UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
May 24, 1994
CARRIE JAFFEE, etc., et al., Plaintiffs,
HOFFMAN ESTATES POLICE OFFICER MARYLU REDMOND, et al., Defendants.
The opinion of the court was delivered by: MILTON I. SHADUR
MEMORANDUM OPINION AND ORDER
After having prevailed at the trial of this civil rights action, plaintiffs have filed a timely motion for the award of attorneys' fees and expenses, requesting the sum of $ 309,664.64 (reflecting a reduction of some $ 4,000 from the initially requested amount, in response to some of the objections interposed by defendants' response to the motion). This Court has now received not only defendants' response but also plaintiffs' reply memorandum, so that the motion has been fully briefed. But as this opinion reflects, some added work remains to be done in calculating the appropriate award.
To begin with, this Court rejects the principal bases that defendants have advanced in opposition to the hourly rates sought by plaintiffs.
Despite defendants' arguments to the contrary, there is no anomaly involved in approving identical rates for plaintiffs' two lead lawyers, Ronald Futterman, Esq. ("Futterman") and Kenneth Flaxman, Esq. ("Flaxman"). Both are skilled attorneys of comparable experience. Defendants' contention that Futterman's enlistment of Flaxman as co-counsel because of the latter's special experience in 42 U.S.C. § 1983 ("Section 1983") litigation and other civil rights actions ought to result in a lower hourly rate for Futterman is totally unpersuasive. As plaintiffs' R. Mem. 2 states:
It is ironic that defendants complain about Mr. Flaxman having been invited into the case because of his expertise in police misconduct litigation. Had Mr. Futterman not brought Mr. Flaxman into the case, defendants undoubtedly would be arguing that Mr. Futterman had spent too much time on the case because of his lack of experience in such cases.
Futterman is a skilled general litigator in his own right, and there is no reason that he should not be allowed his customary hourly rates--certainly the uncontroverted evidence tendered by plaintiffs confirms that his current rate (like Flaxman's) is in line with the prevailing market rate for lawyers of reasonably comparable skill, experience and reputation.
Having said that, however, this Court does find two problems with plaintiffs' presentation. As to all three of plaintiffs' lawyers (Futterman, Flaxman and Jennifer Soule ("Soule")), this Court rejects the application of current hourly rates as the numbers that should be applied across the board to the time spent by them. Although our Court of Appeals recognizes as acceptable the use of either (1) such current rates with no interest adjustment or (2) historic rates with an appropriate interest factor to reflect the delay in payment ( Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir. 1994) and decisions cited there), this Court has long held and expressed the view that current rates are only a rough surrogate for a more precise calculation reflecting the cost of such delay (see the Appendix in Lippo v. Mobil Oil Corp., 692 F. Supp. 826, 838-43 (N.D. Ill. 1988), this Court's first lengthy published discussion of the principles that it had been applying for a number of years). Against the clear analytical superiority of historical hourly rates plus interest compounded at the prime rate, as explained in detail in Lippo, 2 the only thing that an across-the-board application of current hourly rates has going for it is the minimally greater convenience of making only a single calculation for each lawyer.
In this case it seems especially inappropriate to focus on each lawyer's current hourly rates. Futterman's Aff. P 5 reflects that his $ 275 hourly rate became effective less than six months ago, so the only services to which it actually applied were his shortly-before-trial preparation, his time spent during the trial itself (which took place in December 1993) and his part in the preparation of the petition for fees. Neither Flaxman nor Soule provides any information about his or her hourly rates that were applicable to the relevant periods beginning in October 1991 and continuing through the preparation of the fee petition.
Especially given the fact that the last few years have been marked by low interest rates, the likelihood that the approach that this Court has consistently followed "is more straightforward" (see In re Continental Illinois Securities Litigation, 962 F.2d 566, 571 (7th Cir. 1992), elaborating on the reasons why that is so) is even more pronounced here.
Accordingly this Court will expect that the resubmission by plaintiffs' counsel called for by this opinion will provide the necessary information about the hourly rates of the respective participants throughout the period during which services were rendered, and will then apply those rates in the recalculation needed to reflect the other adjustments that will be ordered here. This opinion turns to those other adjustments.
Defendants have identified 30 specific items that they say illustrate the existence of duplicative effort or the expenditure of excessive time on the part of plaintiffs' counsel. Other tables attached to defendants' response reflect some other objections. This Court has engaged in an item-by-item review of all of defendants' objections and plaintiffs' responses. What follows is this Court's ruling as to all items that should properly be excluded from plaintiffs' request. To the extent that defendants' overridden objections are not specifically discussed here, that reflects only this Court's view that no such discussion is needed--the undiscussed objections are so clearly without merit that individualized treatment is unnecessary.
This Court has always been particularly critical of any party's multiple representation at routine court appearances. Jay Pritzker of the vast Pritzker enterprises (obviously speaking as a client, and not as the holder of his license to practice law) has sardonically commented that "Lawyers are like nuns--they travel in pairs." Whatever the validity of that criticism may be in general terms, it certainly applies to the situation just described. Accordingly Defendants' Objections 8 (Flaxman's 1.0 hours), 11 (Soule's 0.5 hours),
18 (Soule's 0.4 hours), 23 (Flaxman's 1.5 hours and Soule's 1.0 hours)
and 24 (Soule's 2.8 hours) are disallowed for that reason.
That same concept of one lawyer for each routine court appearance also extends for the most part to the taking of each deposition with just one lawyer present for each side. On that score Defendants' Objections 15 (Soule's 4.7 hours
), 17 (Soule's 8.0 hours), 21 (Flaxman's 2.75 hours)
and 22 (Flaxman's 6.0 hours) are disallowed for that reason.
By contrast, defendants' Table 2 listing of a small amount of multiple billing for conferences among counsel does not justify any disallowance of those hours. This Court is equally sensitive to the need to avoid heaping Pelion upon Ossa by the endless inter lawyer conference procedure that is always engendered by the overstaffing of any lawsuit. In this instance the 12 hours involved were plainly reasonable under the circumstances.
Similarly, defendants' Table 4 objection to some few items in the fee petition as insufficiently specific are also without merit. P. R. Mem. 15 provides a reasonable and satisfactory explanation of each of those items.
As for defendants' Table 5, which questions the presence of all three counsel during the trial itself, the nature and complexity of this case fully justified that activity. This lawsuit simply could not have been handled effectively by one lawyer--certainly the presence of both Futterman and Flaxman throughout the case was called for. And given the division of responsibility among counsel and Soule's usefulness in handling needed matters at the trial, her added presence was also reasonable. Only one in-trial item needs to be adjusted--the elimination of 6.0 hours of Flaxman's time on December 22, 1993 (a typographical error that has been acknowledged at P. R. Mem. 16).
P. R. Mem. 16 also reflects that the initial fee petition had inadvertently omitted the time spent by Futterman in connection with the fee petition itself. Although defendants have thus had no opportunity to address that matter, the time requested appears reasonable, and it will be allowed without further comment unless defendants' next response suggests some possible need for adjustment.
Finally, defendants have interposed a number of objections to some items of out-of-pocket expense. Plaintiffs have replied to those objections item by item (P. R. Mem. 17-19), and this Court agrees with plaintiffs in all respects (including the inapplicability of McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990) (per curiam) as an asserted basis for eliminating Futterman's travel expenses to New Orleans
). Accordingly only plaintiffs' agreed-to adjustments, aggregating $ 429.76 in such expenses, will be made.
In sum, this Court grants plaintiffs' motion for an award of fees and expenses, but it requires plaintiffs to go back to the drawing boards for a requantification of that award. That required resubmission will obviously take some time to put together. Accordingly plaintiffs are ordered to tender their recalculation to opposing counsel and this Court on or before June 14, 1994, and defendants' response is ordered to be filed within two weeks after their counsel's receipt of plaintiffs' resubmission. Because of the nature of the adjustments that are called for here, no further fees on fees will be allowed to plaintiffs for the time spent by their counsel in connection with the resubmission.
Milton I. Shadur
Senior United States District Judge
Date: May 24, 1994