Vanderbilt Law Review

First Page



Prior to the Supreme Court's 1986 decision in Evans v. Jeff D.,fervent debate centered on the practice of simultaneously negotiating settlement on the merits and the award of attorney's fees in civil rights cases. Reasonable attorney's fees for prevailing plaintiffs in civil rights cases are provided at the discretion of the court under section 1988 of the Civil Rights Attorney's Fees Award Act of 1976' (the Fees Act).Sparked largely by the Third Circuit's rejection of the practice of simultaneous negotiations in Prandini v. National Tea Co., wide commentary on the practice soon followed the Fees Act's passage.

Critics of simultaneous negotiations suggest that it creates a conflict of interest between a plaintiff's interest in relief on the merits and his attorney's interest in obtaining fees. Proponents of the practice maintain that judicial policy favors settlement of disputes.' They contend that since attorney's fees in civil rights cases may exceed relief on the merits, bifurcating the process impedes settlement because the defendant cannot fix his total obligation with certainty."

Two versions of the simultaneous negotiation problem have been identified. The version at issue in Prandini is referred to in the literature affectionately as the "sweetheart" deal. The "sweetheart" deal arguably preys upon the baser instincts of both the plaintiff's and defendant's counsel. In the "sweetheart" situation the defendant pack-ages a settlement offer with a relatively large award for attorney's fees in hopes that opposing counsel will encourage his client to accept disproportionately meager substantive relief. In this manner, the defend-ant leverages the potential conflict between opposing counsel and his client to the defendant's net benefit.

Recently, however, the "extortion" deal has been contested more hotly than the "sweetheart" deal. The "extortion" version of the simultaneous negotiation problem occurs when a settlement offer is conditioned upon a waiver of attorney's fees altogether. This "extortion"deal is the type of simultaneous negotiation problem at issue in Jeff D.