Navigating a Virtual Due Process Hearing During the PandemicApril 20, 2020 – Alerts
Preparing District Witnesses for the Virtual Hearing
Logistics of the Virtual Hearing
Regarding testimony, during virtual hearings this hearing officer is not placing time limitations on witness testimony. In addition, before each witness testified the hearing officer asked the witness to confirm no other individuals were present in the room while the witness was testifying, that the witness was not utilizing any notes or documents and that the witness did not have access to another device.
The hearing officer recommended that counsel use headphones during the hearing because the speakers on computers can cause an echo. However, headphones are not required to be worn during the hearing. I had headphones ready to use, but tried participating without the headphones. Several minutes into the hearing we all heard an echo and the hearing officer determined the echo was coming from my computer. After I turned on my headphones we did not have any further issues with an echo. I recommend that counsel have headphones ready to use during the hearing.
Communication with the LEA Representative
Normally during the hearing the LEA representative sits next to district counsel and is able to communicate with counsel regarding issues that arise during the hearing. During the virtual hearing the hearing officer allowed the LEA representative to communicate with district counsel either by email or by text, except when the LEA representative was testifying.
In addition, before counsel finished examining a witness the hearing officer, at the request of counsel, paused the hearing so counsel could speak with her client about any additional questions for the witness. To confer with our clients we turned off our camera and muted the audio. Even though the cameras were turned off and the audio was muted, I recommend counsel and the client go into another room to talk in the event the camera and audio are not properly closed. This will prohibit opposing counsel, the witness and the hearing officer from inadvertently hearing the conversation between counsel and his or her client.
During the hearing we did encounter some technical issues. During parent’s counsel’s opening statement, the stenographer’s internet connection froze and although we could see the stenographer, we did not realize that the stenographer could not see or hear us until GoToMeeting notified the hearing officer that the stenographer was no longer in the meeting. The stenographer had issues reconnecting to GoToMeeting, so the hearing officer had counsel and the parties disconnect from GoToMeeting and then call back into the meeting using either a mobile phone or landline. We then logged back into GoToMeeting and utilized the camera, but the audio connection was through our phones. Parent’s counsel had to start her opening statement from the beginning because the stenographer missed the majority of the opening statement when she lost her internet connection.
Just before one of parent’s witnesses was about to testify the witness lost the internet connection at his home. The witness was able to use his mobile phone to call into the meeting, but without an internet connection he was unable to log into GoToMeeting and view any exhibits projected by the hearing officer. Because this particular witness’s testimony involved a limited issue and the witness needed to testify only about his resume and a letter he had written, the hearing officer allowed the witness to testify. The hearing officer stated that the witness could later submit an affidavit in support of the exhibits he testified about if counsel requested the submission of an affidavit.
Each hearing officer has his or her own procedures for a hearing and a different hearing officer may use a different virtual platform and procedures for the hearing he or she is overseeing. As schools remain closed indefinitely, school districts and their counsel should prepare for the issues and challenges of preparing for and conducting a virtual due process hearing.
In summary, I recommend the following for preparing for and participating in the virtual hearing:
- Preparation of district witnesses should occur virtually through a secure platform.
- In advance of preparing a district witness, the exhibits should be shared electronically with the witness.
- Upon receipt of the link to the virtual hearing, district witnesses should try to access the link to determine any connectivity issues prior to the first day of the hearing.
- Counsel and witnesses should utilize headphones, if possible, while participating or testifying at the hearing.
- Allow the hearing officer to project exhibits while witnesses are testifying.
- District counsel and the LEA representative should determine how they will communicate with one another during the hearing and exchange mobile telephone numbers.
- When district counsel and the LEA representative confer during a break in the hearing, they should leave the room where they had been participating in the hearing in the event the camera and audio were not properly closed.
For more information about this alert please contact Michele Mintz at 610.397.2237 or [email protected]