The opinion of the court was delivered by: Grady, District Judge.
ORDER AWARDING ATTORNEYS FEES AND COSTS
Plaintiff, who prevailed on his individual claim of employment
discrimination in this Title VII case, has petitioned for
$36,301.18 in attorneys fees, together with costs of $1,723.22.
The petition is based upon time spent on plaintiff's individual
claim only, with nothing claimed for time spent on the
unsuccessful class action. Bearing in mind that there was much
overlapping factual material between the individual and the class
claims, it was not possible to make a precise breakdown of the
time spent on one as against the other whenever a time entry was
made. Plaintiff has suggested that 50 per cent would be a
reasonable minimum estimate of the percentage of the unallocated
time spent on the individual claim, and I agree. The 283.5 hours
claimed to have been spent on the individual claim is reasonable
and appears to me to be as fair an estimate as could be made
under the circumstances.
While agreeing that in this case the rate of $105.00 per hour
is proper, I do not mean to imply that I would accede to that
rate in all cases. There are two things about this case that make
that rate appropriate: first, it was a difficult case; second, it
was tried. Many cases are simple, and most of them are not tried.
It does not follow that the rate appropriate for one case is
necessarily appropriate for another. Still less does it follow
that the same rate is appropriate for all work done by the same
lawyer in the same case. Taking depositions is about the easiest
legal work there is. The only thing I can think of offhand that
might be even easier is propounding and answering
interrogatories. Yet depositions, interrogatories and document
examination constitute the bulk of the work for which many
"litigators" are charging rates of $100.00 an hour and more. What
has happened is that an hourly rate is set with trial work in
mind, and then we promptly lose sight of the fact that most of
the work for which that rate is being charged is "pretrial"
activity which requires none of the ability or experience
demanded of an able trial practitioner. The deposition takers and
document readers have been getting a free ride, at least as far
as court-ordered fee awards are concerned. In the real world,
where clients rather than judges are being asked to approve the
fees, many lawyers charge less for time spent out of court than
they do for trial time. In the November 1983 issue of the
Illinois Bar Journal (Vol. 72, No. 3), there appears a 1982
economic survey of Illinois lawyers, dealing with their fees,
billing practices and the like. Table 4.24 of that survey, 72
Ill.B.J. 116, 149,*fn1 shows that most Illinois lawyers surveyed
charge a different rate for trial than for other work.
Defendant has not suggested that in this case plaintiff's
counsel should be paid less for pretrial work than for trial, and
I have no problem myself allowing a uniform rate in this case.
The pretrial work was trial-oriented, the case was tried and
there is no suggestion of any unnecessary pretrial activity.
Moreover, if I were to differentiate in this case, the result
would probably be about the same, because I would be inclined to
allow a rate higher than $105.00 for the time spent on trial.
I should add that I am approving the $105.00 rate in this case
because my personal observation of the performance of counsel
satisfies me that he earned that rate in this case. I reject
out-of-hand counsels' argument that I should go along with their
"customary" rates because these rates have been set by a rational
market process. Would that this were true. Unfortunately, the
setting of legal fees is largely a unilateral process, with the
lawyer telling the client what the fee is going to be and the
client simply paying it. (A notable exception is insurance
defense work, where the insurance company clients are
knowledgeable and the hourly rates are therefore much lower than
paid in corporate litigation). Many lawyers speak with contempt
of clients who "fee shop," and the idea that fees are the result
of a free bargaining process in a competitive market is contrary
to experience.*fn2 We are starting to see a few changes in this
picture in the case of large, sophisticated corporate clients. It
is high time. But even in these few instances, the emphasis is
not on hourly rates — it is on cutting the amount of time spent.
Turning now to the question of a multiplier, I believe the
factors I mentioned earlier, especially the fact that the fee was
contingent, make a multiplier appropriate. Moreover, I believe
that the 25 per cent requested is fair and reasonable.
I reject defendant's suggestion that there should be some kind
of offset for the fact that defendant prevailed on the class
action part of the case. I agree with plaintiff that the
Christianburg*fn3 test precludes this approach.
Plaintiff's request for costs includes $66.25 in taxi fares,
apparently for transportation to and from court. Although
defendant has not specifically objected to this portion of the
claim, I have decided not to allow it. The cost of transportation
to court seems to me an overhead item covered by the lawyer's
hourly rate, not a separate cost to be passed on to the client.
I assume that counsel's time for court appearances has been
charged on the customary portal-to-portal basis, a practice which
usually results in some overpayment to begin with, since it is
doubtful that counsel is producing at a $105.00 per hour level
the entire time he is in transit. Thirty years ago the idea of
charging a client for taxi rides to court would have seemed
bizarre. The idea of taking a taxi at all is one that would have
occurred to few loop attorneys.*fn4 Times have changed, to be sure,
but not consistently for the better. If the client is willing to
pay his lawyer's taxi fares, that is between them. But I do not
believe taxi fares are properly assessable against the losing
party in addition to the hourly rate assessed for the time in
Plaintiff's petition for fees and costs is allowed, with the
one exception noted, and defendant is ordered to pay to
plaintiff's attorneys the sum of $36,301.18 in fees ...