Tuesday, October 13, 2009

U.S. Supreme Court to Hear Attorney Fees Case

Some federal statutes contain fee-shifting provisions under which the prevailing party is entitled to an award of attorney's fees to be paid by the losing party. These fee-shifting provisions are present, for example, in federal civil rights, employment discrimination, and age discrimination statutes.

In determining the attorney fee to be awarded to the prevailing party, the "lodestar" calculation is used by federal district courts: the number of hours expended by the attorney is multiplied by what the court considers to be the appropriate hourly rate for the attorney. The court can then adjust the fee to take into consideration such factors as the financial risk taken by the attorney in litigating the matter.

Tomorrow morning the United States Supreme Court will hear oral argument in Perdue v. Kenny A., which raises the question of whether a court can enhance the lodestar calculation based on the quality of counsel's performance and the results obtained for the client.

The case has attracted wide attention and fifteen amicus briefs have been filed with the Court. Seven of the amicus briefs are on behalf of governments or government agencies which must pay prevailing party legal fees when they lose the case. As is to expected, they oppose the enhancements to the lodestar calculation. For example, one amicus brief was submitted on behalf of 30 states. New York did not join in this brief.

The remaining amicus briefs were filed on behalf of an assortment of organizations and law firms which often bring suit under statutes which have fee shifting provisions. These briefs support enhancements to the lodestar calculation.

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