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Attorney Fee Award Can Be Reduced If Hours Stem in Part from Attorney's Incivility

“Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war.”


From Karton v. Ari Design & Construction, Inc., decided yesterday by my former colleague Justice John Shephard Wiley, joined by Justices Tricia Bigelow and Elizabeth Grimes:

Trial judges deciding motions for attorney fees properly may consider whether the attorney seeking the fee has become personally embroiled and has, therefore, over-litigated the case. Similarly, judges permissibly may consider whether an attorney's incivility in litigation has affected the litigation costs.

Here, the trial judge found attorney David Karton's fee motion triggered these concerns. Karton had a dispute with his home remodeling contractor: defendant and appellee Ari Design and Construction, Inc. At one point, their difference amounted to only $22,096: Karton said Ari owed him $35,096, while Ari contended it owed $13,000.

Karton sued Ari and won a judgment for $133,792.11 plus postjudgment interest [largely under a state statute] {which entitles those using an unlicensed contractor to all compensation they paid the unlicensed contractor, even if they knew the contractor was unlicensed}. Karton then sought attorney fees of $271,530, which were later increased to $287,640 in the trial court and now to $292,140 in this court. The trial court awarded $90,000 in attorney fees. We affirm this award against Karton's argument that $90,000 is not enough….

[T]he Kartons said their attorney devoted more than 600 hours to this litigation. The court did not doubt it, but thought the hours were "excessive by a lot."

The court gave five good reasons for concluding 600 plus hours was unreasonable.

First, the trial court rightly found the questions in this case were relatively simple…. Here the issues were pedestrian: whether a contractor had insurance and a license. On the issue of how much Ari owed the Kartons, Cheryl Karton testified Ari owed $35,096, and "[t]his testimony was not controverted by the Defendants." …

Second, the court had an ample basis to conclude the Kartons over-litigated this matter. They had about a $23,000 dispute with their contractor: the Kartons had said Ari owed $35,096 and Ari had claimed the debt was only $13,000. A $23,000 argument must be resolved, but it does not justify launching a disproportionate litigation offensive. The Kartons' strategy netted them windfall gains: the harshness of contractor licensing laws allowed them to recoup all their construction monies, plus $10,000, and to retain the benefit of months of free construction work….

Third, the trial court fairly attributed some of the over-litigation to Karton's personal embroilment in the matter. Karton is an experienced lawyer. He brought this suit about his own home. Karton declared, "I was substantially involved in this case because I was cheated. So, yes, I was involved." The trial court observed Karton's demeanor at the hearings and saw he was "agitated about this case. This is your personal matter, and I understand that. I see that you have strong feelings about this case and strong feelings about the course of this litigation and how it has proceeded." The court had reason to conclude embroilment undermined objectivity about the appropriate scale of litigation.

Fourth, the trial court rightly sought an appropriate relationship between the result achieved and the size of the fee. For a century or more, California courts have considered the success or failure of attorney efforts when evaluating attorney fee requests.

The size of a judgment is pertinent to rational evaluation of a requested fee. Rational decisionmaking weighs benefits and costs…. [R]ational investors or buyers would not spend [$2] to get something worth $1. The trial court properly connected the fee to the judgment.

Fifth, the court correctly noted the incivility in Karton's briefing. Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. Civility is an aspect of skill.

Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.

Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies. Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise the hostilities.

By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook….

The Kartons respond to criticism of their personal attacks by attacking.

First the Kartons maintain opposing counsel indeed did knowingly make false statements. They point to a report by a discovery referee. The cited pages, however, recount the parties stipulated certain evidence would be inadmissible. They do not find someone knowingly made false statements. In oral argument on appeal, however, Karton continued to assert opposing counsel was a liar.

Next the Kartons defend calling opposing counsel's comments "frivolous." They claim a meet and confer letter was so meritless as to justify this language. The Kartons do not, however, cite a finding faulting this supposedly meritless letter.

On this point, the Kartons quote the Phil Spector murder case at some length, to no avail. There, in closing argument a prosecutor told a jury that expert witnesses will say anything if you pay them enough. This case is irrelevant. Spector involved neither an attack on opposing counsel's integrity nor appropriate factors in setting an attorney fee award. Instead, it involved a closing argument about an expert witness jurors had to evaluate.

Finally, the trial court noted the Kartons denigrated the actions of opposing counsel as "typical of the improper tactics employed by defendants and their counsel." The Kartons argue "this characterization falls within the scope of the type of advocacy approved in People v. Spector …." The Spector case did not involve attacks on the integrity of opposing counsel. This argument fails.

In short, in this appeal the Kartons have come out swinging, apparently believing the best defense is a good offense. This approach demonstrates the trial court was within its discretion to conclude the Kartons conducted litigation that was less than civil.

In sum, these five grounds were sound bases for reducing the requested attorney fee from about $300,000 to $90,000….

Disclosure: The judge whose decision on this point was affirmed by the court, L.A. Superior Court Judge Elaine Mandel is a very dear friend of mine, but I didn't even notice this was her case until I was about to put up the blog post.

NEXT: Class #15 - Free Exercise of Religion I

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  1. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly.

    I might go all Behar on this.

    1. kind of a slow pitch across the plate for him....

    2. Yeah, that's a funny one. In a bad way.

      1. That is the goal of torts. Beyond efficiency, they replace endless cycles of violent revenge for injuries from centuries ago. Torts are in failure. They do not promote safety, but cover up. They are slow, unpredictable, and usually fail, even in defendant judicial hellholes. Their elements are divorced from the reality of mishaps. They involve the supernatural power of future forecasting. The Medieval catechism attributed the power to predict the future and to prevent accidents to God. That monk judge said man could that. He was nuts.

        1. "They do not promote safety, but cover up."

          No, torts promote paranoia -- I've seen it in higher education way too many times. It's not just things like harmless fun being cancelled because one idiot got hurt but the paranoia with which they view mental illness, with the resultant rape of the student's civil rights.

          And as to mental illness, if the last four sentences were anything other than a parody of some sort, get help.

          1. Sorry, Doctor. You do not know enough law. They are not parody. They are not mental illness. The lawyer dipshits here will confirm them. They are atavism of the most toxic occupation in the nation, 10 times more toxic than organized crime.

            1. The modern view of mishaps is that factors come together in a place and time, like 12, and cause the mishap. The prevention of any will likely prevent the mishap.

              In the airline industry, they study crashes and list these. They then make systemic changes to prevent each in the entire industry. The result is great safety of flying. That safety is not from litigation, but from the hard work of crash analysis, the great effort to communicate the results industry wide. .

              When your field, medicine, has applied this modern view in a very limited way, they have eliminated huge problems.

              I hope you join me in supporting making such analyses work products not subject to discovery. That would make responsible parties rush to find the mistakes and to correct them. They could never be used in litigation.

              Among the list of factors in medical errors are host factors. The lawyer is plundering the assets of health care on behalf of irresponsible patients with self defeating behaviors. They are scapegoating doctors for pre-existing conditions.

              Here is a little present to your profession. Outcome Bias, the tendency to scapegoat after bad outcomes. Even extreme defense experts found malpractice in the same case and procedure description after the outcome was changed to death. It is a natural human tendency. Any cognitive bias on this list violates the Fifth Amendment Procedural Due Process Right to a fair hearing of the tort defendant. Any finding of such a bias supports a summary judgment for the defense. The dipshit lawyers here have no idea about this high school subject. Surprise them if you get sued.


              1. In the airline industry, they study crashes and list these. They then make systemic changes to prevent each in the entire industry.

                Sounds like Future Forecasting™!

        2. They involve the supernatural power of future forecasting.

          You do know that "future forecasting" is redundant, even if you're Yogi Berra, right?

          1. You mean like 'repetitious redundancy?"

    3. The court is definitely conflating the ideal with the reality.

  2. I have a much simpler question -- why is an attorney/litigant acting pro se entitled to attorney's fees in the first place?

    First, that's not reimbursement of money that they had to pay to someone else which, IMHO, is the purpose of awarding attorney's fees -- i.e. you had to go hire an attorney and this is (theoretically) money which you spent for an attorney.

    Conversely, if an attorney is entitled to compensation for representing himself, why isn't any other litigant? Everyone's time is finite and as much as the attorney could instead have been litigating something else, everyone else could instead have been doing something else.

    And third, is there any need of the pro se attorney to prove that he actually COULD HAVE earned that amount of money representing other clients? Specifically, does he (a) actually *have* other clients and (b) would they actually have paid him this much per hour? Are we not talking "fair market value" here?

    I can claim that my time shoveling snow is worth $100/hour -- or $10,000/hour for that matter -- but the real question is what will someone *else* pay me to shovel snow. (Isn't this how lost earnings are calculated?) Likewise, I can actually shovel the snow -- or take a truly nonchalant attitude and spend all day shoveling a sidewalk. Where is the check on this?

    1. A better example -- two lawyers have lawsuits against home contractors in New Hampshire, where both live. One practices in NH and hence is licensed there, the other practices in Massachusetts and hence is licensed there.

      Both represent themselves pro se in a lawsuit which they win.

      Why should the NH registered lawyer be entitled to attorneys fees when the MA registered one isn't? Personally, I don't think either should be...

    2. Good questions. I usually get as far as wanting "loser pays" to discourage frivolous lawsuits, but never thought of whether that should include the party's lost time if they are acting as their own attorney.

      So extend that a bit further -- why not pay the party also, for their lost time from work, in addition to paying the attorney's fees and other costs? If the winner has to take time off from work, why shouldn't that be covered too? That's part of the expenses. Of course, an attorney acting pro se shouldn't get to double bill.

    3. The lawyer wasn't acting pro se.

      1. You are right. I missed that too.

        [T]he Kartons said their attorney devoted more than 600 hours to this litigation.

        From the rest of it, I got the impression it was pro se.

        But it's still an interesting question. Why can't a pro se litigant collect attorney's fees for his own time? Why can't the party represented by a lawyer get paid for his time?

        1. It is an interesting question. In California, the issue is settled (in that the law is clear that I can't--if I represent myself--collect attorney fees. But nothing stops California lawmakers from changing this, of course. And maybe there are states where a self-representing person can indeed collect for legal fees.

          (I'll note that, while I agree with the result in this case, and agree that the inflated hours worked were largely due to his own attitude; one of the benchmarks would have allowed for full legal fees. In a case that involves a difference of $22,000, a lawyer who gets his/her clients an award of well over 130,000 has done an excellent job of litigating...certainly, in terms of getting a great result for the client.)

          1. " a lawyer who gets his/her clients an award of well over 130,000 has done an excellent job of litigating"

            It's more a case of the law involved. If a contractor is unlicensed in CA, the plaintiff is entitled to the entire cost of the contractors work...not just any unpaid margin. So, if you hire a contractor for $100,000, let them do $90,000 worth of work, then have a dispute for $5,000 and find out that they are unlicensed, you can get your entire $100,000 back...and keep all the work.

            Here though, apparently the billing was excessive. It was Karton, representing himself, and a co-council, who apparently didn't talk a lot. They wanted 600 hours of work at $450 an hour (That's 15 weeks of 40 hour workweeks). Over a dispute that was pretty simple (the contractor is licensed or not) and a relatively small amount (~$20,000 originally). Spending $270,000 over ~$20,000 isn't quite rational. Even over getting back $100,000.

            Because of the overspending, the less trusting part of me wonders if Karton had cut some sort of deal with his co-council.

            1. 1) Counsel. Not council.

              2) Given that the plaintiffs' entitlement to a full refund, based on a stupid California law about unlicensed (read: didn't pay the right government fees) contractors, was apparently indisputable, how the hell did this get to trial? First, why didn't it settle, second, why wasn't there summary judgment, and third, why didn't the defendants make an offer of judgment?

              1. 2) Not sure. Perhaps it started as a simple dispute about the amount owed. It's a little tough to read the tea leaves in the court record, but it does look like the Defendants tried to do exactly what you're suggesting. The plaintiffs appeared to oppose all of it. You can peruse...


        2. Because the primary purpose of (American) attorneys fees rules is to make it easier to obtain skilled representation. Awarding fees to pro se litigants would run contrary to this purpose, by incentivizing people to avoid hiring lawyers so they can pocket the fees themselves.

          1. I see your point, but it's more a damning of the legal system for being too complicated, for one, and for being too patronizing for two. If attorneys can be awarded costs when they win (which I gather is pretty rare, other than contingency fees), seems like the litigant ought to be recompensed for the time they spent working on the case too.

      2. Wow...

        I assumed he had to be -- that another lawyer would have told him to back off and calm down. So which lawyer was it who got overly involved in the litigation?

      3. Karton was and wasn't acting pro se.

        He had a co-counsel, but was arguing much of the case himself.

    4. Karton and the court agreed the Trope case barred recovery for the time Karton himself had spent on the case. (See Trope v. Katz (1995) 11 Cal.4th 274, 292 [attorney litigants may not recover attorney fees as compensation for effort they spend litigating matters on their own behalf].)

    5. I have a much simpler question — why is an attorney/litigant acting pro se entitled to attorney’s fees in the first place?

      He wasn't pro se. Reading isn't your forte, is it?

      Ever notice how your "much simpler questions" seem to be based on the false premise that you insightfully see things that nobody else does, rather than on your misunderstandings? Like the other day, when you wanted to know why nobody else had commented on the illegality of a recording in Connecticut?

  3. If the public is oppressed by the lawyer hierarchy, the lawyer is doubly oppressed. And, the regular street judge is triply oppressed.

    I am the best friend of the lawyer profession. You have to crush this hierarchy. Cut the number of lawyers in half. The Rule of Law is an essential utility product that can be regulated. Quadruple your income because you will provide tremendous value. And, your public esteem will go up an order of magnitude (10 fold).

    The profession is absolutely essential to civilized living. It has to start to work, and stop failing at every self stated goal of every law subject.

    1. See above regarding getting help. There are *serious* red flags there, and if you don't see them -- if this isn't a parody of some sort -- GET HELP, soonest....

      1. That's a stale KGB response to dissent.

      2. Doctor. This may take 2 minutes. Look up the homicide statute of your state. Look up the elements of mortal sin in the Catechism. Compare the wording. That plagiarism is not allowed in our secular nation.

  4. [R]ational investors or buyers would not spend [$2] to get something worth $1.

    That is utterly idiotic. The expenditure on fees is an investment in the prospect of a return. People regularly "spend" $2 to get $0.20 or even less per year.

    I am familiar with California's contractor licensing laws. The licensing retirement is quite strict, and homeowners are very likely to succeed against unlicensed contractors.

    It is quite rational to invest significantly more in fees than the amount in controversy when you are highly likely to win and be awarded fees.

    1. Yeah, I thought it was just a weird statement. And false on its face.

      People with money often spend a lot on a case for the principle...even when their potential award is going to be little or nothing (in terms of actual dollars). People sometimes sue an obviously judgment-proof defendant (ie, where they know in advance that they are getting zero dollars back and that they also will have to pay their own attorney), again, for the principle.

      1. Not just for principle -- at one point (I am not sure about now) WalMart had a corporate policy of pursuing *all* shoplifting offenses, regardless of the value of the item(s) stolen or anything else. IANAL but this cost them a considerable amount of money, not sure how/why but it did -- but WalMart's attitude was that this was a good investment.

        Memory is that WalMart also had a policy of never settling a slip/fall lawsuit, contesting each and every one, regardless of cost.

        1. Memory is that WalMart also had a policy of never settling a slip/fall lawsuit, contesting each and every one, regardless of cost.

          Very doubtful, and stupid policy if your claim is accurate.

          Where a large wealthy organization has clear liability - let's say no one cleaned up a spill - fighting the case in court seems to be a terrible strategy. Just pay the damages and move on, without the risk of a catastrophic judgment or, maybe more costly, bad publicity.

          1. But is "Walmart contests ALL slip and fall cases" really bad publicity if it dissuades a significant number of people from bringing cases? It really depends on the ratio.

            1. It's not the contesting that's bad publicity. It's losing a big judgment because nobody cleaned up the spilled liquid soap on aisle 6 and you fought the case.

              Sure, contest the BS, but pay up on the legitimate cases - and given the size of Walmart there surely are legitimate cases.

          2. Dr. Ed, somehow, is somewhat correct. I don't know about WalMart specifically, but there is a regional chain where I am located that likes to fight its slip/trip and falls and while it's not exactly a "no settlement" policy, it is a policy of litigating well past the point that they should have settled and being more likely to go to trial on cases than other types of defendants.

            Plus, there is no such thing as "clear liability" in slip-and-falls. The open-and-obvious doctrine/comparative fault lets you litigate whether a person should have seen whatever it is they slipped on.

    2. See, that's part of the issue though.

      In principle, it's not rational to spend $270,000 to get $20,000 back. It's only "rational" if you can ALSO win the $270,000 to pay the lawyers.

      So, the real winners here are the lawyers. They take home 90% of the proceeds (or in this case, ~70% if they had won full fees).

      But now, with the excessive fees, is Karton on the hook for the $180,000 not covered by the court?

      1. That's between him and his lawyers. It's common to have a fee arrangement in which fees are capped at a certain amount, plus whatever the court awards.

        It seems rather unlikely that an active, knowledgeable client like Karton would've let them run up those kind of fees based on the mere hope that the defendants would be ordered to pay. But either Karton owes them, or the lawyers have to eat all that time.

        1. "It’s common to have a fee arrangement in which fees are capped at a certain amount, plus whatever the court awards."

          See, that's not quite right (from a moral perspective).
          It's incentive to drive up the Lawyer fees, especially if Karton knows he'll never have to pay any of it.

          1. That depends if the courts do an adequate job of policing unreasonable lawyers' fees or not. If they do, there's no such incentive. Well, there is for Karton, but not for his attorneys, because they know they might expend a lot of time that they won't ultimately be compensated for.

            Some courts in some jurisdictions are good at that, and some are not.

      2. It’s only “rational” if you can ALSO win the $270,000 to pay the lawyers.

        More precisely, it's only rational if you have greater than 27/29 chance to win, and then only if you are rich enough that $270K has 13.5 times the utility of $20K. IOW, only if your utility of wealth is close to linear between minus $270K and plus $20K.

  5. Kartons' strategy netted them windfall gains: the harshness of contractor licensing laws allowed them to recoup all their construction monies, plus $10,000, and to retain the benefit of months of free construction work….

    Pursuing your legal rights (licensing) is a basis for undermining your legal rights (fees)? That is a bad argument.

    1. I agree. But, in cases where you know *in advance* that the contractor is unlicensed, it's a dick move to get the work done (maybe perfectly done), and then sue to get all your money back, plus a bit extra. I've had to do this in Small Claims Court a few times. Happy to rule for the homeowners when the contractor lied about being licenses. Hate to rule for the homeowners when they were informed in advance and went in with eyes open.

      1. Isn't there some legal principle about your hands having to be clean in a civil lawsuit?

        1. For equitable relief, sure. Not for legal relief, or in this case statutory relief.

  6. The O.J. case persuaded me to support the American Rule.

  7. "Excellent lawyers deserve higher fees, and excellent lawyers are civil. "

    I question this premise. Not clear to me that one cannot be both nasty and excellent, nor that nastiness always results in additional, excessive efforts.

    The result here could have been reached without referring to the lawyer's lack of civility. He wasted a lot of time on what should have been a relatively simple case, and the fees sought far outstripped the results achieved. That would have been true even if the lawyer had been completely civil.

    But suppose the lawyer were nasty, yet very efficiently achieved a great result for the client -- say a $ 2 million judgment for $200,000 in fees. I very much doubt it would be justified to reduce his fee merely because he lacked civility.

    1. Yes, you're right; the premise here is that the incivility was emblematic of bad lawyering that caused extra time to be spent.

      The judge was being awfully generous in saying that he believed the attorneys had truly spent 600 hours on this case, though. Unless the defendants had behaved egregiously, it's hard to see how. Based on the stated facts, I don't know what one could do with all that time. If the fact of being unlicensed is dispositive, this is a very very simple case.

      1. "I don’t know what one could do with all that time."

        Never underestimate the ability of lawyers to spend billable time when there is billing to be had.

        In my prior firm, we did a lot of trademark counterfeiting work. We once pursued an on-line counterfeiter for a certain brand (let's call them Brand X). The case settled for a reasonable amount at trial.

        At the same time, a large, national firm represented Brand Y against the very same counterfeiter. After they prevailed, they filed a fee application for $ 1.1 Million. The judge blew a gasket, harshly criticized their fees as excessive, and cut them down by about a third.

        Even after that judicial trimming, their fees were still twice as much as our boutique firm had charged to pursue the same counterfeiter for Brand X.

        I would have loved to be a fly on the wall when the GC of Brand Y read the judge's opinion.

  8. Here's what they are talking about:

    I myself have come up against this nasty piece of work in the past and I'm happy to be rid of him. (His firm fired him after he received a reprimand from the Florida Supreme Court.) He would file last minute motions for protective orders against depositions that had been scheduled for weeks or months and then not show up for it. In one case, after opposing counsel had already driving four hours to attend the deposition. He would file successive motions for summary judgment on the same issue he already lost on. He would simply refuse to comply with court orders compelling discovery. In one case, he objected on privilege grounds to a request for production, the judge held nothing requested was privileged and ordered it produced, and he then filed an amended response claiming everything was privileged.

    There is such a thing as zealous advocacy for one's client, but there is also such a thing as playing by the rules and behaving with courtesy. Unfortunately, an awful lot of rule breaking and discourtesy ends up getting rewarded rather than sanctioned simply because the system can't keep up.

    1. And the fault for that is the judge. You don't want bad behavior? Sanction it. Hard.

      We once had a case in LA, our firm was in NY. We had scheduled a deposition more than a month in advance. While the partner was in the air en route from NY to LA, I get an email saying the deposition is cancelled. Why? The deponent's uncle died.

      A bit of research showed that his uncle had died ten days before. We argued that he could have just emailed his lawyer one sentence, and adjourned it.

      The judge was not amused, and required them to reimburse the travel expenses AND the partner's billing time for travel.

      THAT is how a court should act.

      1. And the fault for that is the judge. You don’t want bad behavior? Sanction it. Hard.

        This. I thank the stars that I practice almost entirely in federal court, where these kind of shenanigans aren't tolerated to a large extent. Obviously one can still work the system even there — how long did it take them to take care of Richard Liebowitz? — but there's a lot less leeway. You don't get to keep filing motions over and over again, and there are almost no interlocutory appeals, and court orders actually mean something.

        I'm astonished when I talk to my colleague who practices in NY state court, who explains that scheduling orders are basically just suggestions there.

        1. Yup. I also practice almost exclusively in federal court. Only time we go to state court is when we have to sue a client.

  9. I get the feeling the judge doesn't like this you-get-your-entire-bill-back law, and in part is taking it out on the attorney. The judge kept saying this is a 20k case, this is a 20k case. No it wasn't. It was a 130k case. And spending more on attorneys than the case is monetarily worth is quite common, particularly where the law is designed to be a stronger-than-usual deterrent to whatever behavior is being prohibited.

    Judge probably should've just stuck with the attorney's bad behavior justifying the reduction.

    1. "And spending more on attorneys than the case is monetarily worth is quite common"

      Doesn't that strike you as wrong on some level?

      1. IMO, it depends on the case. Some cases (like an ordinary breach of contract case) the only value is the amount collected.

        In other cases, there is some importance in deterring others. Civil rights cases come to mind. Some courts held that attorney's fees could be collected on the "private attorney general" theory. Supreme Court nixed that; the American rule is the presumption unless Congress says otherwise. Which Congress then did, providing for fees in civil rights cases.

        If someone is shown to engage in intentional discrimination, the damage is not only the loss of the job, but also it creates the feeling among minorities that they are being discriminated against. So there is value in prevailing in such a case beyond the value of the money damages awarded to the individual plaintiff.

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