By Carl I. S. Mueller, Esq., The Maloney Firm, APC

The California Court of Appeals incentivizes attorneys to be civil by creating black letter law that allows trial courts to reduce fee awards based on the incivility of the prevailing attorneys.

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In Karton v. Ari Design & Construction, Inc., a recent decision from the Court of Appeals of the State of California, the phrase “Civility is an aspect of skill” has been made black letter law. As a result, trial courts across California can—and should—reduce attorneys’ fees awards in the face of incivility by the prevailing parties’ attorneys.

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In Karton, the appellate court upheld a trial court order reducing a request for statutory attorneys’ fees due to the lack of civility displayed by counsel. The case arose from a dispute between the plaintiff, Karton, and an unlicensed contractor, Ari Design & Construction, Inc. (“Ari”). Karton succeeded at trial, and then sought attorneys’ fees of $271,530. The trial court employed a lodestar method for determining the fees, agreeing with the requested hourly rate of $450 per hour, but adjusting the lodestar to reduce the total reasonable hours to 200 hours, for a total award of $90,000.

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After a discussion of the relevant law, the Court of Appeals recognized and explicitly approved the trial court’s five justifications for cutting down the fees requested by the prevailing plaintiff. Three of the five justifications were commonplace: (1) that “the questions in this case were relatively simple,” and therefore did not justify incurring such a large fee; (2) the plaintiffs “over-litigated this matter” when comparing the actual dispute—$35,000, soaking wet—with the attorneys’ fees incurred; and (3) the requested fee was properly reduced to seek “an appropriate relationship between the result achieved and the size of the fee.”

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More interesting, the Court of Appeal also approved two less-common justifications for reducing the requested fee award. First, Karton, an attorney himself, was personally active in the matter, and actually appeared on his own behalf at the final hearing in the trial court as to the requested attorneys’ fees. The court repeatedly noted Karton’s behavior as “agitated” during the hearing. Based thereon, “the trial court fairly attributed some of the over-litigation to Karton’s personal embroilment in the matter,” reducing the requested attorneys’ fees. The court found that Karton’s helicopter-attorney approach and boorish behavior resulted in over-litigation, requiring a reduction in the lodestar calculation. The following quote, taken directly from the trial court during oral argument on Karton’s motion for fees, summarizes the trial court’s view on Karton’s handling of the matter:

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“Can you not interrupt me. I would appreciate your letting me finish my sentence.” 

Second, the Court of Appeal approved of a reduction of the requested attorneys’ fees based on the incivility of the attorneys seeking those fees:

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Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

In finding that Kantor lacked civility, the court cited repeated ad hominem attacks by Kantor against his opposing counsel that (1) clearly lead to extensive discovery disputes, and (2) were not supported by the underlying records. On this very issue, the Court of Appeal noted that “Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies.” In short, when incivility generates needless and additional litigation, trial courts should not award the resulting attorneys’ fees to the offending party.

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While attorneys are often admonished and educated on civility, those wise words from judges, mentors, and educators generally lack any real force. The Karton decision gives attorneys a concrete example of what incivility might cost them, in dollars and cents. Specifically, Karton saw his fees get slashed by $181,530. Through this decision, the Court of Appeal spoke clearly to attorneys in the language they understand best. Further, when clients expect incivility of their lawyers as a litigation tactic, those put-upon lawyers can now point to Karton as an example of why such tactics will cost their clients in the long run.

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About the Author:

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Carl Mueller is a business litigation attorney that represents clients in all phases of civil litigation. Mr. Mueller’s practice has a focus on attorney-client disputes of all kinds. If you have questions regarding this article contact Carl Mueller at cmueller@maloneyfirm.com.

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