This is my tenth article in a series of articles exploring the Unified Public Expression Protection Act, or “UPEPA.” I was an advisor to the American Bar Association on the UPEPA Drafting Committee, but that the comments and views here are for me and myself only, not for the Unified Law Commission or the American Bar Association. You need to be warned again. In addition, other members of the drafting committee may (probably violently) oppose in certain respects.
In the previous episode, “Unified Public Expression Protection Act: Appeals and Mistakes,” we looked at how UPEPA §9 provides for compulsory appeals of motivated rights in the event of a loss. The usual unsuccessful proceedings to the respondents. Now consider awarding costs, attorneys’ fees, and legal fees under §10.
Section 10 of UPEPA relates to costs, attorneys’ fees, and the awarding of costs. Subsection 10 (1) defines the situation in which the motive (defendant) wins, and subsection 10 (2) defines the situation in which the defendant (plaintiff) wins. Proceed to the subsections below, but first let’s look at the main rules.
About the movement below Section 3, The court shall award court costs related to the proceedings, reasonable attorney’s fees, and reasonable court costs.
This provision is relatively simple, mainly because costs, attorneys’ fees, and costs are handled on a daily basis by the court, but let’s unpack it anyway.
“About motions under Section 3”
Section 10 works only to award costs, fees, and costs only if there is a special motion filed under §3 and it does not occur in any other case. Therefore, the parties may not attempt to bootstrap the invoice for the costs of these items to §10 unless they have arisen from a special motion.
“The court decides”
There are two words here, which are very important. The first important word is “must”, and if either §10 (1) or §10 (2) is met, the award of costs, fees, and costs is mandatory. Indicates. If these conditions are met, the court has no discretion in deciding whether to award costs, fees, and costs. However, the court Amount of money To be awarded, and of course it is completely different.
The court’s lack of discretion in deciding whether to award costs, fees, and costs is, on the one hand, the result of a policy decision to first prevent plaintiffs from filing abusive proceedings (which is §). 10 (1) is everything) And to prevent the submission of flirty or extended special movements by motive (this is all in §10 (2)). Therefore, comment 1 in §10 explains that:
“The obligatory nature of the remedies provided by this section is essential to the unification of the law. A country that does not impose a compulsory ruling when dismissing the cause of a proceeding is a safe haven for abusive proceedings. SLAPP’s plaintiffs may file a frivolous proceeding in such a state, knowing that in the worst case, their claim will only be dismissed by making a monetary refund to a successful moving party. Yes. Even if you are dismissed, the effects of the abusive cause of action will be achieved. The only way to ensure a truly uniform application of the law is to require a successful moving party to award legal fees. “
As a result, costs, fees, and mandatory provisions for awarding costs are not only compensatory, but also serve important deterrent purposes.
The second important word in this clause is “award”. This means that the parties to whom the costs, fees, and costs have been awarded will make a compelling monetary judgment on those matters against the losing party. NS, It is not treated as a fine or something the money ends with court funds.
The term “court costs” is a general artistic term that has a specific meaning in each court and generally consists of submission fees, court fees, court press costs (if the reporter is employed by the court), etc. Will be done. .. These costs are usually aggregated by a court clerk. Therefore, Comment 3: “Cost” in §10 includes application fees and other amounts that the state may define as “cost”. “”
“Reasonable legal fees”
Similarly, the term “attorney’s fees” is a general term that has a specific meaning in each court and, of course, means the legal fees charged to the winning party. As stated in Comment 4 of §10, the term “attorney’s fees” means the costs paid to an attorney to supplement the attorney’s time and effort in prosecuting or defending a proceeding. “
However, §10 has an additional qualifier, which is the term “reasonable”. There are two factors in whether something is “reasonable” in §10. One is that the time spent by the winning party’s attorney on the matter must be reasonable for the work product they created, and is the time actually incurred in the hearing. Other than that. Second, the attorney’s fees charged must make sense in the overall context of the motion.
We have finally arrived at UPEPA where the party’s intent works. As mentioned earlier, intent generally plays no role in UPEPA. NSIt does not matter why the plaintiff submitted the motion, or the motive submitted the special motion, to determine a special motion, but here we have reached the attorney’s fees (and the costs described below). increase. NS.
Take the example of a plaintiff raising a cause of action that technically infringes the defendant’s protected rights, but overall it is not like an abuse case in the classical SLAPP sense. It’s a small part. The wise thing the defendant’s lawyer does is to call the plaintiff’s lawyer or send a letter requesting the plaintiff to remove the problematic part of this count. However, the defendant’s lawyer does not do that, but instead spends far more time than it deserves to file a special motion and eventually win the special motion. In such cases, in deciding what is “reasonable,” the court should take into account the minor nature of the breach of the defendant’s protected rights, and the defendant’s defense counsel should take into account the breach. Warn about, seek a voluntary solution, and use it as “reasonable” to the defendant when filing and filing a special motion on a matter that the plaintiff would have voluntarily dismissed anyway. Give the minimum fee.
In stark contrast, suppose the plaintiff filed a defamation proceeding in clear retaliation for the defendant’s proper actions. Plaintiffs and their attorneys know exactly what they did and why, and there is no point in contacting defendant’s attorney before making a special allegation. Here, the special motion requires a great deal of effort from the defense counsel, and the plaintiffs are in fierce competition. In this case, the concept of “reasonable” would be in favor of giving the defendant all its attorney’s fees, all the final dimes.
That is, when a court faces the issue of attorney’s fees, the court must look at the whole situation and make a “reasonable” ruling on those costs as determined by the facts and the whole situation before it. court.
“And reasonable legal costs”
The same term “reasonable” as applied …