Attorney Fees (42 U.S.C. § 1988)

What It Is

42 U.S.C. § 1988 allows the prevailing party in a § 1983 case to recover reasonable attorney fees from the losing side. Congress enacted it to encourage attorneys to take civil rights cases that might not otherwise be economically viable.

The theory: without fee-shifting, most constitutional violations wouldn’t generate enough damages to justify the cost of litigation. § 1988 closes that gap by making the defendant pay your lawyer if you win.

The Catch

Fee-shifting is one-directional in practice:

• Prevailing plaintiff: Fees awarded as a matter of course, unless “special circumstances” make it unjust
• Prevailing defendant: Fees awarded only if the plaintiff’s case was “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).

So defendants rarely pay fees when they win, but the threat of fee liability if they lose should incentivize settlements. In theory.

Why Attorneys Still Won’t Take Your Case

The fee-shifting mechanism has several cracks:

1. Nominal damages problem: Win $1 and you may get $0 in fees (Farrar v. Hobby)
2. Qualified immunity: If the case dies on QI, there’s no prevailing party — no fees
3. Contingency math: Attorneys calculate expected fees × probability of winning. QI makes the probability low.
4. Lodestar reductions: Courts can cut the requested fees. A $200,000 fee request might get reduced to $50,000.
5. Collection risk: Some defendants (small municipalities) may not be able to pay even if ordered to.

This is why the article Why No Lawyer Will Take Your § 1983 Case exists. The fee-shifting mechanism Congress designed to make civil rights cases viable has been undermined by decades of judicial doctrine.

The Lodestar Method

Courts calculate “reasonable” fees using the lodestar method:

Lodestar = Reasonable hours × Reasonable hourly rate

Then the court can adjust up or down based on factors like:

• The results obtained
• The complexity of the case
• The quality of representation
• The risk of the litigation

In practice, courts frequently adjust down. Defendants routinely challenge hours billed and argue the rate is too high.

Key Cases

• Hensley v. Eckerhart, 461 U.S. 424 (1983) — Lodestar method for calculating fees
• Farrar v. Hobby, 506 U.S. 103 (1992) — Nominal damages may yield zero fees
• Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) — Defendant fees only for frivolous claims
• Buckhannon Board & Care Home v. West Virginia DHHR, 532 U.S. 598 (2001) — “Prevailing party” requires judicial relief, not just a favorable outcome