taining reversal of an award that is not an outright denial. Indeed, it appears likely that no court that has considered the ques- tion has expressly held that a plaintiff in a fee-shifting case who prevails to obtain significant relief by way of appeal should nonetheless not be eligible for an award of attorneys’ fees for the work by which the relief was obtained. To the contrary, in adjudicating a fee petition claiming hours spent litigating an appeal, a trial court should consider in its determination “the complexity and importance of the case in its posture on appeal.” Smiddy v. Varney, 574 F. Supp. 710 (C.D. Ca. 1983), cit- ing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th
Cir. 1975). Resolution
of the critical issue of whether the Court of Special Appeals’ asserted new test for determining compensability of efforts undertaken to successfully reverse an improper fee award is in error, is of major importance, because if the Court of Spe- cial Appeals is correct and compensation is unavailable for appealing even unques- tionably unlawfully penurious attorneys’ fee awards, plaintiffs will have that much more difficulty obtaining the assistance of counsel in those cases where counsel must ultimately rely upon fee-shifting enable the client to provide compensation for his or her efforts.
The Court Of Special Appeals’ Ruling Improperly Encourages Fee Awards Based On Ratios, Rather Than The Lodestar Method Advocated By The Court of Appeals In Friolo I
Under the Court of Special Appeals’
decision, once the trial court awards a not “grossly disproportionate” fee, compensa- tory attorneys’ fees for a successful appeal of that award are no longer permissible. If “not grossly disproportionate”—a concept the Court of Special Appeals fails to define-- means disproportionate to the amount of damages, in the first instance, this is diametrically in conflict with the decision in Friolo I. For example, imagine that the wage
earner in a future case obtains a $100,000 judgment that required $75,000 of counsel’s effort to win at trial (i.e. not including fees later incurred in appealing the initial fee judgment). The trial court has now been educated by the Court of Special Appeals, that there can and will be no fee awarded for obtaining reversal of the trial court’s initial fee award, so long as the trial court has initially awarded “not grossly disproportionate” fees. It would appear that this means something “not disproportionate” to the amount
Winter 2007 Trial Reporter 51
of the damages. Therefore, a decision awarding $25,000 (one-fourth), $33,000 (one-third), or $40,000 (forty percent), would become unchangeable because the amount of fees awarded are perhaps not “grossly disproportionate.” This dramati- cally constricts an employee’s ability to challenge the propriety of that fee award, by establishing that he will never be able to recoup the cost of paying his lawyer to attempt to obtain the reversal. A calculation based on “proportional-
ity” is a particular method of calculating attorneys’ fees that the Court of Appeals specifically rejected in Friolo I. The only thing that saves the Court of Special Ap- peals’ decision in Friolo II from being a direct violation of the law of the case is the new distinction it raises—never before applied in this Court (or the Court of Special Appeals)-- between fees incurred in seeking to obtain an “underlying judg- ment,” and those incurred in litigating a fee award after an initial fee award has been determined by the trial court. However, a distinction between appealing an incor- rect fee award and appealing an incorrect award for any of plaintiff ’s other possible relief has never been previously recognized in the federal courts or here in Maryland. Not doing so is sound policy, Not doing so is sound policy, because placing incor- rect fee litigation results—even when they cannot pass muster under the governing lodestar methodology-- beyond the reach of a compensable appeal, would gravely endanger vindication of the basic purpose of fee-shifting: making whole the prevail- ing, successful plaintiff whose rights have been adjudicated to have been violated. The Court of Special Appeals should
have instructed the trial court to apply the lodestar analysis to the fee appeal litiga-
tion, while taking into account the usual lodestar factors as described in Johnson, Hensley and Friolo I. Under such an analysis, the Court would undoubtedly recognize and account for Friolo’s success in “obtaining” important “results” after the completion of the underlying liability and damages litigation, by arguing for application of the lodestar method in wage and overtime cases under Mary- land law before the Court of Appeals in Friolo I, and by persuading the trial court on remand to significantly increase her fee award for the original trial-level fee work.
Conclusion Reversal of the Court of Special Ap-
peals opinion in Friolo II would not open floodgates to any unreasonable or vexatious litigation. Friolo had to take a first appeal in order to have her view vindicated that the Circuit Court had ap- plied an incorrect standard in adjudicating fee shifting on her win at trial. She has cross-appealed on another issue of general application and importance—whether the Court of Special Appeals’ assertion of a distinction in compensability between appeals of incorrect fee awards and all other litigation under the wage payment and overtime statutes is correct. A reversal could instruct future courts to follow a single, straightforward approach to all fee shifting litigation under the relevant statutes, of: calculating a lodestar and if appropriate, adjusting it, without unfairly forbidding a further award of fees for ap- pealing an incorrect trial court award.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64