Burlington v. Dague, 505 U.S. 557, 8 (1992)

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next



Opinion of the Court

substantial difficulties in finding counsel in the local or other relevant market.' " 483 U. S., at 733. On the other hand, it would forbid enhancement based "on an assessment of the 'riskiness' of any particular case." Id., at 731; see id., at 734 (no enhancement "based on 'legal' risks or risks peculiar to the case"). But since the predominant reason that a contingent-fee claimant has difficulty finding counsel in any legal market where the winner's attorney's fees will be paid by the loser is that attorneys view his case as too risky (i. e., too unlikely to succeed), these two propositions, as a practical matter, collide. See King v. Palmer, 292 U. S. App. D. C. 362, 371, 950 F. 2d 771, 780 (1991) (en banc), cert. pending sub nom. King v. Ridley, No. 91-1370.

A second difficulty with the approach taken by the concurrence in Delaware Valley II is that it would base the contingency enhancement on "the difference in market treatment of contingent fee cases as a class." 483 U. S., at 731 (emphasis in original). To begin with, for a very large proportion of contingency-fee cases—those seeking not monetary damages but injunctive or other equitable relief—there is no "market treatment." Such cases scarcely exist, except to the extent Congress has created an artificial "market" for them by fee shifting—and looking to that "market" for the meaning of fee shifting is obviously circular. Our decrees would follow the "market," which in turn is based on our decrees. See King v. Palmer, 285 U. S. App. D. C. 68, 76, 906 F. 2d 762, 770 (1990) (Williams, J., concurring) ("I see the judicial judgment as defining the market, not vice versa"), vacated, 292 U. S. App. D. C. 362, 950 F. 2d 771 (1991), cert. pending sub nom. King v. Ridley, No. 91-1370. But even apart from that difficulty, any approach that applies uniform treatment to the entire class of contingent-fee cases, or to any conceivable subject-matter-based subclass, cannot possibly achieve the supposed goal of mirroring market incentives. As discussed above, the contingent risk of a case (and hence the difficulty of getting contingent-fee lawyers to take

Page:   Index   Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next

Last modified: October 4, 2007