The Ninth Circuit vacated and remanded |
Posted: March 2, 2021 |
The court held that a challenge to the method used to determine the amount of fees attributable to claims for which an attorney fee award is appropriate is "legal in nature and therefore reviewed de novo." The court further held that in a civil rights case, "the pro-rata allocation of general fees between claims for which a fee award is appropriate and claims for which such an award is not appropriate, based solely on the number of claims, is impermissible." The court explained that a party that moves for an award of attorney fees bears the burden of proving entitlement to the amount requested. The Ninth Circuit is ready, willing and able to reverse legal issues regarding prevailing party status, attorney eligibility, statutory and contractual authority, statutory requirements, and method of amount determination if it disagrees with a district court's decision on an attorney fee order. Although attorney fee awards and denials are usually affirmed on appeal, affirmance is not guaranteed, especially on these issues. Niel Berman, a trial lawyer, said. I have been practicing for over six years, yet am still in single digits with respect to taking cases to verdict. When I first started as a civil litigator, I would go to conferences and hear Unruh act from the legends of the trial bar. These panels of masters would be distinguished attorneys who have tried many hundreds of cases each. My head would spin every time I would hear their resumes. On the left would be someone who tried 300 cases, on the right would be a gentleman who tried 250 cases and in the middle would be someone who tried a paltry 200. To a young lawyer, hearing these figures sounded like (and still does) learning about Wyatt Earp and the Wild West. I am no Melvin Belli, but I am a trial attorney. I love the theater and excitement of trial. From the moment the jury walks in for voir dire to the time the verdict comes in, there is nothing else in our profession that matches the intensity. However, times have changed. Newer lawyers coming into civil litigation will never be able to match the sheer volume of trial work undertaken by our predecessors. The rising cost of litigation, from expert costs to lack of funding for our court system, renders resolving disputes in the courtroom a rare occurrence. The popularity of ADR continues to blossom. It was once considered weak to agree to mediate a heavily disputed claim. Now it is universally considered cost effective. What this continuing trend means for new lawyers is that we have to find other ways to stay sharp for the big game. Our colleagues that came decades before us would be in trial monthly (and some weekly). They got to make mistakes, learn and grow. They could experiment. If they made a mistake and some theme didn't resonate with one jury, they would be picking another the following week. The new breed of trial lawyers are not afforded this luxury. Still, there are no excuses. Our clients deserve and demand effective trial lawyers. The challenge for the next generation of trial attorneys is how to become as comfortable in the courtroom as those that came before us and how to keep our arrows poised when they are being let out of the quiver so infrequently.
|
||||||||||||||||||
|