Ninth Circuit Orders Judge to Reconsider Fee Cut ‘Lawyers Must Eat,’ Chief Judge Kozinski Says in Civil Rights Case

Tuesday, July 29, 2008

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Ninth Circuit Orders Judge to Reconsider Fee Cut

‘Lawyers Must Eat,’ Chief Judge Kozinski Says in Civil Rights Case

By KENNETH OFGANG, Staff Writer

A 40 percent reduction in a civil rights lawyer’s fee request must be reconsidered because the trial judge failed to give a detailed explanation for the “Draconian” cut, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“Lawyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid,” Chief Judge Alex Kozinski wrote for the court. This is particularly true in civil rights cases, he explained, because few plaintiffs make up the difference between their lawyer’s billings and the amount awarded by the court, so “as a practical matter, what the district court awards is what the lawyer gets.”

The panel reversed a decision by U.S. District Judge David Levi of the Eastern District of California, who has since resigned to become dean of the law school at Duke University, to award a Sacramento firm $428,000 instead of the $704,000 it requested.

Nagely, Meredith & Miller requested the fees under 42 U.S.C. Sec. 1988—the Civil Rights Attorney’s Fees Awards Act of 1976—after representing Mario R. Moreno in an action against the City of Sacramento and other defendants. After lengthy pre-trial hearings and a previous appeal, lead counsel Andrea Miller and other employees of the firm won a jury award of more than $700,000 in compensatory and punitive damages.

Miller’s fee request included compensation for nearly 2,000 hours of her own time at $300 per hour. Levi, however, said he had consistently limited top fees in civil rights cases to $250 per hour, and found many of the hours claimed by Miller to be unnecessary; he reduced the claimed hours for research by more than a quarter and the hours for investigation by half.

He also cut Miller’s hourly compensation for summarizing depositions to a paralegal rate of $75 per hour.

Kozinski, however, said the district judge failed to adequately explain the reasons for reducing the request. While a cursory explanation will suffice if the reduction is no more than “a haircut” of 10 percent or so, a reduction as drastic as the one in this case requires more, he said.

“The explanation need not be elaborate, but it must be comprehensible,” the chief judge wrote.

Levi’s order failed that test, Kozinski said, because there was no explanation as to what activities the district judge thought were unnecessary, or why. Litigation success often requires that attorneys put in a lot of hours, he explained, and even that they duplicate research activities in order to become current, particularly in a case such as Moreno’s where there were two lengthy trial continuances and an appeal.

The chief judge also criticized Levi’s blanket cap on hourly rates, which the district judge acknowledged had been in place for about 10 years.

“District judges can certainly consider the fees awarded by other judges in the same locality in similar cases,” Kozinski wrote. “But adopting a court-wide policy—even an informal one—of ‘holding the line’ on fees at a certain level goes well beyond the discretion of the district court.”

Fee awards, the chief judge elaborated, must reflect economic realities, which is difficult to do if they do not increase over time and are not based on the fees charged by other lawyers in the district.

Judge Michael Daly Hawkins and visiting Senior Judge Robert E. Cowen of the Third Circuit concurred in the opinion.

The case is Moreno v. City of Sacramento, 06-15021.