The Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic Association was notable and helpful in at least two respects: emphasizing the role of the jury not an appellate court to find facts and dispelling the mistaken notion that expert medical or scientific evidence was necessary to sustain a claim for emotional distress damages in an employment discrimination or retaliation case, a point we discussed on the Kentucky Employment Law Blog, Does Kentucky Require Expert Medical or Scientific Testimony to Support A Claim for Emotional Distress Damages in an Employment Discrimination or Retaliation Case? and on the website, Proving Emotional Distress Damages In Employment Discrimination & Retaliation Cases - Is Expert Medical or Scientific Proof Necessary?
Banker also called upon the Court to address an award of attorney's fees to the plaintiff's lawyer, Bryan Cassis, who is to be applauded for the perseverance and skill displayed in this case. Although Cassis submitted a attorney's fee petition documenting 678.75 hours worked on the case, the lawyers for the University of Louisville Athletic Association, Craig Dilger and Jeffrey Calabrese, argued that this amount of time was excessive, a point that seems surprising coming from lawyers who spent nearly twice as much time ("approximately 1300 hours") on the case as did Cassis and lost it. But the defense did not stop there.
Cassis had argued to the trial court that the attorney's fees award should be increased because the case was a contingent fee case. The trial court rejected the argument. Nevertheless, having won the issue and apparently not able to help itself, the defense argued on appeal that the trial court had erred. This confused the Supreme Court who remarked:
ULAA's third argument is somewhat confusing. The trial court did, as ULAA notes, look to what a reasonable contingent fee would be in this situation. However, the court did not do so to determine the lodestar amount or to deny ULAA's request for a downward adjustment. It did so as justification for denying Cassis's request for an upward amendment in the lodestar amount, which benefitted ULAA. We are not certain why ULAA is arguing that a decision from which it benefitted was incorrect; however, regardless of ULAA's reasons for making this argument, it is not persuasive.
Indeed, it is confusing why a party would argue against a ruling that benefitted it. But sometimes the defense just can't help themselves.
Robert L. Abell
www.RobertAbellLaw.com
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