Note, Promoting the Vindication of Civil Rights Through the Attorney's Fees Awards Act

provide a brief outline of the judicial and legislative history that culminated in the enactment of the Awards Act. Then, in section HI, a set of threshold requirements for recovery under the Awards Act will be presented. Section II will explore the discretionary grounds that have been used to deny fees in otherwise appropriate cases. Finally, section IV will propose a method by which courts may calculate the appropriate fee to be awarded.

Litigants in American courts generally are not awarded counsel fees as part of their relief. 0 Although many continental courts do tax these fees to the loser, 7 the theory behind the so-called American rule has been that fee shifting is inappropriate to our judicial system." Most important, it has been argued that the European rule is undemocratic: placing the total cost of the litigation on the loser has a greater impact on the poor, who may refrain from asserting their rights in court rather than risk the burden of paying these costs. 9 Moreover, fee shifting may create a subtle conflict of interest because counsel, knowing that the judge will ultimately determine his remuneration, might be inclined to try to please the court Rav. 205 (1977).

6. This rule was first enunciated by the Supreme Court in Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306 (1796), in which the Court held that federal courts are not empowered to award fees in the absence of congressional authorization. Although the courts continued to award them in certain cases-e.g., admiralty-this practice came to an end with the passage of the Fees Bill of 1853, ch. 80, 10 Stat. 161 (current version at 28 U.S.C. § 1923 (a) (1976)), which was read as comprising an exhaustive list of the costs courts could tax to the losing litigant. Compare The Apollon, 22 U.S. (9 Wheat.) 362, 379 (1824) (fees awarded in admiralty), with The Baltimore, 75 U.S. ( [Vol. 80:346 rather than the client.' 0 Concern for court congestion also has led some jurists to favor a system that removes the judge from at least this one area of potential conflict."

Criticism of this rule has been abundant.' 2 Commentators argue that far from being more democratic, the American rule effectively denies the poor access to the courts by withholding an important means for paying counsel.13 For those who do get to court, the system fails to compensate the winning parties adequately, because the full cost of pursuing their claims is not refunded.' 4 Opponents of the rule point out that the European system has allowed the impecunious to pursue claims without recourse to contingency fee arrangements and often without legal aid.' 5 Finally, the prospect of incurring liability for opponents' fees has reduced court congestion by discouraging frivolous litigation and unnecessary procedural tactics while encouraging plaintiffs to limit their pleadings to the relief to which they are reasonably entitled.' 6 These considerations have led both the legislatures and the courts to establish a number of exceptions to the American rule. The former have enacted a variety of statutes creating causes of action that include an award of fees for successful litigation. Plaintiffs litigating under the Securities Act of 1933,17 the Consumer Product Safety Act,' 8 the Copyright Act,", and more than seventy other federal provisions 20 are entitled to attorneys' fees if they win their suits. The effect of these measures is to encourage vindication of the rights provided by these statutes. 21 The judicially created exceptions fall into two broad categories. Under the "bad faith exception," a court may force a party to pay attorneys' fees if he has not litigated fairly. For example, a party who attempts to evade a known liability can be required, as part of the judgment, to pay the cost of obtaining a court order to comply. 22 The "common fund doctrine" allows a court to grant attorneys' fees to a claimant who, through the litigation process, creates or preserves a fund benefiting third parties. The claimant may use part of this fund as reimbursement for litigation costs. Thus a bondholder who succeeds in preventing the dissipation of his investment will be awarded counsel fees out of the fund his action has served to protect. 23 The public interest bar long sought to bring litigation in the civil rights area within one of these exceptions to the American rule, asserting that civil rights litigants had a special need for fee shifting. It was argued that such persons were often too poor to pay for their own counsel; yet they had difficulty attracting lawyers on a contingency basis since so many of the actions brought were of the type that did not include pecuniary damages. 24 As a result, Congress has included fee-shifting provisions in most 22. See, e.g., Vaughan v. Atkinson, 369 U.S. 527 (1962) (defendant did not make a timely acknowledgement of employee's claim, requiring the latter to take legal action); Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923) (Toledo did not appear at hearing and attempted to obstruct enforcement of court order); Bell v. School Bd., 321 F.2d 494 (4th Cir. 1963) (defendant attempted to evade desegregation order by moving to vacate an injunction barring the closing of the schools).

The bad faith award has been partially codified by FED. R. Civ. P. 37(b), (c), which allows a court to tax attorneys' fees to a party not cooperating with discovery; by Fan. R. Civ. P. 41(d), which allows a court discretion to award fees against a party seeking a second dismissal of his complaint; and by FaD. R. App. P. 38, which awards fees as part of the costs against an appellant who takes a frivolous appeal, see, e.g., In re Stolkin, 471 F.2d 1331, 1342 (7th Cir. 1973).

23. See, e.g., Central R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885); Trustees v. Greenough, 105 U.S. 527 (1881). This doctrine was enlarged in two stages. In Sprague v. Ticonic Nat'l Bank, 307 U.S. 161 (1939), the plaintiff won the right to have a lien placed on the account of a bank that went into receivership. The benefit to those in the plaintiff's situation was simply the stare decisis effect of this decision. A second stage extended the concept of common fund to nonmonetary benefits. In Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), the defendant's proxy statement was judged misleading and a proposed merger was avoided. Although the litigation produced no cash award, the decision benefited all those with stock in the company and the company was therefore required to pay back a share of the plaintiff's litigation costs. PROn. 381 (1971). These authors have argued that although public interest law firms, publicly funded legal aid societies, and charitable groups alleviate the harsh effect of the American rule, their limited resources do not allow them to litigate all the worthy suits that come to their attention. In addition, claims Nussbaum, supra, at 308, "it is unhealthy in a democratic society for so few members of the legal profession to be the only ones involved in litigating [these] important public issues." Some authors disagree. Williams, supra note 16, argues that the experience in the British Commonwealth has been that the threat of losing and being burdened by attorneys' fees has inhibited parties from securing their legal rights. See also Mause, Winner Takes All: A Re-examination of the Indemnity System, 55 IowA L. Rnv. 26 (1969). This problem is not as likely to arise under the Awards Act because plaintiffs and defendants are awarded fees under differing standards, see text accompanying notes 46-61 infra.

recent civil rights legislation. 25 Plaintiffs suing under older laws, however, continued to have to rely on the common fund doctrine in order to obtain fees. Under this approach, those who vindicated their own civil rights were said to have caused a benefit to all those whose rights were similarly violated. Therefore, these "private attorneys general" were entitled to reimbursement for legal expenses. 26 This practice was ended, however, by the 1975 decision in Alyeska Pipeline Service Co. v. Wilderness Society. 27 In that case, a coalition of environmental groups had successfully blocked construction of the trans-Alaska pipeline on the ground that issuance of the right-of-way and landuse permits violated the Mineral Leasing Act and the National Environmental Policy Act. The Supreme Court reversed a decision of the lower court awarding counsel fees to the plaintiffs on a private attorney gencral theory. 28 After investigating the history of the American rule and the limited nature of the statutory exceptions granted by Congress," 0 the Court concluded that "it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation. 1o

The effect of the Alyeska decision was to eliminate the use of the private attorney general approach in all contexts, including civil rights litigation. In response, Congress enacted the Awards Act with the stated purpose of remedying "anomalous gaps in our civil rights laws created by the United States Supreme Court's recent decision in A lyeska, . . . and to achieve consistency in our civil rights laws." 31 The statute provides that attorneys' fees may be granted in any action under a variety of civil rights statutes not themselves containing a fee-shifting provision. 82 It is clear from the legislative history that Congress valued suits by the general public and sought to stimulate private enforcement of the civil 25. See rights laws by reinstating a system of fee awards. 83 The statute, by providing the bar with a greater incentive to pursue claims, was particularly aimed at encouraging litigation in areas where only nonpecuniary relief was available. 3 4 At the same time, concern was expressed that the statute would lead to barratry 35 -proliferation of frivolous suits, initiated primarily to generate statutory fees. Opponents feared that the enactment of an attorneys' fees statute would provide "bonanzas to the legal profession" 86 and a "relief fund for lawyers." 37 To minimize the hazards of the Awards Act, Congress included several provisions designed to ensure the equitable use of fee shifting. First, the statute permits defendants who are the targets of baseless litigation to collect attorneys' fees from unprincipled plaintiffs. 38 In addition, Congress left the calculation of the fee award to the determination of the trial court, 3 9 cautioning the judiciary that the result should be within guidelines set under earlier fee-shifting measures. 40 Finally, the entire Awards Act is couched in discretionary terms, with courts theoretically free to determine when an award of attorneys' fee is inappropriate.

The general discretionary power accorded to the trial courts has been the source of considerable difficulty. 41 In particular, the courts have tended to use their discretion to undercompensate litigants or to deny relief altogether in cases where an award of attorneys' fees is seen as unnecessary or somehow inappropriate. While this situation could eventually work to alleviate court congestion and conserve judicial resources, application of such discretion has the immediate effect of generating appeals. 42 Moreover, the goals of the Awards Act cannot be achieved if attorneys decline to accept cases out of fear that they will not be properly compensated. 4 It is suggested here that the flexibility of the trial court in determining whether to award fees should be minimal: plaintiffs who meet certain threshold requirements, set forth in the next section, should be entitled to reimbursement of their legal expenses. A court entertaining a motion for fees must, of course, decide whether a litigant's main claim comes within the statutes covered by the Awards Act. 44 However, the framework developed here rejects several of the criteria currently used to deny fees to otherwise meritorious claimants. 45 In return for surrendering their discretionary powers, the courts would be furthering the policies behind the Act by giving lawyers the ability to prejudge the likelihood of receiving reimbursement. This assurance of repayment would encourage litigation of the types of actions Congress sought to stimulate.

The Awards Act provides that prevailing parties in certain civil rights actions may, as a matter of judicial discretion, be entitled to reasonable attorneys' fees. Despite the straightforward nature of the statutory language, a number of problems of interpretation and application have arisen. This 42. Discretionary denial of fees can also lead to inflated fee judgments. This occurs for two reasons. First, it has generally been held that work on appeal of 'the fee award is compensable under the Act, see notes 90 & 91 and accompanying text infra. Second, uncertainty as to whether a fee will be granted-and if it is, whether it will be sufficient to cover expenses-contributes to the risks the attorney assumes. Since many courts take this risk of noncollection into account when a fee is awarded, see text accompanying notes 181-85 infra, a system that compounds the uncertainties inherently yields higher awards. See Effect of Legal Fees on the Adequacy of Representation, Hearings before the Subcomm. on Representation of Citizens Interest of the Senate Comm. on the Judiciary, 93 Cong., 1st Sess, 806 (1973) [hereinafter cited as Hearings: Legal Fees] (statement of J. Anthony Kline).

43. See ScALES OF Jus'ica, supra note 24, at 321. The authors contend that courts which, in effect, set a "public interest discount" assure that there will never be enough lawyers for the impecunious.

44. A subsidiary question is from whom the fees may be collected. In Monk v. Roadway Express, Inc., 599 F.2d 1378 (5th Cir. 1979), cert. granted, 48 U.S.L.W. 3425 (Jan. 7, 1980) (No. 79-701), a prevailing defendant tried to collect his counsel fees from the plaintiffs attorney on the theory that he was actually responsible for the litigation. The court disallowed the award, holding that § 1988 contemplates recovery from litigants, not counsel. section of the Note attempts to resolve these problems in a way consistent with the congressional purposes behind the passage of the Awards Act.

The Awards Act provides that "the prevailing party" may be entitled to attorneys' fees. The statutory language and relevant legislative history indicate that both plaintiffs and defendants are eligible for this relief. However, certain essential dissimilarities between the two types of parties make it necessary to apply a different standard to each.

It is clear from the legislative history that plaintiffs are entitled to attorneys' fees under the extremely liberal standard announced in the pre-Awards Act case of Newman v. Piggie Park Enterprises. 46 In this Title ]I 4 7 decision, the Supreme Court held that "one who succeeds . . . should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." 4 8 The Newman standard furthers the overall intent of Congress by giving potential litigants maximum assurance that if they win on the merits their costs will be refunded. 4 9 For a variety of reasons, it is more difficult for defendants to recover attorneys' fees. Because defendants are not "cloaked in a mantle of public interest," Il there is no compelling reason to make an exception to the American rule in their case. Moreover, to allow defendants to recover on a basis as easy as that provided for plaintiffs would thwart congressional intent by causing impecunious plaintiffs to hesitate to pursue grievances for fear of being burdened with opponents' costs should the litigation fail. 5 ' Therefore, Congress indicated that defendants should be entitled to attorneys' fees "only if the action is vexatious and frivolous, or if the plaintiff has instituted it solely to 'harass or embarrass ' EEOC. 53 While this double standard can be criticized as promoting a proliferation of civil rights litigation by failing to provide an adequate disincentive to minor or insignificant claims, it is clearly supported by both the specific legislative history and the overall congressional purposes behind the Awards Act. 4 Those acquainted with the experiences of other judicial systems have underscored the disastrous effects of a unitary approach. These commentators argue that the "threat of litigation would all but disappear" if fees were routinely imposed on all losing litigants. 5 Finally, to the extent that the Awards Act does encourage some dubious claims, the problem may be handled in a variety of ways suggested elsewhere in this Note. 0 A slightly more difficult problem arises when the plaintiff is successful on some, but not all, of the issues in a given case. In this situation both sides of the case can be said to have "prevailed." Under the present case law, plaintiffs and defendants are each eligible for attorneys' fees under the same standard that governs when one side prevails on all of the issues. Plaintiffs are entitled to fees for each claim that satisfies the liberal Newman standard; 5 7 defendants can only collect when claims are found to meet the subjective bad faith test announced by Congress and approved by the Supreme Court in Christiansburg.

While the use of the double standard in this situation is once again consistent with the legislative history of the Awards Act, its application Standard, 8 U. TOL. L. Ray. 259 (1977), the author argues that since the United States cannot be "chilled" from suing, the defendant should be allowed to collect on a more liberal standard where the losing plaintiff is the government. Thus, when the EEOC brings an action and loses, it should be made to pay the winner's fees unless the suit is brought on a novel legal theory, not foreclosed by the clear weight of authority, id. at 290-95. The Supreme Court explicitly rejected this theory in Christiansburgh Garment Co. v. EEOC, 434 U.S. 412, 422-23 n.20 (1978). See also Note, Attorney's Fees-Recovery by Prevailing Defendants In Title VII Actions, 13 WAia FoRasT L. Rav. 627 (1977).

53. 434 U.S. 412 (1978). The decision held the EEOC not responsible for attorneys' fees in a discriminatory practices suit because the proceedings had been brought in good faith. [Vol. 80:346 aggravates some of the difficulties inherent in even simple situations. By allowing a prevailing plaintiff reimbursement even when he loses part of the case, the system provides no real incentive for plaintiffs to narrow the scope of the issues in the litigation. On the contrary, plaintiffs are free to add claims for tactical or other purposes with the knowledge that for each claim won, they will obtain both damages and costs; yet for those lost, they will incur no liability so long as the claim was not violative of the relatively strict Christiansburg standard. By contrast, under the European systems in which fee claims by plaintiffs and defendants are judged by the same standard, a litigant who goes to court with two claims and wins only one forgoes counsel fees: thus defendant's victory on one issue exactly balances the plaintiff's victory on the other. 58 This encourages plaintiffs to plead no more than they can reasonably expect to win, a process that serves to reduce court congestion. Some courts in this country have attempted to rectify the difficulties with the double standard. For example, in Roesel v. Joliet Wrought Washer Co.," 9 the plaintiff in a title VII suit was able to show that she was discriminated against but was unable to prove that she was damaged to the extent that she claimed. The court held that, "[u]nder the circumstances, with each party prevailing in some part, it seems sound to award [counsel] fees to neither." 6 1 0 Although this type of approach may appear justifiable, it runs counter to the clear intention of Congress to differentiate plaintiffs from defendants. Because litigation in the United States is so largely a matter of tactics and strategy, with claims and issues often raised more to produce a desired psychological effect on opponents than to lead to judicial victory, considerable care must be taken before a system designed to narrow the scope of litigation is adopted by the courts. In short, plaintiffs should be entitled to attorneys' fees on all claims on which they prevail, even if they are unsuccessful on other claims. 0 l

The Awards Act permits prevailing parties to obtain attorneys' fees in actions under a wide range of civil rights statutes. 61. Particularly egregious cases of abuse of the litigation process can be handled via the bad faith exception or, where applicable, imposition of statutory penalties, see note 22 and accompanying text supra. However, in Jones v. Diamond, 594 F.2d 997, 1027 (5th Cir. 1979), Judge Rubin, in a concurring opinion, argued that if the trial court tolerated the plaintiffs tactics, it must compensate the attorney for them, id. at 1039.

For less blatant abuse, this situation can be viewed as a problem in calculating the amount of the award, see text accompanying notes 158-92, infra. Thus, if the plaintiff did not prevail on an issue, time spent litigating that issue would not be added 'to the total hours for which compensation would be awarded. See, e.g., Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979) (majority opinion).

scope of the legislation, 6 3 the courts have gone even further in developing theories to permit attorneys' fee awards in contexts not covered by the precise language of the Awards Act.

A common technique for this expansion has been recourse to the doctrine of pendent claims. 6 4 Under this principle, a court confronted with two claims-one for deprivation of a constitutional right and the other involving another type of injury-may decide the case on nonconstitutional grounds yet still grant attorneys' fees under the Awards Act. In Gagne v. Maher,", for example, the plaintiff objected to the method by which her welfare benefits were calculated, claiming violation of both the Social Security Act and the equal protection clause of the fourteenth amendment. Although the court upheld her claim on the theory that the calculation violated administrative rules, it concluded that the award of attorneys' fees was entirely appropriate. Since the equal protection claim was "a substantial one and [arose] out of the same operative facts" 66 as the statutory claim sustained, an award of fees enabled the plaintiff to vindicate important rights and at the same time allowed the court to avoid an unnecessary constitutional pronouncement.

An alternative, and potentially more radical, approach involves an expansive reading of the statutory provisions covered by the Awards Act. Section 1983 of title 42, for example, makes liable those who deprive others of "rights, privileges, or immunities secured by the Constitution and its laws." In a 1979 decision, Chapman v. Houston Welfare Rights Organization, 67 the Supreme Court considered, but did not decide, whether this measure provides a cause of action to redress all federally secured rights 08 63. See, e.g., Hutto v. Finney, 437 U.S. 678, 694 (1977) ("The Act itself could not be broader."); Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978). In reversing a district court denial of fees when plaintiff prevailed on a due process claim, the Eighth Circuit stated: "the district court misapprehended the liberal standard under which Congress intended that fee awards under the Act be made 67. 441 U.S. 600 (1979). 68. There are two ways of reaching this conclusion. One is to interpret "laws" as encompassing all federal statutes, see id. at 672-76 (Stewart, J., dissenting in an opinion joined by Justices Brennan and Marshall). The other is to view a claim of inconsistency between state and federal rights as a supremacy clause challenge and therefore as a constitutional claim, see id. at 612-15 (opinion of the Court).

[Vol. 80:346 or simply protects "equal civil rights." 69 In that case, plaintiff brought a section 1983 action claiming that a New Jersey regulation deprived her of rights provided by the federal Social Security Act. Although four Justices felt that the pleadings stated a cause of action under section 1983, the majority dismissed the suit, holding that the Court had no jurisdiction. 70 Nonetheless, the Ninth Circuit has used this broad reading to award fees to a litigant who successfully attacked state administration of the federal Emergency Unemployment Compensation Act. In Tongol v. Usery, 71 the Ninth Circuit reasoned that since the plaintiff could assert jurisdiction on other grounds, 72 the action to redress deprivation of a federal statutory right came within section 1983 for purposes of the Awards Act. 73 The liberal approach adopted in Tongol is consistent with the Supreme Court's mandate in a different context to read civil rights statutes with a "sweep as broad as [their] language." 74 By allowing fee shifting in a wide range of circumstances, this approach encourages people to enforce their legal rights. At the same time, it gives courts leeway in choosing the grounds upon which to base their decisions. It is, however, subject to abuse. Courts following Tongol in deciding attorneys' fee motions must look behind the pleadings to make sure that the case presents the type of claim that Congress sought to encourage. This caution may be exercised through use of the courts' discretionary powers to decide whether to characterize suits as civil rights cases. 75

The Awards Act does not explicitly require a party to wait for the end of litigation before obtaining attorneys' fees. In fact, the legislative history specifically indicates that fees may be awarded pendente lite 76 party has prevailed on an important matter in the course of litigation." 11 In general, however, courts have been hesitant to award attorneys' fees until the disposition is finalized. 78 For example, in Planned Parenthood v. Citizens for Community Action, 79 the plaintiffs sought to enjoin defendants from declaring a moratorium on the building of abortion facilities on the ground that this action violated the plaintiffs' civil rights. When a preliminary injunction was issued, Planned Parenthood asked for attorneys' fees. The court rejected the claim, reasoning that although it had determined that the defendants had probably acted unconstitutionally, it was unfair to require them to bear this cost before a full trial on the merits had taken place. 0 This approach ignores the difficulties that plaintiffs and their attorneys may have in financing the litigation. 81 The public interest bar has pointed out that the enormous gap that often exists between the time a lawyer provides his services and when he is reimbursed often acts as a significant deterrent to the acceptance of civil rights cases. Moreover, denial of attorneys' fees at preliminary stages of the litigation may result in the final award being inflated in order to reimburse the participants for the finance charges on loans they may have obtained to pay costs, or to account for the interest lost by the attorney because he was not paid immediately. 8 2 This is especially true in school desegregation cases, where it is often apparent very early in the litigation that a violation has taken place, but it may take several years to find a solution that can be characterized as a final order. (1974), discussed in note 77 supra, was distinguished on the ground that in that case there had been an early finding that the defendant had engaged in a discriminatory practice. But see Kimbrough v. Arkansas Activities Ass'n, 574 F.2d 423 (8th Cir. 1978), in which a student who prevailed on a plea for a temporary mandatory injunction to allow him to participate in an athletics program was awarded counsel fees. The court decided that since all the student wished to do was play football, it did not matter that the injunction was only temporary.

81. Cir. 1976), a class action case often cited for its scheme of computing fee awards. In that case, the court indicated that an upward adjustment in the award was appropriate if there was a long delay between the time at which counsel was required to perform services and the time at which he could obtain payment, as this increased the risks the attorney assumed.

A better view would be to allow interim awards where it is substantially certain that the plaintiff will prevail and the major question before the court is the provision of an appropriate remedy. In addition, since it is clear that plaintiffs who win on less than all the issues are entitled to an award, 4 judgment in a litigant's favor on any claim should yield counsel fees for work performed in connection with that claim. The court might also consider requiring, as part of a temporary order, that the defendant "lend" the plaintiff the legal expenses involved in getting the order. The plaintiff would be required to pay this loan back if he loses when the merits of his case are considered. 85

The Awards Act permits a claim for attorneys' fees in "any action or proceeding" to enforce the civil rights laws enumerated by the statute. 3 6 Although this phrase clearly applies to claims resolved in federal district courts, questions arise when the litigation is initiated in state court or terminates at an earlier or later stage.

It has generally been held that plaintiffs who secure federal rights in state court are entitled to an award of counsel fees. 8 7 For example, in Ashley v. Curtis, s8 a New York State court awarded fees for enforcement of a section 1983 claim. The court reasoned that a liberal interpretation of the statute would further the congressional aim of facilitating civil rights enforcement. 3 9 Similarly, plaintiffs are generally compensated for their attorneys' efforts at the appellate level, 90 even if appeal is taken only on the issue of the proper fee award. 9 A more difficult question arises when the litigation terminates before a court has fully adjudicated the case. This may occur when the defendant satisfies the plaintiff's claims pursuant to a decision in an administrative hearing, under a negotiated settlement, or by independent action that renders the claim moot. An argument might be made that the Awards Act is inapplicable in such situations, since the litigation itself was not necessary to secure the plaintiff's rights. 92 Nonetheless, the central purpose of the Awards Act-to encourage the private enforcement of civil liberties-is furthered by allowing parties to collect attorneys' fees whenever they successfully vindicate their rights, even when this is accomplished outside the courtroom.

Proceedings at the administrative level occur most often in connection with title II and title VII litigation. 93 If the Awards Act extends to resolution of conflicts between state and federal law, 94 however, state administrative procedure might be implicated before the controversy reaches federal court. 95 In several recent cases, 96 courts have adopted a liberal approach and awarded fees to those whose claims were settled at this stage. These courts reasoned that it would be inequitable to deny fees to plaintiffs whose early efforts paid off while those who lost in preliminary stages were eligible for compensation when they prevailed in court at a later stage. In addition, withholding an award from these litigants would encourage attorneys to save their best arguments for the courtroom, where they would have a chance at remuneration. 97 worth, 564 F.2d 609 (1st Cir. 1977), the court said that denying awards for appellate costs would allow defendants to "dissipate the incentive provided by an award through recalcitrance and automatic appeals." Id. at 614.

A related question concerns the forum that should be responsible for making the award. As a general rule, computation is left to the district court, see, e.g., id. at 613-14. However, in those circuits where the quality of counsel's performance is critically weighed in determining the proper award, see text accompanying notes 164-73 infra, it may be necessary for each forum involved in the litigation to make a separate evaluation. See Wharton v. Knefel, 562 F.2d 550, 558 (8th Cir. 1977) (appellate court assessed fees for services rendered in that forum, remanded to district court to determine the remainder). Cf. Burchett v. Bower, 470 F. Supp. 1170, 1172 (D. Ariz. 1979) (involving state and federal courts). This results in a bifurcated procedure that requires two (or more) courts to hear the same arguments, a practice that would be unnecessary if attorneys were paid according to the market value of their performance. Under such a system, once a decision was rendered in favor of a litigant -ia whatever forum that occurred-the district court would compute the fee. See text accompanying notes 178-80, infra.

92. It could also be argued that these cases do not satisfy the "prevailing party" requirement as the claimants were not the victors in a fully litigated action. The policies favoring an award of fees apply to both arguments.

Similar reasoning supports the award of attorneys' fees in cases that are settled by the parties. The legislative history indicates that a party "should not be penalized for seeking an out-of-court settlement, thus helping to lessen docket congestion." 98 It may be necessary, however, for the court to hold an evidentiary hearing" 9 to determine whether the claimant prevailed "in a practical sense." 100 In Nadeau v. Helgemoe, 0 ' the First Circuit proposed a two-part test to determine whether a plaintiff who settled should be entitled to counsel fees.

In Nadeau, plaintiffs-inmates at a New Hampshire state prison-instituted a civil rights action to gain access to library facilities. Following a settlement of their grievances, plaintiffs moved for attorneys' fees to cover the cost of resolving the dispute. The district court denied a fee award, but the First Circuit subsequently remanded the case, instructing the lower court to award a fee if two conditions were satisfied. First, the court must find that plaintiffs' efforts "were a necessary and important factor" in achieving the improvements.' 0 2 Second, provision of a prison library must have been a constitutionally or statutorily required act.103

The difficulties inherent in making such determinations, as well as the burden of requiring courts to adjudicate issues that would not otherwise be before them, point toward the need to encourage parties to decide the attorneys' fee issue in their settlements. Where possible, courts should refuse to enter consent decrees unless this has been accomplished.' 0 4 government. The courts reasoned that federal employees were in particular need of a "private attorney general" statute because they could not rely on prosecution by the Justice Department. But see Unemployed Workers Organizing Comm. v. Batterton, 477 F. Supp. 509, 512-13 (D. Md. 1979) ("Mhe test is not whether the plaintiffs would have prevailed had the case gone to trial, but rather whether the plaintiffs did in fact prevail in whatever outcome resulted."). The latter decision, which dispenses with the second Nadeau test, is unacceptable because it creates an enormous disincentive for any defendant to come to terms with a plaintiff's requests.

104. See generally 51 TEMP. L.Q. 799 (1978). It should be stressed, however, that if the consent decree does not encompass the fees issue, the court must adjudicate the claim. To

The Third Circuit, however, has taken the position that a dual settlement of this type is unethical, at least with respect to title VII litigation. In Prandini v. National Tea Co., 10 5 the court reasoned that plaintiffs' attorneys might be tempted to negotiate a "sweetheart contract" '°-that is, to barter plaintiffs' benefits in exchange for higher fees for themselves. Prandini can be criticized on several grounds. Fees are commonly settled as part of negotiations in connection with other types of litigation without a conflict-of-interest problem. 107 It is inappropriate to assume, as a matter of law, that all attorneys will breach their fiduciary obligations. If a claimant feels that his recovery has been sacrificed in favor of an attorney's award, he has recourse against the attorney. Furthermore, statutory fees must be distinguished from fees awarded pursuant to the common fund doctrine. The latter come out of the same "pot" as the plaintiff's relief, and thus higher fees may diminish the recovery. Awards Act claims, on the other hand, are reimbursements granted in addition to the damages the defendant pays the plaintiff, 108 so that the risk of attorney impropriety occurring at the plaintiff's expense is substantially less.

Moot claims present a similar problem. 1 0 9 The Nadeau test can be used, as with settlements, to allow an award to parties who can demonstrate that they have succeeded in achieving a beneficial change in circumstances as a result of the commencement of the litigation. 10 However, because encourage settlements, the court might place a heavy burden on plaintiffs to show that no agreement was reached. For example, in Regalado v. Johnson, 79 F.R.D. 447 (E.D. Ill. 1978), the defendant urged that the consent decree represented the entire agreement between the parties. The plaintiff was able to demonstrate his lack of agreement by showing that in his circuit, simultaneous settlement of both issues was discouraged, id. at 451. Similar justifications could arise from changes in the case law, e.g., changes that allow a claimant to collect from a previously immune party. Contra, Aho v. Clark, 608 F.2d 365 (9th Cir. 1979) (defendants allowed to rely on previous case law in reaching a settlement that did not include attorneys' fees).

105 108. The Prandini court made this distinction in a later phase of the case, albeit only with respect to the question of whether the statute covers an appeal of the fees issue, Prandini v. National Tea Co., 585 F.2d 47, 53 (3d Cir. 1978).

109. This discussion applies only to claims mooted through the behavior of the defendant. It does not apply to actions mooted by the district court's decision in the case. In Bagby v. Beal, 606 F.2d 411 (3d Cir. 1979), the defense argued that the issue of attorneys' fees was no longer open to adjudication by the court of appeals once the order of the district court had been executed. The court rejected this argument, reasoning that in hearing an attorneys' fee motion, the district court's decision on the merits is not open to review; the appeals court merely decides if plaintiff "can be found . . . to have essentially succeeded" below. potential liability for the plaintiff's counsel fees might chill a defendant's willingness to make changes absent adjudication of liability, plaintiffs should bear the increased burden of proving by clear and convincing evidence that the defendant's prior behavior was constitutionally infirm and that the plaintiff's suit acted as the catalyst for its amelioration.'

The final requirement for a successful claim under the Awards Act is that the recovery must be sought from a party amenable to liability for counsel fees. In the sphere of purely private litigation, this requirement is easily met. 112 When a claimant attempts to collect from a governmental body or its officers, however, immunity doctrines, unless waived by statutory authority, may bar recovery. If a defendant is immune from liability on the main claim, a plaintiff might not be considered a "prevailing party" within the meaning of the Awards Act. 113 Alternatively, even if a party is considered to have prevailed-because his civil rights were held to have been violated-he might be denied fees because the immunity directly bars such an award."1 4 Under most circumstances, this result is inconsistent with both the goals of the Awards Act and current notions of immunity.

Sovereign immunity, which protects governmental bodies, was received into American law at the time of the Revolution for the basic purpose of guarding the new government from the danger of incurring financial responsibility in excess of its ability to pay." 5 The financial shield created, however, suit; no fees); Young v. Kenley, 465 F. Supp. 1260 (E.D. Va. 1979) case was moot before plaintiff brought her claim; no fees).

Another basis for awarding fees in moot cases was expressed in Davis v. Village Park 11 Realty Co., 578 F.2d 461 (2d Cir. 1978). In that case, the court held that an award of nominal damages to a plaintiff who was nearly subjected to a retaliatory eviction by the defendant landlord would support a grant of attorneys' fees.

111. Fear of chilling ameliorative changes supports the rule of evidence in negligence suits that excludes offers of proof that the defendant has corrected the problem that allegedly hurt the plaintiff, see FED. Vt. 1979). The latter case demonstrates the problem with denying relief on this theory. In that case, plaintiff was improperly discharged from his job as a policeman. Rather than ask for a mandatory injunction to require the city to follow appropriate procedure, he asked only for monetary damages. Since the defendants were held immune to pecuniary liability, id. at 341, plaintiff was barred attorneys' fees even though the court ruled that he was entitled to notice and a hearing prior to his discharge, id. at 349. 114. Another justification for the immunity doctrine is that it logically follows from the principle of the social compact that a government created by its people will follow its own laws, see Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.); Stewart, supra. As instances of government abuse become more common the validity of this argument also decreases. is of less importance to a firmly established government. In the last halfcentury, numerous commentators have pointed out the injustice of continuing unneeded protection for the government at a cost of depriving individuals of remedies that would have been available against private defendants." 0 These scholars have urged that the immunity doctrine be abandoned or, at the very least, that statutes seeming to contemplate a waiver of sovereign immunity without doing so in express terms be interpreted liberally. "1 7 Against this background, it is surprising that recent cases, including NAACP v. Civiletti,"1 8 have held the United States immune from claims under the Awards Act. While the Awards Act does not waive immunity in the specific language used in previous civil rights statutes," 0 9 the wording, which provides a bar to government recovery as a prevailing party, makes no sense unless it is assumed that Congress envisioned the section to apply to litigation against the government. 20 Furthermore, a Congress intent on encouraging the vindication of denials of civil rights would certainly desire that citizens be able to secure those rights as against the government, as "private attorneys general" are especially needed where the public attorney general will not act. Moreover, the government, with its deep pocket and batteries of lawyers, is the kind of opponent few individuals could fight effectively without fee shifting. Finally, the government cannot serve as a model to its citizens if it can so easily escape enforcement of the civil rights laws. As Chief Judge Wright said in his dissent to NAACP v. Civiletti,' 21 "[tlhe 'necessary implication' . . . from the language of the statute, the purposes behind its enactment, and its legislative history is that Congress intended to authorize fee awards against the United States under the Act." Finding a waiver here would, in addition, be more consistent with the liberal interpretation given the Awards Act with regard to eleventh amendment and official immunity defenses.' 22 The insulation of certain government officers from personal liability stands on a much firmer footing. This protection evolved as a reaction to the procedural device of suing specific government officers as a way of circumventing the sovereign immunity barrier. 1 2 The rationale behind this rule is that officials will not be able to make the difficult decisions required by their positions if they are in constant danger of being held personally liable for adverse consequences. By preserving a limited immunity for officials while eliminating sovereign immunity, smooth government operation is assured without stripping plaintiffs of the important remedy of counsel fees.

The Awards Act specifically makes a grant of attorneys' fees a matter of judicial discretion. Thus even if a litigant satisfies all of the prerequisites to recovery examined in the previous section, a court may deny relief.

Theoretically, courts could use this discretion to ensure that attorneys' fees are only granted in situations where the congressional goal of encouraging private enforcement of the civil rights laws would be furthered.1 25 Unfortunately, experience has shown that this discretion can lead to a denial of fees in worthy cases and ultimately to an unwillingness on the part of attorneys to accept cases where compensation depends on a grant of fees under the statute.1 26 measure. The lower courts have followed this decision. See, e.g., Corpus v. Estelle, 605 F.2d 175 (5th Cir. 1979) (retroactive application of Awards Act a legitimate means of enforcing the 14th amendement), petition for cert. filed, 48 U.S.L.W. 3466 (Jan. 11, 1980) (No. 79-1084); Gagne v. Maher, 594 F.2d 336 (2d Cir.) (taking the doctrine one step further, this court held the eleventh amendment no bar even when the case was decided on a nonconstitutional ground), cert. granted, 100 S. Ct. 44 (1979) [Vol. 80:346

One of the primary causes of problems in this area is the uncertain reach of the measures covered by the Awards Act. Taken to a logical extreme, the literal wording of these statutes allows vindication of a vast array of constitutional and statutory guarantees. 2 As Justice Rehnquist warned in his dissenting opinion in Butz v. Economou,1 2 8 there are a large number of claims that can be "converted by any legal neophyte into a claim of denial of procedural due process." These converted claims would then merit fees under the Act. Although some members of the current Supreme Court have suggested that the term "civil rights" can be confined to its "common understanding," 120 most courts and commentators have found it extremely difficult to draw the line consistently. 30 As a consequence, courts have attempted to create a variety of "special circumstances" 131 that can be used to deny a victorious litigant an award of fees.

It is suggested here that judicial use of these special circumstances to deny relief to litigants who meet the basic prerequisites of the Awards Act has had a damaging effect on the utility of the statute. Each ad hoc application of judicial discretion to deny attorneys' fees when the vindication of civil rights seems minimal may create a precedent that can be used to deny fees in more meritorious cases. 132 If it is necessary to cut back on the 127. Courts have included within the scope of the Awards Act actions to contest due process violations, see, e.g., Perez v. University of P.R., 600 F.2d 1 (1st Cir. 1979 1072 (1979), as standing for the proposition that a plaintiff who does not render a public benefit is not entitled to counsel fees. As the scope of Awards Act coverage, this should be done either by adopting a narrow definition of civil rights, 133 so that the bar would have a basis for predicting when no fees would be forthcoming, or by allowing some erosion in the American rule by awarding fees in marginal cases, so that the congressional intent would be furthered.

This section investigates and rejects four of the most commonly used grounds for denying an award: lack of public benefit, imposition of fees on the class benefited, size of recovery on the main claim, and existence of fee arrangements. In each case, consideration of the history and goals of the legislation favors extending the benefits of the Act to plaintiffs in these "special circumstances."

The frequent denomination of the Awards Act as a "private attorney general" statute ' 8 4 has created much confusion. Because the term carries a connotation of providing benefits to the general public, some courts have refused to grant a fee award to plaintiffs who secure only personal benefits. For example, in Zarcone v. Perry, 135 a refreshment salesman brought a civil rights action against a judge who had had him handcuffed and dragged into court in order to criticize the quality of his coffee. The plaintiff was awarded compensatory and punitive damages, but the court refused to award attorneys' fees, reasoning that this case was sui generis and benefited no one but the plaintiff.' 8 6 Alternatively, some courts have held that lack of public benefit is a ground for decreasing an award.3 7 This development is unfortunate because it dilutes the effectiveness of the Awards Act. The denial of fees to otherwise successful litigants reintroduces the fear that counsel will not be paid, thus chilling the bar from accepting civil rights cases, and deterring middle-income plaintiffs who

might wind up paying the fees. 1 8 s Moreover, the rationale behind the measure is that the best way to enforce civil rights is by enabling every citizen to vindicate his own injury: the tradition of the common law is precisely this case-by-case approach. Finally, the statute was a reaction to Alyeska, a decision in which the Supreme Court held that courts are not empowered to award fees whenever they approve of a claim, but must obey statutory authority. Since the statute does not require the plaintiff to act as a "private attorney general," the courts should be foreclosed from making public benefit a condition for an award. Quite properly, then, many courts do not consider the public benefit in awarding fees and others avoid the issue by straining to find a benefit plaintiff has secured. 3 9 As one judge rejecting a denial of fees on a lack of public benefit analysis stated:

The precious rights guaranteed by the Constitution are not ranked. To distinguish among petitions for counsel fees based on the importance of the interests involved seems to me, in constitutional cases at least, to invite the creation of a hierarchy of rights-a development that wisely has been avoided for two centuries. 40

A unique problem arises when the award of attorneys' fees may itself impair efforts to overcome the injury caused by the sanctioned action. This situation occurs most often in school desegregation cases. For instance, in Oliver v. Kalamazoo Board of Education,' 41 the attorneys' fee award was to be paid out of the school budget-the same fund used to educate the children benefited by the desegregation decision. Although the court did not view this factor as a bar to an award, it indicated that this consideration should moderate the amount.

It seems apparent, however, that encouragement of private plaintiffs is needed most in cases where the provider of a plaintiff's benefits denies his civil rights. In such situations, the courts should be especially concerned that potential plaintiffs be able to pursue litigation. To require plaintiffs to 138. This disposition also thwarts a secondary goal-that of giving the poor access to the courts, see S. REP

Some courts have used the size of the recovery-both large and small -to bar an award of attorneys' fees. The rationale behind a denial in the case of a small recovery is that a nominal award shows that plaintiff was not "really" injured and therefore should not be entitled to fees. 148 Fortunately this view has, for the most part, been rejected. 44 Since the Awards Act was passed, in part, to encourage vindication of nonpecuniary injuries, 45 a judgment that views a small monetary recovery as inadequate to support a claim for fees is in direct conflict with this legislative purpose.

In the case of a large recovery, some courts have argued that the success plaintiff achieved on his main claim was "enough" of a reward. 140 Again this argument is not supported either by the plain meaning of the statute or by the legislative history; neither makes reference to plaintiff's ability to pay his own attorney. 4 7 D. Fee Arrangements Some courts have denied Awards Act relief in cases where plaintiff's attorney recovered compensation from outside sources. Under this view, a lawyer who is paid by the plaintiff under a contingency fee arrangement, 148 by a legal aid society, 149 or by a university,6 0 is not entitled to fees pursuant to the Awards Act. The justification for this position is that the statute was enacted to provide attorneys with incentive to pursue civil rights litigation. Since lawyers paid in these ways already have the incentive to take the cases, an award of fees would be superfluous. 1 An alternative, and less extreme, position is to limit the fee award that may be obtained by such an attorney to his salary. 5 2

Both of these approaches are untenable and generally have been rejected by the courts 153 under a variety of analyses. In cases where it is a similar problem. It held that although there might be cases in which § 3612(c) of the Fair Housing Act would block a § 1988 award, the case at bar was not one. An additional problem is posed by administrative regulations that jeopardize receipt of benefits from other federal programs designed to encourage public interest law. For example, some commentators fear a legal aid society's tax-exempt status might be challenged if it were awarded statutory fees, see ScALEs OF JUsTicE, supra note 24, at 306. As the IRS allows public interest groups to charge fees on a sliding scale that depends on the client's ability to pay, Special Ruling, [1978] the plaintiff who has agreed to compensate the lawyer, the logic of the Act dictates that he be reimbursed. The foremost aim of the measure was to encourage plaintiffs,1 54 and allowing them to keep all the damages they were awarded fulfills this aim. In cases where an outside source has agreed to pay counsel, withholding the award is equally inapposite. The purpose behind the Awards Act to encourage vindication of civil rights is best furthered by reimbursing agencies that are in the business of paying attorneys to take such cases. By allowing such groups to receive compensation equivalent to that received by private counsel, they can finance more litigation. 15 Moreover, defendants should not benefit from the plaintiff's resourceful choice of representation. 56 Finally, the salaries set by legal aid offices do not always reflect overhead costs that should also be reimbursed by Awards Act relief. 157 This analysis has demonstrated that the fact patterns used to deny fees are, in general, unsupported by the statute and its legislative history. Furthermore, the ad hoc nature of these decisions thwarts the goal of the legislation because it creates uncertainty about whether a given case will yield a fee. As a result attorneys are discouraged from taking on cases and injured parties may be denied access to justice.

Once a court has decided that a litigant has met the threshold requirements and that no discretionary reasons exist to bar an award, the trial court determines the size of the award.' 58 Although this determination has often been handled summarily, 59 and reviewed in an equally cursory fashion, 1 0° economic circumstances dictate that more attention be focused on this phase of the litigation.

The magnitude of the award bears directly on two important considerations. Primarily, the amount the court grants directly affects the willingness of the private sector to litigate these suits. As Congress recognized, fee shifting can be an "important tool" for ensuring the enforcement of constitutional guarantees. 16 ' However, the tool is only effective when the award granted by the court covers the expenses of litigation and returns to the attorney a profit equivalent to that which he would have earned in his normal practice.1 62 To the extent that the statutory fee returns a lesser amount, lawyers will be economically discouraged from taking these cases.

Second, control over the size of the award enables the court, to a considerable degree, to direct procedure. The liberality with which courts compensate attorneys for imaginative claims and tactics will ultimately establish the extent to which such novel procedures are utilized. 0 3 Alternatively, denial of fees when questionable tactics are employed will lead to a more streamlined procedure and improved efficiency of adjudication. Both of these considerations favor the development of a clear framework for calculating fees. This framework would allow practitioners to understand what actions the court wishes to encourage and to conform their behavior accordingly.

The statute, which provides simply that the fee be "reasonable," and its legislative history, which cites only one case to illustrate the meaning of that term, offer little guidance. In the title VII case cited by the congressional materials, Johnson v. Georgia Highway Express, 6 4 the Fifth Circuit announced twelve criteria to be considered in determining the size of an award. These factors are: (1) time and labor expended by counsel, (2) novelty and difficulty of the case, (3) attorney's skill, (4) preclusive effect that this case had on counsel's ability to take on other work, (5) attorney's customary fee, (6) contingent nature of the litigation, (7) unusual time limitation imposed on the litigants, (8) amount of money involved in the claim, (9) experience, ability and reputation of counsel, (10) undesirability of being associated with the cause, (11) length of litigant's and counsel's professional relationship, and (12) awards in similar cases.' 0 6 B. Hours Spent.

The second element in the Grinnell formula is the number of compensable hours the attorney spent on the case. By choosing to pay the lawyer for only those portions of his legal work deemed worthwhile, the court can exert enormous influence on the conduct of future litigation. Therefore, it is essential that courts understand the ramifications of adopting a particular scheme for deciding compensable hours.

At one end of the spectrum, the court can reimburse a "prevailing plaintiff" for all of the expenses incurred by counsel. This is the method usually used when the plaintiff prevails on all his claims. 18 6 This system is fair to the winning attorney and is consistent with the literal language of the statute; however, it can lead to unfair results when a plaintiff who has succeeded on less than all the issues demands attorney fees. If all his costs are refunded, the court is in effect rewarding the joinder of meritless claims. This encourages plaintiffs to plead frivolously and burdens the court with extra litigation. To discourage such pleading, the court should count only those hours spent on claims that succeeded. Although some courts have attempted to do this by reducing the hours claimed by the ratio of the actual recovery to the relief requested, 8 7 these mechanical approaches do not work. As one court noted, "there is no necessary precentage relationship between the number of claims and contentions presented . .. and the lawyer time spent on each." 188 A better approach might be to borrow the European concept of "legal necessity." Under that procedure, the test for compensation is whether a given step was necessary to obtain the relief afforded: if the maneuver was required by the adjudicatory process, then the hours spent handling that step are fully compensable, but if it was irrelevent to the ultimate judgment, the party must pay for it himself. 189 In deciding what steps-and even what pleadings-were necessary, a court using this test must reimburse the claimant for hours spent on all activities that reasonably helped him on the claims he won. 190 189. See generally Williams, supra note 16. Williams describes "payment-in," another feature used in some countries to discourage litigation. Under this system, a plaintiff who ignores a defendant's settlement offer and goes to trial but wins less than the amount the defendant offered, recovers his own attorneys' fees only up to the point that the defendant offered to settle. The plaintiff must pay his opponent's fees from that point onward, Id. at 861-62.

190. This might include a certain amount of research that led nowhere, as research down blind alleys is an unavoidable part of becoming fully prepared. Similarly, needless tactics that the court tolerated in the first instance should be compensable, see Jones v. Diamond, 594 F.2d 997, 1039 (5th Cir. 1979) (Rubin, I., concurring). not be deemed helpful in obtaining the final judgment. Even if the standard were interpreted liberally, court congestion could be further controlled by allowing defendants fees when plaintiffs litigate frivolous issues 1 9 ' and through use of the common law and statutory bad faith exceptions. 192 However, in order for this procedure to be fair, the courts must make it clear that it is the standard that they will be using, for if practitioners understand it, they can plan their actions with confidence.

Resolution of an attorneys' fees claim under the Awards Act of 1976 involves balancing Congress's intent to foster civil liberties against the general thrust of American common law requiring each party to shoulder its own expenses. Although the statute attempts to achieve this balance by vesting the trial court with power to decide the issue on a case-by-case basis, this Note has suggested that discretion should be minimized. As its legislative history reveals, the statute seeks to encourage citizens and members of the bar to engage in litigation when necessary to vindicate civil rights. This goal can only be achieved if the potential -participants are assured in advance that their expenses will be reimbursed. Only clearly implemented guidelines will give participants this advance assurance. Moreover, discretion allows a court to award fees according to its own evaluation of the importance of the main claim. This avenue, foreclosed by Alyeska, would lead to a grading of constitutional rights that is inappropriate to our democratic system.

Instead, this Note has proposed a tripartite analysis. First, the court should determine whether a claimant has met the threshold requirements for an award. If these are met, fees should ordinarily be granted. Most of the discretionary reasons once used to bar an award have been discarded in favor of a determination of whether the main claim represents the type of litigation Congress sought to encourage. If this condition is fulfilled, the burden should shift to the other party to prove that special circumstances militate against an award. In considering these claims, the courts should keep in mind the damaging effect such disposition has on encouraging future actions. Finally, the court must calculate the amount of the award. By relating this amount to the market value of the attorney's work, the goal of encouraging participation by providing economic incentive is implemented and, at the same time, the court avoids deleterious effects on the adversary system and congestion of the courtroom resulting from protracted adjudication of the attorneys' fees issue. This analysis maintains control over unnecessary litigation in two ways. First, by awarding defendants fees if a plaintiff's action is frivolous or harrassing, a disincentive to such suits is provided. Second, by using "appropriate time spent" as a variable in the calculation phase, the court can indicate the types of tactics it will tolerate and reward. If this determination is explicit, participants will be able to conform their behavior accordingly.