Question for Michigan Lawyers
No Heckler's Veto

Sec. 1988/Attorneys' Fee Case

Today the Second Circuit issued an attorneys' fees opinion with a significant amount of favorable language for both plaintiffs and defendants.  Kassim v. City of Schenectady, No. 03-9283 (2d Cir. July 19, 2005).

First, may a District Court, in determining an attorneys' fee award, demand a proportionality between compensatory damages and Sec. 1988 fees?  Second, to what extend may the District Court reduce lodestar-calculated fees in light of Farrar and Hensley?

Attorneys' fees under Sec. 1988 may be substantially disproportionate to plaintiff's recovery.

If the attorney is compelled to defend against frivolous motions and to make motions to compel compliance with routine discovery demands, or to respond to unreasonable demands of the court for briefing or for wasteful, time-consuming court appearances, the hours required to litigate even a simple matter can expand enormously. It is therefore difficult to generalize about the appropriate size of the fee in relation to the amount in controversy.

Reasoning that a rule calling for proportionality between the fee and the monetary amount involved in the litigation would effectively prevent plaintiffs from obtaining counsel in cases where deprivation of a constitutional right caused injury of low monetary value, we have repeatedly rejected the notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation.

If the district court reduced the fee in the belief that the claimed hours were simply disproportionate in a case involving a $2500 injury, without regard to the reasonableness of the attorney’s expenditure of time in responding to the particular circumstances, this was error.

Slip op. at 9-10.  Now comes the bad news (or good news, depending on whom you represent).

Even though attorneys' fees will usually be computed using the lodestar method, a Farrar reduction is proper.

Our circuit has thus clearly adopted the view, notwithstanding any potential question as to the scope of Hensley and Farrar, that a district judge’s authority to reduce the fee awarded to a prevailing plaintiff below the lodestar by reason of the plaintiff’s “partial or limited success” is not restricted either to cases of multiple discrete theories or to cases in which the plaintiff won only a nominal or technical victory.

Id. at 16.

(Hat tip: AL&P)