Below, Akin Gump’s Scott Street recaps Wednesday’s oral argument in Perdue v. Kenny A. Check the Perdue v. Kenny A. (08-970) SCOTUSwiki page for additional updates.

It became clear during oral argument in Perdue v. Kenny A."”in which the Court will decide whether a court can ever enhance an attorney's fee award under Section 1988 based on the quality of representation and the results the attorneys obtain"”that the parties' arguments rest on two central points about the "lodestar" approach to calculating attorney's fees:

  • The State of Georgia believes that Section 1988 fee awards be measured against the "hours worked multiplied by hourly rate" calculation provided by the lodestar.
  • The respondent children, meanwhile, believe that the lodestar does not adequately consider the quality of an attorney's work or the results that the attorney obtains.

Both points have flaws that the Justices pointed out during oral argument.  For example, although the Supreme Court has enhanced the importance of the lodestar in Section 1988 cases, there is evidence that Congress did not want the lodestar to be the sole focus of the Section 1988 calculation.  Likewise, the Question Presented in this case assumes that the lodestar considers quality of representation and results obtained, suggesting that the children will have a difficult time convincing a majority of the Court to hold otherwise.

But the oral argument showed that the children have greater problems to contend with.  The Justices, especially the Chief Justice and Justice Scalia, aggressively questioned former Solicitor General Paul Clement.  They worried, for example, about how the Court would quantify the type of "exceptional results" needed to justify a fee enhancement.  Told that the Court could leave this to the discretion of district judges, Justice Scalia replied: "You say discretion.  I say randomness."

Only Justice Sotomayor suggested a standard that could guide district judges in deciding whether to enhance an award for results obtained and quality of representation, citing such factors as a discrepancy between the market in which the attorney practices and the market on which his Section 1988 fees are based, as well as the age or experience of an attorney (for example, a brilliant second-year attorney who performs at a level far beyond his years and who, therefore, might be paid at a significantly higher level in the private market).  But it was clear that several of the justices would never agree to such a standard.

Of course, that could hardly have surprised the children.  It must have worried them to hear skepticism from Justice Breyer, though, who echoed Justice Alito's concern with giving a district judge discretion to divert millions of dollars of taxpayer money to attorneys simply because the judge thought that the attorneys did a great job.

In the end, only Justices Ginsburg and Sotomayor (and perhaps Justice Stevens) appeared to agree with the children's strongest argument: that not permitting enhancements based on results obtained and quality of performance, when district judges have the ability to reduce awards based on various factors, will compromise the ability of civil rights plaintiffs to attract competent counsel to represent them.  If a majority of the Justices do not believe that argument, it is difficult to see how they can overlook their other concerns and give district judges discretion to enhance fee awards based on the amorphous concepts of results obtained and quality of performance without guaranteeing years of future litigation that could drain state governments of even more money.

Posted in Perdue v. Kenny A., Uncategorized