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:
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.
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.