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Thursday, October 15, 2009
The role of lawyers in making the law
Slate's Dahlia Lithwick has a (as usual) good summary of today's oral argument in Perdue v. Kenny A., which considers how far above the baseline a court can go in awarding attorneys' fees to a prevailing civil rights plaintiff. Here, the district court tacked another $ 4+ million onto the lodestar, on a specific finding that the quality of plaintiff counsel's lawyering was so great. It could lend some interesting insight into the future of civil rights attorney fees.
There were some interesting exchanges involving Chief Justice Roberts about the role attorneys play in the process of making the law and whether good lawyering truly affects the outcome and how. Roberts commented that "The results that are obtained are presumably the results that are dictated or command or required under the law." He later asked "[W]hat does a judge say when you have achieved extraordinary results. That if you weren't there, I would have made a mistake on the law?"
These exchanges connect to the Roberts view of judging (last seen in the Sotomayor hearings) as mechanical application of obvious law to fact to reach the one clear answer. But his comments seem to suggest that, in his world view, lawyers do not have a significant role to play, since what they do does not (or at least should not) affect the court finding the "right" answer. Otherwise, why wouldn't the quality of the lawyers and their lawyering matter? This view is ironic, of course, because the courts have raised adversariness to an essential component of judicial decisionmaking and one of the cornerstones of whether a case is even justiciable--courts must decide cases in concrete factual situations involving truly adverse parties. Standing doctrine insists that courts should not act unless there are adverse parties with the expertise, competence, and interest to litigate vigorously--generally with the expertise and interest coming from counsel. But why do we demand vigorous litigation? Not for its own sake. Presumably because it will be informative and convincing to the court; the better the vigorous presentation of evidence and arguments (by lawyers), the more it helps courts reach the "right" answer. If that is true, then the premise of Roberts' questions seems wrong.
I can understand Roberts being uncomfortable with the idea that the brilliant lawyer will win out, regardless of law or fact (recall the cynical saying that juries simply find in favor of the lawyer they like more). But Roberts seems to be going much further, saying that the manner and quality in which arguments are made does not affect how the court comes to view the law (because there is only one right answer to be mechanically found) and facts or the conclusions courts will reach. But if so, why bother having lawyers?
Posted by Howard Wasserman on October 15, 2009 at 08:00 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink
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Comments
I think Roberts' view comes from a judge who is himself an elite (in the best sense of the word) intellect, and who has sat on the two-and only the two-most elite courts in the land. Those judges and justices probably usually do come to their own conclusions regardless of the briefing before them. But . . . judges on federal district courts, state appellate courts, and even some federal circuit courts are not so lucky. As a former clerk on one of those courts, I can say hands-down that the better brief, not the better law, often wins the day because the lawyer on the other side may not be the best lawyer and may miss citing a case or two that would have made the difference. This is even more true in state district courts, although they don't "make" law, but they do influence how state appellate courts rule.
Posted by: anon | Oct 15, 2009 8:11:16 AM
Not to mention that at the district level, it's the lawyer who's responsible for introducing facts into the record of the case. Judges can do their own independent research into the law, but they can't into the facts, which seems like a gaping hole in Roberts' argument (or am I wrong?).
Posted by: anon | Oct 15, 2009 8:17:15 AM
And yet, in civil rights cases particularly, the Court is extremely deferential to experienced counsel - as I've found in a paper I'm currently shopping to journals. Maybe I should revise it to include some thoughts about Perdue.
What do you think?
Posted by: Matthew Reid Krell | Oct 15, 2009 11:40:20 AM
This is a great post. Do you think Justice Roberts will ask his old firm to lower its rates (or refund past fees) for appellate representation, on the theory that the quality of counsel doesn't really matter?
Posted by: Steven Lubet | Oct 15, 2009 12:00:16 PM
Roberts' colloquy betrays his background as an appellate practicioner and an appellate judge. Once the facts are set and the issues defined, it is possible for judges to get to the correct answer on their own.
That ignores most of the process, however. Cases start off as a messy pile of facts, and a good lawyer has to shape the presentation and entry of the facts into the record, and to identify and develop legal theories that fit the facts. The "real" facts don't matter if they aren't presented in a way that meets burdens of production and persuasion, and finding an apt legal theory is not an automatic process.
The Langdellian law school curriculum suffers a bit from the same viewpoint problem as Roberts. We teach law through appellate opinions, as if deciding close issues is most of what practicing law is about.
Posted by: Ray Campbell | Oct 15, 2009 1:28:32 PM
Suppose Roberts' is perfectly correct. Any non-malpracticing lawyer would secure the same result. It doesn't follow at all that every non-malpracticing lawyer would be equally efficient in achieving that result.
The trial judge may be rewarding not outcome changing behavior, but parsimony in discovery, trial presentation and briefing that did everything necessary, but nothing excessive, securing the result with far fewer legal fees than a more blunderbuss approach would secure. There is a very strong temptation in big dollar litigation to spend as much money on a lodestar basis as the case will bear, even if the marginal utility of the additional effort quickly becomes minimal.
If the judge knows from prior fee applications that most law firms would spend $4 million more on a case like this one than the prevailing attorney did in this case, why shouldn't a value premium be in order?
The modern myth is of the plumber so expert that he can solve your problem with a brief listen and a clunk of a wrench in five minutes that charges you a handsome fee because anyone else would take hours (and a great deal of mess) to solve the problem. Truly legendary attorneys today still bill clients on that kind of basis, although the vast majority of us are far too timid and not nearly cocksure enough to take that approach.
Posted by: ohwilleke | Oct 15, 2009 7:28:41 PM
(Incidentally, the facts of the case suggest some of the theory I suggest. This lawyer achieved complete capitulation on every issue but attorneys' fees without even having to go to trial, and was speading the benefit across 3,000 foster children clients by doing it on a class action basis.)
Posted by: ohwilleke | Oct 15, 2009 7:36:31 PM
It only makes sense to increase a lawyers' fee for good representation if courts are equally willing to lower their fees for poor representation. The overall average should be the statutory rate.
Posted by: JD | Oct 15, 2009 8:31:25 PM
