Aggressive Reasonableness II

In an earlier blog, I proposed that lawyers engage in "aggressive reasonableness". "Aggressive unreasonableness", however, can hurt not just the client, but the lawyer too.

Attorney Sklar filed a class action against Toshiba on behalf of consumers who bought Toshiba laptops that had electrostatic discharge problems with the top covers. They soon settled, with Toshiba giving each purchaser an extended warranty or a $50 credit voucher.

Now comes the interesting part - Sklar's quest for attorneys fees. While Sklar's co-counsel sought fees of $1.25 million (which Toshiba did not oppose), Sklar asked for $24.7 million! This would seem pretty tough to justify, as the case never went to trial. But Sklar produced hard copy time records showing that she had worked on the case 7 days a week for 22 months - sometimes up to 16 hours a day. In discovery, Toshiba tried to get Sklar's original computer files to find out how much she had worked on the case, but Sklar claimed that she had deleted those files. The trial court ordered a forensic inspection of Sklar's computers, but Sklar failed to comply with the order.

Ultimately, the trial court awarded Sklar no attorneys fees (even though Sklar brought in Harvard Law Professor Arthur Miller to support her fee request). Because she had destroyed her records and tried to block discovery, and because the case was not very difficult, the court simply did not believe that she put in the hours she claimed. Also, the trial court sanctioned Sklar $165,000 for her obdurate behavior during discovery.

In Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, the Court of Appeal not only affirmed, it nailed Sklar for sanctions on appeal, in the amount of Toshiba's attorneys fees for opposing the appeal. (Filing a 110-page reply brief and an inaccurate appendix didn't help her cause.) The court also ordered a copy of its opinion to be sent to the State Bar.

It's fine to be bold, but always remember Moskovitz's Golden Rule of Advocacy: PUT YOURSELF IN THE SHOES OF THE DECIDER! If you make a request or argument that the Decider might see as ridiculous and greedy, not only will it be rejected, but you'll lose credibility on matters that you might have won. Sklar was clearly entitled to some attorneys fees, but by going too far, she got nothing. Less than nothing, actually, because of the sanctions awards and a possible State Bar inquiry.

by M.A.T. Legal Director Myron Moskovitz