HAWSCT's Latest On The "Private Attorney General" Fee-Shifting Doctrine

by Robert Thomas, Inverse Condemnation

Here's the latest decision from the Hawaii Supreme Court applying the "private attorney general" doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances.  In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys' fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project.  In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

If this sort of thing is your bag, check it out. Highlights:

• Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.

• The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable when compared to other jurisdictions (see p. 39-40).

• The "lodestar" method (reasonable rate times reasonable time) is the default, and the court isn't going to allow "enhancement" in cases not involving a fee-shifting statute (the private attorney general is a judge-made doctrine), and not involving a contingency fee. The goal of the private attorney general fee-shifting doctrine is to allow reasonable compensation to the prevailing lawyer, not to reward plaintiffs or their attorneys, especially those who ask for a 100% enhancement (i.e, a doubling of the presumptively reasonable lodestar amount).

Ruling: Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013)