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119 Glendale Road
The Hon. Senator Robert T. Stafford
Dear Senator Stafford:
This is in answer to your question forwarded to me by Senator Weicker after the May 16 hearing. I am returning this letter via Subcommittee staff member Dr. Karl White.
To those who fear that availability of attorney's fees will encourage parents to go to court more often I offer these comments:
Because of our desperation for a decent education for Danny, recovery of attorney's fees was far from the top of our list of priorities. Our backs were against the wall and we really had no choice but to proceed.
The notion that parents would base a fundamental decision on whether to proceed in a grueling process such as this, based on the hope of future recovery of attorney's fees, is from my point of view very remote. Why would any parents subject themselves to the nerve-wracking judicial appeals process in our case involving injunctions, a remand, calling new witnesses, argument over admissibility of evidence, facing our neighbors in town, and further appeal up the judicial ladder - all this just to recover attorney's fees?
Even those parents I know who did not have to worry as much about money approach this grueling encounter with a great deal of trepidation. All of us are sufficiently occupied with the everyday problems of raising our other "normal" children in a fast age of violence and drugs.
On the contrary, the prospect of a more balanced distribution of leverage, such as recovery of fees by prevailing parents, might discourage the school districts from routinely stonewalling and intimidating parents from seeking an appropriate education for deserving youngsters. The result could well decrease litigation and increase out-of-court accommodation, bringing us closer to the goal of a cooperative process rather than confrontation.
With respect and appreciation for the efforts you are devoting to this problem,
119 Glendale Road Sharon, MA 02067 May 29, 1985
The Hon. Senator Don Nickles
Dear Senator Nickles:
This is in answer to your questions forwarded to me by Senator Weicker in followup of the May 16 hearing. I am returning this letter via Subcommittee staff member Dr. Karl White.
Yes, we had a private attorney prior to my losing my job.
Yes, we used our private attorney at both the administrative and judicial (district court) levels.
Our private attorney plus expert witnesses and court costs, etc. cost us over $10,000, before the School Committee decided to appeal the case to the U.S. Court of Appeals.
We were aware of various organizations, including the
After losing my job and because of a long list of cases awaiting assistance from the Mass. P&A, the Massachusetts Advocacy Center (which is not the P&A in Massachusetts but a private, non-profit organization), decided to continue the case on behalf of Danny through the federal appeals process.
Senator Nickles, please try to understand that as parents we did not undertake this unpleasant burden happily. We were forced against the wall. To anyone really familiar with the case, our son was just not going to be even minimally educated in a 10-month 9:00 a.m. to 2:00 p.m. day program. The School Committee's expert witnesses based their case on a fleeting evaluation of 2 or 3 hours duration. Our own expert, the noted Dr. Paul Touchette, observed Danny consistently for 6 months. That is what convinced the federal judge. It made no impression, however, on a School Committee with other priorities; nor on a captive administrative hearing officer who is employed by the state department of education. But P.L. 94-142 is now the Law.
If you are truly trying to come to grips with a judgment on whether to support Senate 415, my final plea is that you ask yourself this common sense question:
Would parents who have to cope with sundry medical, support, and other educational problems (sometimes simultaneously on behalf of their other "normal" children) be in their right minds to go to court if there wasn't a darned good reason? Who needs that extra agony?
At least give us a little more balance with those heavy establishments if we prevail in court just as many other civil rights litigants. It might just give the school districts incentive to negotiate a decent educational plan out of court before playing a game of "chicken" with us for a period of those vital years while a child is supposed to be educated.
with respect and appreciation for the time you are devoting to this problem,
RESPONSE TO QUESTIONS FROM SENATOR NICKLES TO WILLIAM DUSSAULT
1) Question: Is your practice devoted primarily to special education cases?
Response: My practice is devoted to representation of persons with disabilities. A substantial portion of that practice is involved in special education matters. 2) Question: When representing parents in an administrative hearing or in litigation, what do you charge by the billable hour?
Response: My billable rate varies from $75.00 to $100.00 per hour, depending upon the difficulty of the case and the parents' ability to pay. Opposing counsel generally hired by the school district charge from $100.00 to $150.00 per hour for the same services.
3) Question: About how many hours of attorneys' time would be involved in the cases of Mrs. Tatro and Mr. Abrahamson?
Response: I would be able to provide only a rough estimate of the time involved. I would guess that Mrs. Tatro's case · involved in excess of 300 hours. My estimate of the time involved in the Abrahamson case would be between 150 and 200 hours.
How much charitable work do you do in this field
4) Question: per year?
Response: I average a minimum of five hours per week working either on a pro bono basis for individual parents, presenting information on a no-charge basis to community parent and school groups, and representing non-profit organizations at no charge. Total annual time devoted to special education or handicapped related matters would exceed 300 hours.
5) Question: There were 1,462 special education cases which were heard at the first level last year. If families had attorneys representing them at these proceedings, what would be the average legal cost for such representation?
Response: It is my experience that most first level cases arise due to a failure of the pre-hearing negotiation process. If an attorney were involved in the first level hearing, I would anticipate that a competent attorney should spend an average of ten to fifteen hours total in preparation and presentation. At an average fee of $75.00 per hour, the fee should range from $750.00 to $1,125.00 per hearing.
6) Question: There were 292 appeals of the decisions in the 1,462 cases which occurred last year. What would be the cost of the appeal of these cases (a ballpark figure is fine)?
Response: Appeal to a second level appeal process, usually to the offices of state superintendant of public instruction, do not generally involve as much witness preparation or direct trial presentation. The principal obligation is the preparation of an appropriate supporting brief. Given an attorney who knows the subject area, I would anticipate that preparation and presentation of the material should take an average of an additional ten to fifteen hours at approximately the same cost involved in the first level hearings. It has been my experience that the second level hearings are largely an exhaustion phase. Several states are now doing away with that requirement.
7) Question: Beyond those appeals, there are 67 cases which were litigated last year. What would be the cost of taking a special education case through the court system?
Response: It is substantially more expensive to bring the case to the state trial court or the Federal district court. The Federal Court Rules of pleading and evidence are far more complicated. In the event a de novo hearing is required, the case is essentially retried in toto. One would expect a minimum entry level time involvement of 25 hours if any substantial issues are involved. Time requirements would escalate rapidly. It would not be unusual to see a Federal District Court case require 50 to 75 hours in preparation and presentation. Subsequent appeals to both the circuit and Supreme Court could easily take 50 to 100 hours each. Accordingly, it would not be unusual to see fees incurred through a circuit court appeal or a petition for certiorari to the United States Supreme Court in the area of $100,000.00 and above.