Update (Dec. 11, 2013): One of the excellent lessons that civil litigators learn and re-learn throughout their careers is that yesterday’s victors may be tomorrow’s losers and vice-versa. This should temper egotists and gloating.
This linked recent petition for a fee award went considerably better than the one described below in the original post. (What are “reasonable attorneys’ fees” when vindicating an unreasonable statutory right, by the way?)
Original Post (Nov. 25, 2013): (under subject line, “Lyons Taming and More Thoughts About Data Darwinism”): OUCH!!!
Click the link and read the order. Have you gulped down your whole sweet creamy cup of schadenfreude?
Savor that for a moment, and then read on…
I savored it too. Wunderbar, ist es nicht?
Having said that — having enjoyed the feeling that opportunists and exploiters of what I view essentially as a legislative glitches or errors get their come-uppance — I wonder if that schadenfreude is unfair.
The federal statute, FACTA, was enacted in 2003 and gave a three-year “heads up” as to the provisions for credit card receipts. The defendant St. James Hotel (owned by the Red Wing Shoe Company) was still printing out receipts, apparently, with the entire credit card number included in July of 2012. Identity theft and credit card fraud are multi-billion dollar per year problems. This kind of data breach is the kind of thing that, when there is a victim, he will have no way to trace back to the source of the breach. This is the kind of negligence on the part of commercial establishments that the U.S. Congress sought to deter by providing for a cause of action and by providing for an award of attorneys fees. No one wants to pay U.S. government employees to police this kind of thing; so the legislature gives an incentive to lawyers to undertake the obligation to protect a significant public interest.
But it is hard, ultimately, not to side with the Court’s stinging criticism in this case. Plaintiffs’ counsel, Mr. Thomas J. Lyons, Jr., apparently, billed “3.04 hours to reviewing an email regarding dislike for him and the lawsuit and researching how to respond.”
You cannot bill for that. On some days, I get the feeling that it would make me very very rich if I could.
And $400/hour for Mr. Lyons’ services in light of his sketchy track record does seem pretty steep. (I am cheaper and my baggage is a whole lot lighter.)
And one can understand a court’s reluctance to award the full measure of requested attorneys’ fees when the petition for them seems misleading in numerous respects.
Post-script: Think about lawyering in the 21st century and beyond. The information revolution that is on-going and accelerating at light-speed every second. Reputation will be the key metric of the future. (This is not an original thought of mine.) This might put lawyers, in particular, in a very different place over time than they are today.
Remember the bygone era when lawyers were trusted confidants and advisors? Remember when companies relied on one lawyer or one law firm for decades, not because the lawyer(s) knew everything, but because the clients knew that (1) the lawyers were pretty darn smart and (2) the client could trust them? Sure, the many ringed walls of protectionism, sexism, racism, anti-semitism, oligopoly, etc., also limited legal service consumers options for legal services. That is one explanation for the former attorney/client monogamy. Another explanation,I would suggest, was the very high cost of finding a replacement for one’s most trusted advisor when information was so difficult to obtain on this very nebulous but absolutely critical attribute. Hence, the analogy to marriage.
Maybe the will come full circle. Maybe consumers of legal services will, over time, worry less about whether a lawyer is $235/hour or $470/hour and they will recognize that the lawyer with the higher rate could be the far better deal (or worse deal) because of this extremely difficult metric, trustworthiness. Maybe trustworthiness will be easier to determine because, over time, the information (and reputation) on the internet on balance will be accurate and reliable, making this previously hard to unearth information — trustworthiness — more easily attainable.
Let us hope so.
In many many cases, the cheapest lawyer you can find will ending up being the most expensive. Many if not most of us know this but we just don’t have a sense of how to assess lawyers other than by price, by prestige of law school, or prestige of law firm.