Splitting The Difference

There's a fascinating instance of the First Circuit attempting to do something that all clients hate (until, that is, they benefit from it): split the baby. The case is Jensen v. Phillips Screw Co., First Cir. No. 07-2766.

The parties were fighting about a $9,000 sanction order imposed by the district court judge on plaintiffs' counsel in a class action. Now $9,000 isn't a lot of money. That's true. But getting sanctioned is a pretty big deal and will at the very least hurt the feelings of even the most thick-skinned table-thumper. So plaintiffs' counsel fought the ruling. And the First Circuit largely agreed with them, reversing the award.

The most interesting portion of the decision is the last paragraph. This is the kind of thing that every lawyer always suspects that a judge or arbitrator is thinking. It's rather momentous to see it actually committed to writing:

The battle that is presently being fought is obviously about principle, not money (experience suggests that each side has spent more than the dollar amount of the sanction in briefing and arguing this appeal). As a matter of mutual interest, the time may have come for the protagonists to call it quits. On the one hand, Phillips prevailed in the district court and can credibly claim a moral victory. On the other hand, SE&D has prevailed in large part on this appeal and, at that point, has erased the stain on its escutcheon.