Litigation Update: Attorney’s Fees as Deterrence in Civil Rights Litigation

When Congress amended the Civil Rights Act in 1976, it directed federal courts to use judicial discretion to award “reasonable attorney’s fees” to a prevailing party. Yet when state actors are found in violation of the nation’s civil rights laws, what is “reasonable” often means that civil rights attorneys take a reduced fee award. Because of this, states are emboldened to enact and enforce more unconstitutional laws and the pattern repeats.
Mere days following the U.S. Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, the New York Assembly enacted new legislation allowing secular businesses to permit customers to carry concealed weapons on their property, but refusing to afford sensitive locations, like churches, the same choice. His Tabernacle Church in Elmira, New York filed suit under the Civil Rights Act claiming the new law violated its First and Second Amendment rights. It prevailed both in district court and at the U.S. Court of Appeals for the Second Circuit.
When the matter returned to the district court, the State of New York claimed the church’s attorneys were entitled to just 16% of the fees requested in their application. Judge John R. Sinatra, Jr. of the Western District of New York rejected New York’s arguments, awarding 100% of the requested fees, concluding that the Civil Rights Act “encourages lawyers taking meritorious cases like this one” but to engage in “[p]erennial ‘haircuts’” in fee awards would “discourage well qualified counsel.”
Join the Federalist Society for a discussion on the importance of courts awarding appropriate attorney’s fees in civil rights litigation.
Featuring:

Erin E. Murphy, Partner, Clement & Murphy, PLLC
(Moderator) Jeremy G. Dys, Senior Counsel, First Liberty

Episode Transcript

Speaker 1 (00:02):
Welcome to fedsock Forms, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Form programs, become a Federal
Society member today at fedsoc dot org.

Speaker 2 (00:18):
Hello, and welcome to this Feedstock Forum webinar call today
October first, twenty twenty five. We are delighted to host
this litigation update entitled Attorneys FEESUS Deterrence in Civil Rights Cases.
My name is Matthew Satel, and I'm Assistant Director of
Practice Groups at the Federalist Society. As always, please note
that all expressions of opinion are those of the experts

(00:39):
on today's call, as the Federalist Society takes no position
on particular legal or public policy issues. In the interest
of time, we'll keep the introductions brief, but if you
would like to know more about any of our panelists,
you can access for full bios at fedsoc dot org.
Today we are fortunate to have Aaron Murphy as our
speaker and Jeremy Dye as our moderator. Jeremy is Senior

(01:01):
counsel for First Liberty Institute. One last note throughout the panel,
if you have any questions, please submit them through the
question answer feature and zoom so we all have access
to them. When we get to that portion of the webinar,
we do ask the question submitted there both pertain to
this discussion, and end with a question mark. With that,
thank you for being with us today. Jeremy Flora's yours, well.

Speaker 3 (01:23):
Thank you, Matthew, and I'm pleased to have my friend
and oftentimes co counsel, Aaron Murphy to join us. We've
done a number of cases together, including one we're going
to talk about later on today. And as we get
into the topic the civil rights and especially the attorney's
fees that are included at the end of many of
these civil rights cases, I want to get us a
kind of a running start. So to do that, we're

(01:44):
going to jump back all the way to eighteen seventy
one with the Civil Rights Act of eighteen seventy one,
which was passed, of course, during the reconstruction era, as
it means really been foreseeing the Civil War amendments, the thirteenth, fourteenth,
and fifteenth that later becomes or is becoming at that point,
what we now know is forty two USC. Nineteen eighty three,
or just nineteen eighty three and short for civil rights practitioners.

(02:05):
That then goes on for some years and gets us
to nineteen sixty four, where we have the Civil Rights
Act of nineteen sixty four, aptly named that's at two
thousand and d of the four and two Code, but
that expands civil rights protections and mainly on the basis
of race, color, and national origin. There's a significant difference
between the two, and it's relevant for our purposes here

(02:26):
today and the discussion we're going to get into. In
eighteen seventy one, in that Civil Rights Act version, Congress
did not include any provision for the award of attorney's
fees for a prevailing party. But in nineteen sixty four,
Congress explicitly provided for the recovery of fees for prevailing
parties that brings sued under nineteen eighty three. So you

(02:47):
might be able to say that the eighteen seventy one
Civil Rights Acts provided enforced them by the.

Speaker 4 (02:51):
US Attorney General.

Speaker 3 (02:53):
But the Civil Rights Act of sixty four provides a
means of private enforcement of the nation's civil rights laws,
deputying in effect a bunch of public interest lawyers to
become deputized as private attorneys general. Well, that's all working
fine until we get to a pretty significant case in
nineteen seventy five named leesca pipeline service company versus the

(03:15):
Wilderness Society, and just a little background on that case.
It goes to the Supreme Court, the Wilderness Society brings
in a brings a lawsupersuit into the National Environmental Policy
Act of nineteen sixty nine. The litigation leads Congress eventually
to pass new legislation that effectively achieved the goals that
the Wilderness Society had as a part of its litigation.

(03:36):
And so the Wilderness Society turns around and semits a
feebill for the litigation that now more or less was
resolved due to Congress's actions. They claimed in their feebill
that the action that they had taken had acted upon quote,
the important statutory rights of all citizens, and therefore ensured
the governmental system functioned properly according to their pleadings. And therefore,

(03:57):
because of their good acts on behalf of the rest
of the country, and really acting on behalf of Congress
in some respects, they were entitled to fees well. The
Court of Appeals agreed to that point, but the Supreme
Court of the United States reversed that decision of the
Appellate court. The Court the Justice has concluded that absence
some authorization by statute, even in civil rights cases, fees

(04:18):
are supposed to be retained by the parties bringing the suits.
You cannot recover fees even if you're the prevailing party
at that time unless there is some sort of statutory
mechanism to do so. So they're healing back to what
is now known as or has been known as the
American rule. Everybody pays their own way when they go
through the legal system, even in civil rights cases, unless

(04:38):
there's an Act of Congress to explicitly say you are
entitled as a prevailing party to fees.

Speaker 4 (04:44):
Well.

Speaker 3 (04:44):
That then leads to the Civil Rights Attorneys Fees Awards
Act of nineteen seventy six, following Alaska. The Congress entertains
the idea of adding these attorneys fees to prevailing parties
and civil rights disputes. And this is due in part
to the rise, as I mentioned for of the public
interest lawyer Justice Thurgood Marshal, speaking actually in Montreal in

(05:06):
nineteen seventy five, so following the excuse me, following the
Alaska decision, he goes on the law the work of
public interest lawyers, but notes that public interest law has
always had one major problem, and any of us who've
worked in this space know exactly what that problem might be.
He says, funding. Public interest law has always had one

(05:28):
major problem.

Speaker 4 (05:29):
Funding.

Speaker 3 (05:29):
According to Justice Marshall, he says, realistically, busy lawyers with
paying clients are not generally inclined to give scarce hours
to a demanding public interest practice.

Speaker 4 (05:37):
And while he said that.

Speaker 3 (05:39):
Court awarded fees are not any elixure for the funding problem,
he nonetheless believes that it is the responsibility of Congress
survived for the award of attorney's fees if it wishes
to make it possible for private parties to enforce certain
federal laws. Well, this is a speech that is sort
of resounding, and it echoes all the way into the
halls of Congress, where Wrishman Robert Cassenmeier heeds that call,

(06:03):
and he begins to lead the efforts with a number
of other Congressmen and senators to amend the law accordingly,
responding directly to the courts holding in Aliaska. Congressman Katz
and Meyer, in a hearing before the Committees in the Congress,
says the future effectiveness of many statutes will depend on
whether successful plaintiffs can recover attorney's fees under them, and
if the cost of private enforcement actions becomes too great,

(06:27):
there will be no private enforcement whatsoever. So if we're
going to have the private enforcement of our nation's civil
rights laws, he says, basically, you're going to need to
find a way to pay for the attorneys who prevail.
So Congress adopts Section nineteen eighty eight in the Federal Code,
and they allow prevailing parties to recover fees in civil
rights cases filed under section nineteen eighty three of the

(06:48):
Civil Rights Act in nineteen sixty four, as well as
as it would become amended several times to include these
various ones Sections nineteen eighty one, nineteen eighty two, nineteen
eighty five, Title nine, Title thirty five, and then, of course,
much more recently, the Religious Freedom Restoration Act and its
Land Use corollary, the Religious Land Use and inst Utilized
Persons Act. So all of those now are entitled to

(07:10):
attorney's fees in civil rights litigation pursuing to Section nineteen
eighty eight thanks to the laws passed in nineteen seventy
nineteen seventy six. So that is sort of the priminary
background that gets us the running start into this conversation
about fees as a deterrence in civil rights litigation. So, eron,
let me turn to you here before we get into
the case updates section of this actual TeleForm. This I

(07:34):
think appears to be the import of Congress's slow moving
decision making and regarding the attorney's fees. It seems to
what do you make of Conmresce allowing for fees for
prevailing parties?

Speaker 5 (07:46):
Sure, I mean I think you know. I think it's
a recognition of what Justice Marshall said back in the day,
which is it is a reality that you have to
have some incentives that make this workable. Now it's an
interesting dynamic because I think the world has changed in
some significant respects since when Congress put fees into place.

(08:08):
You have a lot more entities that are willing to
do this kind of work. You have a lot more
public interest entities, You have a lot more law school
clinics and centers, and all of these different types of organizations,
and you also have you know, law firms that are
willing to put their resources towards at least some types
of matters. Maybe maybe we can talk a bit about,

(08:29):
you know, whether they are doing that quite as fairly
across the board at some of the bigger firms.

Speaker 6 (08:35):
But at the end of the.

Speaker 5 (08:36):
Day, what kind of animated this back then remains true,
which is, no matter how you're doing it, you still
need some funding. You need some source of that, and
fees are a really important component of that, especially for
folks who are really.

Speaker 6 (08:55):
Trying to do this not you know, not do public
interest work.

Speaker 5 (08:59):
As like we're at a giant firm that has lots
and lots of resources and can spare some to do
this kind of work. But as you know, we are
really going to be an organization, a smaller firm, a
smaller a public interest group, whatever it is that's that's
dedicated to this. Like it may not be that everything's

(09:19):
going to come from there, but it's it's a significant
component of it. And the other piece too, is it's
not kind of just even about the lawyers. I mean,
we've certainly had cases where it's about ensuring that the
you know, perhaps our client is a public interest group
that itself needs the funding to be able to be

(09:42):
serving its members and their ability. You know, maybe maybe
they're hiring counsel and that's going to enable them put
them in a little bit different position, But they want
to be in a spot where they can actually get
back the money that they've put into litigation. So I
think in some respects, you know that you've also had
a rye not just of the groups who are willing

(10:02):
to be the lawyers, but also of kind of public
interest groups that are willing to be the clients. Makes
it even more important to have this as one of
the paths toward ensuring that you have a financial incentive
for people to do this work.

Speaker 6 (10:18):
Because it's all.

Speaker 5 (10:19):
Well and good to hope everybody would just do it
out of the goodness of their hearts, but you know,
like lawyers do have to make a living.

Speaker 3 (10:26):
I think I guess right at Justice Marshall's recognition of
busy lawyers with paying clients are generally not inclined to
give scarce hours to demanding public interest practice, which is
why there's got to be some level of motivation to
get us to that point. Let me turn to the
case that has brought us sort of to the point
of having this conversation, which is his Tabernacle versus James's
case that First Liberty Institute and Clement and Murphy worked

(10:47):
on together. Especially Aaron, you were deeply involved in this
with us to set it up. This is right after
another one of the cases you worked on with Paul Bruin,
the New York Gun and Rifle, which I always forget
the first part of that called the Brewin decision. Mere
days after the Bruin case comes down, the New York
legislature changes their law, and they change it in a

(11:08):
way that allows private businesses to allow people to lawfully
to determine whether they're going to allow people to carry
guns lawfully on their place of business, but it explicitly
excludes churches from being able to do so in other
houses of worship for that matter as well. First Liberty
Clen and Murphy, we file a lawsuit on behalf of
his Tabernacle Church in Elmira, New York. We allege both

(11:30):
the Second Amendment, which seems obvious and logical, but we
also make claims under both religion clauses of the First Amendment,
as the defenses of we think the state has overstepped
here where they should not have stepped. We point out
that the history and tradition test applies whether if you're
going under the First Amendment or the Second Amendment, it's
the same test, and that this has been a consistent

(11:50):
and common practice in the country to allow weapons to
be permitted on America's church campuses and for the purposes
of their security. In fact, one of my favorite parts
of what we did in case is we put pictures
in the complaint, including that very famous painting of the
pilgrims marching to worship services.

Speaker 4 (12:07):
You know, the parsons sort.

Speaker 3 (12:08):
Of in the middle, and their pilgrims are on both
sides wearing their buckled shoes and their pilgrims hats carrying blunderbusses,
which I don't know if that's if we've used blunderbusses
and litigation pleadings before, but it's pretty cool that we
did in that case, at least one of my favorite parts. Anyhow,
we succeed with the District Court, the court preliminary and
joins the Law and New York Appeals, along with many

(12:29):
other cases in the state of New York to the
Second Circuit, and most of the other cases I think
failed having alleged only Second Amendment grounds. We were able
to survive, I think mainly on our First Amendment arguments
in that case. So that's a great win. But then
we spend the next roughly two years trying to get
the State of New York to pay their fair share
of having challenged this law. Now, it wasn't the first

(12:50):
time that the gun laws have been challenged either, so
they should have perhaps known better. But still they determined
after a while and then their papers to the court
that you and I Clment Murphy and First Liberty Institute
were entitled to just sixteen percent of the fees that
we had submitted within our fee application. So this is
where I want to get to your question. Your team,

(13:11):
especially Aaron, did a really great job, a magnificent job
of briefing this issue. We were able to pitch in
a bit, but your team does such a fine job
with that. Let me ask you to sort of overview
the arguments we made in our fee application, especially with
an e towards explaining both how history that we've been
through already on civil rights cases and attorney's fees as
well as the topic of our TeleForm today on the

(13:33):
issue of the turns just kind of overview how we
made the arguments and framed them to the court in
our application.

Speaker 6 (13:38):
Sure, so we really had had a two prong approach
to this, you know.

Speaker 5 (13:43):
One was to just draw on the general principle of
you should get compensated fairly for the work that you
do in this area. And that's what the civil rights
that's what providing fees in these civil rights cases is
all about. You know, if you provide some measure of
fees and it's really working out as a loss all

(14:03):
the time, you're not really accomplishing that much by saying, well,
at least we won't make you do your work completely
for free, but we won't pay you anything near kind
of the actual value of it.

Speaker 6 (14:13):
You know, that's a problem.

Speaker 5 (14:14):
So a big part of our fee application is with
any was demonstrating this is in fact the work we did,
this is what you know we are. We are fortunate
in some respects. I think this makes it a little
bit easier and was helpful for us to kind of
lead on all of this that you know, we're not
a public interest group, we're a law firm that does
a whole bunch of different work. And so it's not

(14:37):
some hypothetical that these are fees that people would actually
pay us to spend our time doing other work if
we if we were not willing to do this.

Speaker 6 (14:45):
You know, that's a fact.

Speaker 5 (14:47):
They are fees that we charge all the time and
get paid by clients for all types of work. Many
of you know, some of it is civil rights work,
but a lot of it is not. And so you know,
we were able to make a very strong case for
this is you know, this is what it cost for
us to actually do.

Speaker 6 (15:05):
This, and then what we paired that with was to.

Speaker 5 (15:09):
Really make a pretty candid argument about why it's not
fair or consistent with the objectives of be shifting to
keep giving states a huge discount all the time. And
part of what we were particularly helped by the fact,
as Jeremy alluded to, that we happened to be litigating

(15:32):
against a state that had like a recent really bad
track record on both the First Amendment and the Second Amendment.
I mean, New York is the defendant in Bruin. New
York was actually the involved in a case. It's recond
amendment case, just a couple of years earlier that ended
up going away because they essentially got the state of

(15:52):
the city and the state to moot it. And then
New York had during COVID been at the forefront of
some summary reversals in pretty strong terms on religious liberty
grounds of having really been pretty just kind of openly
discriminatory in the way that the states set up the

(16:13):
exemptions it would and would not allow to extremely strict
COVID restrictions. And so we had this very powerful case
to make that you know this, here we are with
a state that is like, in fact a serial of
infringer of having these rights in high profile ways in
recent years. Yet the state had really not had to

(16:35):
face much beyond losing and Bruin was, you know, kind
of we talked about on I think on like the
first page of our brief in our introduction, the fact
that after we won the Bruin case, which changed, i
mean got rid of a New York law that've been
in the books for one hundred years, the NRA file
the fee application and ended up getting about thirty five

(16:58):
cents on the dollar for what had actually cost them
to pay for the work it took to get that
case turned around and we said, you know, like part
of a fees is that you have to ensure that
the state actors who are engaging in constitutional violations that
get the message that there's it's not just that they

(17:21):
can defend themselves and hope for the best and if
they lose, well, you know, there should be some consequence
beyond that. And so we we really kind of leaned
into the fact that it is relatively you know, it's
it's pretty common, it's very common for when the applications
come up. If you look back at the opinion in

(17:42):
the Ruined THEE application, I mean they decided that like
the rate for Paul Clement should be like five hundred
and fifty dollars or something.

Speaker 6 (17:52):
I mean, that's that's not what people pay for other
of us.

Speaker 5 (17:55):
And you know, they reduced everybody's rate. They were at
least fair enough to offer about the hours we put in,
but reduced a lot of hours. And just you've got
a court looking and saying, you know, you didn't really
need all of this and that, and you know, I mean,
you just end up in a situation where what is
actually being paid in attorney's fees doesn't reflect anywhere near

(18:19):
what it actually cost to litigate the case, and that
one was a particularly powerfulest illustration because, as NI explained
in its fe application, like they paid for lawyers. You know,
it wasn't after the fact, this is what it would
have cost. It was here's what we paid. Here are
our invoices of what we paid that we're trying to recover,
and so you know it just think I think that

(18:41):
that message, that kind of one two punch ended up
being something that resonated with our judge in terms of
thinking about it through the lens of look like, sometimes
cases take particular types of counsel, and I should look
at what they really cost, really costs for people to
do this kind of work, and you shouldn't discount that

(19:05):
just because the party on the other side is a
government actor. Because it's not like there's something baked into
the fee shifting provision that says, well, you should shift fees,
but man, don't shift like what they really are, because
that would cost the state a lot of money. I mean,
fee shifting should be about fee shifting, and you kind
of shouldn't bake into it the idea that, of course

(19:26):
you'd never get what you're actually work and so we
really tried to just like take as a given that's
where the approach off it is, and say here's why
you shouldn't take that approach in this case.

Speaker 3 (19:38):
Yeah, And it strikes me that an element of deterrence
is actually the level of competency of counsel. I mean,
the Attorney General of the United States has a level
of institutional competence and quality that is somehow supposed different.
But you know, when you add into the equation groups
that are sort of specialized in an area, whether there's
the NRA or First Somebody Institute or firms like yours

(20:00):
that have that, it is filled with top notch attorneys,
including you and Paul, that are amongst the best in
the nation on especially on the appellate practice. That level
of competency has its own level of determs, at least
it should. Like, if you're going to go up against
the State of New York, is going to face an
opposition based upon Dewey sue him and how versus Clement
and Murphy. It's just sort of a different calculus when

(20:21):
it comes to making those cases. I think that's what
with the Court and its opinion. Judge Sinatra, he awarded
one hundred percent of our fees just to get to
chase to the end of the story, and he explained
that quote, this is the type of rare and important
case with broader implications in terms of the state of
the law that justified the most highly specialized and highly
qualified council irrespective of geography, which being referred to as

(20:47):
highly specialized and highly qualified I think makes you and
I feel quite good. But it is nonetheless true that
that is what this client was able to obtain to
vindicate his rights. And it also, I think echoes what
Judge Sinatra says echoes the language of Congressman cast and
Meyer back in nineteen seventy six when he says, if
the cost of private enforcement actions becomes too great, there

(21:07):
will be no private enforcement. So the high quality caliber
of attorneys in the public actor's field at least is
going to go down significantly, and that level of the
terms is going to go away. So the open ended
question that I have for at the end of that
is what do you make of the significance of what
Judge C. Sinatra is saying your contrasted against what Congress
intended in nineteen seventy six.

Speaker 6 (21:27):
I mean, I think.

Speaker 5 (21:28):
It's nice to see a judge saying. What strikes me
is what I think Congress did intend, which is, you know,
we don't just want to give you like some small, little,
you know, kind of reward as a thanks for doing this.
We want to ensure you're paid for your work. And
it seems to me pretty at odds with what Congress

(21:49):
was trying to accomplish. To see courts routinely say, you know,
as you were alluding to, with the sort of localized dynamic,
like well, yeah, they may have actually done all this work,
this may be what your lawyers actually cost, but I
think you could have accomplished the same thing with some
cheaper lawyers. I mean, you know, why, why do you
think that what is your basis for thinking that you

(22:11):
really don't have one? I appreciate wanting to, you know,
say great things about local bars, and there's many, many
wonderful attorneys in them, but there are cases that you know,
just are going to require a different kind of specialty,
and frankly, you know that's evident from the fact of
the choice that firms make to bring them on. I mean,

(22:32):
just as you know, I'm sure you guys deal with
the same dynamic in for celeberty. We don't take every
case that somebody asks us to do pro bono. We
make choices about which cases are there. I mean, we
don't take any case, even not in the pro bon
no realm. But you know, we make choices about what
is actually the best use of us, the kind of

(22:52):
resources we have, where our skill set is. You know,
this was like a dream case for pair up on,
you know, given the uh, the the the First Amendment
and Second Amendment dynamics of it. But it should matter
that cases attract those kind of lawyers because we're not.

Speaker 6 (23:10):
You know, we are fortunate enough that we're not.

Speaker 5 (23:12):
Doing these cases so we can make attorney's fees on them.

Speaker 6 (23:15):
You know, we are.

Speaker 5 (23:16):
We are making choices about where we think our resources can.

Speaker 6 (23:20):
Be very valuable to clients.

Speaker 5 (23:23):
But that said, you know, when we make those choices
and have to make them assuming that we're not going
to be able to be fully compensated, you know that
that makes it harder and limits the capacity we have.
If we had more courts that approach this, like Judge Sinatra,
we would be able to take on an even bigger
docket of these kinds of cases. And so I think

(23:45):
it's a great thing to see. I mean, the other
thing that, as you mentioned before, was you know, just
to me goes to show why this idea that it
doesn't mean well, there's good lawyers everywhere, so we'll just
pay you what the ones cost doesn't make sense. I mean,
you know, we together with you guys, and this is
one of the great things about you know, pairing with

(24:07):
you guys on.

Speaker 6 (24:08):
This case, like.

Speaker 5 (24:10):
The more natural instinct most people had was to challenge
this on Second Amendment grounds. I do a lot of
Second Amendment work, and I completely get that. But the
whole reason we brought another lawsuit, even though some had
already been brought, was because we thought there was also
a very strong First Amendment argument here. And what ended
up happening is that when the state, as often happens

(24:33):
when you actually have really strong constitutional arguments against provisions
of law, they changed the law, and they changed the
law in a way that essentially mooted out the Second
Amendment claims. But by virtue of us having brought broader claims,
our case was not moot and that's why we were
able to get relief and get relief on the first

(24:53):
Amendment before a court that was not It was in
the context of a big omnibus case that we have
a second a lot of Second Amendment issues, and the
panel was not friendly at all on any of the
Second Amendment issues in the case. I think we might
be like the only issue that anybody prevailed on and
it was on First Amendment grounds. And I'm not here

(25:14):
to tell you there's no other lawyers out there that
would have made that choice. But you know, you had
this like great illustration of a choice the council made
actually being the reason we were there to get fees.
Yet at the same time, the state, in its opposition brief,
said we should get no more fees than what they'd
agreed to pay in a settlement to a different set

(25:34):
of plaintiffs who didn't win because they only brought Second
Amendment claims in their challenge. Was mood, how can that
be what Congress intended that the actual prevailing party, you know,
should be measured by what we were willing to pay
a party that didn't and we should ignore in the
process the fact that strategic decisions were made that enabled

(25:57):
the client to get relief. So sheet you know, where
courts are sometimes coming from and thinking about it as, look,
we don't want this to be, you know, just like
a boon that you go get the warriors that will
cost the most. But I don't think that's a real
concern because the types of lawyers that can demand very
high fees, you know, are are not going around taking

(26:20):
cases just to like gin up a bunch of attorneys
fees out of out of these types of cases. They're
being very you know, putting a lot of thought into
which case is to take where they think they can
actually do something valuable, where you appreciate that it's going
to take real litigation, because if it's some easy case,
you're not going to.

Speaker 6 (26:39):
Get any real fees out of it. Anyway.

Speaker 5 (26:41):
It's you know, if there's not actual litigation. The whole
other thing that I would note that is was a
dynamic we faced here that is I wish more courts
would focus on, was it's particularly frustrating when you see
the haircuts happen in cases where part of the reason
these are as high as they are is because of

(27:03):
litigation choices that were made by the defendants. And this
was a classic illustration of that, where we.

Speaker 6 (27:10):
Had a client that really there was no need for
the state to get into any.

Speaker 5 (27:18):
You know, you could have just taken everything he said
at face value in his in his declarations at face value,
but they insisted on cross examining him at a hearing
and you know, having us bring him up there, and
that as an appellate literator, I can tell you, you know,
like that process of having to prepare a witness and
present a witness, it adds a huge cost as compared

(27:39):
to just doing briefs, and so it's particularly you know,
I think some courts have the instinct they look at
like the absolute dollar amount and don't pay a lot
of attention to well, wait a second, did you know
there's obviously cases that go through much more of this
than we did. But is some of this because you know,
the state chose to force a case through onerous discovery

(28:03):
for a very long time that maybe wasn't super necessary,
or you know, made litigation choices that left the civil
rights plaint if with no choice but to put a
lot more resources than you would have needed to if
everyone was willing to agree that this is kind of
just a legal dispute. And so I think sometimes that

(28:23):
gets a little bit lost to me in the analysis too.

Speaker 3 (28:26):
And the level of preparation is enormous, and the types
of individuals needed for that preparation become just as vital
as well. Again, the questions of the state asked and
that of our client were in the nature of sincerity
of belief, which is almost shocking to ask a pastor
whether or not he's got a sincere belief in the
protection of his flock. As a shepherd of a flock,

(28:48):
it was rather shocking to go through all that. But
you know, it was not just you know, Aaron Murphy
and Jeremy Dice making the preparation. There were associates that
were heavily involved. My former colleague now Judge Jordan was
deeply involved not only in the briefing of this case,
but also in the preparation of the client at the time,
as were many others. So that's significant. And you brought

(29:08):
up the issue of haircuts, which is sometimes a sensitive
issue for guys like me. But nonetheless, I want to
read the conclusion of Jude Sinatra's opinion, and he makes
the same illusion, and I want to put that in
some context too. He says this, this was a rare
and exceptional case demanding experienced counsel at the top of
the practice from wherever they can be located. A reasonable

(29:29):
client would pay for this very result. It bears noting too,
that the judicial system encourages lawyers to take meritorious cases
like this one to ensure that proper incentives exist to
achieve that a perfect compensation is required. So here again
we're echoing everything we've already talked about, plus what has
been said in Congress and Justice Marshall.

Speaker 4 (29:47):
He ends with this.

Speaker 3 (29:48):
He says, perennial haircuts will discourage well qualified counsel. That's
the point I want to jump off from there. He
alludes to these perennial haircuts, which I think gets us
to the central issue. Beyond just the issue of common
in council is the other element of expense, And in
some respects the expense that comes out of this case
is hardly a rounding error in the budget of the

(30:08):
State of New York. Nonetheless, it is significant. There are
two cases that I want to serve as examples to
get at the point of perennial haircuts. The first one
is another case that was one you worked on, Aaron
Kennedy versus Bremerton School District. That's a case we litigated together,
and it took us about seven and a half years
to get all the way through. That case had to
go up to the Ninth Circuit, to the Supreme Court,

(30:31):
back down to both and then up again to the
Supreme Court. The parties agreed well, and I should also
mention that shift that ended the Lemon Test, that shifted
the law for fifty years in this country. It was
a game changing of a change of a case. But
the parties at the end of it, after making that
massive change in the law, agreed to an attorney fee
award of just one point eight seven five million and attorneyspees.

(30:54):
That's for all the attorneys and there's about sixty of
them that hit on that case in the course of
its lifetime, including you and me. But to contrast that,
let's look at the year two thousand and five in
the case of kits Miller versus Dover Area School District,
which is a case that the American unit of separation
Church and State brought. They took it only to the
stage of summary judgment in the district court, didn't go

(31:15):
beyond that, and they obtain a feelward from the court
of two million dollars, So you have about an eighteen
month piece of litigation not even quite that long actually
versus seven and a half years, and roughly they're separated
by two hundred and twenty five thousand dollars or so
or on hundred and twenty five thousand dollars from the attorneys.
I'm having a difficult time making sense of that, where

(31:36):
you have short lived litigation from sort of a let's say,
a left leaning a public interest firm versus a seven
and a half years worth of litigation by a much
more right leaning firm. I don't quite understand how that
disparity exists, but maybe you can make some sense of
it for us, well, you.

Speaker 6 (31:55):
Know, I mean, I'll say a couple of things.

Speaker 5 (31:57):
First, I think, Kennedy, that's such a classic example of
you know, litigation choices like driving up the costs and
then not getting compensated for it, because, I mean, the
level of record development and everything that had to happen
in that case that really didn't need to happen in
that case when all was said and done, and the

(32:19):
state would have taken a really really different approach to
that litigation, and instead you have them basically drive up
you know, all of these district court costs and the
need for multiple rounds of appeals and then effectively like
we got compensated for winning at the Supreme Court and
most of the rest of it went by the wayside.

Speaker 6 (32:39):
And that, I mean, that shouldn't be happening no matter what.

Speaker 5 (32:43):
But it certainly shouldn't be happening when part of the
reason litigation drags on the way it does is because
of decisions that are made about like, yeah, we want
to drag this on and we're okay with that, and
we're going to do a lot of invasive discovery and
a lot of rounds of.

Speaker 6 (33:01):
This and the other.

Speaker 5 (33:01):
So it's it's particularly frustrating I think that you know,
sometimes you see this approach that seems to be like, well,
we should kind of really only have to like pay
you for that part you won, But that gets to
the other part of the dynamic, like the best thing
I can you know, there is certainly one way to
look at that, which is to say that, you know,

(33:21):
you've got courts that have different views about how valuable
they think different types of civil rights claims are, and
that's you know, that's that's a that that is an issue,
and it's particularly also to the extent that is a
mentality on the courts at this point. It's a particularly

(33:43):
frustrating one because the unfortunate reality is it's easier, i think,
for certain types of cases to find very big law
firms that are pretty resource and sensitive and don't even
often care about getting their fees if they were to
litigate the cases, that are happy to provide the pro

(34:07):
bono assistance. And then you have different types of cases
Second Amendment type cases for some types of First Amendment cases,
more in the religious liberty sphere, where it's a lot
harder to find those, you know, firms that are able
to do that kind of representation and willing to do
that kind of representation.

Speaker 6 (34:28):
That don't really care about getting the fees back, you know.

Speaker 5 (34:32):
So it's to the extent that's the explanation, it's really
a tough one because it just kind of makes a
difficult dynamic even worse. I will say, though, one of
the other difficulties with fee awards, with seeking them and
with exercising your judgment about when it's worth seeking them

(34:55):
versus trying to settle is it's quite a different experienarience
to go before a district court who thought you were
wrong versus a district court who all along thought you
were right and feels vindicated in your victory.

Speaker 6 (35:12):
And you know, I.

Speaker 5 (35:13):
Don't think like if I compare. You know, the Bruin
case actually came out of the same district but a
different judge in New York. But you know, I don't
think like it's an accident that we got a great
fee award out of a judge who thought we were
right and saw us prevail on appeal. I think sometimes

(35:37):
the hardest dynamics you face are when you have a
district court judge who absolutely thought you were wrong and
was appealed and vindicated on appeal. You know, you lost
on appeal, and then they get reversed by the Supreme Court.
You know, not every district court judge responds to that
by thinking, oh, I'm really kind of like chagrined that
I got it wrong. Some of them are still quick

(35:59):
conven say got it right, and they're not going to
be the absolute most favorable forum for the argument of you, hey,
we had to work really hard to accomplish this great
victory and indicate civil rights, and the other side is
a pretty bad actor who really.

Speaker 6 (36:16):
Needs to be deterred.

Speaker 3 (36:19):
Yeah, Matthew is going to come back in a minute,
not right now, but he's going to come back with
some questions for us. So if you've got any more
questions that are listening, feel free to put those in
the Q and a chat there and Matthew will address
those in a moment. But I want to get to
one final question with you, Aerin before we get to
the questions from the audience. And I want to put
it pointedly because again we style this as civil rights
fees as deterrence, right, and so I think we've covered

(36:42):
the ground on it all, and I want to just
sort of put the binary choice to you and answer
the question of what is the deterrence effect contemplated by
Congress in the award of attorneys fees for prevailing parties
and civil rights litigation. I'll give you the choice of
the two binaries here. One is is it meant to
encourage the I have an enforcement of our nation's civil
rights laws by competent counsel. Or is it meant to

(37:05):
penalize and therefore prevent the recurrence of government entities depriving
the civil rights of its citizens? Which one would you
come down in that camp work Are you unwilling to
land on me either one?

Speaker 6 (37:16):
I know, I really think it's both.

Speaker 5 (37:17):
You know, I think like you can certainly find if
you're going to look at, you know, legislative history and
how everything came about, plenty of support for the idea
of like the goal is we have to compensate, but
you know it sure also seems like part of the
point is to say, you know.

Speaker 6 (37:39):
In normal contexts, we don't.

Speaker 5 (37:41):
Have fees shifting, and I think in most of the
context when Congress does authorize fee shifting, it's not simply
about we want to ensure that there is compensation for
those who take on these cases. It tends to be
we want to ensure that these laws get enforced, and
we want to ensure that you know the violations of

(38:01):
them stop. I mean, if you really are concerned as
Congress was about wanting to create an incentive structure that
ensures that you will maximize enforcement by both private parties
and government actors, then inherently part of that is that
your goal is you want maximum enforcement, and so that'll
just to me ties back to like, of course, deterrence

(38:23):
is an incredibly important part of it, because what you're
trying to do is tell, you know, potential bad actors. Hey,
it's going to be a lot harder for you to
get away with this because we've ensured that there's an
army of people ready to come after you.

Speaker 6 (38:39):
If you do. And by the way, you know.

Speaker 5 (38:43):
We're going to make you compensate them for all of that.
I mean that, of course should be a deterrent, and
I think it's intended to be. But I think whichever
way you think about it, like it doesn't you know,
either way, you're not accomplishing what we're set out to
accomplish if you're not actually ensuring that people are fairly

(39:05):
compensated for the work that they're doing in civil rights cases.
Because if the compensation isn't sufficient, it's you know, it's
an insufficient deterrent, and it's an insufficient incentive if people
aren't really are really only going to get you know,
thirty five cents on the dollar anytime they do a
civil rights case. Like realistically, yes, there are plenty of

(39:25):
great attorneys out there who will say that's fine, okay. Frankly,
that's partly because they are working really hard to find
other funding sources, not just because they're willing to work
for thirty five cents on the dollar. But there are
good lawyers who have to make a financial judgment. And
I can tell you, as you know, a founding partner

(39:46):
of a small firm like we do owe it to
the people who work for us to make decisions about
how to ensure, you know, to make decisions that are
financially sensible for the firm, and that sometimes absolutely makes
sense to be doing stuff promoto. There's wonderful things about that,
and it's wonderful opportunities for people, and you know, there's

(40:08):
many many benefits to it. But sort of the smaller
you are, like, the more you have to be really
thoughtful about all of that. And it sure helps if
you have the opportunity to actually be compensated at a
reasonable measure for the work that people put in.

Speaker 3 (40:24):
Well, I'm satisfied with that answer because I actually started
this project with the notion that it would be that
the fees are actually the turn effect, and I think
that is the case. The further down the governmental stream
you go. In other words, in Jashper Georgia, it's going
to be a lot more expensive for civil rights violation
if you know, it's going to feel more for the
city council there than it is for the State of

(40:45):
New York, Right, I mean again, it's our fee shifting
was barely arounding error for their budget, I'm sure, but
it's significant nonetheless if you take that to the backwoods
of northwest Georgia. But at the same time, the State
of New York needs to have that highly competent council
motivated to take their civil rights litigation seriously to enforce
these laws. And so Congress I think is happily satisfied

(41:07):
either way. Either you're reminding city and county governments that
this is going to negatively affect your small budget, or
you're reminding BMS state governments that your trillion dollar budgets
are going to be affected by wisen counsel that are
going to make their correct, correct argument. So I think
you make the case correctly, and we're going to turn

(41:28):
to Q and A. But let me first just thank
you again Aaron for taking the time to set this
all up, to spend the time of your day. I
can't compensate you for the hour that you've now spent
with us here, but perhaps we'll be able to shift
that fee to FEDSCOC or somebody else later on. But Matthew,
what kind of questions does the audience have? Has anybody
been outraged that we have actually quoted positively Justice Marshall
in a FEDSOC forum.

Speaker 2 (41:50):
No outrage, But there was actually a request to know
where that quote was from.

Speaker 3 (41:55):
So, yeah, that quote came from a speech he gave
in nineteen seventy five in Montreal. And if you look
up the Congressional hearing on the Civil Rights Attorneys Fees
Award Act of nineteen seventy six, you two can read
the speech in full. It was added to the record there.
That's where I found it, so and I couldn't quite
tell who he was speaking to, but you know, it

(42:16):
was somewhere north of the border, so I kind of
gave up caring after I saw Montreal.

Speaker 2 (42:22):
Great. There were a couple of questions that are easy
to handle. They were just asking whether the set petition
and briefing are publicly accessible, whether they could read those.

Speaker 3 (42:33):
Yeah, they're certainly on PACER and I think we actually
have a couple We certainly have the opinion on first,
Libody dot Org from Judge Sinatra. I don't recall if
we have all the other briefing, but we'd be happy
to provide it if you can't find it on PACER.

Speaker 4 (42:45):
I don't know. Maybe Aaron, you know a better place
to find them. Yeah, I don't.

Speaker 5 (42:48):
I have them, but I'm not aware of anywhere we've
publicly posted them. But they're certainly publicly available, so we
can follow up.

Speaker 3 (42:55):
Yeah, and I would really encourage folks to read.

Speaker 4 (42:58):
We played a part in that first.

Speaker 3 (43:00):
I don't want to distance myself too far from it,
but Aaron and our team did the line share of
the drafting of that, and it is some of the
most pleasurable briefing I've read, and I've done a lot
of cases with Aaron and Paul, so this was especially
well done. Part of the brief, like the initial briefing,
was excellent, and I owe that to Jordan Bradford coming
up with most of the PI brief in that case.

(43:20):
But the attorney's fees application could be a very rote discussion,
and it was not. It was very engaging, and the
time got to my desperate editing, I was more or
less reading it with a bucket bucket of popform more
than anything else.

Speaker 2 (43:35):
Great, Thank you. I have a question here from Jeffrey Wood.
He asks, I don't know if you have any comparative
data on fee shifting in other civil rights cases. It
would be interesting whether certain types of civil rights claims
are preferred in this regard, for example, racial discrimination versus
religious liberty.

Speaker 4 (43:52):
Would you agree?

Speaker 3 (43:54):
I would, And if anybody's inclined toward and Aaron you
may have some other follow up on this too, but
is inclined to do some academic research and law review
writing on this. I think that'd be a helpful topic, frankly,
to kind of lay out where these fee awards have
landed and some of the difficulty in finding that is
going to be many cases these issues resolve with just settlements,

(44:16):
So there's a negotiated settlement with the parties and it
only rarely goes to fee application. And I think, and
this is just going from god. I don't know that
I have any hard science behind this, but I think
that's largely because at least on our side of the
v it's sometimes difficult to get motivation to file the
application that you're going to get fifty three cents on
the dollar sixteen percent of what you're asking for. That

(44:38):
kind of thing has a sort of a depressing effect.
And also, I'll say one more thing for our practice.
You know, we're based in Dallas, but we litigate all
over the country. I've got a client in New Hampshire,
a client on the Big Island of Hawaii, down in
Boca Ratone, and everywhere else in between.

Speaker 4 (44:55):
Where do I set my hourly rate?

Speaker 3 (44:57):
And so one of the great things that Judge Sinatra
did was to actually bless my hourly rate. And so
now I actually have a you know, a published opinion
that says I'm worth this much money. And I'd like
to take that to my boss at some point to
remind him. But at least I can take that to
a judge in the future to remind them that I'm
at least a highly qualified according to Judge Sinatra, at
least in one jurisdiction of these United States. But Aaron,

(45:19):
I don't know if you've got more to speak to
on that.

Speaker 5 (45:21):
No, but I was just going to pick up on
something you said, which is about you know how a
fama this doesn't get litigated, especially by you know, kind
of some of the most qualified folks out there.

Speaker 6 (45:32):
And part of that dynamic is a lot of.

Speaker 5 (45:35):
Big law firms are just incredibly reluctant to actually file
fee applications because they just don't want the risk of
a court saying the fees that they charge their clients
are not reasonable, especially if you're a national law firm,
and you know, it becomes even more sensitive if you
think about firms that do like bankruptcy work and the like,

(45:58):
where they have to have like court fees, and so
it's just not uncommon at big firms to kind of
be having more of a mentality of will take kind
of any remotely reasonable settlement that we're offered, because we'd
rather not, you know, have to go justify, you know,

(46:18):
have some judge somewhere in some locale say well, I
don't think that's reasonable.

Speaker 6 (46:23):
It's a charge you know, down here in South Carolina.

Speaker 5 (46:27):
And then you've got something on the books saying that
your nationwide fees that you charge all your clients aren't
really you know, appropriate.

Speaker 6 (46:34):
So I think, you know, we.

Speaker 5 (46:38):
And frankly, if we'd still bet in big law, we
probably wouldn't have been able to follow the see application.
We're not in big law, but we ourselves had to
give that some thought and whether we were comfortable with it.
I think, you know, if the state had made a
little more reasonable offered.

Speaker 6 (46:51):
In our that would have impacted how we all thought
about it. But but it is tough, it's not great.

Speaker 5 (46:57):
I mean, you know, like we have a couple of
colleagues who to this day like take it as some
of personal insult that they in Bruin, you know, got
this fee award that said certain people didn't have any
special expertise and you know, really weren't highly qualified to
be doing anything like nobody wants that.

Speaker 6 (47:16):
Nobody wants that on the books.

Speaker 5 (47:17):
And so that's part of that dynamic of you know,
going to a judge one before versus a judg.

Speaker 6 (47:23):
You loss before.

Speaker 5 (47:24):
But I too do have the sense, you know, that
there is just a little bit of that religious liberty
claims may not fear quite as well as some of
the other types of claims under the civil rights loss.

Speaker 3 (47:38):
I think the examples that I drew out there sort
of set the point where we settled where we did
with Kennedy, because that's all we were, I mean, going
to that court in the northwest Washington, in Seattle. You know,
I just don't see us coming away with more than
one pointy seven five million than fees, even though it
was a seven a half years worth of litigation. Now Americans United,
which is not exactly our iological ally files and those

(48:02):
more favorable jurisdiction of perhaps for them, but way less
time in litigation, and they come away with just as
much or more. It's just it's that disparity I think
speaks for itself, and I think we could repeat that
over and over again. If I'd had time to research
it more, I certainly would have. But I got these
are the cases going on. But you're your other point,
just to underscore, I think is a really good one, Aaron,

(48:23):
that it is. It's a trillion dollar decision for some
of these firms to litigate these fees.

Speaker 4 (48:28):
I get it.

Speaker 3 (48:28):
And it's not just first liberty cases that they're working on.
You know, we do a model that's very similar to
the A C l U and they do the same
basic thing. But I I should have talked to some
of my friends over there to find out sort of
what their big big wins are, just give a better comparison.
But my gut says that they're they're not taking the

(48:49):
same haircut that we are. It maybe you know, high
and tight but it's not, you know, it's not a
fashionable one like mine. They're they're taking a much more
sincere haircut. We're taking a much more sincere haircut. I
think I go back to actually the days of the
Obamacare contrasumptive mandate, and I remember distinctly, once those cases
have been run through Hobby Lobby and the Sisters of

(49:11):
the Poor, the new administration comes in and immediately wants
to settle because they don't want to deal with any
of these issues, and we're happy to move on. Frankly,
but again, there was like ten or twenty cents on
the dollar that we're selling for fees that lasted in
litigation for three four five years. So anyway, I think
we probably beat that horse well into the ground. But

(49:32):
I think those points that Aaron raises are good ones.
I don't begrudge Big Law from not litigating fees, but
I am happy to have people that have come from
Big Law that we're willing Aaron and Paul in particular
to litigate this case as a service to those people
in Big Law now to say, well, if Aaron, Aaron
Paul can get this much, then we're just going to
go with what they said was approved. I think that's

(49:52):
going to prove to be very very helpful and frankly
on both sides of the ideological fee.

Speaker 4 (49:57):
Matthew, I thank you panelists.

Speaker 5 (50:00):
Prior to Matthew, I saw a question in there that
I'd actually be interested in, Uh, you know, if if
Jeremy has thoughts on which is the effect of the
the laky vysteiny the court's decision saying that you can't
get fees for winning a preliminary injunction if it gets moot?

Speaker 6 (50:21):
To me, I like that seems a.

Speaker 5 (50:23):
Little wrapped up in the courts, seeming dislike of preliminary
injunction litigation these days, and I think it's been a
struggle we've dealt with in a lot of our cases,
and not just even in you know, kind of the
public interest for fees context, but just that there just
seems to be this growing hostility to what it used
to be very much the norm that especially kind of

(50:45):
legal issue stuff, you just sort of litigate that through
a PI and.

Speaker 6 (50:50):
That would all kind of work.

Speaker 5 (50:52):
And I'd be curious if you would how much you
guys have thought about that, and doesn't like impact the
way you think about your litigation model, knowing that there's
a little more risk in going that path through a
fees perspective.

Speaker 3 (51:09):
Yeah, look, it does impact us because now you've got
to drive things to final judgment. And really, in sort
of a backdoor way, the court has required us to
engage in more litigation rather than less because now we
can't just sort of resolve it at the PI stage
call that a final order. We've either got to go
through summary judgment. We've got to go through trial, got
to get to some level of final order, a consent

(51:29):
decree or something like that, something that triggers a final
decision of the court, and that can be time consuming
that there's a lot more briefing that goes into that.
Sometimes there's a full blown trial that's got to go
into that. And that results in us helping less people
as well, because the more time you spend on one
case so you don't have enough time to spend on
another case. You can't bring in new clients for those things.
And so if the goal of deterrence is to bring

(51:50):
in private litigators to make sure those nation's civil rights
laws are enforced, well we're going to have reduce the
number of enforcement actions that we're able to take. But
at the end of the day, I think the effective
it will be that we'll try. You know, this sounds
much to Avis like, but we'll try harder. Right, We'll
just get into this final order more quickly. It also

(52:11):
is a negative here is that it motivates. I think
it motivates cities and counties and the others to take
a calculated risk in litigation. I mean, if they can
just survive a PI, or if they can'll just roll
the dice to see what happens in a PI posture,
they may get out of it for a lot less
than what they would have gotten out of it previously.

(52:33):
So they can go through a PI, lose the PI,
change the statute, ordinance or law, and moot the case,
and you know, we're kind of stuck hold in the
bag now. I hope I didn't just say that and
give away the game. But there are enough city and
county litigator or lawmakers that already knew that part of
the game, because I've run up against that more than
once in my lifetime.

Speaker 4 (52:53):
But I hope that that won't continue to be the case.

Speaker 3 (52:56):
The nation's laws on civil rights, in particularly the area
that I focus on religious liberty. It's far too precious
for us to give up, you know, the enforcement of them.
And certainly first liberty is not going to do that
just because of lacki versus sinning.

Speaker 4 (53:08):
But I I.

Speaker 3 (53:10):
I'm not a huge fan of lacki versus sinning for
those very reasons, with as much difference as I can
muster up to give to the court in their decision
in the process anyway, But yeah, I hope that that
gets the answer.

Speaker 6 (53:22):
Yeah. No, And it's been interesting for me, you know,
I mean we have.

Speaker 5 (53:25):
As I set a little earlier on, I mean, we
have we have the kind of cases we do with
you guys where they're you know, there we view them
as cases we're taking on a pro bono basis. But
we also have plenty of cases where we are leadigating
constitutional issues on behalf of clients that are one hundred
percent paying us and are very happy to you know,
like they'd rather not go through all of the discovery

(53:48):
and all the process, but it's not going to scare
them off. And I've been it's been interesting trying to
get a sense of whether states are at all backed
off by you know, we try to look for a
time to remind them like, look, I get that you
see a value in dragging this out and forcing us
to go through discovery on things that.

Speaker 6 (54:09):
You really don't need it on.

Speaker 5 (54:10):
But you do realize you're driving up your own bills,
you know, and it's important for that to be something
we can say that actually has some backing. It's a
less valuable way to push back on states if courts
aren't really going to make them pay what it cost
us to litigate, if they kind of force you through

(54:30):
you know, like the sensible way to deal with lackey
is to say, okay, fine, once we lose a PI,
you know, absence something in the decision that like really
gives some promise of reaching a different result, let's just
all enter final judgment.

Speaker 6 (54:48):
And call it a day.

Speaker 5 (54:49):
But unfortunately, there seem to be way too many defendants
who are like, now, we see this now as an
excuse to just drag on the litigation even longer and longer,
in hopes that maybe if we make you spend enough fees,
you'll give up. And you know, I think we're both
fortunate to have a lot of clients who are like.

Speaker 6 (55:04):
That's not what I want, but I'm in it for
the long haul.

Speaker 3 (55:07):
Yeah, and this is where I'll pick back up with
Justice Marshall where he says that this is attorney's fees
are not the elixir to solve the funding problem. Thankfully,
we've got millions of people or maybe thousands, if not
millions of people that do support the work of First
Liberty Institute. And they're not you know, they're not employed
by the United States government or any local agency. They're
giving of their own resources to make sure that if

(55:29):
the government's going to violate yourself a rights, you don't
have to pay an attorney to.

Speaker 4 (55:33):
Get them back.

Speaker 3 (55:34):
And so thankfully we've got that at that wind at
at our sales to push us forward. And so they
really can't the lucky persons sitting I guess they'll put
it this way. It can sort of resolve or hamper
the issue of the recovery of fees, or at least
prolong that and make them much more difficult. But it's
not going to end the competency of counsel side of things.

Speaker 5 (55:54):
There.

Speaker 3 (55:55):
It may limit how many we can help, but we're
still be able to attract not only good attorneys for
celebrity but the ones we partner with at Clinton, Murphy,
and you know all the biglock case affirms that we
work with throughout you know, DC, New York and elsewhere.
So they're still going to be motivated because they have
a motivation of the ideological question over the financial one.
But I don't want to lose sight of what we've

(56:15):
already talked about in this UH, in this this TeleForm,
which is those go together that that ability to be
reimbursed by what you've done, but also to obtain private
attorneys general to enforce these civil rights laws. I think
those have to go hand in hand. Otherwise we don't
have the deterrent effect that it was intended to have.
So my hope is that in the long run, lack
He won't matter that much on that point. But because

(56:37):
we're still going to have to go to final judgment somehow,
it may not be at the PI stage, it may
have to come at the MSJA stage. But either way,
we're going to get to final judgment some way.

Speaker 4 (56:50):
Great, thank you.

Speaker 2 (56:51):
We have time for maybe one or maybe two more questions,
you know, quickly, we can do it. This one was
from Terry Dowdell. He says, should prevailing defendants it attorney's fees,
not the case in the Ninth Circuit at least.

Speaker 4 (57:07):
You want to take now on, Aaron.

Speaker 5 (57:10):
I mean, I think the it seems to me that
the answer probably ought to be rarely, you know. I mean,
maybe it doesn't have to be never, and you know,
but like probably if you have a truly the kind
of truly frivolous or abusive case that you would think
would be appropriate for something, it's going to get thrown

(57:31):
out fast enough that you've probably paid essentially nothing anyway,
and you can deal with all of that through sanctions.
So it's just, you know, it's a little harder for
me to see the justification for that when if the
thing in behind it is to create an incentive structure,
I mean, at least in the context of civil rights violations,
Like one of one of the reasons you have to
counter the incentive structure is because defendants pretty much always

(57:53):
have ready made counsel to show up and represent them.

Speaker 4 (57:57):
Yeah, I think it's right.

Speaker 3 (57:58):
And part of the reason I kicked that to Aaron
first was to just kind of calm myself down because
this is actually near to me. We've got a case
pending in a petition at the Supreme Court right now.

Speaker 4 (58:06):
That started.

Speaker 3 (58:07):
The injury occurred in twenty fifteen, December twenty fifteen, and
we're just now getting to the petition at the Supreme
Court of.

Speaker 4 (58:14):
The United States.

Speaker 3 (58:16):
And in the litigation process we've lost the dishct Court
and the Court of Appeals twice. Now we had to
go up to eleven cerget back down, the back up
and lost twice. The second time we lost at the
eleventh Circuit. The Florida High School Ththletic Association, who's the
defendant respondent. Now they put in a feebill against our
Christian school. Now, this is a small Christian school in Tampa, Florida.

(58:40):
Don't have bookoo dollars that are flowing through there other
than the graciousness of donors and parents that spend tuition
dollars there. But for merely asserting their civil rights, in
this case, the ability to pray over a loudspeaker prior
to kick off of a football game at the state championship.
For merely asserting that right and trying to press that
right in court, the state agency is saying you've got

(59:03):
to pay us our fees. Now, Ron Desand has heard
about that, made a phone call I suspect, and that
fee application went away pretty quickly, but nonetheless sticks in
my craw that the government who has already allegedly violated
your civil rights would turn around and for rewarding you
for taking advantage of one of the core systems of
our democratic republic seeking redress of your grievances in court.

Speaker 4 (59:28):
They would seek to stick you with the bill.

Speaker 3 (59:31):
I just find that to be fundamentally unfair and bordering
on morally wrong. I just put it up in that
level of almost morality when I think about it that way.
So I with the question to directly the question, I
say no, I don't think the defendants that are government
agencies ought to be able to recover from a plane.
To absence some of the qualifications that Aaron put forward,

(59:53):
which is, if it's been done in a way that is,
you know, clearly frivolous and not just like someone thinks
this is frivolous, but clearly frivolous, meant to be abusive
in all those other adverbs that come with it, then
maybe I'd be considering that.

Speaker 4 (01:00:08):
But absence I showing of some.

Speaker 3 (01:00:10):
Real malice of forethought, I think we ought to be
very slow to allow the very important check and balance
of individual litigants insisting upon the government following and respecting
their civil rights. We should be very slow to a
reward a government who routinely oversteps its own bounds when

(01:00:31):
it comes to the nation's civil rights. So I'll step
off my soapbox now so we can end on time.

Speaker 4 (01:00:38):
Great.

Speaker 2 (01:00:38):
Thank you well on behalf of the Federalist Society. I
want to thank our experts for the best of our
valuable time and expertise today, and I want to thank
you our audience for joining and participating. We also welcome
listener feedback by email at fedsock Forums at fedsock dot org.
As always keep an eye on our website and your
emails or announcements about upcoming virtual events.

Speaker 6 (01:01:00):
Thank you all for joining us today.

Speaker 4 (01:01:01):
We are adjourned.

Speaker 1 (01:01:03):
Thank you for listening to this episode of fedsoc Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
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