               ATTORNEY'S FEES IN CIVIL LITIGATION
                      CONTROLLING THE COSTS

                               By

                   William U. McCormack, J.D.
                 Special Agent/Legal Instructor
                           FBI Academy


     One of the most significant aspects of many civil suits
filed against law enforcement defendants for alleged violations
of constitutional rights (1) is the associated attorney's fees in
the case. Often, the prospect of incurring high attorney's fees
determines whether a law enforcement officer or a government
entity vigorously defends a civil suit by asserting all possible
defenses and immunities or instead settles the suit. This article
examines recent developments concerning the important issue of
attorney's fees in civil litigation and suggests strategies for
law enforcement defendants to better control potential civil 
liability.

METHODS OF COMPENSATION

     To understand the impact of attorney's fees on civil
liability, it is first necessary to understand the ways in which
an attorney receives compensation for representing a plaintiff
and whether the plaintiff is reimbursed for those fees. In a
common law tort suit, such as a car accident, in which the claim
is negligence, courts follow the so-called "American Rule," where
each side bears the costs for its own attorney's fees. (2) Thus,
if the plaintiff prevails, the plaintiff is not reimbursed by the
defendant for the plaintiff's attorney fees, which are typically
calculated on either an hourly rate or a contingency fee basis.
With a contingency fee, the plaintiff's attorney takes a certain
percentage of the damage award, usually 30 to 50 percent, but
receives no monetary compensation if the plaintiff loses.

     After concluding the "American Rule" insufficiently
encouraged civil suits alleging constitutional violations,
Congress enacted the Civil Rights Attorney's Fees Awards Act of
1976, 42 U.S.C. Section 1988. (3) This act authorizes Federal
district courts to award reasonable attorney's fees to prevailing
parties in civil rights litigation brought under 42 U.S.C.
Section 1983. (4)

     Under Section 1988, a person who sues under Section 1983 and
prevails in the lawsuit is entitled not only to damages but also
to an award for attorney's fees. (5) These fees are typically
calculated by multiplying the reasonable number of hours the
attorney expended by a reasonable hourly rate. (6) Thus, the
attorney's fees that law enforcement defendants may have to pay
to the plaintiff continually increase as a Section 1983 lawsuit
progresses through the normal stages of pretrial motions,
discovery, trial, and appeals.

     This threat of an ever-escalating award of attorney's fees
presumably causes many law enforcement defendants to settle suits
before trial, even when the validity of the suit is questionable
because of viable defenses or immunities. The concern over the
cost to a law enforcement defendant or agency for attorney's fees
is further heightened by the need to pay the lawyers who are
defending the suit. As a result, it is not uncommon for the
attorney's fees to be the most significant monetary aspect in
civil litigation. In many instances, the attorney's fees of the
plaintiff awarded under Section 1988 exceed the damages awarded
to the plaintiff. (7) 

SETTLEMENT CONSIDERATIONS

     Quickly settling a lawsuit that a plaintiff is likely to win
can be an extremely advantageous tactic for a law enforcement
defendant. By using Rule 68 of the Federal Rules of Civil
Procedure (FRCP) to settle a case, a law enforcement defendant
may limit attorney's fees and other costs of litigation, such as
expert witness fees.

     Rule 68 provides that a defendant in a lawsuit may offer to
allow judgment to be taken against him or her "with costs then
accrued." If the offer of judgment is rejected by the plaintiff
and the judgment finally obtained by the plaintiff is less
favorable than the offer, the plaintiff "must pay the costs
incurred after the making of the offer."

     In Marek v. Chesney, (8) the Supreme Court determined that
Rule 68 "costs" include Section 1988 attorney's fees. Marek is a
good example of how a quick Rule 68 offer of judgment can limit
attorney's fees and costs.

     In Marek, three police officers, in answering a domestic
disturbance call, shot and killed the plaintiff's son. Prior to
trial, the defendant officers made a Rule 68 settlement offer of
$100,000, including attorney's fees, which the plaintiff
rejected. The case went to trial, and the plaintiff was awarded
$60,000 in damages. Thereafter, the plaintiff's attorney filed a
request for attorney's fees and costs under Section 1988 for
$171,692. The parties agreed that $32,000 fairly represented the
costs, including attorneys fees, accrued prior to the defendants'
offer under Rule 68.

     Because the $32,000 in attorney's fees and costs, when added
to the $60,000 damage award, was less than the $100,000 offer of
judgment, the plaintiff's attorney's fees and costs were properly
limited to $32,000 rather than $171,692. The Court noted that the
application of Rule 68 to 1983 cases will require plaintiffs to
think very hard about whether continued litigation is worthwhile
and that the purpose behind the rule is to encourage early
settlements. (9) In addition, the Supreme Court, in Evans v. Jeff
D., (10) held that a defendant sued under Section 1983 may
properly request the plaintiff to waive all attorney's fees as
part of a settlement offer. (11)

     Courts have unanimously held that the award of attorney's
fees under Section 1988 is to the plaintiff and not the
plaintiff's attorney. (12) Therefore, it is the plaintiff's
prerogative to negotiate the amount of attorney's fees as part of
a settlement agreement.

     As one court noted, the right to settle a civil suit under
Section 1983, including the amount of attorney's fees, rightfully
belongs to the plaintiff. If the attorney's fees and the right to
settle belonged to the attorney, the attorney would have a clear
interest in refusing to settle in order to increase the
attorney's fees under Section 1988. (13)

PREVAILING PARTIES AND MONETARY DAMAGES

     The Supreme Court recently decided two important cases that
may significantly lessen the impact of attorney's fees under
Section 1988, even when the plaintiff prevails in the lawsuit. In
Farrar v. Hobby, (14) the Supreme Court ruled that a plaintiff
who received only nominal damages of $1 in a Section 1983 lawsuit
was entitled to no attorney's fees under Section 1988.

     In Farrar, the plaintiff owned a school for delinquent and
disabled teens, and one of the students died. When a State grand
jury returned a murder indictment against the  plaintiff, the
State temporarily closed the school. After criminal charges were
dismissed, the plaintiff filed a Section 1983 suit seeking $17
million from the government officials involved in the criminal
investigation. The civil case was tried before a jury, which
determined that the plaintiff's constitutional rights had been
violated, but only $1 in nominal damages were eventually awarded.
The plaintiff then petitioned for attorney's fees, and the
district court awarded $280,000.

     The Supreme Court held that no attorney's fees should be
awarded when only nominal damages are obtained in a Section 1983
lawsuit. Even though the plaintiff was found by the Court to be
technically a prevailing party in the litigation, the Court
stated that the most critical factor in determining the
reasonableness of a fee award is the degree of success obtained.
(15)

     Farrar is an important case for law enforcement defendants
when deciding whether to go to trial or to settle a case before
trial. The Court in Farrar stated that where recovery of private
damages is the purpose of civil rights litigation, a court in
awarding attorney's fees is obligated to give primary
consideration to the amount of damages awarded, as compared to
the amount sought, and that fee awards under Section 1988 were
never intended to produce windfalls to attorneys. (16) One
predictable consequence of the Farrar decision is that attorneys
will be deterred from filing cases where they can anticipate that
the amount of attorney's fees incurred will be larger than the
monetary damage award. (17)

     The significant impact of Farrar can be seen in two recent
Seventh Circuit Court of Appeals cases. In Cartwright v.   
Stamper, (18) a law enforcement officer was successfully sued for 
an unconstitutional entry into the plaintiff's home, but the jury 
awarded only nominal damages. The plaintiff then petitioned for
$111,851 in attorney's fees and was awarded $79,312 by the
district court. The Seventh Circuit overturned the fee award and
held that the plaintiff was entitled to no fees at all. (19)

     Similarly, in Willis v. City of Chicago, (20) the plaintiff
prevailed in his lawsuit alleging that he was unconstitutionally
detained for over 48 hours without a judicial probable cause
hearing, but the jury awarded him only nominal damages. The
district court awarded the plaintiff $139,350 in attorney's fees,
which the Seventh Circuit Court of Appeals reduced to zero based
on Farrar. (21)

CONTINGENCY FEE ARRANGEMENTS AND SECTION 1988

     A second attorney's fees issue that the Supreme Court has
recently resolved concerns the effect of a contingency fee
arrangement on the amount of attorney's fees awarded under 1988.
In City of Burlington v. Dague, (22) the Court ruled that a
contingency fee arrangement between plaintiffs and their
attorneys cannot be used to increase the amount of attorney's
fees awarded under 1988. (23) 

     The effect of the Dague case can be seen in Gates v.
Deukmejian, (24) where prisoners in California brought a large
class action lawsuit challenging the conditions of their
confinement. After the prisoners prevailed, the district court
awarded over $6 million in 1988 attorney's fees. However, the
U.S. Court of Appeals for the Ninth Circuit, citing Dague,
reduced that figure by one-half, because the district court had
doubled the fee awarded to compensate for a contingency fee risk
factor.

SEVERABILITY OF CLAIMS

     Another strategy successfully used to reduce the amount of
attorney's fees in Section 1983 litigation is to demonstrate that
a plaintiff has alleged several separate claims based on
different facts and legal theories. When a plaintiff does not
prevail on one or more of these separate claims, the plaintiff's
attorney is not entitled to a fee award for work on such
unsuccessful claims. (25) In addition, if a plaintiff achieves
only partial or limited success, even with interrelated claims,
the degree of success may be properly considered in the overall
attorney's fees award. (26)

     An example of the severability of claims strategy can be
seen in Lenard v. Argento, (27) in which the plaintiff sued the
police under Section 1983 alleging an unconstitutional use of
excessive force, an equal protection violation, and malicious
prosecution. The plaintiff prevailed only on the equal protection
claim and was awarded $267,000 in damages and $377,000 in
attorney's fees under Section 1988.

     The Seventh Circuit Court of Appeals reversed the attorney's
fee award, finding that the equal protection claim and the
malicious prosecution claim were not related. Because the fee
award was based on the total number of hours the attorney
expended on the litigation, the Seventh Circuit remanded the case
for a lowering of the attorney's fees.

REQUESTS FOR EXCESSIVE AND UNSUBSTANTIATED FEES

     Law enforcement defendants should also be prepared to
challenge any fee claim by a plaintiff's attorney that is either
poorly documented or extremely excessive. If the plaintiff does
not submit reliable and detailed documentation to support the
hours allegedly spent on the case by the attorney, it is within
the district court's discretion to deny a fee award. (28) 

     For example, in Pontarelli v. Stone, (29) five State
troopers sued the State police and various government officials
alleging, among other claims, sex discrimination. Eventually,
after lengthy litigation, one of the plaintiffs prevailed and was
awarded $15,000 in damages.

     The plaintiff then requested $511,951 in attorney's fees and
$203,268 in costs pursuant to Section 1988. The plaintiff was,
however, delinquent in filing supporting documentation which,
when filed, was characterized by the district court as
"questionable."  For instance, the court noted that the
plaintiff's attorney submitted a claim for 25.7 hours work for
one day and 26.6 hours for the following day. The court remarked
that it may be possible to work around the clock for 2
consecutive days, but it is clearly impossible to do so for more
than 24 hours in any one day.

     Because of the excessive and unsubstantiated fee claim, the
court determined that the plaintiff was entitled to no attorney's
fees or costs. In addition, the court ordered the plaintiff to
pay one of the defendant's $54,168 to cover the defendant's
attorney's fees, because the court determined the claim against
this defendant was frivolous and was brought to harass and
embarass.

CONCLUSION

     When Congress determined that individuals should be
encouraged to vindicate violations of their constitutional
rights, 42 U.S.C. 1988 was passed, which provided for the
awarding of attorney's fees to a prevailing party in 1983
litigation. As a result, law enforcement defendants sued under
1983 often face tough choices in deciding whether to settle or
litigate.

     To aid in their decision, law enforcement defendants should
carefully consider the following litigation strategies discussed
in this article:

     1)  Assess quickly the validity of the plaintiff's claim and
     use Rule 68, FRCP, to settle when the claim appears valid

     2) Recognize that courts are less likely after the Farrar
     and Dague decisions to award attorney's fees under Section
     1988 that exceed potential monetary damages 

     3) Make certain that plaintiffs do not receive an attorney's
     fee award for separate unsuccessful 1983 claims, even when
     the plaintiff prevails on another claim, and 

     4) Scrutinize an attorney's fee claim to determine if it is
     excessive or unsubstantiated and consider a request for
     denial of the fee claim when the claim appears inflated.

With guidance from these strategies, law enforcement defendants
will be better able to control the costs of litigation and to
make informed decisions about potential civil liability exposure.


ENDNOTES

     (1)  Although this article explores the awarding of
attorney's fees in civil suits alleging constitutional
violations, the same principles apply to a wide variety of
lawsuits in which Congress has provided for attorney's fees,
including suits alleging illegal discrimination under Title VII
of the Civil Rights Act of 1964, 42 U.S.C.  Section 2000e-5(K).

     (2)  The "American Rule" is distinguished from the rule in
Great Britain, where the losing party normally assumes the burden
of paying the attorney's fees of the winning party. Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).
Many people interested in tort reform in the United States have
advocated legislation mandating the "British Rule," believing it
will discourage meritless or frivolous lawsuits from being
instituted.  

     (3)  Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).  

     (4)  This fee-shifting scheme does not apply to lawsuits
alleging constitutional violations brought against Federal law
enforcement officers pursuant to Bivens v. Six Unknown Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).  However,
if a Federal agent is considered to be a conspirator with State
officers under 42 U.S.C. 1985(3), or acting as a State or local
law enforcement officer, the provisions of  1988 may apply.

     (5)  A prevailing law enforcement defendant or agency may
recover attorney's fees only where the suit was vexatious,
frivolous, or brought to harass or embarass the defendant. See
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), and
Hughes v. Rowe, 449 U.S. 5 (1980).  A similar standard applies
when sanctions against a plaintiff's attorney under Rule 11 of
the Federal Rules of Civil Procedure are sought. Under Rule 11, a
civil suit must be "well grounded in fact" and warranted by
existing law. See, e.g., In Re Kunstler, 914 F.2d 505 (4th Cir.
1991), cert. denied, 111 S.Ct. 1607 (1991) (Rule 11 sanctions
imposed on attorneys representing plaintiffs in a suit against
law enforcement officials).

     (6)  Hensley at 433.

     (7)  See, e.g., Riverside v. Rivera, 477 U.S. 561 (1986)
($33,350 in damages and $245,456.25 in attorney's fees); Gomez v.
Gates, 804 F.Supp. 69 (C.D. Cal. 1992) ($44,000 in damages and
$378,175 in attorney's fees); Copeland v. Marshall, 641 F.2d 880
(D.C. Cir. 1980) ($33,000 damages and $160,000 in attorney's
fees).

     (8)  473 U.S. 1 (1985).

     (9)  Id. at 11.

     (10)  475 U.S. 717 (1986).

     (11)  See also, Willard v. City of Los Angeles, 803 F.2d 526
(9th Cir. 1986) and Phillips v. Allegheny County, Pa., 869 F.2d
234 (3d Cir. 1989). Note, however, that in both Phillips and
Willard, the courts cautioned against using this tactic
consistently in a vindictive effort to deter attorneys from
representing civil rights plaintiffs.

     (12)  Benitez v. Collazo-Collazo, 888 F.2d 930, 933 (1st
Cir. 1989) and Turner v. Secretary of the Air Force, 944 F.2d
804, 807 (11th Cir. 1991).

     (13)  Darby v. City of Torrance, 810 F.Supp. 271, 274 (C.D.
Cal. 1992)

     (14)  113 S.Ct. 566 (1992).

     (15)  Id. at 575.

     (16)  Id. at 575. Note, however, that Farrar does not affect
the award of attorney's fees where the plaintiff only seeks or
obtains equitable relief in the form of an injunction or a court
order, such as a consent decree. When equitable relief is
obtained or the plaintiff's suit acts as a "catalyst" causing a
law enforcement defendant to change policy or procedures, the
plaintiff may be entitled to 1988 attorney's fees, even though no
monetary damages are awarded.  See, e.g., Craig v. Gregg County
Tex., 988 F.2d 18 (5th Cir. 1993) and Dawson v. Scurr, 986 F.2d
257 (8th Cir. 1993).

     (17)  See, e.g., Romberg v. Nichols, 970 F.2d 512 (9th Cir.
1992) (in a police misconduct case, the plaintiff prevailed but
was awarded only nominal damages. The attorney's fee award of
$29,137 was vacated and remanded in light of Farrar, 993 F.2d
1453 (9th Cir. 1993) and Domegon v. Ponte, 972 F.2d 401 (1st Cir.
1992) (award of $41,441 in attorney's fees when plaintiff
received $1 nominal damages vacated in light of Farrar, 113 S.Ct.
1378 [1993]).

     (18)  7 F.3d 106 (7th Cir. 1993).

     (19)  Id. at 110.

     (20)  999 F.2d 284 (7th Cir. 1993), cert. denied,            
_S.Ct._ (1994).

     (21)  See also Wilkes v. Reyes, 5 F.3d 412 (9th Cir. 1993)
(plaintiff appealed a jury award of zero damages because the jury
found that a police officer defendant had used excessive force. 
The Ninth Circuit noted that even though the plaintiff is
entitled to $1 nominal damages because of the constitutional
injury, this may not entitle the plaintiff to attorney's fees
under Farrar).

     (22)  112 S.Ct. 2638 (1992).

     (23)  See also, Blanchard v. Bergeron, 489 U.S. 87 (1989),
in which the Court held that a contingency fee contract did not
limit the amount of attorney's fees under Section 1988 and
Venegas v. Mitchell, 110 S.Ct. 1679 (1990), in which the Court
ruled that a contingency fee arrangement between plaintiffs and
their attorneys is a private contract between the parties and may
be enforceable, even when the 1988 award is less than the
contingency fee.

     (24)  987 F.2d 1392 (9th Cir. 1992).

     (25)  Hensley at 435. See also, Loranger v. Stierham, 10
F.3d 776 (11th Cir. 1994).

     (26)  Hensley at 436.  

     (27)  808 F.2d 1242 (7th Cir. 1987).

     (28)  See, e.g., Fair Housing Council v. Landow, 999 F.2d 92
(4th Cir. 1993) (prevailing party in suit to prevent
discrimination in housing opportunities sought $537,113 in
attorney's fees but was given zero due to the outrageously
excessive fee claim) and Lewis v. Kendrick, 944 F.2d 949 (1st
Cir. 1991) (plaintiff prevailed in an excessive force lawsuit and
was awarded $5,608 in damages.  The plaintiff then sought
$137,000 in attorney's fees, which the court denied in total,
stating, "To turn a single wrongful arrest into a half year's
work...is to use a benign word, inexcusable.")

     (29)  978 F.2d 773 (1st Cir. 1992). 
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