The court issues this opinion to announce a “non-exclusive list of factors that trial courts should consider when making fee awards under Rule 77(f).”
This was a personal-injury case. At compulsory arbitration the plaintiff was awarded damages of $4745.05. The defendant appealed and won at trial. That was reversed. On remand, the plaintiff won and was awarded damages of $918.00. The court also, under Rule 77(f), awarded the plaintiff $72,000 in attorneys fees. (The plaintiff also got some other costs and sanctions but the case isn’t about them.) The defendant appealed the fee award.
He made constitutional arguments that the court rejects by adopting its rulings on similar arguments in Fisher.
The court then says that fees must be reasonable and mentions that other cases have set forth “in various contexts . . . factors that trial courts should consider.” Then it adds its own list (we condense the court’s wording on some of these):
1. whether the appeal from arbitration was in good faith;
2. how close the appealing party came to doing 23% better (which, the court says, “may inform the assessment” of factor 1, so remember that a bad result now means that you were in bad faith);
3. the amount in controversy (citing a Washington case, “the proportionality of the fee award to the amount at stake remains a vital consideration”);
4. whether post-arbitration litigation could have been avoided or settled;
5. whether the failure to beat the 23% was due to new evidence;
6. the amount of the objecting party’s attorneys fees;
7. whether fees were necessary or “were generated because of the prospect of a[n] . . . award under Rule 77(f).”
The court then adds the language mandatory in all “factors” cases – no single factor is dispositive, their weight may vary from case to case, yada, yada, yada.
The court thinks that the $72,000 award “appears quite high” in light of its factors, which were of course created in order to make it seem quite high. For the most part they are sensible, though, so we will forgo our normal observation that “factors” are arbitrary, faux-legal rules that a court makes up for the moment and that may or may not mean anything the next time. We will say only that if a cost-benefit analysis is to be applied, as the court has applied elsewhere, it would better have been done by analysis than by ukase.
The court remands for reconsideration of the award.
Because it may come up on remand the court addresses another issue the defendant raised: that the plaintiff should not be allowed now an award of fees connected with the first appeal. The court agrees. Appellate fees had been held not recoverable under the predecessor to Rule 77. And the plaintiff had made no fee request in the first appeal, though why it is necessary to add this reason isn’t clear since it will result in pro-forma fee requests that the court has already decided are futile anyway. But the court ends by adding one of those little points that are worth being reminded of: “Unless otherwise stated in an appellate decision, the court of appeals determines whether fees are recoverable in connection with an appeal and, if so, the appropriate amount.”