speech therapy two times per week?"  Or, “Isn’t is true that the IEP shows that a special education teacher was not present at the meeting?” 

              

    You may think of other questions to ask the other side’s witnesses when they are being questioned by their attorney.  Take careful notes while the other attorney is asking questions so you remember the questions you need to ask when it is your turn.

     

  7. Think carefully about why you are calling each witness and what information you need them to tell the ALJ.  Different witnesses are called because they each have the ability to prove a different piece of your case.  Your questions for the witness should be carefully considered and written down in advance.  Does the witness need to prove a document is authentic?  Does the witness need to testify to something they saw or heard?  Does an expert such as a doctor or tutor need to testify to the extent of your child’s disability or how it impacts their ability to learn? 

     

    Your witness may only testify for a few minutes because they have only one or two key facts to testify to.  Or they may testify all day if they are a key witness such as an expert.  In either instance, prepare carefully as the witness is being used to tell your story.  What do you think you need this witness to tell the ALJ?

     

    Similarly, if you are planning to testify on your own behalf, prepare your testimony carefully.  Write down what you want to say.  You can have notes on the witness stand to remind yourself what you want to say.  Remember, you must say everything at the hearing itself that you want the ALJ to consider.  The complaint you filed is not evidence and will not be considered when the ALJ is making a decision about the case.