Attorney Fees - Nominal Damages - Section 1983

    Plaintiff brought suit under 42 U.S.C. Section 1983 alleging excessive force in violation of his Fourth Amendment rights. The jury found for Plaintiff but awarded no damages. The trial court awarded nominal damages and also awarded a reasonable attorney fee reduced by 50 percent. The Defendant appealed.

    The Plaintiff, Aaron Ermine, alleged excessive force in violation of the Fourth Amendment to the United States Constitution. The allegations of both parties are set forth by the Court of Appeals. Ermine, supra at 117-118. Prior to filing, Plaintiff filed an administrative claim for damages in the amount of $500,000. The Plaintiff then brought suit pursuant to 42 U.S.C. Section 1983. The case was submitted to mandatory arbitration. The Arbitrator ruled in favor of the Defendant, and the Plaintiff filed for a trial de novo in Superior Court.

    At trial, Plaintiff's attorney requested $1,212 for medical expenses, $1,200 for pain and suffering, and $2,500 for punitive damages. Id. at 118. Although the Plaintiff prevailed on the constitutional claim, the jury awarded no damages. The trial lasted 3 days. RP 1, 322, 388. The judge, post trial, awarded nominal damages of $1.00.

    The Plaintiff petitioned the court for a reasonable attorney fee pursuant 42 U.S.C. Section 1988. Plaintiff's counsel requested a lodestar of $19,840. After considering the degree of success, the trial judge reduced the requested lodestar by 50 percent, and awarded fees in the amount of $9,920. The Defendant did not make an Offer of Judgment pursuant to Washington Rule of Civil Procedure 68.

Summary of Argument

    The public interest mandates that fundamental constitutional rights be aggressively enforced regardless of the size of anticipated damages. Without enforcement in cases where damages are insubstantial, public officials will come to correctly understand that they may violate fundamental constitutional rights with impunity so long as no one is seriously injured. Although the monetary amounts at issue in this case are very low, the stakes for the vindication of constitutional rights are very high.

    The enforcement of constitutional rights relies almost exclusively upon the efforts of private trial lawyers. In recognition of their responsibility to the quality of constitutional freedoms, many trial lawyers selflessly donate their time and effort. But reliance upon the pro bono efforts of trial lawyers will not entirely suffice to enforce constitutional rights. Without the availability of a statutory reasonable attorney fee, access to courts will in some cases be substantially impaired and in many cases completely denied. The availability of reasonable attorney fees in nominal damage cases should depend upon the significance of the legal issues on which the plaintiff prevailed, whether Plaintiff sought an amount of damages dramatically greater than the amount recovered, and whether the case was litigated and tried in recognition that small damages would be the most likely result. The trial court has broad discretion in resolving these issues where only nominal damages are recovered. In this case, the Court did not abuse its discretion.

Argument of Counsel

    The public interest mandates that fundamental constitutional rights be aggressively enforced regardless of the size of an award of damages. Access to courts is essential for that enforcement. Meaningful access to courts requires competent counsel.(1)

    Where damages are substantial and liability is likely, attracting competent counsel is relatively easy because a reasonable contingent fee can be anticipated. Where damages are insubstantial, however, the availability of a court awarded fee is the only anticipated fee and essential to attract competent counsel. See Davies, Julie, Federal Civil Rights Practice in the 1990's: The Dichotomy Between Reality and Theory, 48 Hastings Law Journal 197 (1997)(analyzing interviews with civil rights practitioners on the impact of fee shifting statutes). Reliance upon the pro bono efforts of private trial attorneys is insufficient to provide meaningful access to justice.(2)

The overwhelming majority of constitutional violations do not result in substantial damages. Examples of such constitutional violations include, but are not limited to, illegal stops for relatively brief periods of time - including racial profiling, illegal entry and searches of homes and cars, illegal arrests with very brief incarceration, and excessive force resulting in no serious injury. These cases and others involving dignitary interests have a high potential for nominal damages.(3) Without the potential for a fee in nominal damage cases, routine constitutional violations such as these, without substantial damages, will very rarely be litigated. The Civil Rights Attorney Fees Award Act was enacted to encourage such litigation.

The Civil Rights Attorney Fees Award Act of 1976, 90 Stat. 2641, as amended, 42 U.S.C. Section 1988, provides for a reasonable attorney fee to the prevailing party. In City of Riverside v. Rivera, 477 U.S. 561, 577, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986), the Court acknowledged that the statute was enacted to encourage private attorney generals, and that Congress did not intend the recovery of fees to depend upon substantial monetary damages. This statute was enacted "specifically to enable plaintiffs to enforce the civil rights laws even where the amount of damages at stake would not otherwise make it feasible for them to do so." Id. (citing legislative history). The inability to vindicate constitutional rights due to a lack of resources damages the entire nation and not just the individual citizen. Specifically, the Court held:

Congress expressly recognized that a plaintiff who obtains relief in a civil rights lawsuit "does so not for himself alone, but also as a "private attorney general," vindicating a policy that Congress considered of the highest importance." House Report at 2 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)). If the citizen does not have the resources, his day in court is denied him; the congressional policy which he seeks to assert and vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers. 122 Cong.Rec. 33313 (1976) (remarks of Sen. Tunney). Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief. Rather, Congress made clear that it intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases, and not be reduced because the rights involved may be nonpecuniary in nature. Senate Report at 6 (emphasis added).
Rivera at 575 (emphasis added). "Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits that are not reflected in nominal or relatively small damages awards." Id. at 574.

    In Washington State Republican Party v. Washington State Public Disclosure Com'n, 141 Wn.2d 245, 4 P.3d 808 (2000), this Court acknowledged that "[w]hen enacting §1988, Congress intended to facilitate actions for enforcement of civil rights." Citing the legislative history, the Court further acknowledged:
 

All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain. In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court. S.Rep. No. 94-1011, 94th Cong., 2nd Sess., reprinted in 1976 U.S.Code Cong. & Admin. News 5908, 5910.
Id. at 287-288. Section 1988's "chief purpose is to enable enforcement actions so that those whose rights are violated may obtain meaningful redress." Id.

    Private trial attorneys who accept their social responsibility to vindicate constitutional rights in cases with insubstantial damages are performing a substantial public service. Those attorneys act and were intended to act as private attorney generals.(4) The benefits of the litigation they bring transcend the benefits to an individual Plaintiff. It confers benefits to the entire society by vindicating constitutional rights and holding public officials accountable to the rule of law.

    Plaintiff's counsel has litigated this case in the best tradition of the private attorney general concept. The case was litigated and tried in a manner that was appropriate to the circumstances. Counsel litigated this case with the clear understanding that the damages were minimal.(5) The case took 3 days to try before a jury. Counsel requested less than $2,500 in compensatory damages and $2,500 in punitive damages. The modest attorney fee requested reflects that the hours expended were reasonable. The attorney fee awarded was even more modest, after being reduced by 50 percent.

    The vindication of constitutional rights is entirely dependent upon the efforts of private attorneys to litigate cases exactly like this one. Plaintiff's counsel should be commended for the public service performed. Reversal of the lower courts will have the inevitable effect of discouraging private attorneys from accepting routine cases where the constitutional issues are important but the damages are insubstantial. The public interest and purposes of 42 U.S.C. Section 1988 demands a contrary result.

    A civil rights plaintiff "prevails" for purposes of Sec. 1988 when "actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992).(6)

    The Court`s discretion under Section 1988 has been interpreted very narrowly. To act as an effective incentive for injured parties to seek judicial relief for civil rights violations, fee awards should be the rule rather than the exception. See Washington State Republican Party v. Washington State Public Disclosure Com'n, 141 Wn.2d 245, 287, 4 P.3d 808 ( 2000)("A prevailing party 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust'").(7)

    In assessing the amount of attorney fees to be awarded, the trial court has broad discretion. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). The trial court abuses its discretion when the exercise of its discretion is manifestly unreasonable or based on untenable grounds. Progressive Animal Welfare Society v. University of Washington, 114 Wash.2d 677, 688-89, 790 P.2d 604 (1990). See also Lovell By and Through Lovell v. Poway Unified School Dist., 79 F.3d 1510, 1519 (9th Cir. 1996) ("The award will not be overturned unless it is based on an incorrect conclusion of law or a clearly erroneous finding of fact").

    Under the proper circumstances, a reasonable attorney fee in a nominal damage case is within the discretion of the court. The court must consider the significance of the legal issues on which the plaintiff prevailed, whether Plaintiff sought an amount of damages dramatically greater than the amount recovered, and whether the case was litigated and tried in recognition that small damages would be the most likely result. The trial court has broad discretion in resolving these issues where only nominal damages are recovered.

    In Farrar v. Hobby, the plaintiffs sued multiple defendants for $17 million but were ultimately awarded only one dollar in damages against a single defendant. 506 U.S. at 105-07, 113 S.Ct. at 570. On the plaintiffs' motion for attorneys' fees under Section 1988, the district court awarded over $300,000 in fees, costs, and interest. The Fifth Circuit reversed the fee award, holding that plaintiffs could not be considered prevailing parties, given the minimal recovery. Estate of Farrar v Cain, 941 F.2d 1311 (5th Cir.1991).

    By a plurality vote, the Supreme Court held that although the nominal nature of an award does not affect the prevailing party inquiry, the degree of the plaintiff's overall success does bear on the reasonableness of a fee award. 113 S. Ct. at 574. Indeed, "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief the only reasonable fee is usually no fee at all." Id. at 575. (8)

    Justice O'Connor's concurrence in Farrar pointed out that the Court was not foreclosing recovery of attorney's fees in nominal damages cases. She acknowledged that although nominal awards often represent technical or Pyrrhic victories that merit no award of attorney's fees, "that is not to say that all nominal damages awards are de minimis. Nominal relief does not necessarily a nominal victory make." Id at 121.(9)

    Justice O'Connor sets forth a three part test relied upon in many jurisdictions - "we look at the difference between the judgment recovered and the recovery sought, the significance of the legal issues on which the plaintiff prevailed and, finally, the public purpose served by the litigation." Farrar at 506 U.S. at 121 -22. (10)

    In Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 935 P.2d 555 (1997), Plaintiff alleged, inter alia, an unlawful taking of property in violation of 42 U.S.C. Section 1983. Id. at 645. The trial on the merits lasted one month. Id. Plaintiff requested more than $2 million in damages. Id. at 649. The jury awarded nominal damages. Id. at 650. The trial court also awarded $196,381.87 in attorney's fees and costs of $35,584.20. Id. at 663.

    On appeal, the Court acknowledged that the recovery of nominal damages caused Plaintiff to become the prevailing party. Id. at 664. Relying upon Farrar, however, the Court reversed the award of attorney fees: "Under Farrar, when awarding attorney's fees under § 1988, the trial court should have given primary consideration to the amount of damages Sintra sought as compared to the $3 nominal damages it was awarded. The trial court did not do so." Id. at 666.

    In both Farrar and Sintra, the Plaintiffs requested millions of dollars and consumed substantial amounts of the court's time and resources. Neither case was tried in recognition that small damages would be the most probable result. In this case, however, Plaintiff requested approximately $5,000 damages and utilized little court time and resources.

Distinguishing Farrar, the reasoning of Judge Posner, C.J., Seventh Circuit, is extremely persuasive:
 

The district court based its decision to award no fees on the small size of the verdict and the fact that the case broke no new ground in the law of police abuses. If these are sufficient grounds it means that routine police misconduct that, although unconstitutional, is neither harmful enough to support a large award of compensatory damages nor malicious enough to justify an award of punitive damages is, as a practical matter, beyond the reach of the law. It is impossible, unless there is an expectation of a fee award (and often not then), to interest a competent lawyer in bringing a suit in federal court to recover a small amount of damages, unless the plaintiff is a rich person willing to finance the suit out of his own pocket rather than by means of a contingent-fee contract, the normal way in which tort suits are financed in this country. Yet the cumulative effect of petty violations of the Constitution arising out of the interactions between the police (and other public officers) and the citizenry on the values protected by the Constitution may not be petty, and if this is right then the mere fact that a suit does not result in a large award of damages or the breaking of new constitutional ground is not a good ground for refusing to award any attorneys' fees.
Hyde v. Small, 123 F.3d 583, 585 (7th Cir. 1997). According to Judge Posner, the availability of fees in nominal damages cases should turn on whether "the plaintiff was aiming high and fell far short (citations omitted), in the process inflicting heavy costs on his opponent and wasting the time of the court, or whether, as appears to be true, the case was simply a small claim and was tried accordingly. . . ." Id. Ermine appears to be a small case and tried accordingly.(11)

    "The Supreme Court in Farrar did not dramatically alter the law relevant to attorneys' fees awards; instead the Court refined its analysis of the fee award issue while in large part re-affirming its precedents." Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995). "The district court's error in Farrar was its award of substantial fees 'without consider[ing] the relationship between the extent of success and the amount of the fee award.'" Id. at 1390 (Citing Farrar at 115-16). The primary purpose upon the limitation fees in nominal damages cases is to prevent an unjustified windfall for private attorneys. Farrar, 506 U.S. at ----, 113 S.Ct. at 575 ("[F]ee awards under Section 1988 were never intended to produce windfalls to attorneys"). In this case, the trial court took into consideration the degree of success and the public purpose served by holding law enforcement officers accountable for their illegal behavior. The recovery of $9,920 in fees can hardly be considered an unjustified windfall. The decision to award a reasonable attorney fee, reduced by 50 percent, was not an abuse of discretion.

    The Court should be careful to avoid creating a mathematical bright line concerning the amount of damages requested. In this case, Plaintiff's counsel requested less than $5,000 in damages. But a request of $25,000, or even more, should not necessarily foreclose a reasonable attorney fee. So long as the case was litigated in a way that was appropriate to the circumstances, a reasonable attorney fee should be recoverable. In making this determination, the trial court has considerable discretion and should consider the totality of the circumstances.

    The Court should also be careful to restrict its ruling to cases involving nominal damages. The Farrar rule of law does not apply where damages are minimal as compared to nominal.

    The Farrar exception, which would allow the court to dispense with the calculation of a lodestar and simply establish a low fee or no fee at all, is limited to cases in which the civil rights plaintiff "prevailed" but received only nominal damages and achieved only "technical" success. 'Nominal damages' is not limited to an award in the amount of $1, but includes an award that may properly be classified as 'de minimis.'  Morales v. City of San Rafael, 96 F.3d 359, 362-363 (9th Cir. 1996). Although the degree of success must be considered, Id. at 364, federal courts have rejected the argument that attorney fees must be proportional to the damages recovered. City of Riverside v. Rivera, supra.

1. "'[T]he machinery of justice can be operated only through attorneys,' and since 'attorneys must be paid for their services, and that the poor are unable to pay for such services, this is the great, the inherent and fundamental difficulty -- inherent because our legal institutions were framed with the intention that trained advocates should be employed, and fundamental in the sense that no amount of reorganization or simplification, short of a complete overturn of the whole structure, can entirely remove the necessity for the attorney.'" Schroeter, Leonard, Attorney Representation: An Essential Right or Not? WSBA Bar News, September (1999)(quoting Smith, Reginald Heber, Justice and the Poor: A Study of the Present Denial of Justice to the Poor and of the Agencies Making More Equal Their Position Before the Law, with Particular Reference to Legal Aid Work in the United States, at 241, Carnegie Foundation for the Advancement of Teaching by Charles Scribner's Sons (New York 1921).

2. "Washington's lawyers have a long, impressive history of providing generous pro bono services. In the area of giving money and help to provide services to persons who need access to the system, but who cannot afford a lawyer and do not know where to turn, the lawyers of this state have been magnificent. Our courts would be unable to assist our citizens in resolving their legal problems without the contribution of pro bono lawyers. But the current need for pro bono services is overwhelming. Although we can cite many instances of exemplary, self-sacrificing work on behalf of low-income litigants by our colleagues in the Bar, pro bono services, delivered on a case-by-case basis, cannot provide a definitive solution to the problem of providing adequate, affordable access to our civil legal system." Guy, Richard P., Positive Approaches to 21st Century Access to Justice, WSBA Bar News, May, 1999.

3. Even without proof of actual injury, nominal damages are recoverable in civil rights cases. In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the leading case on this issue, the Supreme Court held that plaintiffs in a Section 1983 action were entitled to nominal damages for the deprivation of their due process rights even without proof of actual injury. The Court explained that "[b]y making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed." Id. at 1053-54. See also Yniguez v. Arizonans for Official English, 69 F.3d 920, 949 (9th Cir. 1995)("Thus, even without proof of actual injury, [Plaintiff] is entitled to nominal damages for prevailing in an action under 42 U.S.C. § 1983 for the deprivation of First Amendment rights"); Larez v. City of Los Angeles, 946 F.2d 630, 640 (9th Cir. 1991) ("Freedom from unreasonable searches and seizures and the right to bodily integrity" are the type of constitutional rights where nominal damages are recoverable despite the lack of an actual injury); Kalmas v. Wagner, 133 Wn.2d 210, 215, 943 P.2d 1369 (1997)("A plaintiff who proves these [Section 1983] elements is entitled to at least nominal damages").

4. See also Evans v. Jeff D., 475 U.S. 717, 746, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986)("If a plaintiff obtains relief, he 'does so not for himself alone, but also as a `private attorney general,' vindicating a policy that Congress considered of the highest priority.'(citation omitted). We recognized further that the right to recover attorney fees was conferred by Congress to ensure that this private public-enforcement mechanism would operate effectively: If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts"); Torrey v. City of Tukwila, 76 Wn.App. 32, 38-39, 882 P.2d 799 (1994)("Congress' primary concern in enacting section 1988 was to recompense private attorneys general, on whom enforcement of the various civil rights acts largely depends, for the single largest cost of successful litigation, attorney's fees"); SENATE COMM. ON THE JUDICIARY, CIVIL RIGHTS ATTORNEYS' FEES AWARDS ACT, S. REP. NO. 94-1011, 2d Sess., at 2 (1976) ("All of [the] civil rights laws [passed by Congress since 1966] depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain").

5. It appears from the record that Plaintiff originally filed an administrative claim for damages for $500,000. Defense counsel places undue emphasis on this claim for damages. At the early stages of the litigation, it is often unclear what actually are a victim's damages. While this administrative claim is substantial, subsequent litigation clearly establishes that Plaintiff's counsel understood that the damages were insubstantial. The litigation was submitted for mandatory arbitration, providing for a maximum recovery of $35,000. See Spokane County LMAR 1.1.

6. See also Hensley v. Eckerhart, 461 U.S. 424, 433 103 S.Ct. 1933, 1939 (1983)("plaintiffs may be considered `prevailing parties` for attorney`s fees purposes if they succeed in any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit."); Goehring v. Brophy, 94 F.3d 1294, 1304 (9th Cir. 1996)("A party is a prevailing party within the meaning of section 1988 if the party has prevailed on the merits of at least some of its claims"); G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893, 906 (9th Cir. 1998)(same).

7. See also Durancear v. Tacoma, 37 Wn.App. 846 (1984)("federal courts have recognized a presumption that successful Section 1983 plaintiffs should recover a reasonable attorney's fee absent such special circumstances."); Cox v. City of Lynnwood, 72 Wn.App. 1, 12, 863 P.2d 578 (1993)("Under section 1988 a prevailing plaintiff should ordinarily recover attorneys fees unless 'special circumstances' exist that militate against making such an award"); Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)("a prevailing party should ordinarily recover an attorney`s fee unless special circumstances would render such an award unjust").

8. Farrar v. Hobby, supra, involved no "catalytic effect" causing a change in policy or practice. Recognizing that the issue was not presented in Farrar, several Courts of Appeals have expressly concluded that Farrar did not repudiate the catalyst theory. See Marbley v. Bane, 57 F.3d 224, 234 (2nd Cir. 1995); Baumgartner v. Harrisburg Housing Authority, 21 F.3d 541, 546-550 (3rd Cir. 1994); Zinn v. Shalala, 35 F.3d 273, 276 (7th Cir. 1994); Little Rock School Dist. v. Pulaski County Special Sch. Dist. #1, 17 F.3d 260, 263, n. 2 (8th Cir. 1994); Kilgour v. Pasadena, 53 F.3d 1007, 1010 (9th Cir. 1995); Beard v. Teska, 31 F.3d 942, 951-952 (10th Cir. 1994); Morris v. West Palm Beach, 194 F.3d 1203, 1207 (11th Cir. 1999); Paris v. United States Dept. of Housing and Urban Development, 988 F.2d 236, 238 (1st Cir. 1993); Citizens Against Tax Waste v. Westerville City School, 985 F.2d 255, 257 (6th Cir. 1993).

9. See Norris v. Sysco Corp., 191 F.3d 1043, 1050 (9th Cir. 1999) ("Justice O'Connor, who was one of the five justices in the majority, put it a little less stringently in her concurring opinion, and rather underscored the word 'usually' by making it clear that even a nominal damage award might be more than technical or de minimis where, for example, the legal issue was significant or some public goal was accomplished").

10. Many federal courts have adopted Justice O'Connor's standard. See Zagorski v. Midwest Billing Servs., 128 F.3d 1164,1167 fn 5 (7th Cir. 1997)(Collecting cases); Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997)(adopting Justice O'Connor's framework - the application of the O'Connor factors did not undermine the general rule that prevailing parties should recover attorney's fees "`unless special circumstances would render such an award unjust'"); Dudenkauf v. Stauffer Communications, 158 F.3d 1074, 1078 (10th Cir. 1998)("As narrowed by Justice O'Connor's concurring opinion, therefore, Farrar essentially holds that failure to recover more than nominal damages in a section 1983 action is a Pyrrhic or technical victory precluding an award of attorney's fees under section 1988 only when the action serves no public purpose")(emphasis original); Piper v. Oliver, 69 F.3d 875, 877 (8th Cir. 1995) (awarding reasonable fees in a nominal damages case and adopting Justice O'Connor's test - "[t]he court must evaluate each nominal damages case individually to determine if the plaintiff's victory is merely 'technical' or 'pyrrhic'").

11. See also Morales v. City of San Rafael, 96 F.3d 359, 364-65 (9th Cir.1996) (interpreting Farrar - the Court ruled that the deterrent effect of a nominal award was held to serve "the public purpose of helping to protect [the plaintiff] and persons like him from being subjected to similar unlawful treatment in the future"); Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997)(Relying upon Justice O'Connor's concurring opinion in Farrar, the Court ruled "[w]e have recently recognized that a plaintiff who achieves a 'significant nonmonetary result not only for himself but for the community in general' attains more than a 'technical' victory. . . ."); Brandau v. State of Kansas 168 F.3d 1179 (10th Cir.1999)(applying O'Connor's three part test - affirming $42,000 in fees to a Title VII plaintiff who had succeeded on one of four claims and had been awarded $1.00 in damages), cert. denied, No. 98-1705, 1999 WL 278688 (U.S. May 24, 1999); O'Connor v. Huard, 117 F.3d 12, 18 (1st Cir. 1997)(awarding a reasonable fee despite nominal damages where "the district court's order recognized the importance of providing an incentive to attorneys to represent litigants, such as O'Connor, who seek to vindicate constitutional rights but whose claim may not result in substantial monetary compensation").

12. Fed.R.Civ.P. 68 and CR 68 are identical as far as this issue is concerned. See Hodge v. Development Servs., 65 Wash.App. 576, 579, 828 P.2d 1175 (1992).