SLAPP Damage control$: Use of expert declarations in SLAPP fee motions

SLAPP is all about fees. The threat of a sizeable mandatory fee award to the prevailing SLAPP defendant is what generates the enormous leverage and bargaining power for the prevailing party. Plaintiffs want to avoid this fate and defendants want to get their SLAPP motion granted and obtain the highest award of fees possible. An expert declaration is like adding a turbo charger to a defense fee motion and is absolutely indispensable for a losing SLAPP plaintiff seeking to minimize the fee award.

The use of expert declarations in making and opposing SLAPP fee motions provides maximum persuasive power in convincing the judge to move as close as possible to the number ultimately sought. Obviously, in the case of an unsuccessful SLAPP plaintiff, zero is ideal but unrealistic in most cases. In cases where the amount of fees sought by the prevailing SLAPP defendant approaches or exceeds $50,000.00, expert declarations almost invariably result in a significant reduction in the fee award - often a 50% to 75% reduction in the fees awarded from the amount the defendant initially sought. In most cases, the amount of the reduction in the fee award pays for the cost of the expert declaration anywhere from two to ten times over. I call this damage control after the SLAPP filer (usually the plaintiff) has lost the motion and appeal.

The fee opposition in the trial court is the SLAPP plaintiffs last chance to mitigate the enormous damage that can easily befall him or her (and the plaintff's attorney) if a large amount of fees is awarded. The same can be said of expert declarations in cases where defendants seek to boost the amount of fees awarded. Aside from assembling a detailed record of billing tasks and hours, an expert declaration supported by a solid foundation is like adding a turbo charger to SLAPP fee motion or opposition.

The use of expert declarations by a prevailing SLAPP defendant in support of a request for mandatory attorney's fees can be extremely helpful in boosting the defendant's bottom line - particularly in contingent fee cases where a discretionary multiplier is sought or where the number of hours billed is substantial. But where an unsuccessful SLAPP plaintiff seeks to decimate a massive SLAPP fee request, an expert declaration is essential. Because the unsuccessful SLAPP filer after appeal often becomes the target of a SLAPP fee request that is well in excess of $100,000.00, the use of an expert declaration from an attorney who has demonstrable experience and expertise in anti-SLAPP jurisprudence is indispensable. In light of the newly enacted SLAPPback provisions of CCP section 425.18, the SLAPP plaintiff's attorney becomes exposed not only to a legal malpractice action byt the former client for loss of the prior lawsuit and for the fee award, but the attorney also become subject to a SLAPPback malicious prosecution suit without a meaningful SLAPP defense. (More on SLAPPBacks in future blogs) Hence, a prudent SLAPP filer or defendant who wishes to recover a high fee award or a plaintiff who desires to reduce the fee award as much as possible would be wise to make the strongest record possible for the desired amount of fees to be awarded.

James J. Moneer, Esq.
www.slapplaw.com