Here’s the amici brief we’re filing in a case which we told you about earlier, involving the way attorneys’ fees get calculated when a statute allows fee shifting.
This is the afterglow of a rails-to-trails takings case, in which the property owners are entitled under the Uniform Relocation Act to attorneys’ fees. We like.
What we didn’t like was the way the trial court arbitrarily cut the property owners’ fee request, without ever explaining why. The court simply made an across-the-board percentage reduction from the “lodestar” (a reasonable hourly rate times a reasonable time per task). And the Federal Circuit affirmed.
So the property owners sought cert review, and now we’ve filed a brief in support. Our brief focuses on the first Question Presented: “Whether trial courts have discretion to make across-the-board percentage adjustments to the lodestar fee and, if so, what “specific proof” or “explanation” must the court provide so the adjustment is “objective and reviewable?”
Here’s a portion of the Summary of Argument from our brief:
“A lawyer’s time and advice are his stock in trade.”
– Abraham Lincoln, country lawyer.
Mr. Lincoln’s famous dictum remains the core of the practice of law. The Federal Circuit’s ruling undercuts that essential truth by subjecting the lawyer’s most precious resource—his or her services—to a standardless process that gives too much discretion to trial judges to arbitrarily determine that a lawyer’s “stock in trade” is worth less in a particular case than the market.
This brief focuses on the first Question Presented, and argues that the Federal Circuit’s rejection of the lodestar method as the presumptive reasonable fee recovery—time spent by the lawyer multiplied by a reasonable rate, and the “guiding light” of fee calculations—is a recipe for capriciousness. Gisbrecht v. Barnhart, 535 U.S. 789, 801 (2002) (“The ‘lodestar’ figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence.”). An opaque process not subject to uniform and understandable standards endangers access to justice, not only for property owners seeking just compensation, but for all litigants in cases where the possibility of fee-shifting is present.
This brief makes two points. First, transparent and uniform standards for the recovery of attorneys’ fees and costs in litigation fosters access to justice, particularly in cases where private citizens are forced to bring claims against an opponent unconstrained by litigation budgets. Reducing a plaintiff’s statutory recovery by district court fiat undermines the certainty that all parties rely on. This certainty is especially critical pre-litigation, when the parties and the lawyers evaluating whether to take their cases should know the ground rules to make an informed judgment.
Second, we give some examples of the pattern of Government conduct in rails-to-trails cases, where it has in many instances needlessly increased the cost of litigation by its slash-and-burn approach. The case at bar must be viewed in light of the Government’s failed strategies in these other cases, because needlessly increasing the costs of litigation and then objecting to the efforts which the plaintiff undertook to win brings to mind Leo Rosten’s classic definition of chutzpah. For the district court to exercise unreviewable discretion to reduce the lodestar amount without an explanation of how or why, only adds to the injury.
This case presents a good vehicle for this Court to determine that if a district court strays from the presumptive lodestar fee, it should be required to say why, with precision. The Court should grant certiorari.
Damon Key colleagues Chris Leong and Loren Seehase joined us on the brief.
Stay tuned, there may be more. (The Government has waived its right of response.)