and the issue here basically comes down to the rejection of a settlement offer by a district and whether that result that it was obtained by the parent was more favorable than that offered in the september twenty eighth twelfth letter and whether the parent was substantially justified in rejecting that there are other issues regarding rates which were addressed in the j e matter the the parents rates i will touch briefly on but i think the main issues are the substantially justified and the more favorable we have done i think a very thorough job of briefing on this we have a situation where an offer was made the offer itself was not really an offer the offer was in offer to make an offer it did not include include all of the terms it indicated that industry standard terms would be included if the parents accepted the basic terms that were being offered the final terms were not identified parents did not accept that because of the lack of terms and because they asked for we had requested that the district include in any determination any settlement offer the issue that we had brought to hearing which was crucial because the pending case the the j e case and in that crucial issue we had to determine issues regarding child fine and whether the child was eligible for special education services prior to his removal and so we could tell just days before had indicated to the district and prior to receiving the offer we needed to address child line and the issue with that was pending but you see one of the concerns i have about that is that it really and particularly when you look at any relationship to rule sixty eight is that a settlement offer is generally that it settles that case and it's typical in settlement office that that they're not necessarily making admissions or conciliation of certain issues so i understand you felt that they were intertwined but it seems to me that the settlement offer was made in this case and so how what's the authority to say well we're justified under the rules in rejecting that because we want an admission i want  have gail but in mission of coverage liability responsibility do you have any cases that we would look at that would say that's how you evaluate it yes and i do have a side i will get to in a minute but there is a we did file yesterday the case of meridian vista and twenty eight a letter with the court which addresses the need to have a child fine determination made and a child found eligible for the issue of fees to even be before the fees under the statute as well how's the aft relate to us at all and if we had set the settlement offer and if you look at the letter that is e r seventy seven seventy eight that is the offer in the excerpts of record if you look at that that does not make any offer to resolve the issue of child fine but but does it offer attorneys it offers attorneys fees so it's irrelevant whether for purposes of the attorneys fees in th it's irrelevant whether the child's disabled or not it for purposes of finding those yes for those fees but purposes of the pending case so for the other cases on a going forward basis right the child find this is retrospective the the other cases going forward that is why it was expedited yes it's because we have a removal of a student from placement there's a process for an expedited hearing to determine the stay put placement during the pendency pending on appeal the district appealed the decision of the o h administrative law judge it was pending before the courts and if there had been a finding that the student was not eligible prior to the day that he was removed prior to the date that it became necessary to have an expedited hearing that would have potentially defeated any claim that he was entitled to procedural rights as of that time it was it was a very important issue the child fine issue and the timing of the child well i understand that it is important you may have a bifurcated hearing here but when you're looking at the rules with respect to settlement they're talking about relief and this is like a predicate to relief but when you settle you get to the end you get to the relief you don't get to the elementary rulings that really relieved up to the relief so maybe i'm missing some so i'm still having some trouble understanding given the two different cases why you need to get a finding in this though there could be no settlement absent in your view there could be no legitimate settlement absent such an admission or statement correct addressing the issues in that would be our position in in every case if we raise issues that address the heart of the child's eligibility and the timing of his eligibility then if they give you a settlement says look you're going to get fees and we offer you relief settlement structure here in fact this is where the house of representatives one united congress and this is in the reply brief it page two says that when you have a pending court decision which could have an impact on the case in question th it is appropriate to decide to make determinations regarding settlements and whatever terms are involved in that and it's our contention it's our firm belief that had we were you saying that the expedited case was going to have an effect on the onyx but i can't i mean is that without language says you have a pending case that's going to have an effect on your case you know the but you're saying it wouldn't then that does seem to be the case if they seem to be separate where we're looking at it in terms of a pending case which would be impacted by the ruling the decision on the child fine the pending case being the appeal the district filed that they're not co dependent upon each other incorrect they are codependent ph the the red brief reference is a case in northern california about a ruling is not relief is that in correct a prevailing party until you get some relief are you could not change the legal relationship between the parties until you get some relief have you that's right and on september twenty eighth two thousand and twelve you didn't have any relief pitcher on on september twenty eighth we did not get three now i want to get back to where we started judge fitzgerald says this is in his findings boat champ acknowledges that she and her coun had received quote several industry standard general compromise and release agreements from the district and quote were aware of the terms contained therein and previously rejected those terms therefore those additional terms which do not appear material of the settlement offer were already known to both champ is that clearly erroneous it's not clearly erroneous the problem is that it is a there is no as we contend there is no industry standard and what we have received from time to time is a set of terms we get a different set of terms it's not always the same there is no industry standard in terms of those we have received some additional terms a confidential mediation those terms some of those we see some of those we don't so it i don't mean to give you a yes and no but it is it's sort of a yes and no because there is no industry standard set of terms what we had seen were what they considered we believe to be industry standard terms we did not understand what those were when judge for charles writes that you were aware of the terms is that clearly  practice is changed typically a settlement offer outlines the broad contours you accept that subject to writing it up you're always you know that settlement offers don't necessarily contain all the language of the releases the waivers the cross ind ication zone all a hundred things that attorneys put all to mutley in the final settlement agreement so it seems that you're demanding that the settlement offer in effect be the final form of the settlement agreement what we would want what we wanted was not only that it addresses an issue that we thought was irate leaving the bank usually not aside because those are kind of separate substantive questions but with respect to the terms and conditions without understanding what the other terms are and some of the industry standard i have seen that are not industry standard again this in a very broad sense from district to district are completely different some of them say you will waive rights into the future some of them say you agreed to waive every claim you could ever have against the school district to th date of any kind in any nature i'm familiar with those i see those coming in they are not industry standard they are not the same from contract to contract and they are not the same from district to district i do anticipate having having done a lot of contracts that when i get the terms the important terms will be there and if it's a waiver of right for the student into the future i will see that if it's a settlement of all issues i will see that those things were not in this offer it was an offer that we will come back and we will add some other things to things that i was not sure would be i had no exact clue i again i had seen some offers i had seen some other districts i had seen some from this district in action did i know what they were going to offer you know i didn't know what they were going to ask for no i did not and without seeing the specific it's an offer to come back and make another offer would i think would be malpractise for me to suggest that my client agreed to something without knowing specific miswired mother i'm surprise you obviously have a great deal of experience in this area that you wouldn't have put on the record at the time of the september offer what you were concerned about i had one i'm sorry i had your honor i had previously communicated that in a letter to the district and indicated step by step what we needed to do including the need to address the child my dishes were set in the record it is i will find that when i return but but we've had provided a letter to the district to give them that very clearly so the i'm going back to the statute because we've been talking in more generalities at this point  if the relief that you obtained is not more favorable the statute does provide that you can still get fees were substantially justified in rejecting the settlement offer and so we haven't really been housing in those terms but it seems to me that's really your main argument is that you were substantially justified that is correct we also although it's interesting to look at the more favorable than language we believe that anything that might possibly include language which we don't have before is because it wasn't in the september twenty eighth twelve offer of a waiver of rights would not be more favorable than the decision we ultimately obtained which did not waive additional rights but we don't have anything in writing from the compare to what we ultimately obtained so we do believe that what we obtained was more favorable and we believe we were substantially justified i know we've taken you over your time so if you think it is district i just have another question so if the district needs more time come back come back i'm not done that was my question is one i we didn't touch on here and i know it's been well briefed but i really did have a question about the paralegal because it says basically that dr susan burnett is a qualified paralegal under the business and professions code and then when you go to the business and professions konya look about what's required there and it says you have you know holding yourself out as a paralegal and then it has various criteria for education and all where in the transcript or the record do we see that dr barnett actually meets the criteria of the business impression code because i didn't see anything from her i provided that i was the individual certifying under the business and professions code indicating that she had met the requirements i understand but now what requirement it did she says in her letter head she's a special education consultant she talks about her special education criteria she says she's an advocate and of course we know under the business professions code she can't be a legal advocate because that would extend beyond the power of a paralegal  looking at how she holds herself out and i'm asking you on what basis did you make the representation that she was qualified under business and professions code what i had will i mean i'm asking you what's the basis for saying that it says it i'm reading here declaration it says that what he's qualified and i'm saying what in a what's the evidence in the record other than a declaration by you that she's qualified that she is in fact qualified that she's holding herself out as a paralegal and that she has the certain education and training background where is that in the record it is through my declaration alo know basically your declaration that she meets the criteria is all that we're supposed to accept yes it's my understanding that reading the business professions code it does not require me to put on a trial regarding the what you know what you have an attorney let's say you're getting attorney's fees generally you know they say i'm licensed to practice this is my rate that sort of thing but i don't see anything in the record and where in affidavit that really ties her to the criteria and given that and then given the judge's ruling i'm having trouble seeing how it was an error because we had i had certified her under business refreshing gotta believe sixty four fifty stating that in fact she did meet the qualifications i'm not aware of any requirement that i put on put on more proof than that she had i explained to the court what she had had done how she sat at my side how yes she wore the advocate happened during the period of the due process hearing she was hired by me as a qualified assistant who would work with me for a number of years who had the requisite letter and provide that to you and i thank you thank you hear from the district settlement agreement in hand that's not what the statute says i think i think her argument which has some traction is that when you say these this industry standard if there isn't an industry standard she doesn't know what she's would be signing up for well with respect to downstream waivers or future services or future determinations your response to that problem with that argument is that she never came back and asked for clarification if you never asked what one of those germs there was no request to see a draft agreement it was basically just you know or ignored and this was not just ten days before the next fed hearing there was continued so there was plenty of time there was a couple months and then the the judge judge fitzgerald and his  comments and argument talked about this possible tendency to perhaps game the system when someone sees sees that they have a strong case going forward they get a settlement offer and and there may be a tendency to just push that to the hearing and run up as my attorney's fees as possible and then put in a fee claim afterwards which is what we think going on here the the two cases were entirely separate there was no need for a ruling in this case in the second case to affect the outcome of the first case and judge fitzgerald also addressed that in his decision saying that he was aware of the the second case when it came out he ruled in the first decision but he would have ruled the same way regardless in the first case and of course a statement that a ruling is not really the statute calls for some kind of relief to be obtained and in a comparison of the relief that was offered versus the relief that was obtained the relief that was offered was clearly great and greater than what was  hours of tutoring twenty hours of compensatory education reimbursement for a psychologist evaluation and reasonable attorney's fees were all in the offer and the result from the ala stay was just six hours of counseling and the evaluation r two there's really no question there about the value of the offer versus the value of what was what came out the hearing room substantial justification  there has to be a good faith reasonable belief that the eventual recovery would be higher than the offer and i think the problem they are is that the parent messes beecham admitted at the hearing that she was satisfied with the offer he was aware of it january or february of two thousand and thirteen that the evidence was taken before the ailed say am i correct that's been so during that three or four month period was there any discussion between counsel or anybody else about quote standard industry release terms provisions was there any discussion about that oh no i'm not aware that came up and i think that terminology that they've kind of fixated on is really surplusage to the offer offer is the substantive items that were offered the compensatory education reimbursement evaluation and and the attorney's fees and then just to refer that there would be a settlement agreement which would case i've seen is there's a in the briefs there's a district of columbia court of appeals decision that says the case was being tried while the murphy case was before the supreme court the question was whether or not reimbursement of an expert was permissible under the statute the court of appeals held that was the plaintiff was substantially justified in that case are you familiar with that case there's i think you're talking about and then another another point that i'd like to bring up that wasn't referred to as the the section fourteen fifteen i three which is the unreasonable protraction argument we raise that at the court of law at the district  here the parent insisted on a lengthy hearing with putting on all the live witnesses after it had been discussed and preliminarily agreed to that they would use the transcripts of the expedited hearing and just a few live witnesses and we feel that that was perhaps done in an effort to punish the district for not accepting all the demands that were being made from the students that i'd like to also address that issue of the paralegal fees i think the judge is correct on the facts in that case there's the the arlington case from the supreme court someone could be a consultant someone could be a paralegal but in this case the fa indicated the person was acting as a consultant what's called a lay advocate in that special education field the cases that you see coming to the district court the court of appeal are just the tip of the iceberg of th special cases there are hundreds or thousands more that are handled by play advocates and district administrators and hearings and mediations than ever going for yourselves and to to have a rule that those at it's a good start to come forward and put in claims for years for that type of thing on the basis that they had done some work that might be paralegal work like putting together an exhibit book or something that would be a big change i think that not thank you thank you we extended your time with a lot of questions so i'd like to give you a minute additional surely has your response if you will turn against exhibit e r three chair and it's a reference to my nine twenty six thirteen letter just a few days before addressing some concerns and that was the letter to which i had referenced and that is in the documents the next hearing in the e r in three twenty four to three twenty five is a section that we had added to the e r that references or is addresses when the parent was questioned it hearing and i believe the the statement by opposing counsel is a little off the parent agreed as we said very clearly with the offer of remedies it was the other things that were of concern the lack of the standard terms what else was going to be offered and the issue of child fine which was out there which we felt would have a huge impact and that was and that's very clear the l j was not concerned the l g said i can't accept this so the ale just said there's no there's no settlement and that's what happened in that is in the record and yes we would have accepted those remedies other things being equal and things being addressed that we had requested strategic keeps being battered around we have to make calls that are appropriate for the client and without the determination of child fine with a pending expedited issue that could be negatively impacted by a lack of finding of prior child find  we made that decision and it was not to to gameplay it was just and it was very clear to posing counsel we needed to determine the issue we had brought to hearing without that determination what was the good of raising the issue and seeking a finding from the a l j the statement about the link they've hearing it was a five and a half day hearing we had originally anticipated two days when we had our pre hearing conference with the administrative law judge she very clearly indicated that this was not the expedited hearing that she would not treat it in the same way that she thought it was a different issue and we agreed at that time to admit the administrative record from the expedited hearing unfortunately on the first day of hearing when i called our expert dr post sorrow opposing counsel objected and said i had no right to share the prior testimony with dr presario and that and cost a lot of time we did motions even though there had been an agreement that those documents would be admitted so there was a lot of time expended but cross examination was conducted again five and a half days instead of two days based upon the administrative law judge a statement that this was not going to be the same case as the expedited hearing it was a different case with a different standard thank you thank you thank both counsel for your arguments this morning the case just argued devotion versus anaheim union school district is submitted and were adjourned for the morning