Navigating Beyond the Lodestar: Borrowing the Federal Sentencing Guidelines to Provide Predictability

Abstract

The lodestar has been the dominant calculation method for fee-shifting awards for nearly forty years. But the lodestar has persistent issues: it leads to extra litigation and judicial effort, the fee awards are highly variable, and it creates an incentive for plaintiffs’ attorneys to bill extravagantly and reject settlement, among others. This Article argues that the issues with the lodestar result from a mismatch between the lodestar and the purpose of the underlying fee-shifting statutes, which encourage attorneys to bring suits that would not normally be economically viable. Encouraging attorneys to do so requires the fee awards to be predictable, and this Article concludes that predictability is impossible within the lodestar, which allows an attorney to set the base calculation and asks a judge to use percentage cuts to arrive at a just result. This Article therefore proposes adopting a framework for fee awards that resembles the Federal Sentencing Guidelines, using an automatic calculation to set a fee range that the judge can work within or, in an unusual case, deviate upward or downward from. This will address each of the lodestar’s persistent concerns while providing the predictability that will encourage the cases these fee-shifting statutes intend to encourage.

Keywords: law, civil procedure, procedure, discretion, attorneys' fees, sentencing guidelines, criminal, commission