in prosecuting that litigation contributed to the general development of Maryland law on an issue of major public impor- tance, namely, by providing the Court of Appeals with a vehicle for pronouncing that the lodestar method is— as Friolo had urged— the presumptive method for ascertaining the correct fee award under Maryland fee-shifting statutes not con- taining their own specifically enumerated fee standards. Authorities in fee-shifting litigation
support the notion that Friolo’s accom- plishment in successfully advocating for a new statewide standard is a favorable factor that warrants a reasonable fee award. Indeed, courts have held that an enhanced attorney’s fee award may be appropriate when litigation results in the development of new authority furthering important legislative policies. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). Friolo never sought an enhanced fee,
but, rather, just a fully compensable fee based on lodestar principles. Authorities are clear that courts must consider the impact a case will have on the law and on other affected persons in adjudicating
a fee shifting motion. Taylor v. Jones, 653 F.2d 1193, 1206 (8th Cir. 1981) quot- ing Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir. 1974). At a minimum, in considering the novelty and difficulty of the questions, a plaintiff should not be penalized for her counsel’s “undertaking a case which may “make new law.” Instead, [that plaintiff ] should be appropriately compensated for accepting the challenge.” United States ex rel. Ab- bott-Burdick v. Univ. Med. Assocs., 2002 U.S. Dist. LEXIS 26986 (D.S.C. 2002) citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir.-OLD 1974). The Court of Special Appeals failed to account for the public significance of the Friolo I litigation, in rendering an opinion that effectively punishes Friolo for having brought the successful appeal by which the Court of Appeals rejected calculating a fee award by simply using a percentage of the verdict, and established future general use of the lodestar method. Unless the Court of Appeals reverses as to this point, a major pillar of federal fee-shifting law will be severely undermined.
The Court of Special Appeals Has Enunciated An Unprecedented Excep- tion In Fee Shifting Law, Separating Appeals Of Improper Fee Shifting Decisions From All Other Fee Shifting Litigation, By Forbidding An Award of Fees For Such Proceedings Under Many Circumstances
The Court of Special Appeals’ deci-
sion in Friolo II marks a departure from the federal authorities that consistently decline to distinguish fees incurred in a fee-shifting case for successfully appeal- ing an incorrect fee decision from those earned through the other parts of the case. See, e.g., Scarborough v. Office of Person- nel Management, 723 F.2d 801 (11th Cir 1984). The Court of Special Appeals’ Friolo II opinion attempts to distinguish cases where there was initially a complete denial of attorneys’ fees from Friolo II, where the Circuit Court’s initial decision contained a legal error in calculation of the fee. However, it appears that no court has ever previously held that a party can be compensated for an outright denial of fees, but not for a successful appeal ob-
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50
Trial Reporter
Winter 2007
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