1. Specific fees that are excessive on their face.
2. ALN improperly asks qad to pay for work on issues where the Court has ruled against ALN.
3. ALN improperly asks qad to compensate it for work never used in this case.
4. ALN improperly asks qad to compensate ALN for work that ALN performed only because ALN misrepresented that it had produced documents in discovery when, in fact, it had not.
5. Finally, there are a number of miscellaneous items which either have no description or which do not seem to properly be included.
ALN has properly rejected qad's initial simplistic argument that because the period covered by the Second Fee Petition is roughly one-half of the period covered by the first one, the award should automatically be limited to be one-half of the amount that was earlier approved by this Court--$ 58,561.79 (50% of the earlier-approved sum of $ 117,123.58)--rather than ALN's currently requested $ 287,197.47 (exclusive of interest). It is indeed a total non sequitur for qad to urge that the extent and scope of legal services are to be viewed as wholly linear with time. Vastly more in the way of compensable services was unquestionably compressed into the second (and shorter) time frame, so that merely the lesser amount of elapsed time on the calendar should not serve as any predicate for a corresponding reduction of the requested amount of fees.
With qad's argument for a mechanistic chopping down of the fee thus eliminated out of hand, it is in order to look at the individual charges that have been challenged by qad. In those respects ALN has provided an item-by-item response, and it ends up by agreeing only to a minimal adjustment of $ 2,135.25. That agreed reduction would bring the requested amount (including interest) to $ 289,230.71, of which $ 211,322.33 is claimed by ALN's lawyers and $ 77,908.38 by the Coopers & Lybrand accounting firm retained as experts for the damages hearing. This Court finds that those responses by ALN are individually persuasive in terms of all that this Court has seen and heard in the course of living with this litigation.
Even so, if this Court were free as a discretionary matter to exercise a gestalt approach to the problem, it would be inclined to apply an across-the-board reduction of 10% to the requested amount because of the lack of market controls already referred to and a general sense that a tighter ship might have been run if such constraints were present. In saying that, this Court has consciously eschewed (despite the approval of a sampling procedure by our Court of Appeals in Evans v. City of Evanston, 941 F.2d 473, 476-77 (7th Cir. 1991) and in Continental Illinois, 962 F.2d at 573) the often deceptive precision of sampling and reviewing segments of the services involved, then extrapolating to the entire fee request a percentage disallowance that has been obtained from that sample. Especially in situations where (as in this case) a fee request does not lend itself to carving out discrete elements with any degree of assurance (1) that they are representative of the whole and (2) that there is real validity to the retrospective review of individual time charges by an observer who necessarily looks in from the outside, we really deceive ourselves that the process is somehow scientific just because it can be carried out by the application of a mathematical operation. It may be more comforting because it has the look of objective rather than subjective evaluation, but that appearance is not the reality. And of course even a small error in dealing with the sample (something that will almost surely occur despite the most careful efforts at judicial review) is magnified enormously by the very process of extrapolation to the much larger total request for fees.
Where then does that leave us? This Court never knowingly opts for any procedure that has the appearance of the chancellor's foot at work, among other reasons because of the difficulty of intelligent evaluation if the outcome is ultimately presented to a reviewing court. But in candor any result reached in the specific situation that is presented here--either a blanket approval of the fee request as tendered, or a 10% across-the-board reduction, or any attempted piece-by-piece review of the time slips--must produce a result that in some sense is arbitrary.
Because the message that appears to be emanating from our Court of Appeals is that the trial judge's general sense of the matter should not serve as the predicate for the kind of overall percentage reduction that would appear reasonable to this Court in this instance (see Continental Illinois, 962 F.2d at 570), it does not so rule.
As already stated, qad has launched one bogus full-scale attack on ALN's fee request--as though the calendar alone were a proper standard for evaluating the reasonable fee--together with a group of individual attacks. As to the latter, ALN has responded persuasively in light of this Court's knowledge and observation of the proceedings. That being so, ALN must be viewed as having borne its burden of proof.
qad is accordingly ordered to pay the sums of $ 211,322.22 to Wallenstein, Wagner & Hattis and $ 77,908.38 to Coopers & Lybrand, both by checks tendered to ALN's law firm on or before November 17, 1992.
Milton I. Shadur
Senior United States District Judge
Date: November 3, 1992