20% of Requested $549,885 Deemed Fair By Both Trial and Appellate Courts.
Although strict proportionality of fees is not the governing standard for awards to winning civil rights plaintiffs, the lack of success and inflated fee requests are important “checks” which can result in a greatly reduced fees award.
That is what occurred in Henderson v. Carter, Case No. B241994 (2d Dist., Div. 5 Aug. 20, 2013) (unpublished).
After winning $17,940.80 in damages against one defendant from a jury (with others falling along the way after a demurrer and another obtaining a defense jury verdict), winning plaintiff in an excessive force civil rights case moved to recover attorney’s fees as allowed under 42 U.S.C. § 1988. After plaintiff initially requested a fee award of over $1.5 million for 5,054.8 hours, the trial court did something prudent in our view: at the initial hearing, he asked plaintiff for a “reality check” based on many factors (lack of success, multiple attorney involvement, and lack of fee documentation), but allowed supplemental briefing and set another hearing on the fees motion. Plaintiff came back with a reformulated $549,885 request for 1,892.95 hours after eliminating some time for an unsuccessful appeal, double billing, and time spent on the phone/interoffice conferencing between lawyers.
The lower court found that $549,885 lodestar request reasonable, but only awarded $109,977 based on numerous factors: (1) the damages award was under the unlimited jurisdictional threshold; (2) suit was brought against unnecessary defendants and overly aggressive discovery tactics were employed; (3) the excessive force case was not novel or unusually difficult; (4) the first fee request was unreasonably inflated; and (5) inadequate supporting documentation on work effort was submitted–no time or billing records with detail, at all.
Plaintiff’s appeal of the fee award was unsuccessful. The 80% reduction in the “re-do” request was warranted given the small success (which means looking at the actual jury award) and the inflated nature of the request involving multiple attorneys and attempting to capture work for patently unsuccessful efforts. The lower court did not abuse its discretion by failing to use defense work effort in fixing the lodestar, and the inflated nature of the request was a special circumstance properly used to reduce the lodestar by 80%.