Although most of my time is spent on criminal defense, my strong civil libertarian bent has led me to do in-depth civil litigation over the years, as well, particularly defending free expression rights of political activists, adult entertainment industry members, and libel defendants.

My first experience with civil litigation was in the late 1980’s with my first law firm, which represented financial institutions and transportation companies. There, my legal research often found opinions about the American rule that each private party must bear its own attorney fees, and that the attorney fees sometimes are available from the government under civil rights laws and the Equal Access to Justice Act.

In the area of civil rights litigation, some statutory schemes make prevailing plaintiffs eligible to obtain an award of attorney fees from the defense. No matter how counterintuitive it may or may not be, such exposure sometimes extends to defeated plaintiffs, as well. As recently recounted by the Fourth Circuit, here is the state of the law on the matter:

Pursuant to [42 U.S.C.] § 1988(b), the "prevailing party" in certain civil rights proceedings is entitled to recover attorney’s fees. Although the explicit provisions of § 1988 do not distinguish between a prevailing plaintiff and a prevailing defendant, the courts have nevertheless drawn such a distinction. Under controlling precedent, a prevailing civil rights plaintiff is ordinarily entitled to receive an attorney’s fee award as a matter of course. See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) ("[A] prevailing plaintiff should ordinarily recover an attorney’s fee [under § 1988] unless special circumstances would render such an award unjust." (internal quotation marks omitted)). A much stricter standard applies, however, when a court is requested to make such an award to a prevailing defendant. See, e.g., Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986) (describing fee award to civil rights defendant as "extreme sanction" reserved only for "truly egregious cases of misconduct").

In order for a prevailing defendant to be entitled to recover attorney’s fees under § 1988, the plaintiff’s claim must have been either "‘frivolous, unreasonable, or groundless,’" or the plaintiff must have "‘continued to litigate after [the claim] clearly became so.’" Lotz Realty Co., Inc. v. U.S. Dept. of Housing & Urban Dev., 717 F.2d 929, 931 (4th Cir. 1983) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). Indeed, the mere fact that a civil rights plaintiff lost her case does not render her claim frivolous, unreasonable, or groundless. As the Supreme Court explained in this regard:

[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.

Christiansburg, 434 U.S. at 421-22; see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 303 (6th Cir. 2008) ("The Sixth Circuit affirms awards of attorney fees [to prevailing defendants under § 1988] only when plaintiffs relitigated already-settled legal matters, and we reverse the award of attorney fees when issues of law remained unresolved or when a plaintiff had an arguable basis for pursuing his or her claim." (internal quotation marks omitted)). The purpose of distinguishing between a fee award being made to a successful plaintiff, on the one hand, and such an award being made to a prevailing defendant, on the other, arises out of the legitimate concern for the "chilling effect" that the latter type of award would have on potential civil rights plaintiffs – and their lawyers – in deciding whether to initiate lawsuits. See Lotz, 717 F.2d at 932. We have explained, however, that "[w]hen a court imposes fees on a plaintiff who has pressed a ‘frivolous’ claim, it chills nothing that is worth encouraging." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993).

 Unus, et al. v. Kane, et al., ___ F.3d ___ (4th Cir., May 6, 2009).

Consequently, it is essential, before filing any lawsuit, to determine the attorneys’ fee recovery landscape and other possible land mines for the case. That does not mean to be fearful to file suit, but to be knowledgeable about potential pitfalls before doing so.