If you want to settle the case, you may have to pony up the attorneys’ fees.

Schools can limit their legal exposure in a special education dispute by making a settlement offer in writing, at least ten days before a due process hearing.  The law encourages the school to make a generous offer, and encourages the parents’ to accept it.  This “encouragement” comes in the form of consequences for not settling.

Specifically, if the school does not make a good settlement offer, and ends up losing the case, the school will be responsible for paying fees to the parent’s lawyer.  On the other hand, if the parent rejects a good offer and does not end up recovering more than what was offered, the parent will not recover attorneys fees.

A case from California points out that a good settlement offer should include reimbursement for attorneys’ fees incurred to date.  The court held that the parent was justified in rejecting the school’s settlement offer because the amount of attorneys’ fees offered ($10,000) was too low.  Key Quote:

MDUSD does not dispute that it made no effort to learn the amount of attorneys’ fees counsel had incurred as of the date of the offer. Nor is there any evidence in the record suggesting that MDUSD came up with the figure in the offer based on its expectation of what Plaintiff’s counsel was likely to receive if Plaintiff prevailed.

Given the IDEA’s goal of encouraging counsel to represent plaintiffs in meritorious challenges to school districts’ policies and practices, the Court concludes that Plaintiff was substantially justified in rejecting MDUSD’s settlement offer.

The case is S.H. v. Mt. Diablo USD, decided by the federal court for the Northern District of California on January 23, 2018. We found it at 71 IDELR 126.


 Tomorrow: a reassignment case.