Archive for August, 2007

Failure To Win Costs on Appeal Does Not Preclude Award of Attorney Fees

Wednesday, August 29th, 2007

By statute, attorney fees are an element of cost (even when awarded pursuant to contract).  So, what happens when the remittitur from the appellate court directs that the parties bear their own costs for the appeal? 

In Butler-Rupp v. Lourdeaux,the court ruled that the costs award does not speak to an award of attorney fees — especially where the court had not been asked to award those fees.  Thus, the award based on contract reverts to the normal rule that the party who achieves the greatest net relief is the prevailing party and is entitled to an award of fees.

Failure to Award $$ for Pain & Suffering Is Inadequate as a Matter of Law

Wednesday, August 29th, 2007

Jury’s can be unpredictable!  In this case, the jury rendered a special verdict finding that the defendant was negligent and that negligence was the cause of the plaintiff’s injury.  The jury further awarded economic damages based on the the plaintiff’s bills for surgery.  For some reason, however, the jury refused to award noneconomic  damages for pain and suffering.  The Court of Appeal ruled that in this case, that failure rendered the damages inadequate as a matter of law.

The lesson here is to get that special verdict.  The court noted that juries could return a general verdict for less than the medical bills, for instance, and it would be assumed that they found the defendant was not responsible for all of the injuries.  But a special verdict in this case finding that the defendant was negligent and that the negligence caused “by the accident,” then pain and suffering damages must be included in the award where the injury required “serious surgery.”

1021.5 Fees — You Need to Ask for Findings!

Friday, August 24th, 2007

In the continuing saga of Vasquez v. California, concerning the state’s compliance with prison wages as required by Proposition 139, Vasquez has again been successful in winning fees for post-judgment enforcement activities.  In this appeal, the court rejects the state’s argument that the trial court ruling is not supported by appropriate findings:

 “The State also complains that the court did not make the proper findings on the record under section 1021.5 before awarding Vasquez attorney fees. Where, however, the court was not asked to make findings on factual issues and did not do so, we must infer all findings necessary to support the order on fees and uphold it if it is based on substantial evidence.”

Another portion of the Vasquez case currently before the California Supreme Court will be of great interest to attorneys who rely on fees under Section 1021.5.  In that case, the court will be deciding how far to extend its ruling in Graham v. Daimler-Chrysler, requiring a pre-litigation settlement offer in order to recoup attorney fees in certain instances.

Should Judges Follow Public Opinion?

Wednesday, August 22nd, 2007

Professor Richard Primus has posted a provactive working paper on SSRN in which he argues:

“In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question.  In those circumsances, what the public thinks must be an ingredient in the judge’s own view of the right answer.”

This should be an interesting read.  I will be especially interested in seeing how Professor Primus handles cases in which the public strongly disagreed with constitutional decision at the time, but now believes the decision was correct (I am thinking here of Brown v. Board of Education, as an example).

Attorney Gets SLAPPed!

Wednesday, August 22nd, 2007

It is never a good sign when the court of appeal opinion starts off: 

“Sometimes lawyers seem to forget that, in their professional capacities, they owe a duty of loyalty to their clients — even when they no longer like them.  And when a lawyer becomes convinced his client is on the wrong side of a particular legal dispute, the lawyer generally has the option of staying out of that dispute.  He does not, however, have the option of switching sides and suing a client on behalf of a third party.”

Believe it or not, it goes downhill from there!  The upshot of the decision is that a client is exercising her constitutional right to petition when she files a request to arbitrate a fee dispute.  Subsequent litigation based on that filing is therefore subject to a special motion to strike under Code of Civil Procedure §425.16.

You might want to share this opinion with attorney in your office responsible for risk managment.

Stoneridge — a Different View

Wednesday, August 22nd, 2007

Jim Hamilton describes the argument of some SEC Commissioners that urge finding liability in the Stoneridge case.  The Solicitor General has filed a brief urging the opposite view.

For more background on the case, here is a link to a University of California press release that includes links to a number of the briefs in the case urging liability.

What’s at Stake in Stoneridge?

Wednesday, August 22nd, 2007

Jim Copeland of the Manhattan Institute offers his view of what is at stake in the Stoneridge case that will be heard by the United States Supreme Court next term.

Twice the Lawyer at Less than Half the Cost

Wednesday, August 22nd, 2007

I’m thinking about this tag line in light of what I read in the Blog of the Legal Times this morning.  BLT points to a Wall Street Journal Story noting that hourly rates for some attorneys in New York have now broken through the $1,000 barrier.

Make note of these attorneys — their declarations attached to your next application for attorney fees could be worth their weight in gold!

Competition for Westlaw and Lexis?

Wednesday, August 22nd, 2007

The Law Blog of the Wall Street Journal is reporting on an efforts of Carl Malamud to challenge Westlaw and Lexis by building an alternate on-line research tool.

As more court decisions and state statutory and administrative regulatory codes become available on-line free of charge, the challenge will be for Lexis and Westlaw to find some special editorial enhancement that will entice their paid subscribers to continue to shell out $$ every month.

City Must Indemnify Board Members it Sued!

Tuesday, August 21st, 2007

The San Diego City Attorney’s decision to sue members of the city’s retirement board seriously backfired.  Not only did the city attorney fail to establish the claim (the actions were ultimately dismissed at the city’s request), the court has now ruled that the city must pay the board members’ attorney fees incurred in defending the actions.

The ruling is based on an earlier ordinance requiring the city to “defend, indemnify, and hold harmless … [board] members … against all expenses, judgments, … and other amounts” in suits against the board members for actions taken in the scope of their duties as members of the board.

The court ruled that it did not matter that the litigation here was filed by the city attorney against the board members for dereliciton of duty.  Since the city never made a finding of wrongdoing by the board members, the court ruled that the indemnification ordinance applied.