Wednesday, June 8, 2011

Not Like The Movies

In its unanimous decision yesterday in the case of Fox v. Vice (great case name), the United States Supreme Court remanded to the lower court with instructions to determine attorney's fees where there is a mix of frivolous and non-frivolous claims. Fees are limited to the work performed in response to the frivolity.

Justice Kagan's observation about the realities of litigation is worthy of note:

These standards would be easy to apply if life were like the movies, but that is usually not the case. In Hollywood,litigation most often concludes with a dramatic verdict that leaves one party fully triumphant and the other utterly prostrate. The court in such a case would know exactly how to award fees (even if that anti-climactic scene is generally left on the cutting-room floor). But in the real world, litigation is more complex, involving multiple claims for relief that implicate a mix of legal theories andhave different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis. In short, litigation is messy, and courts must deal with this untidiness in awarding fees.

(Mike Frisch)

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