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Perdue v. Kenny A.

U.S. Supreme Court Upholds Congressional Intent of Civil Rights Laws

A unanimous Supreme Court upheld the ability of plaintiffs and their attorneys to recover fees for civil rights violations, while setting a difficult test for award of enhanced fees.


Recognizing the pervasiveness and devastating effect discrimination had on the nation, the federal Civil Rights Act encourages the vigorous prosecution of discrimination cases in part by allowing successful plaintiffs to recover their legal fees from wrongdoers — a major departure from the American legal system where, generally, each party bears its own costs of litigation including attorneys' fees.

Most civil rights attorneys' fee awards are determined by a "lodestar" methodology (reasonable number of hours worked multiplied by reasonable hourly rate). In some jurisdictions, the courts have adopted a matrix that further refines this formula by allocating a sliding scale of fees for attorneys based on attorney experience (for instance, in Washington, D.C., this sliding scale is based on the year the attorney graduated from law school). The goal is to make a reasonable fee award under all circumstances.

The lodestar methodology has its benefits in setting a known and knowable standard on which to base compensation and generally compensates attorneys fairly and reasonably. But in cases where attorneys go above and beyond their traditional work to secure a superlative outcome for victims particularly wronged, holding fast to a traditional model of compensation may not yield the results intended by Congress — such an award may be unreasonable based on all the circumstances.

And as law firms move from traditional per-hour billing rates to flat fees, retainers and various types of contingency compensation, the lodestar becomes more complicated. Moreover, a problem with the lodestar from the beginning is that reasonable minds may differ greatly in their opinions on how many hours it is "reasonable" to spend working on a given case. A lodestar such as that in Washington, D.C., which enhances fees based on years since graduation whether or not an attorney even practiced in that area of the law during that time, can obviously result in some discrepancies. If, for example, an attorney who litigated nothing but civil rights cases for five years since graduation is considered far less compensable than one who graduated from law school 20 years ago and practiced nothing but tax law since then and won her first civil rights case, the result might be unreasonable given all the circumstances.

A section of the Civil Rights Act (known as Section 1988) allows courts to adjust fees that are otherwise considered "reasonable." Use of Section 1988 to enhance awards for superlative attorney work was upheld by the Supreme Court decades ago, though the court has limited its application in cases of "complexity" and "novelty" and insisted upward adjustments be for only truly exceptional work by individual attorneys toiling on the case.

The ability of Section 1988 to be used for any upward adjustment came under attack in litigation that sought to enforce the rights of foster children in Georgia, a case that involved years of complicated wrangling, extensive research and fact-finding, and intricate legal maneuvering.

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