Court in a way that would allow the Court to make a rational
Throughout this whole process, the plaintiffs were
strenuously fought every step of the way. The plaintiffs were
forced to file numerous motions to compel to acquire essential
discovery materials. After this came the defendants' motions
to dismiss, motions for summary judgment, endless requests for
continuances, and an interlocutory appeal. The defendants
ignored the first panel report, asked for a second, and then
ignored it. At trial, the defendants entered into no
stipulations of fact. Trial of this matter was one of the most
bitterly fought battles this Court has ever encountered,
surpassed only by the trial of this fee petition.
The defendants contend that once the medical panel issued
their report, the plaintiffs had the case won, and that the
plaintiffs overkilled from there. However, if the defendants
believed that this report was that influential, they surely
did not reflect this in their trial tactics. Believing that
the conditions had improved at Menard, they asked for a second
report, and at trial present six expert witnesses to refute
the plaintiffs' claims. It amazes this Court to hear the
defendants now argue that so much of this time was unnecessary
when so much of this time was caused directly by the
In summary, the Court finds the time claimed for Mr.
Grossman and Mr. Flynn to be reasonable under the
circumstances. The Court further finds there to be no
duplication of effort involved. A final point bearing on the
reasonableness of the hours expended is that the plaintiffs
are not claiming a fee for the hours worked on this case by
attorneys Kennedy, Bastian, Seng, Eastman, Stapleton, or
3. Reasonableness of the hourly rates.
The reasonable rate under § 1988 is to be calculated
according to the prevailing market rates in the relevant
community for similar services by lawyers of reasonable
comparable skill, experience, and reputation regardless of
whether the plaintiff is represented by private or nonprofit
counsel. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1547
(1984). Time spent by the attorneys traveling may be
compensated at the full market rate. Henry v. Webermeier,
738 F.2d 188 (7th Cir. 1984). In determining this rate, the Court
should consider those Johnson factors that are applicable to
this aspect of the lodestar figure.
Although the Supreme Court indicates that market rates are
to be utilized, it has not addressed whether current market
rates or historical market rates are to be used. A number of
scenarios exist. The Court could award a fee based on current
market rates for current experience and expertise; current
market rates for experience comparable to that of the attorney
performing the work at the time the work was performed;
historic rates for current experience; or historic rates for
experience comparable to that of the attorney performing the
work at the time the work was performed. The Seventh Circuit
has seemingly approved the use of a current hourly rate but
has not indicated which of the first two scenarios is
preferred. Gautreaux v. Chicago Housing Authority,
690 F.2d 601, 612 (7th Cir. 1982), cert. denied, 461 U.S. 961, 103 S.Ct.
2438, 77 L.Ed.2d 1322 (1983). The Tenth Circuit in Ramos v.
Lamm, 713 F.2d 546 (10th Cir. 1983), has likewise indicated
that "[t]he hourly rate at which compensation is awarded should
reflect rates in effect at the time the fee is being
established by the Court, rather than those in effect at the
time the services were performed." Id. at 555. On remand, the
defendants in Ramos argued that this should be interpreted to
mean the second scenario above. The district court disagreed,
opting to interpret the Tenth Circuit's language so as to fall
into the first scenario. Ramos v. Lamm, No. 77-K-1093, slip op.
at 3 (D.Colo. June 3, 1985).
While at least one circuit court disagrees, see New York
Ass'n For Retarded Children v. Carey, 711 F.2d 1136, 1153 (2d
Cir. 1983) (historic rates), this Court believes that the
approach taken by the Ramos courts is the better approach since
accounts for both inflation and interest and in so doing
compensates for the contingency fee factor mentioned in
Johnson. As Justice Brennan has noted:
Most attorneys paid an hourly rate expect to be
paid promptly and without regard to success or
failure. Customary rates reflect those
expectations. Attorneys who take cases on
contingency, thus deferring payment of their fees
until the case has ended and taking upon
themselves the risk that they will receive no
payment at all, generally received far more in
winning cases than they would if they charged an
hourly rate. The difference, however, reflects
the time value of money and the risk of
non-recovery usually borne by clients in cases
where lawyers are paid an hourly rate. Courts
applying § 1988 must also take account of the
time-value of money and the fact that attorneys can
never be 100% certain that they will win even the
Hensley v. Eckerhart, 461 U.S. 424, 448-49, 103 S.Ct. 1933,
1947-48, 76 L.Ed.2d 40 (1983) (Brennan, J., concurring in part
and dissenting in part).
The Court recognizes that in a case such as this, which
spans over a number of years, attorneys with little or no
experience when they started on the case will be compensated
at their present rates for present experience. While such a
result may at first blush appear unfair, one need only take
historic rates for historic experience and account for the
value of inflation and interest to realize that in present
times the simplified approach this Court advocates falls on
the conservative side.
With the above in mind, and after considering the
appropriate Johnson factors, the Court feels that the $115 per
hour requested for Mr. Grossman, and the $85 per hour for Mr.
Flynn are reasonable hourly rates.
Based on this Court's own observations and on the testimony
of Mr. Bronstein, the skill required to litigate a case such
as this is extensive. As stated earlier, the attorneys were
required to obtain expertise in specific medical deficiencies
and systematic deficiencies and present it in such a way that
the Court, who lacked such expertise, would be able to
understand and rule accordingly. The Land of Lincoln Legal
Assistance Foundation devoted a great deal of time, energy,
manpower, and resources to this lawsuit, with the result being
that other low-income clients were denied services. Given the
state of the law at that time, the stiff legal standard, and
the magnitude of the relief sought, the likelihood of success
was low. This fact, taken in conjunction with the fact that the
plaintiffs were inmates and that when this case was filed there
existed no statutory authorization for attorney's fees, made
this case very undesirable.
These attorneys overcame all these barriers and obtained
substantial relief. Due to their hard work, dedication, and
expertise, a grossly deficient medical system was totally
revamped to such an extent that it now serves as a model for
prison health care. The 2600 inmates then, and every Menard
inmate since, has greatly benefited from this revamping.
Further, the relief obtained in this case, by its nature,
directly affected the entire Illinois prison system. For
example, the Court ordered the employment of a doctor to serve
as Chief of Medical Services with direct line authority on a
state-wide basis. The bottom line is that due to their efforts
gross medical deficiencies no longer served as the mode for
The Court cannot say enough about the quality of the
representation. Aside from Mr. Grossman's excellent reputation
as a civil rights attorney and his extensive experience in
complex civil rights matters, this Court can think of few
attorneys who have passed through its courthouse doors who
possess the integrity, discipline, organization, and all
around litigation ability of Mr. Grossman. Although a young
attorney when this case first began, any experience he lacked
was more than compensated for by his thorough preparation. The
$115 fee request for him is reasonable whether this Court
views the relevant market as the Southern District or the
entire nation. Mr. Bauman, the defendants' expert, testified
that he receives a comparable rate in the
Southern District in certain defense cases. Mr. Bronstein
testified that, in his opinion, Mr. Grossman could command
between $115 and $125 for combined in court and out of court
time. Mr. Grossman has been awarded a comparable rate in other
cases. Taking into consideration all of these factors, the
Court feels that $115 rate for Mr. Grossman is a reasonable
combined rate for work both in and out of court.
Likewise, the Court believes the $85 rate for Mr. Flynn to
be a reasonable combined rate in both this district and the
nation. Although Mr. Flynn does not possess the same
experience of Mr. Grossman, he does have extensive experience
in civil rights cases. While Mr. Grossman handled most of the
in-court work, when called upon, Mr. Flynn did a solid and
In conclusion, the Court finds the 3,070.5 hours for Mr.
Grossman at $115 per hour, and the 2,966.3 hours for Mr. Flynn
at $85 per hour for a total lodestar figure of $605,243.00 to
be abundantly reasonable. The Court has reviewed the fees
awarded in similar cases and has found that this award to be
consistent with those awards. Specifically, the Court finds
the Ramos case to be very similar to this one, and the fee
award there was approximately $1,000,000.
Adjustments to this lodestar amount may be made as necessary
in certain cases. Blum v. Stenson, 465 U.S. 886, 104 S.Ct.
1541, 1544, 79 L.Ed.2d 891 (1984). The defendants renew their
settlement argument in support of a negative adjustment. In
response, the Court renews its earlier comments that the
plaintiffs were totally justified in refusing every offer since
the offers were unreasonable.
The plaintiffs request of 25% upward adjustment. They
contend that the exceptional success they achieved combined
with the risk of non-payment warrants such an enhancement. The
Court disagrees. Only when the lodestar figure fails to
adequately compensate the plaintiffs will an enhancement be
justified. Blum, 104 S.Ct. at 1550. In determining whether or
not an enhancement is justified the Court must not consider
those factors which it considered in arriving at the lodestar
figure. Here, in setting the lodestar figure, the Court
considered both the exceptional success achieved and the risk
of non-payment. In refusing the enhancement, this Court is in
no way commenting on the quality of representation or magnitude
of this lawsuit. The attorneys should take great pride in their
representation and the results achieved. The Court merely feels
that the lodestar figure adequately compensates the plaintiffs'
attorneys for the work they performed.
D. EXPENSES AND COSTS.
The plaintiffs seek $26,303.65 in costs and expenses. The
defendants have not challenged this amount, nor does the
Accordingly, the Court hereby awards the plaintiffs
attorney's fees in the amount of $605,243.00 and expenses in
the amount of $26,303.65 for a total of fees and expenses of
$631,546.65. The parties are ordered to confer and propose a
payment schedule for this award. This schedule should provide
for post-judgment interest at the appropriate legal rate for
the total award. This jointly authorized document stating
agreements and disagreements shall be filed by December 1,
1985. After that submission is reviewed, this Court will enter
an appropriate order and judgment in accordance with this
memorandum and in light of the submissions.
IT IS SO ORDERED.
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