Attorney's Fees in Civil Litigation: Controlling the Costs
McCormack, William U., The FBI Law Enforcement Bulletin
One of the most significant aspects of many civil suits filed against law enforcement defendants for alleged violations of constitutional rights(1) is the associated attorney's fees in the case. Often, the prospect of incurring high attorney's fees determines whether a law enforcement officer or a government entity vigorously defends a civil suit by asserting all possible defenses and immunities or instead settles the suit. This article examines recent developments concerning the important issue of attorney's fees in civil litigation and suggests strategies for law enforcement defendants to better control potential civil liability.
Methods of Compensation
To understand the impact of attorney's fees on civil liability, it is first necessary to understand the ways in which an attorney receives compensation for representing a plaintiff and whether the plaintiff is reimbursed for those fees. In a common law tort suit, such as a car accident, in which the claim is negligence, courts follow the so-called "American Rule," where each side bears the costs for its own attorney's fees.(2) Thus, if the plaintiff prevails, the plaintiff is not reimbursed by the defendant for the plaintiff's attorney fees, which are typically calculated on either an hourly rate or a contingency fee basis. With a contingency fee, the plaintiff's attorney takes a certain percentage of the damage award, usually 30 to 50 percent, but receives no monetary compensation if the plaintiff loses.
After concluding the "American Rule" insufficiently encouraged civil suits alleging constitutional violations, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988.(3) This act authorizes Federal district courts to award reasonable attorney's fees to prevailing parties in civil rights litigation brought under 42 U.S.C. 1983.(4)
Under 1988, a person who sues under 1983 and prevails in the lawsuit is entitled not only to damages but also to an award for attorney's fees.(5) These fees are typically calculated by multiplying the reasonable number of hours the attorney expended by a reasonable hourly rate.(6) Thus, the attorney's fees that law enforcement defendants may have to pay to the plaintiff continually increase as a 1983 lawsuit progresses through the normal stages of pretrial motions, discovery, trial, and appeals.
This threat of an ever-escalating award of attorney's fees presumably causes many law enforcement defendants to settle suits before trial, even when the validity of the suit is questionable because of viable defenses or immunities. The concern over the cost to a law enforcement defendant or agency for attorney's fees is further heightened by the need to pay the lawyers who are defending the suit. As a result, it is not uncommon for the attorney's fees to be the most significant monetary aspect in civil litigation. In many instances, the attorney's fees of the plaintiff awarded under 1988 exceed the damages awarded to the plaintiff.(7)
Quickly settling a lawsuit that a plaintiff is likely to win can be an extremely advantageous tactic for a law enforcement defendant. By using Rule 68 of the Federal Rules of Civil Procedure (FRCP) to settle a case, a law enforcement defendant may limit attorney's fees and other costs of litigation, such as expert witness fees.
Rule 68 provides that a defendant in a lawsuit may offer to allow judgment to be taken against him or her "with costs then accrued." If the offer of judgment is rejected by the plaintiff and the judgment finally obtained by the plaintiff is less favorable than the offer, the plaintiff "must pay the costs incurred after the making of the offer."
In Marek v. Chesney,(8) the Supreme Court determined that Rule 68 "costs" include 1988 attorney's fees. Marek is a good example of how a quick Rule 68 offer of judgment can limit attorney's fees and costs.
In Marek, three police officers, in answering a domestic disturbance call, shot and killed the plaintiff's son. …