Mild cross examination skills….Toolbox Tuesday!

We highlight The Toolbox on Tuesdays around here—our firm’s all day training program about the discipline of students with disabilities.  Today I want to tell you about a case that was not about discipline, but has implications for all manner of experts who make recommendations to schools. This would include those who advise what should or should not go into a student’s BIP, for example. 

The case was recently decided by the 5th Circuit in favor of the school district.  Yesterday we told you how the case illustrates the “unwritten rule” in special education litigation.  Today, we focus on how to assess conflicting recommendations from experts. 

The issue was dyslexia. The ARD Committee got conflicting recommendations from experts about how to serve a student with dyslexia. As you know, there are many divergent expert opinions about that.  How is the ARD Committee to decide? 

This case first went to a special education hearing officer who put more stock in the testimony of the school district’s Assessment Facilitator than the testimony of Dr. Morrison, the independent expert retained by the parent. The federal district court did the same, and now the Circuit Court has concluded that “the district court did not err in discrediting Dr. Morrison’s testimony.” 

Why would the court “discredit” testimony from a person with training, experience and credentials as an expert?  Here’s why:

Dr. Morrison testified that she had no training in dyslexia instruction or intervention, never reviewed [the student’s] initial dyslexia diagnosis records, and never reviewed the instructional strategies used in Northwest’s dyslexia program.  She also testified that she had never taught or directly studied the LiPS program. [That was one of the programs she recommended.]

Considering Dr. Morrison’s lack of experience in the dyslexia field, failure to review [the student’s] initial dyslexia diagnosis records, and inability to articulate deficiencies in Northwest’s dyslexia program, coupled with Ms. Beagle’s testimony regarding Northwest’s compliance with Texas standards for dyslexia instruction, the district court did not err in discrediting Dr. Morrison’s testimony. 

(Please note that “Ms. Beagle” was the district’s Assessment Facilitator and is in no way related to the Law Dawg.) 

Now, how did the hearing officer come to that conclusion about the comparative value of input from experts?  Someone did a good job of cross-examination.  You can do that at an ARD Committee meeting.  In fact, you can do that in advance of an ARD Committee meeting.  This type of cross-examination is not ugly, belligerent, or designed to trick someone into lying.  It’s just a matter of examining the foundation for the expert’s opinion. 

The case is P.P. v. Northwest ISD, decided by the 5th Circuit on December 14, 2020.  I’m pleased to let you know that Meredith Walker from the Irving office of the Walsh Gallegos firm handled this appeal on behalf of the district. 


Tomorrow: Preview of coming attractions!!