It’s sparking further discussion:
Hey, Davis Wright Tremaine, and your clients, the parents who sued the district: This is insane.
You argue this isn’t to enrich the firm, but to punish the district. The theory is that the fees, at $1.8 million and rising, are a lash to whip the district for its bad race-based deeds.
When I called the lawyers Tuesday, they compared it to, among other cases, their pro bono defense of a prisoner beaten by L.A. jail guards.
This makes no sense. Seattle’s policy wasn’t intended to hurt anyone, let alone beat them to a pulp.
When we posted on this case Sept. 7, commenter “Tom T.” urged that the fee award be considered in the light of the policies underlying the “loser pays” principle. There’s much to be said for that argument, yet it in turn raises several further questions: 1) should the law firm really publicly parade as “pro bono” an action it knew could generate a fee entitlement which it would seek to avail itself of? 2) is the type of “one-way” fee-shifting underlying cases of this sort, in which the law makes available a fee shift for prevailing plaintiffs but not defendants, better thought of as a worthy half-step toward loser-pays, or merely a contrivance meant to inflict maximum, asymmetrical, unfair disadvantage to the defense side? And 3), doesn’t much of the mischief here arise from the over-generous way we calculate plaintiffs’ fee entitlements? Our principles of one-way fee-shifting jurisprudence are more or less explicitly designed to call forth voluptuously high fee requests, on a more or less explicit policy of encouraging more litigation in the designated areas of law. By contrast, the two-way loser-pays systems that prevail through most of the rest of the world generally provide for some degree of undercompensation of winning parties, because courts “low-ball” the fee awards or compensate only some categories of legal expense. Maybe these countries know something we don’t.