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Justices Weigh Enhanced Fees in Civil-Rights Cases


Often, after big, complicated civil rights litigation in such areas as school desegregation and the reform of foster care, there is a second battle: over attorneys' fees for the prevailing party.

The U.S. Supreme Court today took up an important question arising out of such battles: whether courts may award enhanced fees, above and beyond reasonable attorneys' fees based on hourly pay rates, when lawyers seeking institutional reforms do an exceptionally good job of making their case and bringing about improvements.

A federal district judge in Georgia awarded lawyers who led a long legal battle to improve the state's foster-care system an extra $4.5 million in fees, on top of $6 million awarded under what is called the "lodestar" system: reasonable billable hours and authorized expenses. The judge said that lawyers from a New York City group called Children's Rights had done a "superb" job on the case and had "brought a higher degree of skill, commitment, dedication, and professionalism to this litigation than the court has seen displayed by the attorneys in any other case during its 27 years on the bench."

A federal appeals court upheld the enhanced award.

The justices agreed to take up the case, Perdue v. Kenny A. (Case No. 08-970), which drew some interesting friend-of-the-court briefs. The National School Boards Association filed such a brief on the side of the state of Georgia, which is seeking to overturn the enhanced award. The NSBA argues that the case is "of extreme importance" to schools because of the potential harmful effect of enhanced fee awards to school systems and their taxpayers.

"Like the present case, litigation against school districts frequently results from chronic
underfunding that leads to systemic deficiencies," the NSBA brief says. "In such cases, public schools will often seek to resolve the matter through mediation or negotiations that culminate in settlements or consent decrees that call for significant policy changes, structural overhauls, programmatic improvements, and increased funding to correct the deficiencies. But under ... enhanced fee award theory, courts could reward the plaintiffs' attorneys with large performance bonuses that school systems can ill afford to pay."

Joining briefs supporting the bonus fees are several groups that are often behind lawsuits against school districts, including the American Civil Liberties Union and the NAACP Legal Defense Fund on the left, and the Alliance Defense Fund and the American Center for Law and Justice on the right.

The conservative groups, in their brief, argue that attorney's fees undergird the system of private enforcement of the nation's civil rights laws.

"Attorney fees are not merely about compensating attorneys who undertake the
representation of those oppressed and damaged by government, often at significant risk to their regular practice," says the brief by Alliance Defense Fund, the ACLJ, and other groups. "Just as important, and possibly more so, they provide the incentive for governments, especially with the outcry of local taxpayers upon the media
announcement of an attorney fee judgment, to reform their unlawful conduct and refrain from civil rights violations in the future."

And alluding to a noteworthy case pressed by one of the conservative legal groups, the brief says, "A local school district can spend a million dollars fighting a child who wants to hand a candy cane with a religious poem attached to his friends during Christmas, and then hold media events expressing a need for money for education."

These school examples and arguments weren't discussed during oral arguments today, but there was still a lively discussion.

Justice Sonia Sotomayor noted that the high court has held "that it should be a rare and
exceptional circumstance" to award an enhanced fee.

"The difference that we are engaged in is whether the quality of performance can ever constitute that rare exception that would justify a district court saying, you performed greater than what the market would have valued you at before your performance," she said.

Pratik A. Shah, an assistant to the U.S. solicitor general, arguing on Georgia's side, said the law does not permit enhanced fee awards for outstanding attorney performance. One case in which an enhanced fee could be authorized would be "where an attorney takes on a particularly unpopular client or cause that causes some external harm, external to the case, to his practice or income."

Justice Samuel A. Alito Jr. later told the lawyer arguing for Children's First and the enhanced-fee award that he was troubled because "here the district judge in effect takes four-plus million dollars from the taxpayers of Georgia and awards it above the lodestar calculation to these attorneys and says ... this was the best performance I have seen in 28 years. But it seems totally standardless, and I see no way of policing it, and I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorneys, because they think they generally do good work."

Justice Antonin Scalia added: "I don't like judges -- it's certainly not in the tradition of the bench -- to comment upon the performance of lawyers. I can't tell you how often I would like to give a separate grade for the lawyer who won a case. You know, one grade for the case and the other for the lawyer. But we don't do that."

Paul D. Clement, a former U.S. solicitor general under President George W. Bush and the lawyer arguing for the enhanced award, later was challenged by Chief Justice John G. Roberts Jr. about whether the outcome of a civil-rights case is the result of a lawyer's strong performance or the judge's interpretation of the law.

"Maybe we have a different perspective," the chief justice told Clement. "You think the lawyers are responsible for a good result, and I think the judges are."

In a breezy retort that not every lawyer arguing before the justices could get away with, Clement alluded to Chief Justice Roberts's former career as a highly successful Supreme Court advocate.

"Maybe your perspective has changed, your honor," Clement said to the chief, drawing laughter in the courtroom.

A decision in the case is expected by next July.


Oh my goodness, I am really troubled by this. As lawyers, we should all do our best on our cases on behalf of all of our clients. Where there is a standard, reasonable hourly rate, that should be the payment standard. Awarding enhanced attorney fees because a lawyer does a particular good job seems wrong to me. While a lawyer who does a good job certainly merits praise and accolades, I don't think an award of attorneys fees against the losing side is a good idea.

Paying a bonus to your favorite lawyer? No problem. But forcing someone else to pay a bonus to YOUR favorite lawyer? That doesn't sound right.

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