Many labor and employment plaintiffs have no money to pay their lawyers. The law recognizes this, allowing plaintiffs' lawyers to recover their attorneys' fees if they win the case. Once the plaintiff wins, her lawyer files a motion with the court detailing the time she spent on the case and her hourly rate. Counsel may also recover out-of-pocket costs. But what about expert witness fees?
The case is Gortat v. Capala Brothers, decided on July 29. Plaintiffs won their FLSA overtime claim against defendants, recovering nearly $300,000 in damages. Their lawyer moved for attorneys' fees and costs, including expert witness fees in the amount of $10,425. Plaintiffs got over $500,000 in attorneys fees and another $68,000 in out-of-pocket costs, making me wonder why their tried to recover "only" $10,000 in expert fees on appeal. Probably because defendants appealed from the judgment also and plaintiffs filed a cross-appeal because ... why not?
The Court of Appeals (Calabresi, Straub and Livingston) notes that "The Supreme Court has made clear on multiple occasions that, absent explicit statutory authorization, a district court may not award reimbursement for expert fees." Some civil rights statutes authorize the recovery of these fees, and some do not. This is because "costs" does not mean "expert fees," even though the uninitiated may think that "costs" means any financial layout, which would seem to include expert costs. They do not. Congress has to specifically authorize them for plaintiff's counsel to recover them.
Is there any reason why Congress would authorize the recovery of expert costs under some statutes and not others? Is Congress even thinking about this when it drafts a statute? In other words, is it by design that some laws provide for this recovery while others do not? I cannot answer these questions.
As the FLSA does not explicitly authorize the recovery of expert costs, plaintiff in this case cannot recover them. The case is remanded for the district court to determine if expert costs are recoverable under the state labor laws.