In civil rights cases, the winning plaintiff recovers her attorneys' fees from the losing defendant. So if the plaintiff's lawyer spent 100 hours on the case and is entitled to $300 per hour, the defendant pays out $30,000 in addition to whatever damages the jury awarded. This is mostly a one-way street, though. As a general rule, winning defendants get bubkis from the losing plaintiff.
The case is Nicholas v. City of Binghamton, a summary order decided on March 10. This police misconduct went to trial, and Nicholas lost. Here is the rule governing reverse attorneys' fees:
A prevailing defendant should not be awarded fees unless a court finds that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” “The fact that a plaintiff may ultimately lose [her] case is not in itself a sufficient justification for the assessment of fees” in favor of a defendant. Courts should not “engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.”
In other words, if the plaintiff fought the good fight, she does not get penalized for losing. As the Court of Appeals says in this case, "Ordinarily, a claim should not be deemed “groundless where the plaintiff has made a sufficient evidentiary showing to forestall summary judgment and has presented sufficient evidence at trial to prevent the entry of judgment against him as a matter of law. As the decisions of this Court demonstrate, it is very rare that victorious defendants in civil rights cases will recover attorneys’ fees.” In other words, bupkis.
The district court calculated defendants' attorneys' fees entitlement as $31,865. But since plaintiff is out of work and has little money, the court reduced her fee liability by two-thirds, to about $10,000.
The district court awarded the City attorneys' fees, but the Court of Appeals (Winter, Hall and Droney) vacates that award. Plaintiff may have lost, but her claims were not frivolous. There is a difference. Here is how the Second Circuit reasons through it:
A large portion of the district court’s fee award was attributable to Appellant’s excessive
force claim, which was not deemed unsuccessful until it was litigated at trial. Although several of the witnesses disputed Appellant’s version of events, the mere fact that the jury ultimately chose to disbelieve Appellant did not render her claim frivolous. Moreover, contrary to Appellees’ arguments as to the medical evidence, Appellant’s trial evidence, including conclusions rendered by her treating doctors, supported her claim that the trauma of the handcuffs could have exacerbated the underlying arthritis in her wrists. Even though Appellant’s excessive force claim was not particularly strong, it was not frivolous, unreasonable, or groundless.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.