The opinion of the court was delivered by: John F. Grady, United States District Judge
01-6858.121 April 16, 2012
(Rulings on Attorneys' Fees and Costs Petitions)
Petitions for attorneys' fees and costs in this civil rights case have been under advisement awaiting the outcome of the parties' appeals. The appeals have now been decided. The plaintiffs' verdicts challenged by the Town were all affirmed, and the cross-appeals by some of the plaintiffs were rejected.*fn1 Duran v. Town of Cicero, 653 F.3d 632 (7th Cir. 2011). We will now address the pending petitions for fees and costs.
This is a civil rights action brought pursuant to 42 U.S.C. § 1983, alleging federal false arrest, excessive force, and equal protection violations as well as state-law claims of malicious prosecution, battery, hate crimes, intentional infliction of emotional distress and spoliation of evidence. The plaintiffs are 78 persons who were present at a baptismal party held at the home of Alejandro and Maria Concepcion Duran in Cicero, Illinois on September 2, 2000. The defendants are seventeen Cicero police officers and the Town itself.
There were about 100 people at the party, and the Durans provided food and drink for their guests, including beer and wine. At about 9:30 p.m. the Cicero police department received a telephone call from a neighbor complaining about the party. There were several visits to the premises by various police officers who requested that the noise level be reduced. The party guests initially agreed to lower the volume of the music, but when another complaint was made, prompting further visits by the officers, the conversations became heated. Eventually a full-scale riot ensued, initiated, according to the plaintiffs, by the officers' unprovoked use of batons and pepper spray and, according to the officers, by the unprovoked throwing of bottles and other missiles at the officers. A rich exchange of foul language and ethnic slurs resounded throughout the melee.*fn2
Some of the plaintiffs alleged that they were beaten and/or pepper sprayed in the yard, without cause. Many of the plaintiffs, including some children, were directed by the officers to go into the Duran house and remain there. Many of the guests in the house made federal and state claims alleging that two of the officers, William Peslak and Robert DeCianni, sprayed the interior of the house with pepper spray, leaving them gasping for air and causing them extreme physical discomfort and emotional distress.
The officers arrested seven of the plaintiffs and took them to the Town police station. Three of the arrested plaintiffs were not prosecuted, but the four Duran brothers were prosecuted on charges of battery and obstructing or resisting a police officer. The case went to a jury trial, and the Durans were all found not guilty.
The basic position of the defendant officers was that they used no more force than was reasonably necessary to defend themselves against the violent acts of the Durans and their guests and to arrest the plaintiffs who were assaulting them. The defendants Peslak and DeCianni denied that they sprayed the interior of the house.
After the complaint was filed, there was a long period of pretrial discovery, much of it concerned with identification of the officers who allegedly assaulted the plaintiffs. There were numerous discovery disputes. Considerable time was spent on the defendants' motions for summary judgment, and we granted summary judgments to a number of individual defendants on various claims. We denied the individual defendants' motions based on their defenses of qualified immunity, and they took an interlocutory appeal. The Seventh Circuit affirmed as to most of the claims, but reversed the denial of qualified immunity as to four claims and remanded the case with instructions to enter judgments accordingly. Duran v. Sirgedas, 240 F. App'x 104 (7th Cir. 2007).
A six-week jury trial took place in January and February 2008. The jury returned verdicts in favor of some of the plaintiffs on most of their federal and state-law claims and verdicts in favor of the defendants on other federal and state-law claims. The jury found against the group of plaintiffs whose only claims were that the defendants Peslak and DeCianni had pepper-sprayed them inside the Duran house.
The total amount of all judgments against the individuals and the Town was $4,843,400.00. Of that amount, the Town has paid $3,073,400.00 plus interest, for a total of $3,163,436.38. The Town appealed judgments against it totaling $1,770,000, and, as indicated above, the judgments were affirmed.
PLAINTIFFS' MOTION FOR ATTORNEYS' FEES
The plaintiffs are seeking attorneys' fees in the amount of $2,228,017.50 and costs of $157,901.47 as of July 3, 2008. The plaintiffs' principal attorney, David A. Cerda, is requesting $1,131,300, a little over fifty percent of the total. (Parties' Local Rule 54.3 Joint Statement at 1.)
Defendants object to both the fees and costs claimed by the plaintiffs, and the parties have been unable to reach agreement on the appropriate amounts. Therefore, they followed the procedure outlined in Local Rule 54.3 and have filed a Joint Statement setting forth their positions, as well as extensive briefs and voluminous exhibits.
THE CONTINGENT-FEE QUESTION
The plaintiffs' attorneys claim to have had a forty percent contingent-fee agreement (or agreements) with the plaintiffs. At the time the Town's insurance carrier paid the judgments against the individual defendants, plaintiffs' attorneys collected the sum of $1,040,000 as their claimed forty percent share. Defendants argue that, having collected this contingent fee, the attorneys are not entitled to anything more. They point out that under the fee statute, 42 U.S.C. § 1988, the prevailing civil rights party, not the lawyer, is eligible for an award of attorneys' fees. Defendants contend that if the attorneys are seeking the award for the benefit of the clients, that would be appropriate, but if they are seeking it for themselves, that would be an additional fee to which they are not entitled. Defendants have repeatedly demanded a copy of the contingent-fee agreement, and in fact we ordered it produced.*fn3 After initially contending that the Town had no right to see the fee agreement, Mr. Cerda, after being ordered to produce it, stated that it is "missing." Defendants argue:
Absent the agreement, we do not know if Plaintiff's [sic] counsel is filing this fee petition on behalf of the Plaintiffs to reimburse them for the fees they have already paid. Alternatively, we do not know if Plaintiff's [sic] counsel is seeking a double recovery. (Letter from Defs.' Counsel to Pls.' Counsel, July 31, 2008, Ex. C to Pls.' Mot. (hereinafter "Defs.' Letter") at 2.)
Mr. Cerda's failure to produce the contingent-fee agreement is not the problem that the Town believes it is.*fn4 "The contingent fee that an attorney earns from his client and the statutory fee that an attorney recovers from the losing party represent distinct entitlements." Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011). "[D]istrict courts . . . should view these fees as distinct and not allow a contingent fee to influence the determination of the reasonableness of an hourly rate." Id. at 642.
THE BASIC LAW CONCERNING § 1988 FEE AWARDS
Both sides refer repeatedly to the case of Hensley v. Eckerhart, 461 U.S. 424 (1983), and appropriately so, because it is the Supreme Court case that provides the rules for determining appropriate fees in civil rights cases:
The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.
The district court also should exclude from this initial fee calculation hours that were not reasonably expended. Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel or the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.
Id. at 433-34 (quotation marks and citation omitted). The specific issue in Hensley was whether "a partially prevailing plaintiff may recover an attorney's fee for legal services on unsuccessful claims." Id. at 426. The plaintiffs had brought suit against officials at the forensic unit of a Missouri state hospital and members of the Missouri Mental Health Commission alleging that patients in the forensic unit were subjected to treatment and conditions that violated their federal constitutional rights in regard to six general areas: physical environment; individual treatment plans; least restrictive environment; visitation, telephone and mail privileges; seclusion and restraint; and finally, staffing, which was alleged to be insufficient. Id. at 426-28. After a bench trial, the district court found in favor of the plaintiffs on the first five general areas, but as to staffing, found that levels were "minimally adequate" and denied relief as to that claim. Id. The plaintiffs filed a petition for fees under § 1988, and the parties differed as to whether hours spent on the unsuccessful staffing claim should be deducted in determining the award. The district court sided with the plaintiffs and awarded a fee based on all hours reasonably expended, without deduction for time spent on the staffing claim. The Court of Appeals affirmed, but the Supreme Court reversed and remanded with the following directions to the district court:
Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.
Id. at 440 (emphasis added).
EXAMINATION OF MR. CERDA'S TIME CHARGES
Because Mr. Cerda is lead counsel and has billed more than fifty percent of the hours for which plaintiffs request compensation, we will begin with an examination of the documentation he has submitted.
Exhibit A to plaintiffs' motion for fees and expenses is a chronological listing of all time charges submitted by the plaintiffs' several attorneys.*fn5 It consists of 143 pages. The time entries are arranged by date, and to the right of each date appear the initials of the charging attorney ("DAC" for David A. Cerda), a general description of the work done on that date, and the total time spent on the work. Where multiple tasks are listed in an entry, there is never a breakdown as to what portion of the total time was spent on any of the tasks.
We will begin with page one of Exhibit A. The first entry is for 9/6/00, where Mr. Cerda charges 6.9 hours for "consultation with clients; visit site and take photographs." The defendants, in Exhibit D, make the following objection to this entry:
Block-billing entries are vague as to amount of time spent on each task. Client names are not identified and indeterminable as to whether the "client" was a prevailing party.
We believe this objection is not well taken. This was early in the case, and Mr. Cerda was collecting basic information about a complicated occurrence involving an extraordinary number of clients with whom, for the most part, he presumably had had no prior acquaintance. Inspection of the site was important, as illustrated by the fact that a large of amount of trial time was spent by both sides on questions such as who would have been able to see what from various vantage points. The 6.9 hours seems an appropriate amount of time, and we have no reason to be skeptical about it.
Mr. Cerda's next entry is for 6.4 hours on 9/11/00 and reads:
Telephone call to Lopez, Joseph R.; telephone call to De Leon, John R.; telephone call from De Leon, John R.; meet with clients.
Messrs. Lopez and De Leon were Mr. Cerda's co-counsel in the case, and, although the subject matter of the telephone calls is not indicated, it is quite credible that the attorneys would be spending a substantial amount of time discussing their investigation of the facts. Also, "meet with clients" is obviously appropriate at this early stage of the case. The failure to specify how much of the 6.4 hours was spent on the telephone calls and how much time was spent on the meeting with clients and what was discussed at the meeting is not a problem so shortly after the occurrence of September 2, 2000, because, whatever the breakdown was, and whatever was discussed at the meeting, there is no reason to question the necessity of any of it.
Similar time entries were made by Mr. Cerda on numerous dates throughout the rest of September, October, November and December of 2000. (Ex. A at 1-3.) Most of the entries list telephone calls without describing what the calls were about. Again, however, the calls were mostly to and from co-counsel. The entries are mostly for 12 or 18 minutes. We think the documentation is sufficient because it is reasonable to believe that at this point in the case the calls were necessary and time was not being wasted. This pattern continued from January 2001 through August 2001. (Ex. A at 3-5.) There is an entry for 8/27/01 claiming 8 hours time for "Review documents and notes and begin drafting Complaint; teleconference calls w/ Lopez and De Leon; complete draft of correspondence." It is true that we are unable to tell how much of the 8 hours was spent on drafting, how much on reviewing documents and notes, and how much on telephone calls. However, the drafting of the complaint in this case was a major project in itself, and conferring with co-counsel, who would share responsibility for it, was necessary. We have no reason to question the 8 hours.
The complaint was filed in this court on August 31, 2001. By that time, counsel should have had a pretty good knowledge of the case. It was, after all, almost a year after they had been retained. While we have been willing to cut them considerable slack for the period up to the filing of the complaint due to the large number of plaintiffs and the obvious need for an extensive investigation, the filing date marks a rational point of departure. Counsel who expected to petition the court for fees in the event their clients prevailed should have started keeping time in a manner that would enable the court to determine the necessity and reasonableness of their claimed hours. It was time, in other words, for counsel to comply with Hensley:
The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. 461 U.S. at 433. Beginning in September 2001 (Ex. A at 5), Mr. Cerda has a number of entries claiming 12 minutes of time for correspondence with co-counsel, without giving any indication of the subject matter. Then there is an entry for 9/26/01 that states:
Trial preparations;*fn6 Telephone call to Van Sickler, Kim; Telephone call from Van Sickler, Kim; Telephone call to Van Sickler, Kim; Telephone call to Lopez, Alejandro; Telephone call to Van Sickler, Kim; Telephone call from Lopez, Joseph R. (Ex. A at 5.) Four and a half hours are claimed for this work. The entry gives us no idea what was discussed in these conversations or how long each conversation should reasonably have taken, assuming it was necessary at all. One way to handle this, of course, would be to continue assuming that all was well, that everything claimed was necessary. But that would be ignoring what Hensley requires a district judge to do.
On 1/2/02, Mr. Cerda billed 2 hours and 6 minutes for various telephone calls and preparation of correspondence to opposing counsel, with no indication of what the calls or correspondence concerned. (At Mr. Cerda's requested hourly rate of $450, that entry totals $945.00.) On 1/4/02, there is a 4.5-hour charge by Mr. Cerda for the following work:
Telephone call to Duran, Amada; Telephone call to De Leon, John R.; Telephone call to Lopez, Joseph R; conduct legal research; Draft Amended Complaint; Telephone call to Spevack, Barry A.; Prepare correspondence to De Leon and Lopez. (Ex. A at 7.) There is no indication of what the telephone calls were about and no indication of what the "legal research" concerned. The first amended complaint, filed on January 10, 2002, added plaintiffs and made substantial additions to the allegations of the original complaint. However, we still should know how much of the time claimed for January 4 was spent on the amended complaint, because Mr. Cerda included additional unspecified time related to the drafting of the amended complaint in his six-hour block entry of 1/10/02. (Ex. A at 7.)
Continuing with Mr. Cerda's charges in Exhibit A, we will cite further examples of entries that are either undifferentiated so as to make impossible any determination of the amount of time he spent on each item of work and/or so vague that we have no way of telling what he did.
On 1/21/02, there is a 2.5-hour entry for "[c]onduct legal research." (Ex. A at 8.) There are numerous entries consisting mostly of telephone calls with no indication of the subjects discussed, or for how long, which make the need for such calls impossible for the court to evaluate. An example is Mr. Cerda's 5.1 hours for 7/22/02 (for which he seeks $2,295.00). Telephone call to Lopez, Joseph R.; Telephone call to Castellano, Salvatore; Meeting with Breed re discovery; continue revising interrogatory answers; Prepare correspondence to Sal; Prepare correspondence to De Leon; Telephone call from Seidman, Steven J.; prepare correspondence to Seidman; Telephone call from Lopez, Joseph R.; Prepare correspondence to co-counsel; review Minute Order; Telephone call from Seidman, Steven J.; Telephone call to Seidman, Steven J.; telephone call from Spevack's office; Prepare correspondence to Seidman; review fax from Seidman; Review Motion to Quash; Review correspondence from Geanopoulos; Telephone call to De Leon, John R. (Ex. A at 16.) Rather than quoting further entries in 2002 and 2003, we will simply refer to some examples of dates during those years when Mr. Cerda made time entries of the same kind: 8/5/02--4.1 hrs.; 8/15/02--4.7 hrs.; 8/19/02--12.9 hrs.; 8/27/02--9.4 hrs.; 2/10/03--4.3 hrs.; 3/21/03--6.8 hrs.; 3/31/03--7.6 hrs.; 4/7/03--9.3 hrs.; 6/27/03--2.1 hrs.; 10/7/03--5.8 hrs.; 10/31/03--6.7 hrs.; 12/1/03--6.2 hrs.; 12/4/03--7.1 hrs.; 12/18/03--2.3 hrs. (Ex. A at 17-20, 28, 30, 32-33, 38, 44-45, 48, 50-52.)
The fact that Mr. Cerda's telephone conversations occurred so frequently with co-counsel, such as Messrs. Lopez and De Leon, increases the potential for awarding excessive compensation. As we shall see when we review the time charges of Messrs. Lopez and De Leon, they are charging for these same telephone calls. If in fact the calls were unnecessary, and the court were to award the fees requested, the defendants would be charged triple time for unnecessary work.
There are some instances where the "block billing" is not a problem. In April 2002, there are charges of 7 hours or more for preparation and presentation of some of the plaintiffs for their discovery depositions. It is obvious what this work would be, so it was not necessary to break it down.
Some of the entries for 2003 and 2004 are satisfactory, especially where one item or a number of items that are clearly interrelated are listed, so that it is not essential to know the time spent on each. This is true, for instance, where Mr. Cerda prepares for the deposition of one of his clients, confers with the client about the deposition, and then attends the deposition with the client. The total time listed for these related events is subject to at least some kind of appraisal by the court for its reasonableness and, of equal importance, it gives the defendant's attorneys an opportunity to state why they believe the time is excessive, based upon their own knowledge of the deposition and the work they did in connection with it.
Similarly, entries consisting mostly of telephone calls, not specifically stating what was discussed, can still pass muster if the context indicates what the calls must have been about and the total length of time claimed does not seem excessive in light of what appears to have been their likely subject. One example is where the calls occur immediately before a hearing on an important contested motion. But where the undefined "legal research," document review, and telephone calls do not occur in a context that indicates their purpose, the court has no basis for an informed opinion as to whether the work was necessary. Moreover, the defendants are afforded no opportunity to question the need for any specific work or to challenge the amount of time claimed for it.
Another consequence of Mr. Cerda's failure to document the time spent on specific tasks is that it makes it impossible for the court or the defendants to know what time was spent on claims on which the plaintiffs did not prevail. Only 23 of the 78 plaintiffs received favorable jury verdicts, against just 6 of the 12 individual defendants. Partial success is the subject dealt with in Hensley. The Court quoted with approval the following language from Nadeau v. Helgemoe:
As for the future, we would not view with sympathy any claim that a district court abused its discretion in awarding unreasonably low attorney's fees in a suit in which plaintiffs were only partially successful if counsel's records do not provide a proper basis for determining how much time was spent on particular claims. 461 U.S. at 437 n.12 (quoting 581 F.2d 275, 279 (1st Cir. 1978), abrogated on other grounds by Richardson v. Miller, 279 F.3d 1 (1st Cir. 2002)).
Defendants point out the predominance of unsuccessful over successful claims and argue that "the limited success of Plaintiffs should result in a significant reduction of fees." (Defs.' Letter at 8-11.) Plaintiffs' response to this argument is that all of the claims were interrelated in that they involved a common core of facts and are based on related legal theories. The common core of facts is "about what happened at the Duran home." The legal theories of the prevailing plaintiffs are "related" to those of the plaintiffs who did not prevail, and the plaintiffs who did not prevail "were needed as eye witnesses to the event to support the claims of prevailing plaintiffs." (Pls.' Mot. for Fees at 37.)
We think the defendants have the better of the argument. Most of the plaintiffs who did not prevail on any claims were those who alleged that they were sprayed inside the house. The jury found in favor of Officers Peslak and DeCianni on those claims. They were the only defendants most of these plaintiffs sued. The determination of whether DeCianni and Peslak were guilty of spraying into the house required a finding by the jury that was quite separate from the findings they had to make concerning whether other plaintiffs were being beaten and sprayed in the yard by entirely different defendants. Granted, the plaintiffs inside the house were claiming that the spraying constituted excessive force and violation of various state laws, the same legal theories asserted by other plaintiffs who complained about events in the yard, but these "related" legal theories were based on completely different facts. As for the plaintiffs in the house being necessary witnesses to what took place in the yard, there were numerous other party guests who testified to what took place in the yard, and we have no specific recollection of any of the plaintiffs inside the house testifying to anything they saw occurring in the yard. Plaintiffs provide no examples. In any event, the testimony would have been cumulative.
Other than suggesting that time preparing certain unsuccessful plaintiffs for deposition and trial, defendants have not identified briefs or general tasks which should be cut from plaintiffs [sic] time, nor offered their comparable time as a guide to how much time should be cut.
Id. at 37. Plaintiffs' counsel do not appear to understand that the burden of proving what time should not be deducted rests upon them, not the defendants.
We have commented on Mr. Cerda's time entries for the years 2002 and 2003, observing that they are frequently insufficient to indicate what specific work he was doing, whether the work was necessary, how long it reasonably should have taken, and whether it related to unsuccessful claims. We will now undertake a similar analysis of the years 2004, 2005, 2006 and part of 2007.
The same pattern continues, year after year. Occasional entries, where a single task is listed, are adequate. For instance, on 8/13/2004, Mr. Cerda charged one-half hour for "Review the Town's Answer to Plaintiffs' Fourth Amended Complaint." (Ex. A at 68.) This appears to be a reasonable amount of time spent on something that obviously needed to be done. The entry illustrates the fact that the explanation need not be lengthy; usually just a few words will do. But the majority of Mr. Cerda's entries for these years are insufficient to enable the court or defense counsel to determine what was done, how long it should have taken and what it concerned. This is especially true of the multitude of entries that lump together collections of telephone calls without stating their subjects.
Further examples of adequate entries are some of those relating to Mr. Cerda's work on the interlocutory appeal in 2006, where he lists simply "Work on appeal." (See, e.g., Ex. A at 84, 4/24/06 & 5/02/06 entries.) The Town's objection to these entries is uniform: "Vague and non-descriptive as to the nature of the task, the subject matter or its necessity." (Ex. D at 113.) It appears that Mr. Cerda was the principal author of the plaintiffs' brief on certain defendants' appeal of the court's denial of qualified immunity. His time entries are general, but the subject matter of the work is clear enough, and, if the total time he claims to have spent on the appeal appeared to defendants to be excessive, they could have pointed that out. They have not done so.
On July 25, 2007, the court entered an order setting the case for trial on January 7, 2008 and closing discovery on October 31, 2007. At that point, plaintiffs' counsel had over five months to finish discovery and prepare for a complicated trial. Like the initial period up to the filing of the complaint, this five-month period right before trial is unlikely to have involved much wasted time (on either side). The court is therefore inclined to be much more tolerant of time entries for this period that are lacking in specificity. The Town continues to complain of block billing and vague entries that do continue to characterize many, if not most of the entries during this period, but we are disinclined to make any reductions for the entries from July 25, 2007 to January 7, 2008.
We have the same view of the time entries during the trial, which began on January 7, 2008 and ended on February 15, 2008. Mr. Cerda's time entries for the days on trial typically read "trial preparations; trial" and claim as much as 20 hours of time per day. Defendants continue their "block billing and vague entry" objections to these entries, but the lack of detail is not troublesome. We know what Mr. Cerda was doing because, in large part, we saw him doing it. That he worked long hours before and after the close of each trial day is no surprise; it is what a trial lawyer must to do to be successful, and we have no doubt that he did it. Again, if defendants believed that the total time claimed was excessive, say, in comparison to the amount of time spent by defendants' counsel, that could have been argued.
After trial, there was a busy period of post-trial motions, research and briefing of the motions, preparation of the plaintiffs' bill of costs, and consideration of an appeal. The court is familiar with most of the work referred to in Mr. Cerda's entries during this time in that we considered and ruled on the post-trial motions. Many of the telephone calls and exchanges of correspondence were with defense counsel. We are unable to say that the work was unnecessary or that the claimed time was excessive. Again, defense counsel, essentially working in parallel with plaintiffs' counsel, could attempt to show why the total time claimed for the post-trial period was excessive, but they have not done so.
The last date for which Mr. Cerda claims compensation in the present fee petition is July 2, 2008.
We will not make any reduction for the period of July 25, 2007 to July 2, 2008.
TIME CHARGES OF PLAINTIFFS' CO-COUNSEL
We now turn to a consideration of the time claimed by Mr. Cerda's original co-counsel--Messrs. Joseph Lopez and De Leon--and Messrs. Mark Parts and Alejandro Lopez, who joined later as additional counsel.
It will not be necessary for us to describe these attorneys' time entries with the same detail we used regarding Mr. Cerda's entries because an examination of Exhibit A (the chronological listing of all entries by all of plaintiffs' attorneys) shows that the entries follow the same pattern: block entries with no indication of the time devoted to the individual tasks; vague entries, such as "telephone conversations," with no description of the subject matter or duration; "review" of unspecified documents; and research and correspondence, the purpose of which is not stated. There are the same mitigating factors we found in regard to some of Mr. Cerda's entries, as where the context indicates what must have been the purpose and necessity of the work. With respect to Messrs. Joseph Lopez and Parts, who rendered necessary legal services and participated as trial counsel, we will apply the same leniency for the same designated time periods as we did for Mr. Cerda.
We take a different view of the work claimed by Mr. De Leon. He has billed 197.3 hours at a requested rate of $500 per hour, which comes to $98,650.00, considerably less than the totals requested by each of the other attorneys. Mr. De Leon's practice is primarily criminal defense, and his initial involvement with the Duran plaintiffs was as co-counsel along with Messrs. Cerda and Joseph Lopez in the defense of the criminal cases arising out of the occurrences at the baptismal party. In his affidavit submitted in support of his fee request, Mr. De Leon states: "I worked on preparing this case for trial and coordinated the witnesses with the attorneys on a daily basis. I observed many court proceedings and offered advice to the attorneys during the trial phase." (Pls.' Mot., Ex. K ¶ 6.)
The three attorneys who tried this case for the plaintiffs have all had extensive trial experience. Mr. Cerda and Mr. Parts have specialized for many years in the representation of plaintiffs in § 1983 cases and are familiar with the applicable law. (Pls.' Mot., Exs. I, M.) Mr. Joseph Lopez is primarily a criminal defense attorney with an extensive amount of jury trial experience, and he participated in the preparation and trial of this case. (Pls.' Mot., Ex. L.) Mr. De Leon's statement that he "offered advice to the attorneys during the trial phase," without any further description, does not persuade us that the advice was necessary, considering the backgrounds of the attorneys who tried the case. Similarly, the phrase "coordinat[ing] the witnesses" fails to inform us about the need for whatever it was Mr. De Leon was doing. It also fails to indicate the need for an attorney to do it. The same is true of his time entries for the pretrial and post-trial phases of the case. Their frequent vagueness, and failure to indicate how much time he was spending on particular tasks, leave us in doubt as to whether his participation in the case was truly necessary.
Mr. Alejandro A. Lopez is an attorney who had very limited involvement in this case. He entered this case in late fall 2007, apparently after we set the January 2008 trial date. Mr. Lopez states in his affidavit:
After obtaining my law license in 2003, I expanded my role with the firm [Jauregui & Associates] by trying cases before the Illinois Workers Compensation Commission, taking evidence depositions and preparing and presenting clients for their depositions and testimony at trial.
In the late fall of 2007, I began assisting Mr.
Cerda with trial preparation of plaintiffs and witnesses in Duran, et al., v. Town of Cicero, et al. I assisted trial counsel, with my bilingual speaking abilities, in the trial preparation of the plaintiffs in the cause of action, providing them with legal explanations and facilitating their understanding of the court proceedings. I completed my work in Duran at the end of the trial. (Pls.' Mot., Ex. P ¶¶ 7-8.) Mr. Alejandro Lopez's exact role in the case is difficult to determine, and the need for his services to supplement that of the other attorneys, Messrs. Cerda, De Leon, Parts and Joseph Lopez, has not been shown. Plaintiffs contend in their motion:
In this case, Mr. Lopez prepared witnesses for trial greatly reducing the work of more senior counsel. Mr. Cerda entrusted Mr. Lopez to prepare witnesses with little oversight because of Mr.
Lopez' understanding of the relevance and importance of the facts of the case as well as the rules of evidence. Mr. Lopez is bilingual which obviated the need for interpreters further reducing the costs of litigating the case. (Pls.' Mot. at 31-32.) It is impossible for this court to believe that the trial lawyers in this case did not meet and confer with their witnesses before putting them on the stand, but instead left it to an associate who had entered the case just a few months earlier and had not been privy to the work that had been done during the years the case had been pending. We have given Messrs. Cerda, Parts and Joseph Lopez full credit for the great number of hours each of them claim for out-of-court time during the trial because we assumed that they spent whatever portion of that time was necessary to confer with their witnesses for the next day. Alejandro Lopez is said to have been valued because he speaks Spanish, but so does Joseph Lopez.*fn7 Neither Mr. Cerda nor Mr. De Leon states whether they speak Spanish, but neither do they say that they do not speak Spanish.*fn8
Plaintiffs' claim as to Mr. Alejandro Lopez is for 173 hours at $250 per hour for a total of $43,250.00. (Pls.' Mot., Ex. A at 143.) Plaintiffs have not shown the necessity of the services claimed to have been performed by Mr. Alejandro Lopez in addition to those claimed by Messrs. Cerda, De Leon and Joseph Lopez. Therefore, no fees will be allowed for Mr. Alejandro Lopez.
PLAINTIFFS' RESPONSE TO DEFENDANTS' ARGUMENT REGARDING INSUFFICIENT DOCUMENTATION OF HOURS In their fee petition, the plaintiffs make two basic arguments in response to defendants' objections regarding vagueness and block billing. The first is that the various attorneys who have represented defendants over the life of this case have submitted the same kind of billing to their clients and have been paid. (Pls.' Mot. at 32-36.) Plaintiffs assert:
Defendants' contention that plaintiffs' bills are not sufficiently detailed and should be cut globally is offensive because of the double standard defendants seek to impose on plaintiffs and, further, because defendants' counsel billed twice as many attorney hours to the case. (Pls.' Mot. at 35.) Examples of the billing referred to by plaintiffs are included in Exhibit R to plaintiffs' motion, and some do show vague entries and block billing by the Town's attorneys. But the argument is irrelevant. Our task is not to determine whether bills submitted to the Town were adequately documented or whether the Town's attorneys billed too much time. We have enough to do to determine what fees were reasonably and necessarily earned on behalf of the plaintiffs and therefore assessable against defendants pursuant to § 1988. Plaintiffs have cited no case in support of their contention that the format of bills submitted to defendants should serve as a guide to what suffices under Hensley, and, of course, there is no such case.
Plaintiffs' other argument is that the Seventh Circuit has indicated in various cases that if "counsel submit bills with the level of detail that paying clients find satisfactory, a federal court should not require more." (Pls.' Mot. at 32-33 (quoting, inter alia, In re Synthroid Mktg. Litig., 264 F.3d 712, 722 (7th Cir. 2001)).) Therefore, according to plaintiffs, since "the level of detail in plaintiffs' bill is satisfactory to paying clients such as the Town of Cicero . . . this Court should not require more detail nor cut globally plaintiffs' billable hours for so called 'block billing'." (Pls.' Mot. at 33.)
We have no problem with the proposition that block billing, and even vague entries, can suffice under some circumstances. In this very opinion we have held this kind of documentation to be adequate when it related to work for reasonable periods on factual investigation, the interlocutory appeal, trial preparation for this complicated case, the trial itself, and post-trial motions. The nature of the work that was required during these periods of time was fairly obvious and defendants did not point out any time that appeared to be excessive.
Many "paying clients" would not require more documentation than we have for work whose purpose is obvious. And it is also true that there are clients who pay bills even when the purpose of the insufficiently documented work is not apparent and they have no way of assessing whether the work was necessary or that the time was reasonable. Various factors account for this fact. Many clients are simply unsophisticated about fees and do not know that they are entitled to a more informative breakdown than they receive from their attorneys. They may wonder about the bill, but having no knowledge of what they can do about it, they pay it. Another situation where the paying client will often accept a bill in the form submitted by plaintiffs' counsel in this case is where the lawyer and the client have a long-standing relationship, sometimes existing for decades. The client is satisfied with the lawyer's services, trusts the lawyer to do the right thing, and desires to maintain the relationship. That kind of client may be unwilling to risk a breach in the relationship by indicating a distrust of the bill.
But aside from the fact that for these and other reasons, many clients will often pay bills that would never survive a Hensley analysis, there is a growing trend among sophisticated clients, such as publically-held corporations, to demand billing that specifies exactly what was done and how much time was spent on each task:
[A]attorney-client relationships have changed. Clients, who thirty years ago were considered quite docile (paying thousands of dollars for bills lacking any detail other than as compensation "for services provided"), have shifted to demanding detailed accountings as a predicate to payment. Sophisticated clients now scrutinize legal bills to ferret out exorbitant charges and to prevent "padding" through charges for unnecessary work or exaggerated hourly totals.
Dennis Curtin & Judith Resnik, Teaching Billing: Metrics of Value in Law Firms and Law Schools, 54 Stan. L. Rev. 1409, 1412-13 (2002) (book review). See also Gerald F. Phillips, It's Not Hourly Billing, but How It's Abused That Causes the Poor Image of Attorneys, 18 No. 3 Prof. Law. 21 (2007). No appellate court has stated that Hensley is satisfied by a simple trial court finding that the billing in question is similar to billing that "is satisfactory to paying clients," even when the court is unable to tell whether the time billed was reasonably and necessarily expended. The Seventh Circuit's reference to bills "satisfactory" to paying clients in cases such as Synthroid, 264 F.3d at 722, must be given a reasonable interpretation, and certainly the Court has not meant that because a fee petitioner can always cite examples of clients who pay bills with block billing and vague entries that render impossible any determination of what was done, the trial court should automatically approve that kind of billing when deciding the petition.*fn9
If it is not already clear, we wish to emphasize that, with the exceptions we have noted, plaintiffs' vague entries and block billing make it impossible for us to fulfill our obligation to determine what was done, whether it was reasonably necessary, and whether a reasonable amount of time was spent on it. Other courts have expressed the same kind of frustration, disallowing time that is not adequately documented. For instance, in Tomazzoli v. Sheedy, 804 F.2d 93 (7th Cir. 1986), the Court affirmed the trial court's reduction of § 1988 fees. The Court stated that many of the time entries contained only vague descriptions of the legal research that had been performed and "[f]urther, the total number of hours attributable to research alone is uncertain; in some instances [counsel] lists 'research' along with other tasks performed and gives but a single total for the combined work." Id. at 98. Other Courts of Appeals have ruled the same way. See, e.g., Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1234 (10th Cir. 2000) (to satisfy their burden in applying for attorney's fees in federal civil rights actions, "attorneys must keep and produce meticulous time records which reveal all hours for which compensation is requested and how those hours were allotted to specific tasks") (internal quotation marks and ellipsis omitted);
Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004) (commenting that when time records "lump together multiple tasks," it is "impossible to evaluate their reasonableness").
In Delgado v. Village of Rosemont, No. 03 C 7050, 2006 WL 3147695 (N.D. Ill. Oct. 31, 2006), another § 1983 excessive force claim brought by Messrs. Cerda and De Leon, Judge Leinenweber reduced their requested fees for inadequate documentation:
Specifically, Defendants complain about "block-billing" and vagueness as to particular tasks' nature, subject matter, or necessity. The time entries Plaintiffs have submitted provide little detail and repeatedly block-bill. While Plaintiffs argue that their billing is satisfactory, this court has had no end of trouble attempting to deny Plaintiffs' requested attorneys' fees for clerical tasks due to the attorneys' and paralegals' penchant for block-billing. This Court was unable to ascertain what hours to attribute to the malicious prosecution claim and had to adopt the figure provided by Plaintiffs in their brief. Additionally, the repeated failure of the attorneys and paralegals to indicate what telephone calls and research concerned, even in the most general of terms, has made it impossible for this Court to evaluate whether these fees were reasonably necessary as already noted. As such, this Court is prepared to make a proportionate reduction of the fees for insufficient description.
Id. at *7. State courts have dealt with this problem in a similar fashion. See, e.g., Kaiser v. MEPC Am. Props., Inc., 518 N.E.2d 424, 430 (Ill. App. Ct. 1987) (affirming reduction of $28,228.60 request to $13,729.00) ("[I]t is impossible to determine exactly what amount of time was expended on each task listed because in most instances, the time for all work performed by an attorney on a given day was aggregated into a single hourly total for that day. Consequently, there is no completely objective manner by which to determine the reasonableness of the charges.").
We reject the plaintiffs' attempt to justify their vague entries and block billing. We will take these deficiencies into consideration when determining what fees we can allow.
Defendants have one additional complaint about the plaintiffs' billing. They object to what they consider secretarial or clerical tasks that were billed at attorneys' rates. Defendants cite Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999), for the proposition that such work is "easily delegable to non-professional assistance." (Defs.' Letter at 4-5.)
The plaintiffs disagree that the items defendants consider secretarial or clerical are being accurately characterized. And they reiterate their argument that the defendants' attorneys billed at attorneys' rates for the same kind of work. (Pls.' Mot. at 40-43.) What the defendants' attorneys did is irrelevant. But whether the work in question was clerical is, in some instances, debatable. The amount of time involved is small in relation to the total fees claimed. Defendants contend that plaintiffs' counsel seek fees for the following amounts of clerical work: 2.3 hours for Mr. Lopez; 1.4 hours for Mr. De Leon; and 4 hours for Mr. Parts. As for Mr. Cerda, defendants find 12.8 hours of "ascertainable" clerical tasks, and in addition, 76 different block-billed entries as to which the amount of clerical time involved cannot be ascertained. (Defs.' Letter at 4.)
Because our reductions will be based on a percentage of the total fees claimed, any reduction for clerical work would be so minuscule as to be indiscernible. Accordingly, we do not find it worth the time it would require to examine and analyze each of the alleged clerical entries.
Because of plaintiffs' counsel's deficient documentation--vague entries, block billing and failure to identify time spent on unsuccessful claims*fn10 --we must reduce the amount of time for which plaintiffs would be entitled to compensation had their time records been kept in the manner required by Hensley. Because the time records make it impossible to ascertain what specific amounts of time should be excluded as unnecessary, excessive or devoted to unsuccessful claims, we will reduce the requested fees by what we determine to be a reasonable percentage. See Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000) ("[W]hen a fee petition is vague or inadequately documented, a district court may either strike the problematic entries or (in recognition of the impracticalities of requiring courts to do an item-by-item accounting) reduce the proposed fee by a reasonable percentage.").
A reasonable percentage obviously must be an estimate--our best approximation of the percentage of the total time claimed that is not adequately documented as to its necessity or reasonableness (and not billed during the time periods for which we have held vague entries and block billing to be excusable). We have given the time records the necessary "close look," as directed by Dutchak v. Central States, Southeast and Southwest Areas Pension Fund, 932 F.2d 591, 597 (7th Cir. 1991). In fact, given the nature of the records, we are unaware of what more we could be expected to do.
Defendants argue for a 75 percent overall reduction. That would be excessive. Our best estimate is 30 percent, and that is the percentage we will apply to each of Messrs. Cerda, Lopez and Parts. Because Mr. De Leon has not made a persuasive case that his services were actually needed, and we have considerable doubt about it, we will reduce his hours ...