In Shott v. Rush-Presbyterian-St. Luke's Medical Center, 338 F.3d 736, (7th Cir. 2003), the plaintiff sued her employer, alleging, among other things, religious and disability discrimination. 338 F.3d at 738.
At the first trial, the jury found for the plaintiff on the disability discrimination claim. Id. But the district court did not permit that verdict to stand.
Finding that the jury was prejudiced by the plaintiff's unreasonable strategy of "throwing at the jury approximately 18 months of alleged misconduct by the defendant and leaving it to the jury to sort out his motivation," the district court set aside the verdict and ordered a new trial. Id. at 741.
Following a second trial, limited to the disability discrimination claim, the jury again found for the plaintiff, and the district court awarded, under a statutory fee-shifting provision, attorneys' fees and costs to the plaintiff for both trials. Id.
While leaving the award for the second trial intact, the Seventh Circuit reversed the award for the first trial. Id. at 742.
Although it observed that "when two trials are required to achieve the ultimate result, a plaintiff should be compensated for both trials, so long as the time spent at both was reasonably expended," it noted that the court below had expressly found that the plaintiff's strategy at the first trial was "unreasonable" and, furthermore, that the plaintiff had opposed jury instructions that "may well have alleviated the errors of the first trial." Id. at 739, 741-42.
Consequently, it "did not think it appropriate to award the plaintiff attorney's fees for a trial that was voided by her unreasonable strategy." Id. at 742.