In a recent post, we lamented the existence of “zombie cases” — cases where there seem to be no genuine disagreements either as to the facts or the law but the cases persist anyhow for one reason or another (often because a litigant is simply delaying the inevitable). One solution, we suggested, is the more liberal use of “fee-shifting,” or you might call it the imposition of “conduct-based attorneys’ fees.”
One might get some insight into whether this would be successful by considering family law cases, in which courts more frequently award conduct-based attorneys’ fees because there is a statute expressly providing for them.
The appellate court pointed out:
[T]he district court found that wife contributed to the length and expense of the litigation for five reasons: (1) wife’s transfer of the India properties to her mother after she had been served with the dissolution of marriage; (2) wife’s frequent retention of new counsel; (3) wife falsely increasing the amount allegedly owed to her brother and falsely claiming additional alleged debts owed to her parents; (4) wife falsely alleging that husband had business interests and earned additional income outside of his W-2 wages; and (5) wife’s counsel’s assertions during husband’s closing arguments that referenced exhibits that were not properly admitted into evidence.
Wife focuses solely on her retention of new counsel. She argues that it is fair and reasonable for a party to retain seven attorneys in a divorce proceeding.
Excuse us for seeing some humor in the fact that the award was based on five separate bases and the appellant only addresses one of them. And then, on that single alleged error, the argument is that “it is fair and reasonable for a party to retain seven attorneys in a divorce proceeding.” That is the appellant’s strongest argument?
It is possible that a cultural disconnect might have been an issue in the referenced divorce case. Generally, we get the sense that most people ignore that understanding and heeding basic elements of our legal system (the binding nature of testimony, the obligations with respect to preserving and presenting evidence, honesty to the tribunal, etc.) is not a universal trait. Not even close.
Putting that issue (as important as it is) to one side, we are confident that the award of conduct-based attorneys’ fees deters litigation misconduct even if it could never eliminate it. If only it were more broadly available and more frequently imposed.