A recent ABA Journal story, “Kagan Opinion Deems Fee-Shifting Calculations to Be ‘Rough Justice’” reports, that in an attorney fee award ruling before the U.S. Supreme Court, Justice Elena Kagan muses that if litigation had more dramatic resolutions, fee-shifting litigation would be a lot easier.  The issue: How should a court apportion attorney fees under the civil rights fee-shifting statute when a plaintiff asserts both frivolous and nonfrivolous claims?  Kagan tackled the questions in a unanimous opinion (pdf) for the court that talked about the nature of real world litigation and the difficulties of determining fees.

When both frivolous and nonfrivolous clams are made, Kagan said, courts may grant reasonable fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims.  The fee-shifting statute allows an award of fees to civil rights defendants fight frivolous claims, but the determination is not so cut and dried, Kagan said.

“In the real world, litigation is complex, involving multiple claims for relief that implicate a mix of legal theories and have different merits.  Some claims succeed; others fail.  Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis.  In short, litigation is messy, and courts must deal with this untidiness in awarding fees,” Kagan wrote.

The calculations aren’t so easy either, Kagan wrote.  “Trial courts need not, and indeed should not, become green eyeshade accountants,” she said.  “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.”