Mock Trial

Project – Mock Trial

ALEX ANDERSON

v.

COOPER MIDDLE SCHOOL

Written by Christopher Carlsen

INTRODUCTION

We live in a complex world filled with challenging and often perplexing issues that we are expected to make sense of. Many social issues are analyzed and evaluated through our judicial system. This project is designed to give you the opportunity to think seriously and express your ideas about a complex social issue.

FACT SITUATION

The plaintiff's 13-year old child, Alex Anderson, completed his sixth grade year at Cooper Middle School with failing grades in most of his classes and will now have to repeat the grade. Alex has dyslexia, a learning disability that impairs a person's ability to read, and the school is required to make special accommodations for him. His mother, Alyssa Anderson, claims that his teachers failed to make the requirements for the accommodations.

Alex's teachers state that they did make the accommodations and the Cooper Middle School claim's that Alex neglected to take advantage of them and that therefore it is the students own fault for failing to pass his sixth grade curriculum.

Alex has always had trouble reading and performing well in school and has been diagnosed with dyslexia. Alex's mother did not enroll him in special education courses at the beginning of the year as the school recommended. Instead, he was put on a specialized 504 plan providing him with the proper accommodations to help him keep up to speed with the rest of the class.

A 504 Plan is a program developed to ensure that a child with a disability attending an elementary or secondary school receives accommodations that will provide access to the learning environment. The document assures compliance of Section 504 of the Rehabilitation Act and is developed by a team of individuals that may consist of the student with a disability, the student's parents or guardians, the student's teachers, the student's counselor, and the 504 coordinator. 504 Plans are beneficial to both students and teachers. They help ensure that students with disabilities receive appropriate accommodations. They provide educators with information about the specific needs of their students with disabilities and practical strategies that they can incorporate into their lesson planning. If a school signs off on a 504 plan They are legally responsible to implement the designated accommodation on the plan.

On behalf of their minor child, Alex's parents have brought this action against Cooper Middle School for negligence due to the teachers' lack of making the necessary accommodations for their dyslexic student.

A. GATHERING AND WEIGHING THE EVIDENCE

The evidence at judicial trials is presented through the testimony of witnesses called by the prosecution and the defense. To be effective critical thinkers, we should not simply accept information as it is presented. We need to try to determine the accuracy of the information and evaluate the credibility of the people providing the information. The testimonies from the prosecution and the defense witnesses are described below. Evaluate the testimony by answering the questions that follow each witness.

Plaintiff Witnesses:

Alex Anderson, a Middle School student with dyslexia

Alyssa Anderson, Alex's mother

Taylor Tadashi, a friend and classmate of Alex

Defense Witnesses:

Kyle Kalkstein, English teacher at Cooper Middle School

Sam Stricker, History teacher at Cooper Middle School

Robin Rogers, Alex's counselor at school

WITNESS STATEMENT

PLAINTIFF WITNESS : ALEX ANDERSON

My name is Alex Anderson, I am thirteen years old and I go to Cooper Middle School. I recently failed sixth grade and now have to take it all over again but since I have dyslexia it's not really all my fault.

I have had trouble doing the reading and writing assignments in my classes for a few years now and compared to the other students I don't really do as good as they do on the work. I do enjoy school but it is just really hard at times and it can be difficult for me to keep up with every thing the teachers say.

The two hardest classes I had this year were my History and English classes since they involved the most reading and writing which is really hard for me. I ended up failing both of them but like I said, it's not my fault cause I have dyslexia. The teachers are supposed to always make special changes in their lesson plans just for me but they don't always do it so it is not fair that I have to fail sixth grade and all my friends get to pass.

My History teacher, Ms. Stricker, is really nice but her class is pretty hard. There are a lot of notes that we have to copy down from her PowerPoint slides but since I'm special I get a printed out copy of the lessons and the letters are extra big so that it is easier for me to read. Since there are a lot of notes to take, I share my copy of the notes with my friend, Taylor Tadashi, so he doesn't have to write notes either. He is in all the same classes as I am except for math. Ms. Stricker gives lots of tests and quizzes which I can never remember the answers to. She gives quizzes every Friday at the beginning of class, ten questions in ten minutes and I never have enough time to finish them.

But when we have a test, she sends me to my counselor's office to take them where I get extra time to work on it which is nice I guess. During class, she always calls on me to answer questions even when I don't raise my hand. I don't like that because sometimes she calls on me and when wasn't exactly paying attention and I don't know the answer to her question. I mean if I don't raise my hand then I don't know the answer so she shouldn't call on me. Anyway, Taylor and I both like to sit in the back row. Ms. Stricker doesn't have an assigned seating chart of where we are all supposed to sit, like most teachers do, so we get to sit pretty much where ever we want. I like to sit next to my friend because then we can have more fun in class.

My English class however, is less fun. Mr. Kalkstein has a stupid seating chart and he make sure that all of the students sit in their assigned seats. He makes me sit right next to his desk while Taylor is all the way on the other side of the room which isn't fair since most of the other kids get to sit near their friends. He always tells me to pay attention when I'm not, it's like he is inside my head and can just tell when I'm not listening, it's really scarey. He always says to me things like, “pay close attention to this,” and “try to stay on task.”

There is a decent amount of notes to take in his class but I don't have to worry about writing them down either because I get those specially printed for me too. We have a spelling test every Monday (Mr. Kalkstein gives us the list of words on Friday to study over the weekend), he doesn't let me go to my counselor's office to take them like my other teachers do. Instead he reads them aloud to the whole class and after we are done he collects them them hands them back out randomly to the class and we grade them together. I don't usually do that well on them, but one time I got ten of the fifteen words correct (I usually only get about six). I probably could have done better on these tests but studying is just so boring and I would rather be outside playing.

I did the best that I could do even with my dyslexia but some how I ended up failing sixth grade. This is totally unfair, my teachers should have done a better job of making the special accommodations for me because if they did they I would probably have passed the grade just like all my friends did.

A1. ALEX ANDERSON

a. Is the information provided by the witness (Alex Anderson) relevant to the guilt or innocence of the defendant (Cooper Middle School)? Is the information accurate? Give reasons to support your answers.

b. Evaluate the credibility of the witness (Alex Anderson). Is the witness believable? Are there reasons that raise doubts about the testimony? Give reasons to support your answers.

c. Is the testimony objective or subjective? Explain why.

WITNESS STATEMENT

PLAINTIFF WITNESS: ALYSSA ANDERSON

My name is Alyssa Anderson and I am Alex's mother. It has just been Alex and me at home since my husband was killed in action oversees last year, he had served in the United Stated Armed Forces since he graduated high school. It has been hard on me having to raise a child on my own, especially since I found out that Alex has this dyslexia.

The school wanted to put Alex into special education classes but I didn't think that it would be a good idea because Alex is a smart kid and I thought that he could handle regular courses with his friends. That's why this 504 plan was set up, so that he could do well in school like all the other students.

At the end of each week, Alex brings home a progress report from his teachers and it usually says that he isn't doing so well and has a low grade in the class. I didn't want my only child to be a failure so every weekend I told him that he was not aloud to go outside and play with his little friends until all of his homework was done. Alex always completed his homework just like I said so I don't have any idea how my child could have failed on his own. It must have been the school's fault for not making the appropriate accommodations for Alex that were set up at the beginning of the school year.

Since the dyslexia makes it difficult for Alex to comprehend words, his counselor and I agreed that it would be highly beneficial for Alex to get the notes from his teachers, but I have never seen him with any of the notes. I also made it clear that Alex should sit near the teacher so that he would have less trouble seeing the board and hearing the teacher.

Alex tells me about how he sits in the back row of his History class when I specifically told his councilor that he should be in the front row. How can my child be expected to see the board from so far away? The dyslexia makes it hard enough for him to be able to read the board when he is in the front where he is supposed to be.

Alex's counselor, Robin Rogers, assured me at the beginning of the year that all of the accommodations that we made for Alex would be met by all of his teachers. The fact that Alex has to repeat sixth grade shows that the the teachers neglected to do what they had to do for my child to move onto the seventh grade with all of his friends. The school should do a better job of making its teachers apply the accommodations in the 504 plan for my Alex so that he would be able to do as well in school as all the other students.

A2. ALYSSA ANDERSON

a. Is the information provided by the witness (Alyssa Anderson) relevant to the guilt or innocence of the defendant (Cooper Middle School)? Is the information accurate? Give reasons to support your answers.

b. Evaluate the credibility of the witness (Alyssa Anderson). Is the witness believable? Are there reasons that raise doubts about the testimony? Give reasons to support your answers.

c. Is the testimony objective or subjective? Explain why.

WITNESS STATEMENT

PLAINTIFF WITNESS: TAYLOR TADASHI

My name is Taylor Tadashi, I am also thirteen years old and I am friends with Alex Anderson. We are best friends, actually. We both attend Cooper Middle School and, except for math, we had all the same classes together. It is really awesome when you're with your best friend in all your classes, you know?

Alex has something called dyslexia and it messes with his reading I think. That is why he didn't always never do the readings from the text books that our teachers assign. I think he said that it was because the small words made his head hurt. Also, Alex's teacher's gave him copies of the notes all the time, which is really cool because then he didn't have to write anything down while the teachers were in front of the class talking. And since we are best friends he let me use the notes too so I didn't have to write anything down either. Since we didn't have to take notes in class we just sat there listening to the teacher. Sometimes it got really boring though so we played hangman or just doodled. But the teachers usually catch us and we get in trouble.

Whenever the teachers told us that we had a test, sometimes Alex let me take his notes home with me to study them since we shared them. And the teachers always sent him to another room to take them, like they thought he was going to cheat or something.

When we went to English the teacher made Alex sit in the desk right next to the teachers. I would hate to have to sit there. I don't think Mr. Kalkstein liked Alex all that much if he made my friend sit right near his desk. Everyone knows that teachers always make the trouble making students sit there, and Alex wasn't a trouble maker, he always did his best and turned all of his homework in on time.

I think that if the teachers would have made their classes easier for Alex's sake that he would not have failed and would be able to join me in grade seven. Alex told me that the teachers were supposed to do stuff like that so that he could be as good in school as everyone else but I guess that the teachers just didn't do what they should have because otherwise my friend would be in all the same classes as me again next year.

A3. TAYLOR TADASHI

a. Is the information provided by the witness (Taylor Tadashi) relevant to the guilt or innocence of the defendant (Cooper Middle School)? Is the information accurate? Give reasons to support your answers.

b. Evaluate the credibility of the witness (Taylor Tadashi). Is the witness believable? Are there reasons that raise doubts about the testimony? Give reasons to support your answers.

c. Is the testimony objective or subjective? Explain why.

WITNESS STATEMENT

DEFENCE WITNESS: KYLE KALKSTEIN

My name is Kyle Kalkstein. I teach English and Language Arts to sixth grade students at Cooper Middle School. I earned my bachelor of English and master’s degree in education (summa cum laude) from Harvard University and have been teaching here for six years.

I did my best to help Alex Anderson and I made sure to do all that was recommended for him in his 504 plan. I sat him next to my desk in the front row and near positive role models, I know that Alex is friends with another student in the class so I made sure when I was making the seating chart to keep them away from each other so Alex would be less tempted from distractions. He didn't seem too happy not to be near his friend but that's okay since it meant less distractions. The students I seated him by were straight A students who, I was hoping, would be a good influence on Alex and help to encourage him to thrive for a better grade. But it appears that that didn't work out as well as I had hoped.

I administered weekly spelling tests to the students in which I read a word aloud from a list I gave them to study over each weekend. When I give these small tests I read each word slowly and repeat it twice. Alex never usually did well on the tests, however. I always made the extra effort to ask Alex if there were any words that he wanted me to repeat for him but he always said no.

For every lesson I covered I printed out copies of the lecture for not only Alex (as it is required in his 504 plan) but also every student in the class This way the students would be more inclined to listen to the lesson instead of focusing more on writing stuff down. This seems to work out fine for all my other students seeing as how Alex was the only student in my class to get below a C average. I make my class easy enough for every student I teach, regardless of a disability, to be able to follow along and pass with at least a C. For my class, a student really has to try really hard to fail it.

A4. KYLE KALKSTEIN

a. Is the information provided by the witness (Kyle Kalkstein) relevant to the guilt or innocence of the defendant (Cooper Middle School)? Is the information accurate? Give reasons to support your answers.

b. Evaluate the credibility of the witness (Kyle Kalkstein). Is the witness believable? Are there reasons that raise doubts about the testimony? Give reasons to support your answers.

c. Is the testimony objective or subjective? Explain why.

WITNESS STATEMENT

DEFENCE WITNESS: SAM STRICKER

My name is Sam Stricker. This is my first year teaching American History to sixth graders at Cooper Middle School. I attended Michigan State University for four years and obtained my bachelor's degree in education. I originally wanted to have a job teaching High School students but unfortunately could not find any positions available in that area so I ended up at Cooper Middle School, at least until I can find a better job at a High School.

I followed the 504 plan's list of accommodations as much as I felt was necessary for Alex. For every lecture I gave to the class, I gave Alex a printed out copy of the material I went over and I noticed that he shared those notes with another student in the class, one named Taylor Tadashi whom sat next to Alex in the back row.

I sent him to his counselor's office every time I administered a test. He was out of the room, away from any distractions that the other students or his friends may have provided and he even had more time to complete the exams than all my other students. If anything he should have done better on the tests that the other students since he had all the time he needed to think about the answers. Since it was always all multiple choice I don't understand how he could fail every singe time since the answers were right in front of him.

I even made available to any student who wanted extra help with their work in my class, that they could come in before or after school or during lunch. Many of my students did take advantage of this option, however Alex was not one of them. Since he choose not to take responsibility for his own grade when I made more than enough effort to help not only him but every student be successful in my class, than it is his fault and his fault alone for having to repeat the sixth grade. He simply should have tried harder.

A5. SAM STRICKER

a. Is the information provided by the witness (Sam Stricker) relevant to the guilt or innocence of the defendant (Cooper Middle School)? Is the information accurate? Give reasons to support your answers.

b. Evaluate the credibility of the witness (Sam Stricker). Is the witness believable? Are there reasons that raise doubts about the testimony? Give reasons to support your answers.

c. Is the testimony objective or subjective? Explain why.

WITNESS STATEMENT

DEFENCE WITNESS: ROBIN ROGERS

My name is Robin Rogers. I am Alex's counselor at school. I have been working at Cooper Middle School for the last ten years, so I have plenty of experience dealing with middle school students and their problems. I attended the University of Chicago where I earned my bachelor's degree in social work and then I transferred to Illinois State University where I obtained my master's degree. I have worked with kids ages ten through eight-teen over the past twenty-five years and I have pretty much come across every problem I can think of.

I helped Alex's mother develop the 504 plan and I have weekly meetings with Alex to see how he is doing in school, at home, and if there is anything he wants to discuss. I regularly ask Alex how he is doing with his classes and he has never mentioned that he was having trouble. I periodically checked Alex's grades and when I noticed that they were heading down hill I asked him if he would like some help studying or if a Tudor would be helpful but Alex said that his mother would help him if he asked.

When Alex's teachers administer tests, Alex is usually sent to my office to take them. I give him the option to read the test himself or if he would rather I read the test to him. Sometimes he asks me to read the test, other times he would rather do it himself. Either way he is always give extra time to complete his examinations if need be. The grades he usually received on his tests were between a low C or a high D, with the occasional F.

Alex's mother and I developed the 504 plan at the beginning of the school year. We discussed all sorts of options and things that would be beneficial to her child concerning his dyslexia. I have taken the liberty to provide a copy of Alex's 504 plan with all of the accommodations that his mother and I agreed upon.

504 PLAN FOR ALEX ANDERSON

ALTERING THE PHYSICAL ENVIRONMENT
seat near teacher

assign student to a low distraction work area
seat near positive peer models
stand near student when giving instructionsALTER PRESENTATION OF LESSONS
ask student to repeat instructions
call on student often
give reminders for student to stay on taskALTER TESTING/EVALUATION PROCEDURES
permit untimed testing
arrange for oral testing
have resource teacher administer testsALTER DESIGN OF MATERIALS
use large type
keep page format simple
use dark ink
use buff-colored rather than white paper to reduce glare
divide page into clearly marked sectionsEMPLOY EFFECTIVE MOTIVATIONAL TECHNIQUES
send weekly progress note home
periodically review the student's progress with student and parents

A6. ROBIN ROGERS

a. Is the information provided by the witness (Robin Rogers) relevant to the guilt or innocence of the defendant (Cooper Middle School)? Is the information accurate? Give reasons to support your answers.

b. Evaluate the credibility of the witness (Robin Rogers). Is the witness believable? Are there reasons that raise doubts about the testimony? Give reasons to support your answers.

c. Is the testimony objective or subjective? Explain why.

B. CONSTRUCTING KNOWLEDGE

One of the important goals of critical thinking is developing beliefs about the world that are well founded. Often this process involves analyzing and synthesizing a variety of accounts in an effort to determine “what really happened.” To analyze and synthesize the testimony presented by the witnesses, answer the following questions:

B1. Were the teachers, Kyle Kalkstein and Sam Stricker, negligent by not making the proper accommodations for the dyslexic student? Explain.

B2. Was the child, Alex Anderson, contributorily negligent in intentionally neglecting to take the necessary time to study? Explain.

B3. Were the parent's actions negligent? Explain.

BACKGROUND INFORMATION on the APPLICABLE LAW

There are many types of law; this case involves tort liability. It’s a CIVIL MATTER.

Civil suits are where someone sues someone else for wrongdoing, and a judge or jury decides which party should be “held liable” i.e., what amount of money one party might have to pay the other or what action might be required of one or the other. It’s important to realize that this is not a criminal issue. In a criminal case, the burden of proof that the prosecution must establish is high. It is guilt “beyond a reasonable doubt.” In a civil matter, the burden of proof is somewhat lower; it is by a “preponderance of the evidence.” What this means is that one party must prove his or her position is stronger than the other party’s position. His/Her case doesn’t have to be perfect, but as long as it is better than the other side’s case, he/she wins.

A analogy for this might be made by using 100 grains of sand. If Party Apple

establishes that he is right by 51 grains of sand, and Party Banana establishes she

is right by 49 grains of sand, Party Apple wins the case.

When someone breaks the law, he or she is charged criminally and may face

probation, fines, imprisonment, or even death. In a criminal case, the prosecution

is always the government. In a civil case, the plaintiff (prosecution in a criminal

case) may be any person who has a claim against a defendant.

A tort is a civil wrong for which a remedy may be obtained; that remedy is

usually in the form of damages. A tort can be a breach of a duty that the law

imposes on persons who stand in a particular relationship to one another.

A negligent tort is a tort committed by failure to observe the standard of care

required by law under the circumstances.

Courts may provide relief for torts in the form of damages, varying from $1.00 to millions of dollars depending upon the severity of the injury. Tort cases offer remedies to persons, through civil suits, for harm caused by the unreasonable conduct of others.

Tort actions may be grouped into three major categories:

1) negligence, 2) intentional torts, and 3) strict liability.

Negligence is the failure to exercise the standard of care that a reasonably

prudent person would have exercised in a similar situation; in other words,

any conduct that falls below the legal standard established to protect others

against unreasonable risk of harm. This is the basis for the tort filed in

this case.

Intentional torts are committed with the desire to inflict harm, including

such torts as assault, battery, false imprisonment, and defamation.

Strict liability is when an injury results from the exposure to an unusual

or inherently dangerous hazard (the transportation of nuclear weapons, for

example); the injured party does not need to establish that the injury

resulting from the hazard was knowingly or negligently caused.

In order to establish negligence, the injured party (plaintiff) must prove:

• That the person accused of negligence owed a duty of care towards the

person injured;

• That the accused person failed to exercise a reasonable standard of care

commensurate with that duty (through action or inaction);

• That there was, in fact, an injury;

• That there is a causal relationship between the alleged negligent conduct

and the injury; and

• That the injury was a foreseeable result of the conduct.

Through judges or juries, courts must decide whether or not a reasonable person would have anticipated the harmful results of the conduct under similar circumstances. A teacher’s conduct is compared with how a reasonable teacher, with special training in teaching, would have acted in a similar situation.

Courts have noted that teachers and school systems owe students a duty to provide adequate supervision and instruction, to maintain equipment and buildings in good repair, and to provide warnings regarding any known dangers. Factors in establishing the extent of those duties are the age of the students, the environment, and the type of instructional activities taking place.

The duty to protect students from harm is increased in laboratory classes and gymnasiums, where the risk of harm is greater than in an English class. In one case, school officials were held negligent for breaching their duty to provide safety precautions on a playground where there was a fence in disrepair.

A teacher, however, does not have a duty to keep each student under constant surveillance or to anticipate every possible accident. Even if supervision is inadequate, a teacher will not be held negligent if the injury could have occurred as easily had there been proper supervision. For example, a court has determined that a kindergarten teacher did not breach her duty of supervision during recess simply because she was attending to other students when a child fell while trying to swing down from a jungle gym. The court concluded that a teacher is not required to have each student in sight at all times.

The courts are in disagreement about the responsibility of school personnel to supervise the activities of students on school grounds after regular school hours.

Defenses Against Negligence

There are several defenses to the accusation of negligence. The ones with which we are concerned in this case are: 1) contributory negligence, 2) intervening act, and 3) assumption of risk. Other possible defenses, such as governmental immunity and acts of nature, are not to be raised in the course of this trial.

Contributory Negligence

Contributory negligence is when a plaintiff’s own negligence played a part in causing the plaintiff’s injury and is significant enough to bar the plaintiff from recovering damages. This defense relies on evidence that the action of the injured party was a substantial factor in causing the injury. School officials may be successful in using this defense if they are able to prove that the child was aware of, or should have been aware of, the consequences of the actions, yet still engaged in the dangerous activity. One court has stated: “A child is not held to the same degree of care as an adult; the test is whether the particular child, considering his age, background, and inherent intelligence, indulged in gross regard of his own safety in the face of known, understood, and perceived danger.” Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La. App.3d cir. 1975)

Note: That same court indicated that a 13-year-old child could be contributorily negligent.

Intervening Act

Even where a teacher has breached a duty of care, the teacher will not be held liable if the teacher’s actions were not the “proximate cause” of the injury. “Proximate cause” in this situation means immediately in time. An intervening act, such as the negligence of a third party, has relieved school personnel of liability. However, even when an intervening event actually causes a given injury, school personnel may still be held liable if they place students in a dangerous situation or if they should have expected a special risk of harm.

Assumption of Risk

This is another defense which is closely related to contributory negligence. Simply, this means the injured party assumed the risk of a known danger. This defense can only be used successfully when the injured party had full knowledge of and appreciated the danger, yet voluntarily exposed him/herself to the risk.

Respondeat Superior

This phrase is Latin for “let the superior make answer”. This doctrine holds that an employer or principal is liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency. At least one case has held that evidence in an action for injuries sustained by a student on school grounds, resulting from a teacher’s negligent actions, could support a finding of actionable negligence on the part of a school board via the doctrine of respondeat superior.

C. REACHING A VERDICT

Reaching a verdict in a situation like this involves complex processes of reasoning and decision making. This is a Civil suit where someone sues someone else for wrongdoing, and a judge or jury decides which party should be “held liable.” It's important to realize that this is not a criminal issue. In a criminal case, the burden of proof that the prosecution must establish is high. It is guilt “beyond a reasonable doubt.” In a civil matter, the burden of proof is somewhat lower; it is by a “preponderance of the evidence.” What this means is that one party must prove his or her position is stronger than the other party's position. His / Her case doesn't have to be perfect, but as long as it is better than the other side's case, he / she wins.

C1. Based on your analysis of the evidence and arguments presented in this case, write your verdict in favor of the Plaintiff or the Defendant and your reasons for reaching this conclusion.

No Precedents may be used in the mock trial.