Food for Thought

We need legal menus.

No, not for food, but for legal services.

Oddly, this thought occurred to me just after reading a line about eating: "Lawyers must eat, so they generally won't take cases without a reasonable prospect of getting paid."

That was from a Ninth U. S. Circuit Court of Appeals ruling called Moreno v. City of Sacramento that is another in a seemingly endless line of vigorously-litigated disputes over attorney fees.

I'm far, far too lazy, but someone else should do a study of the amount of money spent on attorney fees for work on fights over attorney fees. It's got to be up there with gas prices feeding inflation.

The usual method for resolving these battles is to use something called the "lodestar" - which really should be the name of the battlecruiser in a sci fi series. ("Captain, the LodeStar is ready to do battle with that alien ship, the Contingency. Should we open fire or do you want to settle?

"Hold on, Ensign. Let's take a few months to research this....")

The lodestar is a method of calculation - using completely imaginary numbers. The science fiction analogy holds up. (OK, I know I started out with food, but I've had a snack since I began writing this.)

Usually what you get in a ruling on one of these things is some talk about "reasonable" hourly rates and "reasonable" numbers of hours. Those "reasonable" hourly rates are often described as being what lawyers in the area usually charge.

And where do these reasonable figures come from? Academic research? A parallel dimension?

Who knows?

The judge or appeals court makes some mention of what similar lawyers charge (as if that's common knowledge) and/or discusses the number of hours recorded by the scrupulously-honest people who are seeking the fees.

What's really happening is that the judges have no clue how much work went into the case but he/she knows with a deep and moral certainty that those lawyers must have padded the bills at least a little so the Star Cruiser Lodestar gets called in to blast a few holes in the strangely-named alien vessel Fee Request.

So how do we take this fee award thing out of the realm of speculative fiction?

Simple. Use menus.

Just put standard prices on courtroom accomplishments.

For example, having an objection sustained could be worth, say, $1,000.

If you get overruled, a buzzer goes off and you lose half the "motion money" you've built up so far.

Think what that would do for the quality and quantity of objections.

A well-reasoned brief could be worth $100,000, a nice closing argument $200,000, and a solid cross-examination $300,000.

Judges should subtract, say, $10,000, for every instance of repetition in court or irrelevance in briefs.

You'd get certainty in fees and real focus from lawyers.

Imagine the fun.

Ah, but some of you are thinking: won't this discourage settlement out of court?

The answer to that question is: yes, of course it will. But consider this: doesn't the prospect of piling up all those billable hours discourage settlement now? Is there that much of a difference?

The problem is easy to fix: All you have to do is place early-termination bonuses on the judicial menu. It could be the house special.

I'm going to stop now because this is making me hungry again....

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit