It sounds like an easy case, but it took lots of hard work. The government has a lot of advantages in litigation. The courts actually allow agencies to delay, and they often defer to government legal interpretations. We spent a few hundred hours researching the law and getting the facts right. Only after we filed our suit and submitted an air-tight brief, did the agency begin to take its legal obligations seriously. After a number of court filings and meetings with a court-appointed mediator, the government agreed to issue the long-delayed regulations on a staged basis over the next 18 months. We succeeded in getting the agency off the dime, and, eventually, the safety of the driving public (including the truck drivers themselves) will be greatly enhanced. And, so, you’d expect that under one of the fee-shifting provisions that I discussed earlier, the government would be required to pay our legal fees, right? After all, if folks like us who don’t get paid, non-profit law firms and private lawyers can hardly afford to bring cases like this.

That’s the way it’s supposed to work and, until recently, fee-shifting had worked that way for 30 years in virtually every court in the country. Under the “catalyst theory,” the courts would award fees to a winning plaintiff, so long as the case had forced the defendant to obey the law, even when the plaintiff had not won a final court ruling in her favor. But things have changed since 2001, when the Supreme Court decided the Buckhannon case. In that case, over the Clinton Justice Department’s strenuous objection, a narrow 5-4 majority decided that the lower courts had it wrong for all these years. Chief Justice Rehnquist said that if the government (or some other accused wrongdoer) responds to a suit by eventually doing what it was asked to do — rather than requiring the court to rule on the case — the plaintiff is not entitled to attorney’s fees. In Buckhannon, the plaintiffs’ lawyer spent hundreds of hours arguing that the Fair Housing Act and the Americans With Disabilities Act prevented the government from evicting disabled patients from a state subsidized nursing home. And the government ultimately agreed, but only after the lawyer filed, and tenaciously prosecuted, the lawsuit. Because the victorious patients’ lawyer was required to work for free, he’ll think twice next time he’s asked to take on a civil rights case. So, too, in a case like our truck safety case, where we never got a nickel after forcing the government to obey critical safety laws.

In litigation, once the government or a private defendant sees the handwriting on the wall, it often cries “uncle” — it gives in and ends its unlawful practices or hands over disputed records or stops ripping off consumers, sometimes after years of time consuming, expensive litigation. Lawyers can’t afford to take such cases if they have little chance of being paid. Sadly, but not surprisingly, the Bush Justice Department has consistently argued to expand Buckhannon to every pro consumer and civil rights statute in every conceivable situation. In short, Buckhannon has put a real squeeze on public interest litigation.

Some of us in the public interest community are fighting efforts to expand Buckhannon in court, and we have been working in Congress to restore fee-shifting as it was originally intended. Public interest litigation is often complex and tedious, with our opponents fighting us at every turn — in other words, it’s expensive. Without the right to attorney’s fees, the courthouse door is, if not closed, barely ajar, and our commitment to equal justice under law cannot be fully realized.

*Brian Wolfman is the Director of Public Citizen Litigation Group, the litigating arm of Public Citizen, a nationwide, non-profit, 100,000-member advocacy group headquartered in Washington, D.C. Litigation Group lawyers have argued 51 cases before the U.S. Supreme Court, and they litigate public interest cases at all levels of the federal and state judiciaries. If you would like help with litigation in one of the Litigation Group’s areas of expertise, don’t hesitate to contact the Litigation Group.