/ October 15, 2009

Are "Superb" Civil Rights Lawyers Entitled to Larger Fees?

The 11th Circuit Court Appeals certainly thinks so. In Perdue v. Kenny A., the 11th Circuit upheld the district court’s $4.5 million upward adjustment of attorney’s fees based on the “superb” lawyering by the plaintiffs’ attorneys.
Perdue was a 42 U.S.C. § 1983 lawsuit in which the plaintiffs claimed that deficiencies in the Georgia’s foster care system violated various federal (and state) laws. After a long and bitterly fought battle, the parties ultimately agreed to a proposed consent decree that was designed to eliminate the greatest problems in the foster care system by implementing significant reforms.
The parties also agreed that the plaintiffs’ attorneys should recover reasonable attorney’s fees. You see, 42 U.S.C. § 1988, a federal fee-shifting statute, entitles prevailing civil rights attorneys to “reasonable attorney’s fees.” Supreme Court precedent holds that courts must calculate a base-line “reasonable” — what is called a “lodestar” figure, but multiplying the hours billed by the prevailing attorney by a reasonable hourly rate.
Accordingly, the district court first in Perdue calculated a lodestar value of $6 million. But then the court increased the fees to $10.5 million reasoning that “the superb quality of [the plaintiffs’ attorneys’ representation far exceeded what could reasonably be expected for the standard hourly rates used to calculate the lodestar.” Kenny A. ex rel. Winn v. Perdue, 454 F.Supp.2d 1260, 1289 (N.D. Ga., 2006)
Unhappy about having to pay such a large sum, Georgia appealed, but the 11th Circuit affirmed the district court. Georgia and appealed again, and Perdue v. Kenny A., 08-970, eventually made it before the Supreme Court.
The Supreme Court heard oral argument in Perdue on Thursday, as the Wall Street Journal Law Blog reported. Click here for a witty and insightful report window into the Q&A at the oral argument by Slate columnist Dahlia Lithwick. You can also read the full transcript of the argument on the Supreme Court’s website.
Which way is the Court leaning? It’s almost impossible to read the oral argument tea leaves, but if I were a civil rights lawyer, even a “superb” one, I wouldn’t hold my breath.

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