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April 27, 1984


The opinion of the court was delivered by: Shadur, District Judge.


Now Roe seeks attorneys' fees of nearly $48,000 and Chicago resists so large an award. Because the bulk of the lawyers' time preceded this Court's involvement in the case, and also because that earlier period provides the answer to the question of just when the scope of the dispute became limited to damages (by virtue of Chicago's concession on liability)*fn1, the parties stipulated "the Court may consult with the Honorable Prentice Marshall ex parte respecting any and all matters involved in said fee petition." This Court has not literally "consulted" with Judge Marshall, instead simply identifying the question for him and delivering the court papers to him to refresh his recollection. Judge Marshall has answered:

  The issue of liability was not resolved until the
  final P[re] T[rial] C[onference].

This Court has reviewed each of the nearly 400 entries on the computer printout provided by Roe's law firm, designated "Delta & Epsilon," in that light. That represents a large enough investment of scarce judicial time without trying to attain absolute precision. Reconstruction of whether all the recorded services were in fact necessary is impossible from the printed page, and the extended examination and cross examination required to make a full inquiry would simply compound the problem. For that reason counsel also agreed this Court could draw upon its own background of experience as a practitioner and as the senior billing partner in a Chicago law firm.

Having completed its review and having made a number of downward adjustments, this Court was still left with the abiding conviction the case was overtried. As the conclusion of this opinion reflects, that called for one final revision. Even after that reduction, this Court believes the remaining allowance is a liberal one — certainly at least fair to Roe's lawyers, and it is believed also fair to Chicago. Some comments are appropriate as to a number of the adjustments made:

1. There is no justification for saddling an opponent with the kind of double-timing by lawyers reflected in this case. What is at work here is an example of what has brought the cost of legal services out of the reach of most of our populace. This was a simple one-incident case, whose facts did not need a team approach to manage its presentation. It was not a "documents" case, so that second-chair counsel was not needed to manage the logistics of handling a paper blizzard that did not exist. Nor was the applicable law so complicated that a lawyer with the excellent credentials of attorney "Alpha," Roe's lead counsel, could not have handled it himself. Time was that a lawyer would try non-complex cases like this without another lawyer as backup at every step of the way — in preparation, in trial and in endless conferences. Economy calls for research and assistance to be provided by less experienced lawyers (at correspondingly lower hourly rates), but that is intended to cut down the duplication of time and hence the cost. Here the costs were materially increased by an increased duplication of effort, and this Court has sought to carve out a substantial number of items reflecting such increase.

2. Where a premium is charged for trial time (as was done here, with the computer printout reflecting hourly rates 30-40% higher than for other services), this Court will not extend that premium to the taking of depositions. Whatever justification may exist for a trial-time premium (this Court has spoken jocularly of "combat pay" in Palmer v. City of Chicago, 576 F. Supp. 252, 255 (N.D.Ill. 1983)), discovery does not stand at all in the same position as time spent in the courtroom.

3. Alpha, ten years out of law school with a first-rate background, has billed for his time at $90 an hour, with a $25 hourly premium for trial time. Both on the supporting affidavit of a prominent Chicago lawyer and from this Court's own knowledge, those figures are reasonable. That certainly cannot be said, though, of the requested $70 per hour rate (and $25 hourly trial time premium) for attorney "Gamma," a lawyer just into his second year in practice and involved in his first federal case. Nor will this Court approve elevating the time of attorney "Beta," a fourth-year associate, to a uniform $75 hourly rate where much of it was rendered in a period when the law firm was charging $65 for his services. This Court has therefore reduced Gamma to a $60 rate (with a $15 trial-time premium) and has restored Beta to his actual billing rates.

4. Counsel's extended involvement in other cases (such as attending the Court of Appeals' argument in the strip search cases on appeal, attending this Court's trial of the Susan B. strip search case and conducting numerous cross-conferences with ACLU staff lawyers and counsel in other strip search cases) also cannot fairly be thrust on Chicago. That kind of self-education may be a commendable effort in career terms, but if imposed on the adversary it would multiply the costs for the defendant unfairly.*fn2 Chicago's strip search policy was both unconstitutional and unpardonable, but that does not make Chicago an outlaw, and hence fair game for exorbitant fee requests. As it is, this Court may well have left more of such duplicative time intact (because of the sheer difficulty of evaluating a purely paper presentation) than would have survived a full evidentiary hearing.

5. Substitution of Gamma for Beta as Alpha's backup lawyer may in fact be the result of lawyer mobility, as Roe's petition claims. That however is no excuse for imposing on Chicago the inefficiency costs of a law firm's revolving door (it may be noted Gamma has also since left Delta & Epsilon).*fn3 Gamma's time in having to learn what Beta already knew, to the extent this Court could identify such time, has been disallowed entirely.

6. At trial Roe's counsel sought to recover for a claimed loss of Roe's income. That contrived and less-than-specious claim, which inflated Roe's claimed ad damnum to a clearly excessive amount, was seen by the jury for what it was and rejected entirely.*fn4 It must be remembered this action ended up as a damages-only litigation. Under those circumstances the discrete loss-of-income damages claim, which the jury rejected so utterly, is the precise equivalent of "the plaintiff [having] failed to prevail on a claim that is distinct in all respects from his successful claims," within the meaning of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983). And that rejected claim was in fact the largest claim (by far) asserted by Roe's counsel in asking the jury for an award of a quarter-million dollars. What this Court has done in light of that fact is to disallow some part of the research time (necessarily an estimate) as spent on the unsuccessful claim, plus two-thirds of the aggregate trial time of Alpha and Gamma. In the latter respect such a reduction is really modest, given the fact it has to cover the appropriate disallowance of both (1) the lost-earnings claim and (2) the duplication represented by the presence of two full-time lawyers throughout a trial that really neither required nor justified it.*fn5

7. Far too much time was spent on preparation of jury instructions. In the same way, far too much time was spent on preparation of the fees and costs petitions. Hourly rates for experienced practitioners are supposed to reflect experience, and the opponents should not be required to pay for self-education in these areas any more than in others. That too is a form of double recovery: once for the presumed experience that justifies an advanced rate and once for the time a truly experienced lawyer should not have had to spend.

8. None of the time of paralegals and law students has been allowed. Reasonable hourly rates for lawyers include overhead and profit, and the kind of messenger services and similar activity charged in this case represents another form of double recovery. Delta & Epsilon (and perhaps other firms) may bill their clients in this manner, but this Court (having approved the lawyers' hourly rates as reasonable in specific contemplation of the fact such rates include an overhead factor, covering among other elements the time and work of non-lawyer personnel) will not unfairly impose the same burden on the adversary who has not bargained for such treatment — in this case Chicago. Indeed, even under circumstances where the time of such personnel may properly be separately chargeable, it is simply wrong to bill for them at $30, $40 and $50 hourly rates that allocate far more than overhead — and purely theoretical ...

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