(Nearly) million dollar fee application gets second look

After logging more than 2,400 hours on a First Amendment retaliation case which produced a positive opinion in the Court of Appeals in 2005, Carol Konits' lawyers filed an application for attorneys' fees, which are available to prevailing parties in civil rights litigation. They wanted $906,000 in fees. The district court gave them approximately $364,000. This steep reduction brings the case to the Court of Appeals.

The case is Konits v. Valley Stream Central High School District, decided on October 26. Attorneys' fees awards are the product of a complicated formula the goes beyond simply multiplying the lawyer's hourly rate by the number of hours expended. What's a reasonable hourly rate? What if, like this case, the case takes years to resolve and the lawyer's rate increases in the interim? What if the lawyer spent time on losing claims? You get the picture. Attorneys' fees litigation can take several years if the issues are hotly disputed.

In an unpublished opinion, the Second Circuit (Calabresi, Hall and Sessions, D.J.) remands this case to the Eastern District of New York because the trial court reduced the requested attorneys' fees without providing sufficient reasons for that reduction. As the Court of Appeals notes, "[t]he district court is required to present a 'concise but clear' record for review by the appellate court." That didn't happen here.

For example, while the trial court reduced the fees by one-third for work expended prior to March 2, 2004, when certain constitutional claims were dismissed, "the court did not provide a sufficient explanation for its finding that the claims are 'sufficiently separable' so as to be a basis for reducing the attorneys' fee award." Similarly, while the claims against many defendants were dismissed, the district court did not adequately explain the 25 percent reduction, "particularly in view of the judge's comparatively limited involvement in the case which would reduce his exposure to counsel's work over the full life of the litigation." These and other inadequate explanations for the dramatic reduction in requested attorneys' fees lands the case back on the trial judge's desk for a second look.