to achieve compliance with our statutory policies." Senate Report at 3. Finally, there also is no question that the unavailability of fees makes representation by private lawyers unavailable.1/ In "hearings" before the House, "the testimony indicated that civil rights litigants were suffering very severe hardships" because of the unavailability of counsel. House Report at 2. fact, "private lawyers were refusing to take certain types of civil rights cases" without the possibility of fee awards. House Report at 3. Accordingly, as explained in the Senate Report at In 5: "In several hearings held over a period of years, the [Senate] Committee has found that fee awards are essential if the Federal statutes to which [the 1976 Fees Act] applies are to be fully enforced." In sum, Congress found that it must "insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights." House Report at 9. As similarly recognized in the Senate Report at 6: "If our civil rights laws are not to become mere hollow pronouncements which the 1. The 1976 Fees Act was designed to overrule, and did overrule, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), in which the Supreme Court held that fees were ordinarily unavailable absent Congress' enactment of a feeshifting statute. As explained in the House Report at 2-3: "civil rights litigants were suffering very severe hardships because of the Alyeska decision," in fact the decision had a "devasting impact on litigation in the civil rights area," indeed "[t]housands of dollars in fees were automatically lost in the immediate wake of the decision," all with the result that "private lawyers were [now] refusing to take certain types of civil rights cases. Additional support for these findings is set forth in Council for Public Interest Law, Balancing the Scales of Justice: Financing Public Interest Law in America, at 312-23 (1976). " average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases. " Although additional testimony is unnecessary to augment what Congress has already found, there simply is no question that the findings of the Ninety-Fourth Congress in 1976 are fully applicable today. As a result of my fifteen years as a practicing civil rights lawyer, and as a result of my expertise and consulting on the law of court awarded attorneys fees, I can confidently state that the financial incentive of fee awards is absolutely essential to attract competent counsel to represent civil rights plaintiffs. Today, just as Congress found in 1976, virtually all victims of civil rights violations are unable to pay legal fees or even to pay legal expenses and court costs so as to retain private counsel; most civil rights cases continue to be cases where equitable relief is primarily sought, only sought, or only available; and competent private counsel continue to be unavailable to provide legal representation without a fee arrangement or at least without the probability of court awarded fees. First, As to the latter point, it may be useful to emphasize that although fee statutes provide a necessary incentive to private representation, they do not guarantee private representation because of the fact that fee statutes do not fully balance the resources of plaintiffs' counsel vs. defense counsel. plaintiffs' counsel are entitled to fees only when they win; whereas defense counsel (whether salaried government or school board lawyers, or privately retained lawyers) are paid not only when they win but also when they lose. Second, successful plain tiffs' counsel experience severe cash flow problems since they ordinarily recover fee awards only after they succeed in administrative proceedings, in trial, and ultimately on appeal (all of which often extends over a period of many years); whereas losing defense counsel are paid monthly if not biweekly. Finally, the amount of fees actually recoverable by successful plaintiffs' counsel either through settlement or through court order ordinarily is substantially less than a fully billable hours-timesrates fee; whereas losing defense counsel are ordinarily fully paid for all time expended. Because of these considerable financial disparities between plaintiffs' counsel and defense counsel, most lawyers prefer to be in the shoes of the latter rather than of plaintiffs' counsel.2/ As should be apparent, although fee statutes thus do not actually equalize either fees or legal resources, fee statutes are an absolute necessity to attracting at least some competent counsel to represent civil rights plaintiffs. 3. Fee Awards Are Even More Necessary to Attract Private It can easily be said that just as fee awards are necessary to attract private practitioners to represent those whose civil 2. Not only is this an obvious (and an economically sound) preference, but it is also a fact in my experience that many former plaintiffs' lawyers are now also representing defendants if for no other reason than to get paid, i.e., to put bread on the table and otherwise to earn a living. See also, e.g., Hearings on S. 585 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 44 (1982) Ttestimony of Fletcher Farrington). rights have been violated, so too are fee awards equally necessary to attract private practitioners to represent handicapped children in special education actions and proceedings. In fact, it is not just equally necessary; it is more so. This flows from the fact that parents of handicapped children incur heavier financial obligations than the average person; from the fact that special education actions or proceedings ordinarily involve considerably higher than usual legal expenses; and from the fact that special education law is complex and not particularly attractive to many plaintiffs' lawyers. First, the parents of handicapped children unquestionably incur financial obligations far beyond that experienced by other parents. Among these additional obligations are medical expenses, transportation expenses, home care expenses, and home alteration and improvement expenses, to name just a few.3/ What these additional financial obligations mean, in a practical sense, is that parents of handicapped children ordinarily have no residual resources to pay an attorney a small retainer, necessary legal expenses, or even court costs. Second, despite the parents' greater inability to pay, the cruel fact of the matter is that special education actions and 3. Even apart from this financial reality, parents whose children are classified as handicapped are often on the bottom of the socio-economic scale, and in fact are disproportinately members of racial minorities. This latter reality flows from the discriminatory fact that black children are three times more likely than white children to be enrolled in classes for the educably mentally retarded, and one-and-a-half times more likely to be enrolled in trainable mentally retarded programs. e.g., Office of Civil Rights, Department of Education, Elementary and Secondary School Civil Rights Survey (1980). See, 1 need to retain doctors and other experts to testify (usually in opposition to the school boards' doctors and other retained and paid experts) about the nature of the disabilities and the educational needs of the particular handicapped children. If the financially strapped parents cannot pay these expert witness fees and other up-front legal expenses, and they usually cannot, it is unlikely that the expenses would be covered by counsel themselves, at least not without a very strong case coupled with the potential of recovering expenses and costs in addition to or as part of an award of attorneys fees. Finally, special education law has come to be viewed as a quite specialized area of the law. Given that it is complex and that it is unfortunately complicated, many attorneys appear to be unwilling to master special education law to the extent necessary to confront well-versed and experienced (and paid) legal adversaries. Without the incentive of fee awards, there is little hope of attracting competent private attorneys to represent handicapped children and their families. In sum, there is a dire need for fee awards to attract private lawyers to represent handicapped children in special 4. The Effect of Smith v. Robinson Is the Denial to Handicapped In view of my experience as a civil rights lawyer and as an expert on fees law, I certainly am of the opinion that the Supreme Court's decision in Smith v. Robinson has already had an overwhelming "chilling effect" on the availability of private attorneys to represent handicapped children and their families. Moreover, Smith v. Robinson will continue to have this negative impact until Congress fully overrules that decision. On behalf of the American Civil Liberties Union, I again urge the enactment of the Handicapped Children's Protection Act of 1985, as drafted in S. 415. |