As my colleague Issi Rosen-Zvi often reminds us, the issue of lawyer's fees, and procedural rules more generally, have major effects on substantive outcomes. History, it seems, bears him out, as over at Legal Planet Jonathan Zasloff recently posted on the connection between developments in civil procedure and the famous Mono Lake Case:
How was the Mono Lake Committee able to assemble the resources to bring a lawsuit against the powerful Los Angeles Department of Water and Power?
At one level, the answer is obvious: it found a Sugar Daddy, in this case, the international law firm of Morrison & Foerster, which according to John Hart’s fine book Storm Over Mono, agreed to contribute $250,000 of attorney time to the case — nearly $1 million in today’s money. But this, of course, begs the question of why MoFo agreed to put in that much money. (And of course, the case wound up costing far more)....
I am still looking into this, but I cannot help but suspect that California Code of Civil Procedure 1021.5 has something to do with it. That provision is familiar to most California lawyers: it allows fee-shifting “in any action which has resulted in the enforcement of an important right affecting the public interest.”
That, at any rate, would explain things: MoFo didn’t take the case pro bono: it took it on contingency, gambling that it would get its attorneys’ fees if it prevailed. It might even get a “multiplier,” i.e. more than its attorneys fees, if the case was especially hard, which it was....
And when did 1021.5 come into effect? January 1, 1978, the year after it was enacted (as is standard under state law), and just when the Mono Lake Committee was about to give up. Just in time.
...the case is seen as coming out of the environmental movement of the late 60’s and early 70’s, but if MoFo had been approached even five years earlier, the whole thing might have collapsed.