Lodestar Method Attorneys Fees

The federal cases direct that the amount of fees to be recovered under section 1988 is to be determined by what has been called the "lodestar adjustment" method. (Schwartz & Kirklin, Section 1983 Litigation: Statutory Attorney's Fees (4th ed. 2011), 1.05, pp. 1-38 et seq. (Statutory Attorney Fees).) Paradigmatically this approach requires the court to: (1) determine the number of hours reasonably spent in vindicating the plaintiff's federal rights; (2) determine a reasonable hourly rate, based primarily on the market for comparable legal services; (3) multiply these figures to produce a "lodestar" amount, which is presumed to be the reasonable fee; (4) if the presumption is overcome, adjust the lodestar upward or downward to account for any additional relevant considerations. (Ibid.) An alternative model was suggested by Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974) 488 F.2d 714, 717-719, which permitted the trial court to arrive at a reasonable attorney fee simply by considering a number of factors, of which the court listed 12. But while that case is mentioned in the legislative history of section 1988 (see Statutory Attorney Fees, supra, 1.05, p. 1-37), federal courts found its "unquantified" approach insufficient to the task because, "as observed by one court, 'simply to articulate those twelve factors . . . does not itself conjure up a reasonable dollar figure in the mind of a district court judge. A formula is necessary to translate the relevant factors into terms of dollars and cents.' " (Statutory Attorney Fees, supra, 1.05, p. 1-38, quoting Copeland v. Marshall (D.C.Cir. 1980) 641 F.2d 880, 890 (en banc).) The Supreme Court ultimately agreed with this view in Hensley v. Eckerhart (1983) 461 U.S. 424, the court declared: "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services." (Id. at p. 433.) After discussing some considerations bearing on the determination of these two variables, however, the court went on to authorize further adjustments to the resulting figure to reflect other considerations: "The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward . . . ." (Id. at p. 434.) The court mentioned two of these--unsuccessful claims not related to the successful one, and the "level of success" achieved by the plaintiff. (Ibid.) It acknowledged that other factors might be considered, citing Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 714, 717-719, but noted that "many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." (Hensley, supra, 461 U.S. at p. 434, fn. 9.) Later cases have emphasized the predominance of the lodestar calculation in setting attorney fees under section 1988 and equivalent statutes. (See City of Burlington v. Dague (1992) 505 U.S. 557, 562 (City of Burlington) lodestar is, "as its name suggests, . . . the guiding light of our fee-shifting jurisprudence"; Blanchard v. Bergeron (1989) 489 U.S. 87, 94 (Blanchard) lodestar is "the centerpiece of attorney's fee awards".) Indeed the court has declared a " 'strong presumption' that the lodestar represents the 'reasonable' fee . . . ." (City of Burlington, supra, 505 U.S. at p. 562, quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (1986) 478 U.S. 546, 565 (Delaware Valley I); see Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (1987) 483 U.S. 711, 728 (Delaware Valley II) "payment for the time and effort involved--the lodestar--is presumed to be the reasonable fee authorized by the statute".) Consistent with this view, the court has rejected most attempts to allow more or less than the properly determined lodestar value. (See Burlington, supra, 505 U.S. 557rejecting enhancement for risk of loss where case taken on contingent fee; Delaware Valley II, supra, 483 U.S. 711 same, plurality opinion; Perdue v. Kenny A. ex rel. Winn (2010) U.S. 130 S.Ct. 1662, 176 L.Ed.2d 494 rejecting enhancement based on what trial court viewed as exceptional performance and result; Blanchard, supra, 489 U.S. 87 rejecting limitation to amount payable under contingent fee agreement; City of Riverside v. Rivera (1986) 477 U.S. 561 rejecting limitation to amount of damages recovered; but see Farrar v. Hobby (1992) 506 U.S. 103 plaintiff recovering $1 nominal damages on $17 million claim was prevailing party, but disallowance of fee request affirmed as award of reasonable sum, i.e., zero.)