Uncivil attorneys get a 40% fee haircut

Tim Kowal October 9, 2023

After a former employee won a claim against the employer in Snoeck v. ExakTime Innovations, Inc., (D2d3 Oct. 2, 2023) No. B321566 (nonpub. opn.), the court granted the motion for attorneys’ fees. The court agreed that the value of counsel’s efforts would have been over $1.1 million.

Would have been. But then the court applied a 40% negative multiplier. Why a 40% pay cut? Because counsel engaged in repeated uncivil conduct. Relying on Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, the court observed: "Civility is not just a moral good. 'Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. [Citation.] Civility is an aspect of skill.'”

Here are some examples of counsel’s incivility:

“Plaintiff's counsel's tone of voice (which was not reflected in the Court Reporter's record) was both belittling and antagonistic; at times it verged on the contemptuous.'"
Counsel “sent defense counsel an email entitled, "Your most egregious and successful attempt to cause a court to abuse it[s] authority.”” And several other similar emails.
Counsel “certainly belittled the court in his emails to opposing counsel, claiming defense counsel made "a total fool of" (full capitals omitted), "exploited," and "duped" the trial court, and treated the trial court as an "easy mark."”
Defending himself, counsel argued that opposing counsel did not rebut his criticisms, and thus implicitly conceded them. The court was not impressed: “any response to Snoeck's counsel would have turned into an unproductive and juvenile "did not, did so" sparring match.”

Counsel argued that the goal of civility is vague and fee reductions on the basis of perceived incivility are a due process violation. He continued by arguing that the reduction could be appropriate only if the incivility directly caused increased costs. The court rejected this. True, a trial court may not reduce attorney fees "merely for the purpose of punishing" plaintiff or plaintiff's counsel. (Ketchum v. Moses (2001) 24 Cal.4th 1122 (Ketchum).) But incivility, the court said, “resulted in inefficient, fractious, and thus more costly, litigation. As the court in Karton aptly observed: "Incivility between counsel is sand in the gears.””

Again quoting Karton: "Civility is an aspect of skill." (Karton, supra, 61 Cal.App.5th at p. 747.) "Excellent lawyers deserve higher fees, and 3030 excellent lawyers are civil." (Karton, supra, 61 Cal.App.5th at p. 747.) Awarding the same amount of attorney fees to an uncivil lawyer as one who is civil thus would not constitute a reasonable fee.

A 40% reduction for incivility did not “shock the conscience.” By comparison, the court in Karton cut the uncivil attorney’s fees by two-thirds.

Takeaway

My favorite part of this opinion is when the court confirmed there is no reason to respond when opposing counsel sends nasty emails. It is an “unproductive and juvenile ‘did not, did so’ sparring match.” It is not productive. And silence certainly is not a concession to attorney nastygrams.

Don't waste time and money on pissing matches. Don't use four-letter words—and five-dollar words to the same effect are just as bad. Litigation by its nature is hostile and expensive, and it cannot be made otherwise. But there is also no reason to make it more hostile and more expensive than it has to be.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"A judge is a law student who grades his own papers."

— H.L. Mencken

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Uncivil attorneys get a 40% fee haircut

Takeaway

Related Posts:

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"A judge is a law student who grades his own papers." — H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons