V. DETERMINING THE ATTORNEYS' FEES
A. The Lodestar
Hensley v. Eckerhart is the seminal Supreme Court case on the issue of determining attorneys' fees. There, the Court adopted the lodestar approach to determining appropriate attorneys' fees under § 1988.
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.175
The Court did state additional factors could be taken into account, but only to adjust the lodestar amount. "The district court also may consider other factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (CA5 1974), though it should note that many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate."176
B. The Johnson Factors
The Fifth Circuit developed a list of 12 factors to be utilized in determining attorneys' fees in the Johnson case. The twelve factors are (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.177 These factors derived directly from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106.178
The Supreme Court, however, did not adopt the Johnson factors as the method to determine the appropriate attorneys' fees for a prevailing party. The lodestar method was the chosen manner of determining attorneys' fees. The Johnson factors were identified as a means to make necessary adjustments to the lodestar amount. As the Supreme Court noted, most of the Johnson factors are subsumed in the lodestar amount.
C. General Principles
There are a number of general principles the Supreme Court identified in Hensley that apply to all attorneys' fee determinations. These principles have been reinforced by the Supreme Court repeatedly.
• The determination of fees "should not result in a second major litigation."179 "Trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time. . . . We can hardly think of a sphere of judicial decision making in which appellate micromanagement has less to recommend it."180
• The district court should exclude from the lodestar calculation hours that were not "reasonably expended."181 Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, 'billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."182
• The lodestar figure is more than a mere "rough guess" or initial approximation of the final award to be made. Instead, "[w]hen . . . the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee" to which counsel is entitled.183
• The fee-shifting statutes, including § 1988 "were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client. Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws."184
• A reasonable attorney's fee is one that is adequate to attract competent counsel, but that does not produce windfalls to attorneys. Section 1988's aim is to enforce the covered civil rights statutes, not to provide a form of economic relief to improve the financial lot of attorneys.185
These factors are the foundation upon which attorney's fee awards are built. Other factors may come into play, and there may be adjustments based on those factors. However, the other factors will not always be present in a given case. The general principles identified above must be included in every attorney's fee award.
D. Fee Agreements
While § 1988 provides the basis for the recovery of attorneys' fees in § 1983 litigation, there will invariably be fee agreements between the prevailing plaintiff and her attorney. The Supreme Court has clearly addressed most of the issues that arise from the interaction between the fee agreements and the recovery of attorneys' fees under § 1988.
As a starting point, it is imperative to understand that any attorney's fee award under § 1988 does not belong to the attorney—it belongs to the plaintiff. The Supreme Court has made this point repeatedly. In Evans v. Jeff D., the Court stated:
Thus, while it is undoubtedly true that Congress expected fee shifting to attract competent counsel to represent citizens deprived of their civil rights, it neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable; instead, it added them to the arsenal of remedies available to combat violations of civil rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney's fees.186
In Venegas v. Mitchell,187 the Court held:
Because it is the party, rather than the lawyer, who is so eligible, we have consistently maintained that fees may be awarded under § 1988 even to those plaintiffs who did not need them to maintain their litigation, either because they were fortunate enough to be able to retain counsel on a fee-paying basis, or because they were represented free of charge by nonprofit legal aid organizations. We have therefore accepted, at least implicitly, that statutory awards of fees can coexist with private fee arrangements. And just as we have recognized that it is the party's entitlement to receive the fees in the appropriate case, so have we recognized that as far as § 1988 is concerned, it is the party's right to waive, settle, or negotiate that eligibility.188
In Venegas, the plaintiff retained Mitchell as his attorney. Venegas and Mitchell signed a contingent-fee...
