U.S. Supreme Court

Kagan Opinion Deems Fee-Shifting Calculations to Be ‘Rough Justice’

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If litigation had more dramatic resolutions, fee-shifting litigation would be a lot easier, Justice Elena Kagan muses in a U.S. Supreme Court ruling today on attorney fee awards.

The issue: How should a court apportion attorney fees under the civil rights fee-shifting statute when a plaintiff asserts both frivolous and nonfrivolous claims? Kagan tackled the question in a unanimous opinion (PDF) for the court that talked about the nature of real-world litigation and the difficulties of determining fees.

When both frivolous and nonfrivolous claims are made, Kagan said, courts may grant reasonable fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims.

The dispute before the court involved allegations of dirty tricks in a Louisiana local election for the chief of police. The plaintiff, Ricky Fox, won the election despite his opponent’s tactics, then filed suit, citing a mixture of federal civil rights claims and state law claims, including defamation. Fox later conceded the federal claims were frivolous, but the state claims are ongoing.

The fee-shifting statute allows an award of fees to civil-rights defendants fighting frivolous claims, but the determination is not so cut and dried, Kagan said.

“These standards would be easy to apply if life were like the movies, but that is usually not the case,” Kagan said. “In Hollywood, litigation most often concludes with a dramatic verdict that leaves one party fully triumphant and the other utterly prostrate. The court in such a case would know exactly how to award fees (even if that anti-climactic scene is generally left on the cutting-room floor). But in the real world, litigation is more complex, involving multiple claims for relief that implicate a mix of legal theories and have different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis. In short, litigation is messy, and courts must deal with this untidiness in awarding fees.”

The calculations aren’t so easy either, Kagan wrote. “Trial courts need not, and indeed should not, become green-eyeshade accountants,” she said. “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time. And appellate courts must give substantial deference to these determinations. … We can hardly think of a sphere of judicial decision-making in which appellate micromanagement has less to recommend it.”

The case, Fox v. Vice, was remanded for a determination under the “but for” standard. The trial court had improperly imposed attorney fees for defense work done on both frivolous and nonfrivolous claims, Kagan said. “A trial court has wide discretion when, but only when, it calls the game by the right rules,” she said.

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