Litwick does a nice job at showing us what happens when a journalist becomes enamoured of the subject of her piece, but that is irrelevant. The message that this case sends is that attorneys and courts, having great power over the application of the law and contracts, are not subject to the same rules that we are in regard to laws and contracts. I'm a physician. I think I'm a pretty good one. But when I see a patient with government insurance I don't get to say "Hey, I'm great, so you should pay me double." In fact, there are very specific rules to customary and usual fees in all aspects of medicine, and we all have to follow them. What the judge did in that case was say "hey, nice job, this is how much you should be paid but I'm going to tack on a lot more of someone else's money because I think you're awesome." The judge doesn't get to add a nice tip with state money. There should be a standard. And if there is that standard it should be applied and it should not be at the whim of a judge to hand over more of the taxpayer's money. The lawyers, if they choose to take the case, should always be expected to perform at their peak regardless of monetary incentives. After all, the asphalt guy doesn't get extra for building a smooth road (unless it is specifically specified in his contract), your hairdresser doesn't get extra because you look especially good, and your grasscutter doesn't get to return in retrospect and say "hey, your lawn was green all summer so you owe me two hundred dollars more."

The Court system consist of lawyers. Most politicians have a legal background as well. Look at your own self serving profession before you bitch. One example? The AMA's dogged resistance to any consumer database of doctors and other medical providers who have been found liable or have settled for malpractice. State Bar Associations bend over backwards to cater to disgruntled clients of attorneys- investigating every complaint no matter how absurd. Doctors are a cloistered old boys club who protect their own

What does your broad ad hominem attack have to do with anything pertaining to enhancing legal fees? The first poster has a point that the standards for enhancing legal fees are very amorphous, and a doctor cannot have his fees enhanced. That their situation has problems doesn't mean ours doesn't.

This is a timely post because I'm currently drafting a memo regarding the fees the plaintiff is likely to demand in the case we're prepping for trial. This case was brought under New Jersey's version of the ADA, and there is prevailing case law in NJ that says the lawyer's fees can be enhanced (or reduced) for 12 different reasons. The fact remains that when there is a fee-shifting statute, the defendant is required to pay a certain amount of fees, but has no idea how much those fees will be, and all of the reasons for paying enhanced fees have nothing to do with the conduct of the defendant itself. How can that not tweak any reasonable person's sense of fairness?

In any event, this is going to be a huge decision, and based on previous decisions, I'm pretty sure we know where the court will come out.

Okay, first of all that database exists. The AMA opposed it because it has no direct correlation to the quality of the physician's care. The problem is that so many people end up on the database that it becomes impossible to sort out good from bad physicians. Hey, you're a lawyer. You know that sometimes you settle because the cost of defending would be greater than the settlement amount. Well, guess what. You're a bad doctor now.

Secondly, we're not talking about lawyers protecting lawyers here. The justice system, as I understand it, is supposed to use an actual value to determine compensation when such value exists. If your neighbor breaks your window, and that window costs $100.00 to repair, then should find that damages were $100.00. The judge can't say "well, your window cost $100.00 to repair but I'm going to say that it costs $500.00 because I like the cut of your jib." The court should not have the authority to drop a windfall onto the plaintiff (or their attorneys) because the judge thought they were cool guys. If their attorney fees were worth 6.5 million dollars who in the hell is a single lone government official (the judge) to give them a bonus? I've never heard of the government doing that. If the governor of any state suddenly and unilaterally decided to pay a state contractor an extra few millions dollars above the contracted amount because he or she thought they did a nice job the press would maul them. Don't bother running for reelection. Honestly, the sort of activity going on in the facts of this case smack of corruption.

In a way it's kind of too bad, because in this case the attorney probably DID do outstanding work, but this isn't a perfect world. Can you imagine how many "best" cases would start showing up in Chicago or New Orleans if this is found acceptable? We just can't afford to let arbitrary bonuses be paid out, the potential for abuse is staggering.

Sorry Bill, but if you are only supposed to get paid X for your work, and you know that going in, that's all you should get paid. You shouldn't get a bonus because you decided not to do a half-@ssed job on this case.

Clearly none of the above posters have ever litigated a case on behalf of a plaintiff. You're all assuming it's basically like being a plumber -- you show up, do the job according to code, and then get paid "what you're supposed to."

It doesn't work like that. Cases don't build themselves -- you have to develop the facts and legal theories, and they are by no means always obvious. Sometimes somebody comes to you with what seems like a hopeless case, but you work your butt off and discover the evidence that establishes the elements of your case. Or you find a way to frame the legal argument in a way that wasn't obvious at first, but establishes a legitimate cause of action. And the fact is, not every lawyer would have come up with the winning strategy you did, either because they didn't have the time to invest, or because they didn't care as much or just weren't as good. Is it really crazy to suggest that you should get paid more if you work harder, do a good job, and get a better result for your client, than you would if you were just mailing it in?

You all are arguing for the principle that you should get paid the same regardless of how good a job you do. That strikes me as, well, un-American.

mattcliff:

Is it really crazy to suggest that you should get paid more if you work harder, do a good job, and get a better result for your client, than you would if you were just mailing it in?

Isn't this what the contingent fee arrangement does?

mattcliff:

Clearly none of the above posters have ever litigated a case on behalf of a plaintiff. You're all assuming it's basically like being a plumber -- you show up, do the job according to code, and then get paid "what you're supposed to."

It doesn't work like that. Cases don't build themselves -- you have to develop the facts and legal theories, and they are by no means always obvious. Sometimes somebody comes to you with what seems like a hopeless case, but you work your butt off and discover the evidence that establishes the elements of your case. Or you find a way to frame the legal argument in a way that wasn't obvious at first, but establishes a legitimate cause of action. And the fact is, not every lawyer would have come up with the winning strategy you did, either because they didn't have the time to invest, or because they didn't care as much or just weren't as good. Is it really crazy to suggest that you should get paid more if you work harder, do a good job, and get a better result for your client, than you would if you were just mailing it in?

You all are arguing for the principle that you should get paid the same regardless of how good a job you do. That strikes me as, well, un-American.

If your plumber bids a set amount to do a job, and finds your pipes suck, do you say "hey, didn't know the job would be harder, here's an extra grand for the extra work".? Nope, you say, "you bid it, you fix it". That's cost containment.

If it was NOT set like this, on every job the plumber would say "oh, the floor's rotted out, we should replace that do do a good job, that'll be $" and "look at the corrosion of these pipes! need new copper to do a good job... more $"

And the plumber would be correct, and the job WOULD be better replacing everything to as new or better, but that's not what you're paying for. Lawyers don't just work ONE case in their whole lives, they do a LOT of them. So for each one that's harder than expected, there'll be an easier one. They don't give BACK money on those, right? It all balances out, same as in every field.

That's not a very good analogy. Lawyers in fee recovery cases (which are very much like contingent fee cases, as a previous poster pointed out) don't get to "bid" a case in advance (boy it would be great if we did). So there's no pre-arranged expectation of how much she will get paid. Instead, she must take on the work not knowing if she will get paid anything. The estimation of what the job is worth comes only in the end, IF she wins, once the work has all been done. The question is what, in retrospect, the completed work is worth. So to make it anything like a plumber analogy (which is hard to do), you'd have to say something like "okay, plumber, go ahead and fix my sink, but if you don't get it done by Tuesday I won't pay you anything. If you do, come see me and we'll talk about how many hours you worked and how good a job you did, and I'll pay you accordingly." But it's still a lousy anology, because the plumber still has leverage if the sink isn't done on time because the client needs the sink fixed, whereas if the lawyer loses the case she is SOL.

Moral: Lawyering ain't like plumbing. I do, by the way, have great respect for decent plumbers (real ones, not Joe).

mattcliff:

That's not a very good analogy. Lawyers in fee recovery cases (which are very much like contingent fee cases, as a previous poster pointed out) don't get to "bid" a case in advance (boy it would be great if we did). So there's no pre-arranged expectation of how much she will get paid. Instead, she must take on the work not knowing if she will get paid anything. The estimation of what the job is worth comes only in the end, IF she wins, once the work has all been done. The question is what, in retrospect, the completed work is worth. So to make it anything like a plumber analogy (which is hard to do), you'd have to say something like "okay, plumber, go ahead and fix my sink, but if you don't get it done by Tuesday I won't pay you anything. If you do, come see me and we'll talk about how many hours you worked and how good a job you did, and I'll pay you accordingly." But it's still a lousy anology, because the plumber still has leverage if the sink isn't done on time because the client needs the sink fixed, whereas if the lawyer loses the case she is SOL.

Moral: Lawyering ain't like plumbing. I do, by the way, have great respect for decent plumbers (real ones, not Joe).

How does it work then? Apparently there was a standard formula that said the payout to the legal team was 6 million (for this one case), and the judge wanted it bumped to 10.5 million.

Now seriously, if a firm that deals in cases where the set rate is 6 million, are you suggesting that the firm has no idea of what goes into a case like that as far as hours, etc.? This to me would be the equivalent of plumbing a large comercial structure, not some handyman job. The firm that takes this type of case should KNOW what it's getting into beforehand.

Maybe I'm missing the boat here, but isn't having a pre-set payment if you win the same as bidding a job in advance?

mattcliff:

So to make it anything like a plumber analogy (which is hard to do), you'd have to say something like "okay, plumber, go ahead and fix my sink, but if you don't get it done by Tuesday I won't pay you anything. If you do, come see me and we'll talk about how many hours you worked and how good a job you did, and I'll pay you accordingly."

In my youth I worked for a small general contractor, and it wasn't uncommon to have businesses write contracts saying, for example, "for this work the payment will be 30k, minus 1.5k per day if the work isn't completed by 11/9/09". Some contractors take more jobs than they can do, and this regressive payment scheme made sure things got done on time. That's just the way things are.

Those kinds of contracts are common in construction. The big difference, of course, is that in construction you agree to the lump sum payment in advance, and you know what work you need to do to complete the job. While you may be penalized for finishing late, you don't really run the risk of being paid nothing due to factors beyond your control. And again, the exact details of the work are spelled out in advance, usually in precise architectural drawings. A civil rights lawsuit just doesn't involve the same kind of mathematical certainty. That's why the fees don't, either. Every case is different.

I'm not trying to be argumentative here, but plumber comparisons aside I still simply cannot accept your premise. S'possible that lawyers have completely alien cost structures, but I doubt it.

I'm an engineer and project manager, and as such am required to provide cost estimation for how much time and how many people will be required to complete a project - such estimations are difficult at best yet certain customers expect estimations to be accurate within the tens of thousands of dollars for a multi-year project. Past experience is not always indicative of future performance - to borrow a phrase. If I'm too unconservative, I have to make up the difference, if I'm too conservative my customer loses faith and expects restitution for the excessive profit.

So I do my best and deal with it, are you trying to say that a lawyer isn't capable of doing the same? Flat out I find that hard to believe either that or only really inexperienced lawyers are taking those cases. I can understand why an inexperienced lawyer could find that a tough job - cost estimation requires extensive experience involving a multitude of career aspects. But an experienced lawyer shouldn't have too much difficulty.