ALL CASES GREAT AND SMALL: FULFILLING THE NMCRA’S PROMISE OF ATTORNEY FEES.

Section 5 of the New Mexico Civil Rights Act (NMCRA) permits a court to award “reasonable” attorney fees to a “prevailing plaintiff.”¹ In this way Section 5 parallels its federal analog, 42 U.S.C. § 1988, which similarly allows a “prevailing party” to recover “reasonable” attorney fees in federal civil rights suits. But despite this language in the federal statute, a string of U.S. Supreme Court decisions have circumscribed the availability of attorney fees in suits brought under § 1983. This restriction on attorney fees has led to what Professor Joanna Schwartz calls the biggest obstacle to civil rights litigation in the federal system: “the lack of lawyers able and willing to represent people whose constitutional rights have been violated.”² The New Mexico Civil Rights Commission was aware of this concern when it recommended including a fee-shifting provision in the NMCRA. The Commission’s report noted that “without an attorney’s fees provision, the likelihood of an injured person finding an attorney to take their claim would be low for many cases involving constitutional violations because they are often unlikely to result in substantial recovery.”³ And the availability of representation is of particular concern in New Mexico, where we have fewer lawyers per capita than most other states and even fewer lawyers serving in our rural areas. [ABSTRACT FROM AUTHOR]

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