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 Collins v. Alco Parking Corp., 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. at 656-57. The Court of Appeals held that the plaintiff had not Id. 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 that an error occurred, such arguendo error is not plain, for two reasons. at 657. First, it is not obvious or plain that an instruction Id. directing the jury to consider attorney fees is irrelevant or prejudicial; it is at least arguable not 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. Second, it is implausible that the jury, in order to eliminate the Id. 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. at 658 Id.; see also id. (distinguishing 234 F.3d 312, 319 (6th Cir. 2000), and Fisher v. City of Memphis, Brooks v. 938 F.2d 1048, 1051 (9th Cir. 1991)). Cook,
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)).
9_Chap_9_2014_spring.docx