WASHINGTON (CN) - In a case of great importance to lawyers because it affects their pay, the Supreme Court on Wednesday heard arguments on a state court judge's decision to award an extra $4.5 million in fees to the plaintiff's attorneys. "I thought this judge said, 'These lawyers were amazingly good. I have never seen a better performance.' So don't we take him at his word?" Justice Ruth Bader Ginsburg asked.
Mark Cohen, representing Georgia, maintained that performance should not be a reason to enhance the original fee.
Justice Antonin Scalia seemed to agree, saying, "It's certainly not in the tradition of the bench to comment upon the performance of lawyers."
"I can't tell you how often I would like to give a separate grade for the lawyer who won a case. You know, one grade for the case and the other for the lawyer," said Scalia to laughter in the courtroom. "But we don't do that."
The case stems from a lawsuit filed on behalf of 3,000 Georgian orphans, which sought injunctive relief to correct inequities in the foster system.
Paul Clement from King& Spalding argued that performance should be taken into account in this exceptional case, saying that the plaintiffs got everything they asked for in the complaint and that the lawyers played a large role in the results.
The state of Georgia and the government argued that the bill should not be adjusted for performance, saying adjustments after the fact don't happen normally.
"I thought this judge said, 'These lawyers were amazingly good. I have never seen a better performance.' So don't we take him at his word?" Justice Ruth Bader Ginsburg asked.
Traditionally, attorney's fees in cases involving free-shifting statutes are determined by calculating a reasonable hourly wage by the number of hours the case would reasonably involve. Here, the fees were calculated at roughly $6 million.
Congress established this way of determining fees to make lawyers indifferent in deciding whether to do civil rights work or complex civil litigation.
"Theoretically it would be the same fee as if he had lost," Justice John Paul Stevens noted, seemingly in support of Cohen's argument. "And so the quality of performance really is totally irrelevant."
A Georgian district court judge enhanced the fees by $4.5 million after the judge, who has sat on the bench for 28 years, said the lawyers put on the best performance he ever saw.
When Assistant Solicitor General Pratik Shah approached the podium to argue against the enhanced fees, the justices asked how he would distinguish when such fees would be appropriate and when not. Scalia noted that the Court has said some cases do merit an increase in pay.
Shah replied that an increase in fees would be appropriate if the lawyer represents an unpopular client and that it might cause the lawyer some harm.
Clement, who defended the fee increase, faced perhaps the toughest questions.
I will tell you what troubles me about this," Alito said. "It seems totally standardless, and I see no way of policing it and I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorneys."
Scalia added to the criticism, saying that ruling in favor of Clement would change the judicial system. "If you do this going up, you've got to do it going down. And you could expect the judge to say, 'This is the worst performance I have seen in 28 years.' Judges don't do that in our system," Scalia said, "and I don't think we should set up a mechanism that induces them to do it."
Chief Justice John Roberts and Clement disagreed over whether the judge or the lawyer is most essential in the result of a case. Each took a perhaps predictable side.
"The results that are obtained are presumably the results that are dictated or command or required under the law," Roberts said. "The results obtained under our theory should be what the law requires, and not different results because you have different lawyers."
"I'm not sure that comports with my experience," Clement replied. "Sometimes the quality of the performance and the results obtained do depend on the lawyer's performance."
"But what does a judge say when he said, 'you have achieved extraordinary results,' Roberts asked, "that if you weren't there, I would have made a mistake on the law?"
"You think the lawyers are responsible for a good result and I think the judges are," Roberts said to laughter.
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