Ninth Circuit: "Lawyers Must Eat, So They Generally Won’t Take Cases Without A Reasonable Prospect Of Getting Paid."

In Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008), the Ninth Circuit clarified the rules for calculating "prevailing party" attorneys fees in civil rights cases under 42 U.S.C. § 1988.  The district court rejected the plaintiff's claim, and reduced both the number of hours the plaintiff's attorney claimed, and the hourly rate charged.  The Ninth Circuit reversed, holding that before the district court could simply whack hours and rates, it must articulate its specific reasons for doing so. 

The opinion was authored by Judge Kozinski, so it's an enjoyable read and I won't go into details since you can read the full analysis yourself here.  There are some enjoyable and informative quotes worth remembering, however:

Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid. (p. 9522)

By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker. (p. 9524)

The district court has a greater familiarity with the case than we do, but even the district court cannot tell by a cursory examination which hours are unnecessarily duplicative. Nevertheless, the district court can impose a small reduction, no greater than 10 percent—a “haircut”—based on its exercise of discretion and without a more specific explanation. Here, however, the district court cut the number of hours by 25 percent, and gave no specific explanation as to which fees it thought were duplicative, or why. While we don’t require the explanation to be elaborate, it must be clear, and this one isn’t. (p. 9524)

The district court has discretion to determine the appropriate fee award, because its familiarity with the case allows it to distinguish reasonable from excessive fee requests. But gut feelings are not enough; if the district court is going to make substantial cuts to a winning lawyer’s fee request, it needs to explain why with sufficient specificity that the lawyer can meaningfully object and we can meaningfully review the objection. We can’t defer to reasoning that we can’t review; if all the district court offers is a conclusory statement that a fee request is too high, then we can’t tell if the court is applying its superior knowledge to trim an excessive request or if it is randomly lopping off chunks of the winning lawyer’s reasonably billed fees. (p. 9531)

Attorneys fees awards under § 1988 are important to land use lawyers since Fifth Amendment property rights are civil rights, violations of which are actionable under 42 U.S.C. § 1983.