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Attorneys' Fees for Prevailing Defendants

Zoe Tillman has this post at BLT on something I would like to see more often -- attorneys' fees paid by the plaintiff to a prevailing defendant in a civil case.  This case is not crime-related (it is ASPCA against Barnum & Bailey), but issues of attorneys' fee awards often come up in suits against law enforcement officers and agencies.
Law enforcement suits are usually under 42 U.S.C. §1983, and the attorneys' fees are typically governed by §1988(b):  "In any action or proceeding to enforce ... [various civil rights laws] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs...."

Completely symmetrical, right?  No hint of a different standard for plaintiffs versus defendants, other than the federal government, right?  The Supreme Court has not interpreted it that way.  Without a shred of statutory authority, the interpretation is that prevailing plaintiffs almost always get attorneys' fee awards, and prevailing defendants almost never do.  That might have made policy sense once upon a time, but it does not today.  Bogus suits against people who have done nothing wrong are a major problem and should be penalized.  Pushing-the-envelope litigation, on the other hand, does not need to be encouraged or subsidized.  The envelope is quite large enough already.

I suggest a single, symmetrical standard.  If the prevailing party is entitled to judgment on (1) clearly established law, applied to (2) facts that are either undisputed or proved by clear and convincing evidence, then that party is entitled to an award of attorneys' fees.  Otherwise, the parties bear their own fees.  A nonprevailing defendant in a case that meets both criteria is a wrongdoer and should pay to make the injured plaintiff whole.  A defendant who did something that was considered legal at the time and merely had the misfortune to be the test case to push the envelope should not be further punished with a fee award.  A person who is wrongly sued for an act that is perfectly legal or on fabricated allegations of fact should be made whole with an award against the plaintiff and jointly against any organization sponsoring the litigation.


Would you support a similar symmetry rule in criminal cases? In states where convicted defendants are routinely charged for court costs, for instance, would you support routinely awarding costs to acquitted defendants?

Such a rule would be symmetrical only for defendants who are proved not guilty by proof beyond a reasonable doubt. Acquittal means only existence of reasonable doubt of guilt, a hugely different matter.

Yes, I would support a symmetrical award of costs to a defendant proved innocent beyond a reasonable doubt.

You're misunderstanding the relevant symmetry. Demanding a symmetrical burden of proof for damage awards in civil cases makes sense, since the standard for winning the case is the preponderance of the evidence. But since the standard for winning a criminal case is beyond a reasonable doubt, prosecutors shouldn't even be bringing cases (and subjecting defendants to the process) unless they think they can win. Awards should be based on a standard of proof based symmetrically *around the burden required for victory*. If the prosecution gets an award of costs automatically based on overcoming their burden, then the defense should get an award of costs automatically for overcoming their burden.

I understand perfectly well, thank you very much.

The policy behind the burden of proof for punishing a person is very different from the policy behind the burden of proof for compensation for monetary losses. Proof beyond a reasonable doubt for punishment is based on the belief that convicting the innocent is a vastly worse error than acquitting the guilty. Bearing the costs of litigation is a different issue. It's more like a civil case.

Is it wrong to leave a defendant with the burden of paying for his own defense when he has been proved guilty by clear and convincing evidence but not beyond a reasonable doubt? Not in my book.

Cost awards are typically justified in terms of penalizing someone for bringing a case they clearly were never going to win, and making whole a person who had to go to the expense of defending a case they were clearly not going to lose (and vice versa). Given that, the only sensible way to construct the symmetry is around the burden of proof for winning the case.

If the prosecution can prove someone's guilt by a preponderance of the evidence, that doesn't mean that they were justified in bringing the prosecution. We have an asymmetrical burden of proof in criminal cases because of the steep negative consequences of a conviction. There's no reason that cost awards shouldn't recognize that by constructing a symmetrical rule around the asymmetrical burden of proof.

Sure there is a reason. I have explained the reason. It is a sensible reason, based on a differing view of the policy. You may not agree with it, and that's fine, but that does not mean that people who disagree with you have no basis for their opinions.

Here's the thing. Your view draws an equality in terms of the misuse of the justice system between a prosecutor who presses a case in which the defendant is not guilty beyond a reasonable doubt and a defendant who insists on a trial in which he is guilty beyond a reasonable doubt. That's a clearly absurd result, as our system recognizes in many ways.

Nothing I have written says or implies that a criminal defendant who exercises his right to a trial has misused the justice system.