Plaintiffs often incorrectly point to their attorney’s fees and costs to set the standard for what is reasonable. Plaintiffs will urge a court to use their attorney’s claimed expenditure of time as the yardstick for an award of fees. However, courts “should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). This makes sense for a couple of reasons. First, defendants often have to do more work in the average anti-SLAPP case, since they are the moving party. Whereas a plaintiff will only need to file an opposition in the typical case, a defendant will file the moving and reply papers, which involves more work. Second, when a defendant successful obtains dismissal of the entire case, plaintiff’s argument that defendant spent an excessive amount of time on the case rings hollow. A defendant’s success indicates that the relative additional time that they spent on the case, compared to Plaintiff’s counsel, was beneficial and warranted.
In most cases courts should not consider plaintiff’s claimed attorney’s fees and costs in determining an award of fees to to the defendant. Instead, a court should consider each case on its own facts.
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