Under 42 U.S.C. § 1988, a prevailing party in a civil rights lawsuit brought pursuant to 42 U.S.C. § 1983 may seek a reasonable amount of attorney’s fees, as well as costs of litigation. The Supreme Court has held that this rule applies to prevailing plaintiffs as well as prevailing defendants. However, a prevailing defendant is entitled to attorney’s fees upon a finding that the plaintiff continued to litigate after it clearly became vexatious or frivolous to do so.

In ruling on such a request, a district court is afforded wide discretion in determining an appropriate fee award and may consider a number of factors, including time and labor, difficulty of the question involved, skill required to perform the service properly, the amount involved and the results obtained, awards in similar cases, and the experience, ability, and reputation of the attorneys.

The Third Circuit Court of Appeals expanded the factors a district court may consider in calculating a fee award. In Lohman v. Duryea Borough, the Court ruled that evidence of pre-trail settlement negotiations may be considered in determining what constitutes a proper fee. Evidence of negotiations can be relevant when comparing a plaintiff’s settlement demand with the amount the plaintiff is awarded by the jury. In Lohman, the plaintiff rejected a settlement offer that was more than six times the amount awarded by the jury. The Third Circuit held that it was proper for the district court to compare the jury award to the settlement offer in determining the attorney’s fees to be awarded to the plaintiff.