October 8, 2008

Decisions, Decisions, Decisions…

A “decision” happens for each of us thousands of times a day. What outfit to wear… Should I start my diet now…Do I squeeze the pimple on my nose…Is Sam going to fail English… Where will I live now…Without a car, what will I do? These are inner decisions that spiral outward. We decide and there are ramifications. My marriage is in trouble. What should I do? I’ll confront the IEP Team today. Will they retaliate against me? We initiate the internal weighing of facts, and then continue to make decisions based upon what comes out of the last decision. Our brain processes information in countless ways we are unaware of, so that it is often unclear how much emotion, genetics, culture, and habit influence the facts we select to use. But once we “put it out there” there is often no way to predict what will happen. Like anything else, the more decision-making practice we have, the better we become at reaching a solution and passing judgment. It is called adulthood.

Then there are legal decisions. If we win our case, we think the judge was terrific. If we lose, we think the judge was a shmuck who never gave us a fair hearing. The truth is that sometimes we deserve to lose because we put on a bad case, or the judge really was a shmuck, or the forum for due process hearings is actually corrupt. These decisions spiral two ways, both outward and inward. For the individual family who is a party to such a hearing, it permanently marks them and often alters their relationship with their children, either for the better or for the worse. They pin their hopes and dreams on the promises of their attorneys, the opinions of their experts, and the impartiality of the judge. No family remains unchanged as a result of experiencing a due process hearing. The outward spiral of judicial decisions creates case law for the next case with a similar issue. The administrative hearing decision can be appealed to a court of competent jurisdiction by the losing party. How do you decide to appeal it? Can you afford to appeal it? What attorney can you find to do the appeal? Decisions, decision, decisions…

Over the last two years, I’ve written several blogs about my last trial. Here are those links (9/12/07, 1/16/08, and 7/12/08) And here is the final decision. In addition, the Z.R. judge also dismissed the second two petitions. All decisions in the Z.R. case are now on appeal, so that I will not comment further. However, from an instructional perspective, I suggest a comparison of the proposed facts by petitioner and the respondent in this case with those relied upon by the judge. Then make your own conclusion:

SCHMUCK ___
WE PUT ON A BAD CASE___
CORRUPT HEARING SYSTEM___
NONE OF THE ABOVE___
ALL OF THE ABOVE___

Finally, what happens to the parent’s decision-making process when they cannot find a lawyer to take their case? What is the lawyer’s decision-making process? My recent experiences lead me to this judgment. They say, “I can’t litigate too vigorously, or go after the judge who is biased against my case, or sue the state agency, because I have to work here. They will make my life hell.” They acknowledge the corruption of the system, how few parents win their cases, that settlements are coerced. But they feel powerless to stop it because they need the work and don’t want the judges to be angry with them. What happens to the parent is that they are finished with due process. The decision-making process stops when there are no more choices left. In today’s special education market there is no bailout without an attorney. There is no attorney if the case is too complex or deals with government corruption. There is not enough money to pay an attorney to review a file, let alone take an appeal and litigate it zealously. In the end, we arrive back at the fact that each of us must find our own solutions, make our own decisions, and carve out what sanity we can.

I’ve made some good decisions and some bad ones. Taking this last case was a good decision. Seeing it through to the end was a good decision. Giving the entire file to the attorney for the appeal was the consummate decision. Now, I’m really finished. In looking back at this case over its three-year history, I see that there is one more aspect to decision-making we cannot predict. Destiny. In Z.R., as with so many of the other big cases over the years, there is the uncanny convergence of circumstance. There is a Divine Hand that moves us around despite every decision we make. Free Will versus Destiny? No. It is Free Will and Destiny. It has been a glorious life so far, and now there is a new chapter ahead. My decisions flow inward and outward, with the grace of time, toward new families and children and the expectation of a new career at 70.