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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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