Blawgletter has fussed before about judicial noticing of facts on the basis of wishful thinking.  Our prime targets have included the idea that class certification exerts "hydraulic pressure" for settlement and the notion that class actions involve little or no risk for plaintiffs' counsel.

Yesterday brought another instance — although, with the decision pending and therefore in doubt, we can yet hope for a sensible outcome.

The case involved civil rights lawyers who did a world-class job against the State of Georgia.  The district court found for the plaintiffs and awarded their lawyers a fee above their "lodestar" — hours times rates — of around $6 million.  The Court heard argument on the Peach State's appeal from the award October 14.

We have court this morning and so can't give details on the back and forth but note, briefly, that the questions from several individual justices highlighted their inexperience with (a) working on a non-hourly basis, (b) representing plaintiffs, (c) how the market for legal services works in contingent fee settings, and (d) the imperfection of lodestars in reflecting a reasonable fee. 

One justice, for example, marveled that a law firm might pay a bonus, above hourly rates, for superior performance and results.  Another wondered how hourly rates could ever fail to capture the true value of lawyers' work.

The issue, as we understand it, turns on whether a "reasonable fee" means no more than the lodestar.  We tend to think Justice Sotomayor's questions aimed at the right answer.  If the market pays a premium for superior results, that premium reflects a reasonable fee.