See Second Decl. of Exelrod, paragraphs 28-35. Although Mr. Exelrod confesses to not being able to remember the identity of two of the persons mentioned in the time sheets (J. Hewitt and J. Provine, accounting for a total of 2.5 hours), we recommend against exclusion of these hours because it seems unlikely that they would be billed to the wrong case and because a sufficient adjustment already has been made for possible errors of this magnitude through plaintiff's across-the-board 5% billing reduction.
5. Travel time.
Defendants challenge 43.50 hours of travel time, almost all of which was for attending depositions. We agree with Judge Patel that travel time is compensable as part of attorneys' fees,
especially where, as here, counsel for the most part is requesting compensation only for half of the time he in fact spent on the road. See Exelrod decl. #2 at paras. 36-37.
6. Attorney conferencing.
Incomprehensibly, defendants challenge the relatively few hours requested by Mr. Exelrod (6.5 hours) and Ms. Dutton (6 hours) for conferring with one another about the case over a six-month period in 1987. Given the fact that Ms. Dutton was a relatively inexperienced lawyer who would have needed guidance and supervision, and the fact that she committed during this period some 378 hours to this case, we do not think it unreasonable to compensate counsel for the very modest amount of time they are claiming for conferencing.
7. Focus groups.
Defendants challenge 70.3 hours spent by Mr. Exelrod doing two mock jury exercises, plus $ 6,556.90 in fees sought for 23.8 hours of work (at a rate of $ 290 per hour
) contributed by Jack Knebel on these same exercises.
Time devoted to exercises such as these generally is deemed compensable so long as the number of hours is reasonable. United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990). However, we question the need in this case to conduct two of these exercises. Mr. Exelrod states that the first one (in July, 1990) was directed at the issue of liability, while the second one (in June of 1991) was directed at the issue of damages. Exelrod decl. #2 at para. 44. We cannot say that conducting the second of these exercises was unreasonable, given how central the issue of damages was to this case. We are much less confident, however, about the initial exercise. On August 2, 1989, the Ninth Circuit affirmed Judge Henderson's October 14, 1987 ruling that the law was clearly established in 1982 that plaintiff was entitled to notice and a hearing before being suspended and before any suspension should have been discussed with the press. This ruling virtually assured that plaintiff victory on the liability aspect of the case, at least with respect to the due process claim.
Predictably, on April 24, 1991, plaintiff prevailed on his motion for summary judgment on this issue. Because (as noted in the next section) Mr. Exelrod and Ms. Dutton did much of the work on this summary judgment motion in 1987, Mr. Exelrod should have understood by the time of the first mock jury exercise that focusing on the issue of liability likely would have been of limited cost-effectiveness.
We thus simply cannot find that doing both jury exercises was reasonable.
It is not clear from the time sheets which hours Mr. Exelrod spent exclusively on the first of the two exercises. It appears, however, (see page 11 to ex. 3 to the Dodd decl.) that Mr. Exelrod spent only about 20 hours on the second jury exercise after spending about 50 hours on the first. We think it fair to assume that the two exercises were not wholly separate and that much of the work setting up the first was necessary to successful completion of the second. We recommend that Mr. Exelrod be compensated for 15 of the hours he devoted to the first exercise and the 20 hours he committed to the second, for a total of 35 hours (we thus recommend that the time claimed for the mock trials be reduced by 35.30 hours).
As for Mr. Knebel, his timesheet indicates that he spent 2 hours reviewing the file (7/11/90), 12.10 hours on the first mock trial (7/12 through 7/14/90), and 9.8 hours on the second mock trial (2/21 through 6/15/91). See ex. 10 to the Rosen decl. #1. We award Mr. Knebel the 11.8 hours spent reviewing the file and participating in the second mock trial but not the 12.10 hours he spent participating in the first mock trial.
8. Other hours spent by Exelrod and Dutton.
Defendants challenge numerous other hours requested by Mr. Exelrod and Ms. Dutton, most of which are so minimal we question why defendants are wasting our time with them. In any event, plaintiff has adequately accounted for the.9 hour speaking to reporters on the grounds that the reporters were potential witnesses. Exelrod decl. #2, paras. 39-40. The.10 of an hour on 2/2/87 devoted to replying to a motion for reconsideration is de minimis and covered by the 5% billing adjustment. We find that plaintiff has adequately accounted for the.4 hour of research on polygraphs and the 2 hours of research on attorneys' fees on appeal. See Exelrod decl. at paras. 42-43. Finally, as to the major item, the numerous hours spent in 1987 by Mr. Exelrod and Ms. Dutton on a supposedly unfiled motion for summary judgment, we accept Mr. Exelrod's explanation that this work contributed significantly to the summary judgment motion plaintiff actually filed in 1991. Exelrod decl. at paras. 41, 48.
9. Further billing judgment.
Defendants argue that, in addition to the many reductions based on their challenges to discrete items billed, the court should impose a further across-the-board billing judgment reduction of 15-20% (rather than the 5% made by plaintiff). Why the court should do this is unclear. As a great deal of the work in this case was performed single-handedly by an experienced and skilled attorney, we decline to adopt an assumption that the case was handled inefficiently. Our resolve in this matter is bolstered by the fact that plaintiff himself did a substantial amount of the basic legal work on this matter; no claim is being made for that presumptively valuable time. Finally, we suspect that if the hours requested by plaintiff's counsel really were excessive, defendants would have offered up the time sheets of their counsel by way of proof by comparison.
10. Fees for Morrison & Foerster.
Defendant challenges $ 5,000 in fees sought for work performed by attorneys from Morrison & Foerster from November, 1982 through January 1983, before plaintiff's complaint was filed. Defendants claim that these fees were incurred in connection with local administrative proceedings and hence are not recoverable under section 1988. See Webb v. Dyer County Board of Educ., 471 U.S. 234, 241-43, 85 L. Ed. 2d 233, 105 S. Ct. 1923 (1985). Plaintiff counters that Morrison & Foerster's "billing sheets clearly reflect that the work was ordinary start-up time." Reply at 9:8-11. See also billing sheets attached as ex. 10 to Rosen decl. #1. Plaintiff also notes that, while the Morrison firm's billings add up to $ 8,862.50, plaintiff has exercised billing judgment by only seeking $ 5,000.
In Webb, the Supreme Court held that, since a plaintiff need not exhaust administrative remedies before pursuing a lawsuit under section 1983, generally attorneys' fees incurred in pursuing relief administratively are not recoverable under section 1988. Id. The court did state, however, that plaintiff could recover any portion of such fees attributed to "work that was both useful and of a type ordinarily necessary to advance the civil rights litigation." Id.
It is impossible to tell what percentage of the work by the Morrison firm is compensable under the Webb standard. The billing sheets provide absolutely no indication of the number of hours performed by each attorney on given tasks. Rather, they merely list, by date, each of the tasks the attorneys performed. And many of the individual items obviously relate to representing plaintiff in administrative proceedings and appeals.
Under Webb, such items clearly are not compensable without an explicit showing that they in fact advanced the litigation effort. No such showing has been made. Many of the items listed in the billing sheets relate to research for drafting the complaint and research and writing memos regarding possible federal court litigation. We would find such items compensable if it were clear that the work done was not wasted after the Morrison firm stopped representing plaintiff. However, plaintiff has submitted no evidence showing what connection obtained, if any, between the Morrison work and what later was done in state and federal court on plaintiff's behalf. Absent such a showing, it is not fair to charge defendants for such work. Thus we recommend that the fees award by the district court not include the billing submitted on behalf of the Morrison & Foerster firm.
11. Word Processing Fees.
Defendants challenge $ 333 requested by Mr. Rosen's firm for 7.4 hours of word processing (at $ 45 per hour) by one of its employees, Paul Jarocki. Whether work of this kind is compensable under § 1988 (at market rates or on the basis of costs incurred by counsel) depends on prevailing practices in the relevant market. Faced with a similar question vis a vis paralegals and law clerks, the Supreme Court has held that "if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at 'cost.'" Missouri v. Jenkins, 491 U.S. 274, 287, 105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989).
Plaintiff has submitted uncontradicted evidence sufficient to support a finding that it has become the prevailing practice in firms in the San Francisco area to bill clients separately for word processing support work in the manner reflected in the Rosen firm's billings. See Sturdevant decl. (filed 1/16/92) at para. 12; Rosen decl. #1 at para. 35; and Baum decl. (Reply appendix ex. 6) (filed 1/16/92) at para. 15 (stating that it has become common practice to bill separately for such services as word processing); see also the orders plaintiff has cited by Magistrate Judge Brennan, Judge Karlton, and Judge Ingram that have separately awarded fees at market rates for word processing services (the issue under consideration here was not squarely discussed in any of these orders, but in each of them compensation of the kind sought by the Rosen firm was ordered). Because we have no evidentiary basis for rejecting the inference supported by the materials submitted by plaintiff on this issue, we recommend that the bill for the 7.4 hours of word processing be included in the compensation ordered by the district court.
C. Enhancement For Contingency.
Plaintiff seeks an enhancement of the lodestar amount by a factor of 1.9 to account for the contingent nature of the case. In City of Burlington v. Dague, 92 Daily Journal D.A.R. 8664, 8666 (1992), the Supreme Court held that "enhancement for contingency is not permitted" under the fee-shifting statutes at issue in that case (section 7002(e) of the Solid Waste Disposal Act and section 505(d) of the Federal Water Pollution Control Act). We find the court's reasoning in that case equally applicable to section 1988 and thus recommend against awarding plaintiff an enhancement of his attorneys' fees for contingency.
We thus allow plaintiff's counsel the following rates and hours:
ATTORNEY/PARALEGAL/WP HOURS RATE TOTAL
Alan B. Exelrod 2170.22 $ 250 $ 542,555.00
Karen Dutton 378.25 110 41,607.50
Jonathan Gray 76.00 65 4,940.00
Jack Knebel 11.80 290 3,422.00
Sanford Jay Rosen 9.20 330 3,036.00
Andrea G. Asaro 48.50 235 11,397.50
Katherine Sher 6.20 110 682.00
Stephen Liacouras 2.50 100 250.00
Stephen J. Wirt 1.20 90 108.00
Brian Bringardner 1.20 85 102.00
Paul Jarocki 7.40 45 333.00
Morrison &. . . . Foerster 0.00 0 0.00
Total $ 608,433.00
less 5% billing judgment $ 578,011.35
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