Over Litigation Case Analysis

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It would indeed be unfortunate if this decision were published as recommended, and not reversed by the Supreme Court.

Admittedly, the majority’s interpretation of Local Rule 365 is something that attorneys can comply with, and should be expected to. Opposing counsel should have ample opportunity to review the reasonableness of requested fees.

The gutting of the fee-shifting statutes, however, cannot be so easily remedied.

As noted by the dissent, the trial court did not consider a single factor that it is required to by SCR 20:1.5(a). If it had done so, it would have found that the factors weigh in favor of the fees requested.

In this case, Thompson fraudulently sold a car worth $2,000 for $8,600. Kolupar’s attorney obtained a settlement for $6,600, the exact amount of the difference. In short, he obtained an excellent result. Yet, the majority preposterously states, “the trial court properly considered … the results obtained,” in reducing attorney’s fees from $41,000 to $3,000.

Furthermore, the amount of the hourly rate was indisputably reasonable, and the time and labor involved was obviously large.

Furthermore, even if one assumes that the case was over-litigated during discovery (which we can’t know, because, unlike the dissent in discussing Wilde’s tactics, neither the majority nor the trial court or referee cited examples), that doesn’t justify reducing the attorney fees from $41,000 to $3,000.

The only concrete reason the trial court did give is that the complaint was over-pleaded, a dubious reason. Assuming that the odometer was not functioning, then the sale of the car violated state and federal laws. Its also is fraud, as well as a contract and warranty violation. The attorney would be guilty of malpractice not to allege all of the above.

Yet, the trial court labelled this alleging “everything … short of conquering Europe during World War II,” and the majority takes no issue with that. Most attorneys would call it competence and thoroughness.

The contrast between this case and Aspen Servs., Inc. v. IT Corp, 220 Wis.2d 491, 583 N.W.2d 849 (Ct.App.1998), is striking. Aspen involved a contract dispute between two parties represented by the largest and third largest law firms in the state, respectively.

In Aspen, before litigation began, the defendant offered to pay the plaintiff almost $15,000, plus forfeit a $5,000 security deposit. Instead of accepting the offer, the plaintiff ran up over $112,000 in attorney’s fees to obtain a jury verdict of less than $19,000.

	Links Wisconsin Court of Appeals Related Article Fee reduction imposed for discovery abuse

The trial court reduced the attorney fees substantially to just over $68,000. The court of appeals affirmed the reduction as a proper exercise of discretion. In doing so, however, the court devoted pages to meticulously documenting the incivility of the plaintiff’s attorney. Aspen, 220 Wis. 2d at 501-508.

In contrast, the majority decision in the case at bar is devoid of a single example of incivility or over-litigation on the plaintiff’s part.

Admittedly, a trial court need not make particularized findings of fact to reduce attorney’s fees. The court in Aspen noted, “The trial court did not make particularized findings of fact identifying each and every act of incivility it believed warranted a reduction of the requested attorney’s fees. The trial court relied upon the entire record, including all available transcripts, rather than undertake the time consuming and daunting task of retrying the entire lawsuit. Under the circumstances, it was not a misuse of discretion for the court to characterize counsel’s conduct rather than particularize that conduct.” Aspen, 220 Wis.2d at 499.

How
ever, there is an enormous difference between failing to particularize “each and every act of incivility,” and failing to mention even a single example.

If this case is actually published, as recommended, and not overturned, it will stand as a license for trial courts to reduce attorney’s fees in fee-shifting cases, based on nothing more than sheer caprice. In the absence of a single example of improper conduct on the attorney’s part, and in the absence of any tailoring between the degree of alleged improper conduct and the amount of the fee reduction, there will be no standards that can be imposed on trial courts in the future.

– David Ziemer

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David Ziemer can be reached by email.