Wednesday, October 9, 2013

NELA amicus brief seeks fair attorney fee award

Attorney fee awards make a difference in whether victims of illegal discrimination can get competent counsel to take their cases.  Even for those who have an income or savings to pay for an attorney depend on courts to reimburse them for their attorney's fees at the end of a case.  For those who cannot afford to pay for an attorney in advance, the attorney's opportunity to get a reasonable fee award from the court is their only hope of getting counsel.

That is why the decision of a federal judge in Alabama is so disturbing. Attorney Alicia Haynes has litigated the famous Ash and Hithon v. Tyson Foods case since December 1996. She prevailed in two jury trials, endured three appeals to the 11th Circuit (one of which was reviewed by the full court en banc), and made new law with the landmark decision in Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) (courts must recognize evidence of discrimination when white manager calls African-American adults "boy"). On March 19, 2013, the judge in Alabama refused to award fees for work on Ms. Hayne's fee petition, slashed the remaining hours by 80% across the board and awarded just $281,103.25, or 14% of the $1,981,678.00 originally sought. 

With attorney Margie Harris of Houston, Texas, I co-wrote a friend-of-the-court (or amicus) brief urging the 11th Circuit to vacate the fee determination and remand for a more detailed explanation of the reductions. We wrote the brief on behalf of the National Employment Lawyers Association (NELA). The brief asks the Court to keep an eye on the goal of encouraging competent attorneys to accept civil rights cases. The brief notes that failure to encourage competent attorneys to take contingent cases will lead to an increase in the number of claimants who proceed without attorneys.


We are indebted to Jonathan C. Puth, Richard T. Seymour  and Lenore C. Garon for their work in MWELA's amicus in West v. Potter, 717 F.3d 1030, 118 FEP 1661 (D.C. Cir. 2013). Their research on the growing number of people pursuing claims in court without an attorney was most useful. Thank you.

Our brief recalls the days when the Supreme Court said, “The right to representation by counsel is not a formality. . . . It is . . . the essence of justice.”  Kent v. United States, 383 U.S. 541, 561 (1966). 

Posted by Richard Renner.

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