As a mediator, I often see parties and counsel get angry and emotional. I find it an important part of the mediation process to get the parties and counsel to express and let out their anger and emotions sufficient to allow them to focus on resolving their dispute. While expressing one’s anger and emotions may be an effective tool in mediation, it may cause problems in litigation. In a recent employment case, a California Court reduced an attorney’s fee award by a staggering 40% based upon its finding that plaintiff’s counsel did not act with proper civility.
In Snoeck v. ExakTime Innovations Inc., after four years of hard-fought litigation, plaintiff prevailed on one of his six causes of action against his former employer for disability discrimination under the Fair Employment and Housing Act entitling plaintiff to recover his reasonable attorneys’ fees. In ruling on plaintiff’s counsel attorneys’ fee motion, the trial court applied the lodestar calculation and found that plaintiff’s counsel would, under normal circumstances, be entitled to an attorneys’ fee award of $1,144,659.36. The Court then, however, reduced the attorneys’ fees award by 40% “to account for [p]laintiff’s counsel’s . . . lack of civility throughout the entire course of [the] litigation.”
In examining the record and the trial court’s analysis, the California Court of Appeals agreed with the trial court’s substantial reduction in attorney’s fees. The Court looked at 13 quoted statements from 12 different emails and found that counsel’s “incivility was not only directed to opposing counsel: it was also directed to the Court.” The Court pointed to a hearing before the Judge where “Plaintiff’s counsel’s tone of voice … was both belittling and antagonistic; at times it verged on the contemptuous.” The trial court concluded, affirmed by the California Court of Appeals, that “[a]ttorney skill is a traditional touchstone for deciding whether to adjust a lodestar [and] civility is an aspect of skill.” Based upon the Court’s finding that plaintiff’s counsel acted with a lack of civility throughout the litigation, the Court reduced plaintiff’s counsel’s fee request by a whopping $457,863.
The Snoeck case makes clear that while it may be acceptable in mediation to be angry and emotional (particularly when the parties and their respective counsel are separated), expressing one’s anger and emotions outside of mediation may end up costing a party and counsel in the long run. The decision also makes clear that what my mother used to tell me is true: a little civility goes a long way.