Churchill's Legal Fees, Expert Witness Fees and Costs

 

Many issues remain in the Churchill trial and Judge Naves gave the parties 30 days to file briefs on these remaining issues which appear to be: (1) should Churchill be reinstated to his position as a tenured faculty member at CU; (2) if not, should the court grant “front pay” for compensation Churchill would have earned had he continued to work for CU, and (3) is Churchill entitled to court costs and award of attorney fees and, if so, how much. This post focuses on the award of attorney fees and costs, while the next post focuses on the equitable remedy of reinstatement versus front pay for future lost wages. The final post in this series dealing with the damages and equitable relief Churchill might be entitled to addresses the evidence, or lack thereof, on the $1 damages awarded by the jury.

In his complaint, Churchill demanded “judgment against Defendants, and relief including:

A. Damages in an amount to be proven at trial;

B. Prejudgment and postjudgment interest;

C. Attorneys’ fees pursuant to Colorado Law and § 42 U.S.C. 1988;

D. Costs; and

E. Such other and further relief as this court deems just and proper.”

In item A, the damages awarded up to the time of the trial and “proven at trial” were $1 which ostensibly included Churchill’s economic damages (back pay, loss of reputation) and noneconomic damages (pain and suffering, emotional distress). It was unclear in the jurors’ mind whether they should award damages for the legal fees Churchill sustained. See Denver Post article entitled “Churchill $1 Award Result of One Juror.”

However, Churchill can now make the claim that he is entitled to an award of attorney fees and costs in items C and D respectively, as well as “further relief as this court deems just and proper” listed under item E that relates to Churchill’s desire to be reinstated by the court to his tenured job at CU.

Attorneys’ Fees:

Item C requests relief for attorney’s fees pursuant to Colorado Law and § 42 U.S.C. 1988. The prevailing law is that each party, regardless which is the prevailing party, pays for their respective attorney fees. However, the state of Colorado and Congress has chosen to modify this rule in certain circumstances. Not applicable to this case, Colorado law in C.R.S. § 13-17-102 provides for an award of attorney fees when the suit or defense "lacked substantial justification” meaning “substantially frivolous, substantially groundless, or substantially vexatious.” Commonly known as “The Civil Rights Attorney's Fees Awards Act of 1976,” Congress also has modified the rule by providing, for public policy reasons, to allow an award of attorney fees and expert witness fees for prevailing plaintiffs suing for vindication of their civil rights.

One immediate issue is whether the $1 award for damages constitutes a “Pyrrhic Victory” and thus Churchill would not be considered the “prevailing party” under 42 U.S.C. § 1988. The United States Supreme Court in 1992 held that the plaintiff was not entitled to an award for attorney fees under 42 USC 1998, even though he was the prevailing party (since the holding altered the legal relationship between the parties) because he was awarded de minimus damages representing a Pyrrhic victory which goes to the reasonableness of the attorney fees. In Farrer v. Hobby, 506 U.S. 103 (1992), the plaintiff sought 17 million dollars in damages and received no money damages, no declaratory relief, and no injunctive relief, but plaintiffs did secure a jury finding that defendant violated plaintiffs' civil rights and nominal award of $ 1.

This case does not appear to be a hurdle for Churchill to recover reasonable attorney fees since his victory means that he has can ask for his job back, or front pay with either constituting substantial relief justifying the award of the attorney fees. In the Denver Post article, “Churchill wants $1 million if he doesn't get CU job back,” Churchill has stated he wants front pay of $1,000,000 if cannot get his job back.

While Churchill will be entitled to reasonable attorney fees and expert witness fees, there are a few hurdles left. At least Churchill avoided an allocation problem with the fees since his complaint was amended to drop alternative claims in contract that would not have been entitled to an award of attorney fees. Consequently, all the legal fees in pursuing Churchill's 1st amendment claim (his entire case), could be awarded in the discretion of Judge Naves.  However, Judge Naves will scrutinize the request for attorney fees where multiple attorneys are involved for redundancy. Since Churchill had three attorneys attending the trial, Churchill’s attorneys may be asked to justify this redundancy.

Another hurdle is whether the pre-litigation costs can be awarded and in particular, the legal fees in representing Churchill during the Investigative Committee’s investigation and the Privilege & Tenure Committee investigation. Generally, prelitigation legal fees are scrutinized to ensure that they are related to the constitutional claim. While Churchill must have incurred substantial legal fees related to CU’s internal investigations, it would be difficult to justify these legal fees which could eventually ripen into several legal claims, not just the constitutional claim.

Court Costs:

Rule 54 “Judgment and Costs” under Colorado Rules of Civil Procedure provides:

Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law.

Consequently, unless not permitted by state law regarding costs against the state, Churchill is entitled to his costs such as : (1) discovery deposition fees; (2) copies of discovery depositions; (3) copies of medical records for injuries not claimed at trial; (4) certain expert fees; (5) fees associated with photographs; and (6) non-itemized copy fees. See Nguyen v. Reg'l Transp. Dist., 987 P.2d 933 (Colo. App. 1999).

Conclusion:

With an award of attorney fees and costs, CU may end up paying over $1,000,000 for the cost of the litigation in addition to the $500,000 CU’s attorney Patrick O’Rouke has publicly stated is the cost of CU’s defense.