Attorney Fees and Costs There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In 448 F.3d 652 Collins v. Alco Parking Corp., (3d Cir. 2006), the district court gave the following instruction: are instructed that if plaintiff “You wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any at 656-57. The Court of Appeals held that the plaintiff had not properly objected Id. damages.” to the instruction, and, reviewing for plain error, found need not and do not decide now none: “We whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming that an error occurred, such error is not plain, for two arguendo at 657. First, is not or that an instruction directing the jury Id. not reasons.” “it ‘obvious’ ‘plain’ to consider attorney is irrelevant or prejudicial; is at least arguable that a jury tasked with fees” “it computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of Id. litigation.” Second, it is implausible the jury, in order to eliminate the chance that Collins might be “that awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the at 658 (distinguishing Id.; see also id. Fisher v. City of contrary.” 234 F.3d 312, 319 (6th Cir. 2000), and 938 F.2d 1048, 1051 (9th Cir. Memphis, Brooks v. Cook, 1991)).
Attorney Fees and Costs There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp., 448 F.3d 652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not properly objected to the instruction, and, reviewing for plain error, found none: “We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991)).
8_Chap_8_2017_March_.docx