United States: Not Your Father's Supreme Court Attorneys' Fees

Last Updated: March 25 2014
Article by P. Michael Jung

As an appellate lawyer, I see a lot of jury verdicts. And with an ever increasing arsenal of fee-shifting statutes, most of them include attorneys' fees awards. These jury charges are often a curious mix of the old and the new – the body of the charge incorporates the latest statutory and case-law nuances but the fee question is straight out of a dog-eared form book or a word-processing document created when Windows '95 was cutting-edge technology.

The issue is attorneys' fees on appeal. Not in the Court of Appeals: that is, and has always been, a straightforward "how much?" question, because the sequence of a first-level appeal is predictable and uniform. The problem instead arises from a 1997 change in Supreme Court practice. Prior to that year's amendment to the Texas Rules of Appellate Procedure, parties filed 50-page applications for writ of error or responses, on the basis of which the Supreme Court granted or denied the application. Supreme Court litigation was thus in two stages, reflected in the jury question: fees for the application stage, and fees for the oral argument stage if the application was granted.

Since 1997, however, the process has become more complicated. Petitioners first file a 4,500-word petition for review, discussing the merits tangentially but focusing on why the case is worthy of review. It is common for respondents to conditionally waive response by a letter stating that no response will be filed unless requested. Depending on the Court's ultimate level of interest in the case, it may sequentially request a response to the petition, request full 15,000-word briefs, and grant review and set the case for oral argument.

Thus a two-stage process, with the heavier attorneys' fees up-front in the first stage, has been replaced by a three-stage process. Fees at the first stage can range from the cost of a letter and postage stamp to the cost of a 4,500-word petition or response, and (in the case of the petitioner) a 2,400-word reply. The heavy fees come in the second stage, when full briefs must be written. And the third-phase fees for preparation for and presentation of oral argument are significant, but usually smaller than the second-phase fees.

All too often, though, juries are still being asked to find fees "if a petition for review is filed" and further fees "if the petition is granted." This combines the first two phases, and means that the fee evidence and jury award may either short-change a prevailing party who has to write full brief(s) before the petition is denied, or provide a windfall if review is denied on the strength of a one-page response waiver.

It's not that hard to do it correctly. PJC 115.46 asks the right three questions: fees "For representation at the petition for review stage in the Supreme Court of Texas," fees "For representation at the merits briefing stage in the Supreme Court of Texas," and fees "For representation through oral argument and the completion of proceedings in the Supreme Court of Texas." Follow that formula in the jury charge, and craft your attorneys' fee testimony to match, and you will demonstrate how up-to-date you are when it comes to 21st-Century Supreme Court practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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