Seattle schools pro bono, cont’d

by Walter Olson on September 23, 2007

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.

(Danny Westneat, “The bill just keeps going up”, Seattle Times, Sept. 19; Emily Heffter, “Billing in ‘pro bono’ cases is fodder for ethics debate”, Seattle Times, Sept. 18; Above the Law, Sept. 18).


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.

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1 Mike 09.23.07 at 3:42 am

I agree with those who have said that calling Davis Wright’s work “pro bono” is dishonest. Incidentally, you have covered this issue before (post).

When a lawyer takes a civil rights case that allows him to recover fees if his client prevails, then the case is no pro bono: It’s a contingency fee case. If you lose, you get nothing; if you win, you get paid.

Still, the law of the case was clear: Prevailing parties in these types of cases are recovered to fees under statute. The school district knew this going into the case. It’s not new law. So I don’t have much sympathy for the rights-violating school district. They took the gamble that their racist policy would prevail in court. They lost that wager. Now they must pay.

2 Timothy E. Harris 09.23.07 at 9:32 am

Racist Policy???

I think you’re being a bit harsh.

Have you lived in a place where your school district was under court supervision? I have.

For the last four decades school systems around the country where schools ended up with lopsided racial representation have been assumed by the courts to be actively discriminating against minorities with no evidence of that other than the racial percentage of enrollment at various schools. They were then put under court supervision. The school budgets had to be vetted by the court, and some courts actually ordered school tax increases (unconstitutionally IMO). School systems were forced to bus students around to “fix” the situation. Whether the court thought the problem was fixed or not was always about the racial balance at various schools.

Against that backdrop, how is a responsible school system to possibly avoid considering race in its enrollment plan?

The Seattle district used race as a tiebreaker (not the primary criterion) in its school choice plan to ensure that their schools would not become segregated. The plan succeeded in that goal. Not using race at all in their plan, and having schools segregate by either neighborhood factors or parents choices was arguably an even bigger gamble than the course they took! Under the circumstances defending their plan was quite a reasonable thing to do.

Now, I agree with the Supreme Court that the plan wasn’t legal – but the state of the law in this area is such that both the District Court and the 9th circuit court of appeals ruled for the school system.

And while the law allows fee recovery for this “pro bono” work, taking millions of dollars away from the school system hardly benefits the public good.

3 Anonymous Attorney 09.24.07 at 12:46 pm

Once again, liberals whine that the bullets they forged are being fired at them.

4 Tom T. 09.24.07 at 6:38 pm

Well, I was admittedly twisting your tail a bit with that remark, and I did ignore the asymmetry.

I do agree that it seems cheesy for the firm to be advertising its participation as “pro bono,” when it’s really something closer to a contingency fee. I don’t think that’s a legal basis for the school district to complain about the fee award, but I don’t fault the school district for pursuing public opinion points on this issue.

I did think about the asymmetry issue, and it does arouse a certain sense of elemental unfairness over the unequal treatment. However, I guess I tend to think that “loser pays” is likely to be asymmetrical in practice even if it were universally adopted here.

As a threshold matter, I think that under loser-pays, it would still be the case that the large majority of cases would settle, and I think the default position would generally be for each party to bear its own legal costs. And if that’s the likeliest outcome in most cases, I think the impact of loser-pays on the parties’ incentives will be generally more muted than proponents (and opponents) suggest.

Beyond that, it strikes me that the effect of loser-pays will be limited in practical terms by the inability to get blood from a stone. Suppose loser-pays had been available to the dry cleaners sued by the pants man; what could they reasonably have gotten from him except an uncollectable judgment? As a gross generalization, in most tort and civil rights litigation, the plaintiff is likely to be an individual whose financial resources will not cover a defense firm’s legal bills. In our legal and political culture, I expect that a lot of judges would stretch a loser-pays system to find ways to avoid financially breaking a losing plaintiff. Moreover, as a public-relations matter, I suspect that many corporate defendants would prefer to forego the inevitable bad publicity associated with foreclosing upon an injured person’s home, even if the company was substantively successful in defending against product liability.

What might emerge would be an increase in cases where losing plaintiffs agree to drop their appeals in exchange for an agreement not to pursue a fee award. (Otherwise, if the defendant refuses to drop the fee award, then the plaintiff probably has an increased incentive to appeal on any grounds possible, since the further investment necessary for appeal is relatively cheap in comparison to the costs of discovery and trial that have already been sunk and that he’s already liable for unless the appeal succeeds.) Spinning out that thought, on balance, I suppose lower-court rulings in favor of defendants would be less likely to be appealed than rulings in favor of plaintiffs. Would this affect the body of controlling law that emerges at the appellate level? I’m not sure.

As far as scrutiny of fees goes, it seems to me that symmetrical loser-pays would lead to much greater court scrutiny of defense fees than currently happens. I’m not sure I see why it would systemically produce smaller awards to plaintiff’s counsel, though. Aren’t plaintiff’s counsel fees in these cases already subject to court review and supposedly required to be in line with factors like locally prevailing rates, lodestars, etc.? It may be that courts are being too generous in interpreting those factors, but I don’t see that putting defense counsel fees into this mix would correct that problem.

Walter has certainly thought about these issues more than I have, and my musings may be overlooking relevant considerations that should figure into this analysis.

5 Walter Olson 09.24.07 at 10:00 pm

This is not the best place for an extended treatment of loser-pays, but reports from the U.K., Canada, etc. suggest that 1) yes, there as here, the great majority of cases settle short of final verdict; 2) the fee provisions cast a shadow on the terms of settlement, so that even if the parties agree to leave fees where they fall, the side with the better case has benefited from a shift (up or down) in the figure arrived at for compensation; 3) defendants often benefit when impecunious plaintiffs agree to forgo appeal, drop doomed cases earlier, etc. Significantly, loser-pays discourages impecunious plaintiffs from overplaying their hands on cases that are destined to win payouts since a fee shift (triggered by inordinate financial demands or by rejection of a good settlement offer, for instance) can wind up being deducted by the court from an award.

Courts in the U.S. are generous in calculating one-way fee shifts at the moment because the ruling philosophy is to pay lawyers enough to cover some losing cases, pay above-market rates for unusual success, etc., all in hopes of encouraging the flow of suits. I doubt that judges would inflate defense fees that way.

I agree that the equities being raised here do not necessarily mean that a court should rule against Davis Wright’s request, but they do make an appropriate rallying point for public debate about the purposes served by these fee provisions.

6 Tom T. 09.25.07 at 12:09 am

Interesting. Thanks.

7 ben tillman 09.26.07 at 6:36 pm

“When a lawyer takes a civil rights case that allows him to recover fees if his client prevails, then the case is no pro bono: It’s a contingency fee case. If you lose, you get nothing; if you win, you get paid.”

But if it’s done that way, there aren’t any fees, and there can’t be a fee award to the plaintiff’s attorney.

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