Recent First Circuit decisions of interest – Part I


The First Circuit recently decided several cases with language of general interest.  Here’s one of them.

1.  Torres-Rivera v. O’Neill-Cancel, No. 07-1806

This decision addresses attorney’s fees under 42 U.S.C. sec. 1988.  It goes into multiple issues:  (a) apportioning who pays among multiple defendants; (b) the degree of discretion in reducing fees based on bad timekeeping; and (c) the general rule that if you are entitled to fees, then that includes your fees to get your fees. 

Aside from providing a nice general discussion of building the lodestar and other basics, the interesting part of the decision is its discussion of apportionment based on relative liability v. vigor of defense.  While one defendant had a larger damages award assessed against him in this case, he defaulted; the other one, who, unlike the defaulter, was provided a defense by the Commonwealth, more vigorously defended.  The district court apportioned fees by relative liability.  The First Circuit vacated, finding it an abuse of discretion not to consider the vigor of defense differential.

I don’t know much about Puerto Rican law, but it could be that what was going on here was the fact that the defaulting defendant was judgment proof, while the other is not, so the plaintiffs will be stiffed of more of their fees if only the relative liablity measure is applied.  The underlying civil rights violation was, the Court noted, "egregious"; according to the Court’s recitation, the non-defaulting defendant was certainly not blamless; and the plaintiffs’ situation seems generally very sympathetic.   The Court of Appeals upheld the district court’s 15% reduction for overly generic time descriptions, but vacated as to apportionment and on the lack of explanation for rejecting a supplemental motion for the fees expended in seeking fees.

The results can hardly be faulted here, but the general concept of having to pay more the more vigorous your defense is would seem to raise some questions in different contexts.  Assume, for example, two defendants of equal guilt.  One has a good lawyer and does his job defending.  The other defendant piggybacks, basically filing "me too" pleadings.  It wouldn’t seem right in that context to penalize the defendant with the lawyer who took the laboring oar.  Nothing in this decision would require that to happen.  Still, if I found myself defending one of multiple civil rights defendants, I think I’d have some discussions on this issue among my fellow defense counsel and get this ironed out from the beginning.

And on the plaintiff’s side, if you know it’s a fee case, this is just another reminder you’ve got to keep your time in excrutiating detail and avoid the death by a thousand cuts.