$425 an hour, but if so, with the exception of one bill he did
not do so in this case, charging in 1998 $315 an hour. Plaintiffs
also refer to numerous fee awards in other cases. While no court
has awarded Mr. Miner $350 an hour, Judge Castillo found $325 an
hour to be acceptable in 1998. Other awards involving other
attorneys in Mr. Miner's firm are comparable when dates of award
and level of experience of the attorneys involved are considered.
Considering all of the evidence (Mr. Miner's historical fees,
the evidence that exists of comparable rates charged by other
attorneys, and other fee awards, as well as Mr. Miner's
acknowledged expertise in the area of voting rights), I conclude
that an award based on $325 an hour for the years 1996 through
1999 and $310 for the years 1994 and 1995 is reasonable.
Defendants make similar objections to the hourly rates sought
by other attorneys in the Miner firm, as well as by Bridget
Arimond, an outside attorney brought in by Mr. Miner to work with
him on the hearing and briefs required by the Seventh Circuit's
remand of this case and its subsequent assignment to this court.
In addition to the arguments made in support of Mr. Miner's
hourly rate, plaintiffs point to the fact that defendants paid
outside attorneys with similar experience at rates equal to or in
excess of the rates claimed by these attorneys. I agree that
defendants have failed to rebut plaintiffs' evidence that the
rates sought by these attorneys are reasonable. See People Who
Care v. Rockford Bd. Of Education, 90 F.3d 1307, 1313 (7th Cir.
Defendants also argue that fees should not be awarded for 285
hours spent by Mr. Miner prior to the time this case was filed on
the ground that the time was spent on "political" work as opposed
to litigation. However, defendants have not challenged
plaintiffs' representation that this time was devoted to attempts
to settle this case without litigation and to developing
plaintiffs' legal theory. In addition, Mr. Miner did not seek
fees for an additional 111 hours spent during the prelitigation
period in which plaintiffs sought an alternative ward map. I
conclude that the hours sought are reasonable.
Defendants' last objection to the Miner firm's fees are to the
request for a multiplier. Essentially, the parties disagree about
whether a court can award a multiplier following Burlington v.
Dague, 505 U.S. 557 (1992). Theoretically, the Seventh Circuit
has said a multiplier may still be appropriate in some cases, see
Price v. Marshall Erdman & Associates, Inc., 966 F.2d 320, 327-28
(7th Cir. 1992), but I conclude that this case is not an
exception to the general rule announced in Dague. The fact that
plaintiffs were seeking injunctive relief rather than damages
does not itself entitle plaintiffs to an enhancement. Dague, 505
U.S. at 564-65. I appreciate the risk that plaintiffs' counsel
took in this case, advancing enormous costs and spending
thousands of hours for which they might never have been
compensated but as I read Dague, that is part of the risk of this
type of litigation.
Defendants also object to the request by Michael Shakman for
$6,755 for 19 hours spent responding to a subpoena served on the
NAACP Legal Defense and Education Fund, which was part of
plaintiffs' legal team. Defendants do not argue that the amount
sought is unreasonable in terms of the work required but say the
subpoena was not served on plaintiffs' counsel as plaintiffs'
counsel. The thinking behind defendants' subpoena is not
relevant. The Miner firm brought in Mr. Shakman to handle the
issues raised by the subpoena because it did not have time to
respond itself. This was legal work on behalf of the plaintiffs.
Mr. Shakman is entitled to compensation.
Defendants raise substantial objections to fee requests from
three additional attorneys, Eugene Pincham, P. Scott Neville, and
Nathaniel Howse, Jr. Mr. Pincham
seeks $654,625 in fees, Mr.
Neville seeks $358,880, and Judge Howse*fn3 seeks $131,080 in
fees. Defendants raise several objections to these fee requests.
They first argue that Mr. Pincham should not be compensated at
the requested rate of $500 an hour. The rate is extraordinarily
high. Mr. Pincham has not pointed to any attorneys in this case
or otherwise who regularly bill at that rate. He notes that he
was awarded a fee in another case at this rate. I have read the
magistrate judge's report and recommendation on which that award
was based, however, and it is based solely on National Law
Journal surveys of attorney fees and her conclusion that Mr.
Pincham was entitled to an award at the high end of the fee
range. Since in this case I have more specific evidence of actual
fees charged by other attorneys, I need not rely on a survey.
Furthermore, the hourly rate was not contested in that case and
the award covered only a few hours. Mr. Pincham has not pointed
to any other fee awards that he has received that might justify
the amount, and indeed, has not referred the court to any other
cases in which he has been awarded any fee. In addition he states
that he does not bill clients at any hourly fee. He does point
out that he has had a long career both as an attorney and a
judge, but neither seem to justify an award that exceeds the
hourly fee charged by or awarded to the other attorneys involved
in this case. I conclude that $500 an hour is excessive. I will
reduce Mr. Pincham's fee to $325 an hour, which is at the highest
level of any attorney actively involved in this case.
Defendants similarly object to the $320 per hour fee sought by
Mr. Neville. In view of his experience, however, and in
comparison with the fees charged by defense counsel, his hourly
rate is reasonable.
The most serious challenge to the requested fees raised by
defendants concerns the number of hours for which Messrs.
Pincham, Neville and Howse seek compensation. It is undisputed
that none of these lawyers were actively involved in this case
after late 1992 when Mr. Miner became lead counsel. I have
reviewed the time records submitted by these attorneys after that
time. While there are a few conferences and court appearances in
1993, and some entries in 1993 and 1994 that indicate "research,"
the vast majority of entries in the time sheets submitted to me
indicate that the time was spent reviewing the work of other
attorneys. After the Seventh Circuit reversed Judge Duff's order
striking these attorneys from representing plaintiffs, virtually
all of their time in this case is marked "review."*fn4 The
Seventh Circuit concluded that even if these attorneys were not
actively involved in trying the lawsuit, they might become
involved in the remedy stage of the proceeding. In fact, however,
after the Seventh Circuit later reversed Judge Duff's findings in
favor of defendants and the case was transferred to me, Mr. Miner
was forced to bring in another lawyer to help him in the
proceedings before me because Messrs. Pincham and Neville were
unavailable. As defendants note, ironically, Mr. Pincham's
earlier unavailability was said to be the result of his work in
the case in which he received the fee award noted above. But his
entire work in that case amounted to just over 50 hours. In
contrast, after the court of appeals granted the mandamus
petition against Judge Duff, Mr. Pincham claims 183 hours were
spent reviewing work done by others. He also claims to have spent
182 hours that were never noted in time sheets discussing this
case in telephone calls with Mr. Neville. Mr. Neville claims
to have spent 394 hours reviewing the work of others. He also
claims to have spent an additional 182 hours in unrecorded
time in telephone calls with Mr. Pincham, for which he seeks
compensation. Judge Howse did not keep any records of his time.
He seeks fees in the amount of $135,000 for a claimed 450 hours
according to his reconstruction.
I agree with defendants that a lot of this time cannot be
justified. First, according to the unrefuted sworn statement of
Mr. Miner, after January 8, 1993, when the complaints in this
case were initially dismissed, he authored the joint amended
complaint.*fn5 He thereafter became primarily responsible for
the preparation of all pleadings in the Barnett and Smith cases.
Second, since these attorneys did not participate in the limited
retrial of the case, almost all of their "review" was
unnecessary. Third, given both of the above facts, certainly
three attorneys did not need to do this work. Plaintiffs argue
that the hours they claim can be justified on the basis that they
might have been called upon to do work later. However, the fact
is plaintiffs were required to bring in other attorneys to do the
work after remand because none of these attorneys was available
to work on the case. I also find the amount of time spent in
"review" of work done by others by attorneys who had no other
involvement in the case to be greatly in excess of what appears
to be justified. Accordingly, I will award compensation for 40
hours each for these attorneys for time spent in reviewing the
work of others after January 8, 1993.
I further find that the extra estimated hours claimed by these
attorneys for telephone conferences that were never recorded in
contemporaneous time records cannot justify a further fee award
in this case. There is simply insufficient information provided
as to who was involved in the calls, why they were not recorded
in contemporaneous time records, how the estimate was arrived at
or actual telephone records.
I also agree with defendants that Judge Howse' reconstructed
time records do not provide a sufficient basis upon which to
justify most of his claimed fees. As defendants point out,
essentially word for word, day for day, and nearly hour for hour,
his reconstructed time record duplicates that of Mr. Neville.
Thus, for example, Mr. Neville's time record for July 1, 1992,
claims 5.75 hours were spent in "Prep. Of Eddie Read's an. to
int." Judge Howse claims three hours on the same day for the same
work. For July 2, 1992, both Mr. Neville and Judge Howse claim
four hours for "Prep. Of Conrad Worill's ans. to int." and four
more hours for "Prep. Of T. Black's ans. to int." On February 4,
6, and 7, 1992, each of them claims almost the same amount of
time (17.50 and 18 hours) for legal research. While duplication
of meetings with co-counsel can probably be justified, that
amounts to 106.5 hours. With regard to the rest, while a court
may base a fee award at least in part on reconstructed time
records, the record in this case is not a plausible
reconstruction. Accordingly, Judge Howse will be compensated for
In summary, this court awards fees as follows:
Miner, Barnhill & Galland $5,127,994.42
Gessler, Hughes & Socol 859,275.13
Bridget Arimond 187,051.39
R. Eugene Pincham 319,881.25
P. Scott Neville 191,840.00
Nathaniel Howse, Jr. 42,485.00
Miller, Shakman, Hamilton, Kurtzon 6,755.00
In addition, plaintiffs claim non-taxable expenses in the
amount of $526,472.54 for the Miner firm and $10,003.95 for the
Gessler firm. Defendants' only objection is that the back-up
documentation was not submitted to the court. (It was, in
plaintiffs' reply.) But defendants do not contest that the
material was supplied to them and despite having had the material
for months, they did not object to any particular item. The
expenses sought are therefore allowed.