Olsen is a kind of companion case to Gilbert and a useful case about fee determinations in Utah. It is also a very sad case and a lovely illustration of how nutty clients make money for no one but the lawyers. (At least, I hope the lawyers were paid on an hourly basis -- if not, then it is an example of a case in which everyone involved loses.) The case is a fight arising from the sale of a house. Putting it in an overly simple form, the sellers make an offer of judgment at $5,000 following answer, which is rejected. After twenty months of discovery and a three day trial, we get judgment in favor of buyers for $754.77 on claims of $23,831.98 -- 3% of the initial claims. As always the sales agreement has an attorney's fees provision allowing the prevailing party's costs and reasonable attorney's fees. "The question on appeal is whether the Sellers, having defeated 97% of Buyer's claims while not pursuing a claim of their own are the prevailing party for purposes of a contractual attorney's fee provision." There are plenty of cases to look to, with language that makes one sigh. There are Utah cases which call a prevailing party the one who did better than a draw, with a draw being half the amount of the demand (what?!), or awarding to the party who achieves genuine success, or which identify the prevailing party to be the one who is the comparative winner. Olson goes for "a flexible and reasoned approach" which is the comparative winner -- balance the amounts sought proportionally with what was recovered. Sellers are the winners and get their costs and fees. There is much to be said for the Court of Appeals' decision. It does seem weird to award fees to a party who manages to collect just 3% of what they claimed, just as there are circumstances that one would call a draw. But, and of course there is a but, these flexible and reasoned approaches make for a good deal more work for both trial courts and lawyers, and undermine the (or one important) point of fee provisions. There is more work for the trial court and the lawyers because any case which does not have a clear and easy winner will now have a round of briefing and argument on who prevailed. Not simple briefs, but a bunch of cites to cases all about comparing recoveries and real benefits (what if there is both money and an injunction or declaratory relief involved?!). I wonder what sort of favor it is to expand the discretion of the trial court. Which leads to the problem of incentives. A major reason to include fee provisions is to give parties a moment's pause before proceeding to litigation -- the lawyers will advise that fees will be a significant additional issue and should be weighed - you lose more than the case. But if it becomes more likely that there will not be an award of fees, that disincentive to sue is weakened.
Olsen is also about people -- clients -- who have little sense. More than two years of litigation over $23,000 is not sensible.
Do i really have the sense of mourning the loss of my youth and confusing about my future?
Posted by: Coach Outlet | February 16, 2011 at 08:28 PM