|Innisfree would like to provide an option to income-qualified parents with meritorious claims, whereby Innisfree would provide the financing for litigation, up to $10,000, to be litigated by a pro bono attorney, in exchange for which Innisfree would retain part or all of any prevailing party fees obtained.
Special education disputes cannot be fully and effectively litigated without a budget for expenses. Most notably, every school district has numerous professionals on staff, e.g., psychologists, social workers, behaviorists, etc. who can be easily certified as expert witnesses. If these witnesses testify on behalf of the district (e.g., that the district has provided FAPE, as they invariably do), the parent must present controverting evidence. While pro bono attorneys can be found (although not always without difficulty), pro bono experts are few and far between (although some will accept a reduced fee in the right circumstances). And experts cannot ethically work on contingency, because it subjects their testimony and report to well-founded charges of bias (i.e., the expert won’t get paid unless the client succeeds).
Innisfree has been researching the ethical and legal implications of what we call “micro-litigation finance,” in coordination with pro bono counsel from White & Case, and expects to have a finalized memorandum summarizing our findings shortly. At this time, we see no legal or ethical obstacle to a program whereby Innisfree finances the out-of-pocket expenses of special education disputes, and replenishes its fund (to pay for future such cases) out of prevailing party fees, to be negotiated with the pro bono attorney in advance, based on a multiplier of the expenses incurred. We are confident that such a program could prove self-sustaining in time.
 Innisfree would negotiate these arrangements with the attorney in question on a case-by-case basis. If the attorney is associated with a substantial firm, and the attorney had accepted the engagement primarily to meet his or her Madden requirements, we expect that in those circumstances the attorney would be amenable to an arrangement whereby Innisfree would retain the entire fee award in exchange for paying the out-of-pocket expenses.
However, experienced special education attorneys often take cases on behalf of parents without the means to pay them, on condition that they will retain the prevailing party fees if any. This variety of pro bono work is of crucial value to our constituents, often providing quality representation where none could be obtained otherwise. While Innisfree is not in a position at this time simply to subsidize such cases by paying for their expenses, we would hope to support them through this program by negotiating a percentage of prevailing party fees to be paid back to Innisfree (as a multiplier of the expenses incurred, to account for the risk of loss if the plaintiff does not prevail), with the balance of the fees retained by the attorney.
 No money would be expended on attorneys.