Paid at Last, Paid at Last (Almost)

by Hugh McGavick; Sept 1996

            It is simultaneously the sweetest and sourest moment.  You’ve overcome incredibly difficult odds to win a tough civil right or discrimination case, and now it’s time to be rewarded for your effort.  Yes, it’s time for a prevailing party fee award.

            You’ve meticulously itemized your time and documented your rate.  You’ve filed your petition, but you’re not so naïve as to expect the first concession of litigation at the goal line from the entrenched enraged and embarrassed lawbreaker.  Nor are you callous enough to expect the tenacious goal line stand you will face from the bench.  You grimace as your adversary impugns your ethics and ancestors, but you can handle that, as you’ve come to expect it by now.  The attack from the court is particularly painful and expensive, especially when it is the public coffers of a governmental statute violator which you are attempting to (in the court’s eyes) raid.

            State court judges in my experience are frequently far stingier when public monies are to be paid as fees than when the perpetrator is a private entity.  My unfounded suspicion is that they fear voter backlash in the next election, as though they were going to be labeled as having gifted taxpayer money with impunity.  To my way of thinking, such logic should yield to their oath of office to follow and enforce the law, but what do I know?

            As you may have guessed, I’ve been to that altar before – more than once and more than once recently.  In Martinez v. City of Tacoma, a Pierce County Superior Court case, I proved that my client, a former Tacoma Human Rights Department case investigator had retaliated against plaintiff after he complained of what he reasonably believed to be national origin discrimination.  Having assumed plaintiff’s abandoned five-year-old case less than two months before trial in June 1993, we were delighted to pull a bunny out of the hat (unlike Bullwinkle).  Plaintiff won only $8,000.00 from the jury.  $8,000.00 is certainly not the motherlode, but neither is it a nuisance value amount.

            We had prevailed under RCW 49.60, the state law equivalent to various federal statutes which it is patterned after, particularly Title VII, 42 USC § 2000e, et seq.  Unlike its federal counterparts, RCW 49.60 has an express legislative policy directive that it is to be liberally construed to effectuate its purposes of prevention and eradication of discrimination in this state.  RCW 49.60.010.  I naively believe that means that if you prove one of these difficult cases you get paid your fee by the loser just like the statute says.  RCW 49.60.030.

            Defendants challenged neither my time expenditure nor my hourly rate, i.e., my lodestar (FN 1) request of approximately $53,000.00.  They did execute a furious attack on two other fronts.  First, the 50% contingent fee agreement I had was controlling, they argued.  Second, they claimed that the murky “doctrine of proportionality” to the verdict size set the upper limit of any fee award.  My counter-arguments of liberal construction and state and federal precedent, were ignored.

            The judge agreed with the defendants.  He decided that whether proportionality or the contingent fee agreement controlled, the result was the same:  Plaintiff was entitled to a $4,000.00 award of attorney fees.  I was somewhat chagrined by an award of $8.50 an hour for winning a case as a private attorney generally against the public law enforcement agency established to prevent discrimination.  My client was troubled as well, and we appealed on the issues of fees and costs only.  Defendants did not cross appeal.

            Trial occurred in June 1993.  The case was argued in Division II in October 1995.  On April 12, 1996, the Court of Appeals reversed the trial court in a published opinion.  See Martinez v. City of Tacoma, 81 Wn.App. 228, 914 P.2d 86 (1996).  Judge Wiggens authored the 23-page opinion, with Judge Bridgewater concurring and Judge Seinfield dissenting mildly (on the grounds that there was no “clear” abuse of discretion).  The court rejected both the contingent fee and proportionality approaches propounded by defendant.  The court remanded for an award of reasonable attorney fees and costs, as well as awarding plaintiff fees and costs on appeal per RAP 18.1.  (FN 2). 

            The reason this article is entitled “Paid at Law, Paid at Law (Almost)” is that, you guessed it, defendants have petitioned for review to the State Supreme Court.  That petition is currently pending.  IF the Supreme Court entertains this case, I’m confident that they will substantially adopt what Justice Wiggens has written, and perhaps even strengthen this already strong precedent.

                          Although I’m probably not objective, I believe this is one of the best Washington published opinions to date on the current status of the right to receive prevailing party fee awards.  The Washington Journal did a nice front page article on the opinion in its April 25, 1996, edition entitled “Contingent Fee Not enough in Civil Rights Suit.”

1.  Lodestar is the term of art for the number of hours reasonably expended times the reasonable hourly rate.

2.  Pursuant to the rule, you’ve got to ask for prevailing party fees and costs on appeal in your brief and file within ten days after the Court of Appeals’ decision.