Attorney fees should not be limited

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Attorney fees in civil rights cases should not be limited to the amount recovered by the plaintiff.

At least, a Sept. 19 opinion by the Seventh Circuit, which doesn’t decide the fee issue definitively, says that doing so is “likely unreasonable.”

The case began when Jimmy Reiners called the police department in Evansville, Wisconsin, claiming that he needed the address of Mary Mezera in order to serve papers on her regarding property that they jointly owned.

Officer Christopher Jones disclosed the address. However, Reiners was actually Mezera’s ex-husband, against whom she had a restraining order.

Mezera then sued the city and Officer Jones, alleging a violation of the Driver’s Privacy Protection Act (DPPA).

At trial, Mezera presented evidence that the city engaged in an “extensive coverup” of the incident.

During deliberations, the jury sent a request to the court, asking for the date the case was filed. That date had never been admitted into evidence, but Mezera’s notice of claim had been.

Mezera argued to the court that the notice of claim should be given to the jury, maintaining that it was what the jury actually wanted, because the notice of a pending lawsuit was relevant to the alleged coverup.

However, U.S. District Judge John C. Shabaz ruled that he would only inform the jury of the date the complaint was filed, commenting “Over the objection of counsel, the Court is going to provide this very meaningful piece of information to the jury. And I’ll tell them also the sun rises in the east and sets in the West [sic] if they want to know.”

Although Mezera requested punitive damages of $1 million, the jury awarded only $15,500 in compensatory damages, and $5,500 in punitive damages. The court increased the compensatory damages, resulting in a total award of $25,000.

Mezera then sought more than $192,000 in attorney fees under the lodestar method. The court denied more than $50,000 of it as unreasonable, leaving almost $142,000 under that method.

Rather than award that amount, however, the court limited the fee award to $25,000, reasoning that the fee award should not exceed the damage award.

Mezera then moved for an additional $13,276 in fees for litigating the fee award. The court awarded only one-eighth of this request, on the basis that the plaintiff received only one-eighth of the amount of fees sought.

Mezera appealed, and the Seventh Circuit reversed, in an opinion by Judge Ann Claire Williams.

The court agreed that it was proper to inform the jury of the date of the complaint, inasmuch as it is a matter of public record and thus, subject to judicial notice.

However, the court held it was an abuse of discretion to fail to provide the jury with the Notice of Claim exhibit.

Faced with a dearth of authority on when a new trial is required based on failure to submit an exhibit to the jury, the court announced the following standard: “Where a district court has unreasonably excluded exhibits from the jury to the detriment of a party and there is a reasonable possibility that the exclusion of this evidence influenced the verdict, this is a clear abuse of the district court’s discretion.”

Applying that standard, the court concluded that it was a clear abuse of discretion, because the notice of claim was “central” to Mezera’s theory of damages.

The court further found that submitting the complaint instead skewed the proceedings in favor of the defendants, by undercutting the argument that there was a coverup.

Accordingly, the court reversed and remanded for a new trial on the issue of damages.

Attorney Fees

Because it reversed, the court noted that it need not address the issue of attorney fees.

In dicta, however, the court wrote, “the way in which the district court made its fee calculations is likely unreasonable in light of the fact that the plaintiffs ultimately prevailed at trial.”

The court said that, while a plaintiff’s success at trial is a factor the court may consider in reducing fees, it is not dispositive.

The court added, “It cannot be the case that the prevailing party can never have a fee award that is greater than the damages award, or in the alternative, if the party asks for a bigger damage award than it actually receives, that any fees incurred in litigating the case are automatically reduced to the same amount as the damage award.”

According to Betty Eberle, of Miner, Barnhill & Galland, P.C., in Madison, who represented the plaintiffs, the import of the court’s opinion is clear: where substantial, rather than nominal, damages are recovered, it is not appropriate to reduce attorney fees from the lodestar method, even if fees exceed the award. Instead, the successful plaintiff is entitled to reasonable fees.

More Dicta

The opinion contains other dicta, as well, discussing when exhibits should be sent to the jury.

The court stated that its decision should be viewed as diminishing district court’s discretion to determine which exhibits should be provided to the jury during deliberations.

However, immediately afterward, it added, “But this discretion cannot be exercised in a manner that unduly burdens the jury’s ability to come to a fair and accurate resolution of the issues in the case. We urge the district court to revisit its established practice (though not stated in writing in the rules of the court or anywhere else) of allowing only certain exhibits to go back to the jury, specifically when an exhibit has been properly admitted into evidence, is integral to the issues in the case, and a party requests that the jury receive it.”

Eberle attributed this warning to a discussion during oral arguments. Asked by the court why the Notice of Claim was not given to the jury, Eberle said she explained the court’s procedures to the court.

Eberle said the panel appeared surprised that the district court would deny the jury access to an exhibit that had been admitted, used during the testimony, and which a party wanted the jury to see.

“From the judges’ reactions,” she said, “they appeared to find the district court’s policy unusual.”