In Craig v Christ, 1999 WL 1059704, at *3 (S.D.Ind. September 10, 1999) (assessing attorney's fees and costs under 42 U.S.C. § 1988), the court explained that "the billing summaries of records made at or near the time recorded are, in general, appropriate for purposes of a fee petition...[,] [m]oreover, the Supreme Court has instructed attorneys to use `billing judgment' in submitting fee petitions... so some editing of the original, raw records is expected."Summary of this case from Contract Materials Processing v. Kataleuna GmbH Catalysts
Cause No. IP96-1570-C-H/G
September 9, 1999.
James E Bourne Wyatt Tarrant Combs Orbison P O Box 649 New Albany, IN 47151-0649
Nathaniel Lee Lee Burns Cossell 151 Delaware Street Suite 2025 Indianapolis, IN 46204
Joseph C Lewis Jr Attorney at Law P O Box 53737 Indianapolis, IN 46253
Michael K Sutherlin Sutherlin Betz 1300 First Indiana Plaza 135 North Pennsylvania Street Indianapolis, IN 46204
John F Kautzman Ruckelshaus Roland Hasbrook O'Connor 107 N Pennsylvania St. #900 Indianapolis, IN 46204
Mary Ann Oldham Harrison Moberly 2100 First Indiana Plaza 135 N Pennsylvania St. Indianapolis, IN 46204
Caren L Pollack Huffer Weathers Pc 151 North Delaware Street Suite 1510 Indianapolis, IN 46204-2522
Thomas Satrom Office of Corporation Counsel 200 East Washington Street Suite 1601 Indianapolis, IN 46204
Thomas E Wheeler II Bose McKinney Evans 2700 First Indiana Plaza 135 North Pennsylvania Street Indianapolis, IN 46204
ENTRY ON PLAINTIFF'S PETITION FOR AWARD OF ATTORNEYS' FEES AND COSTS
The parties to this civil rights action have settled plaintiff Richard Craig's claims against all defendants. The City of Indianapolis agreed to pay Craig $30,000 in return for a release of all claims against all defendants. The parties also agreed that if they were unable to reach agreement on attorneys' fees and costs under 42 U.S.C. § 1988, "the matter will be submitted to the Court and the Court will make a decision about the reasonable costs and fees in accordance with the guidelines applicable to an award of fees and costs to a prevailing party under 42 U.S.C. § 1988." Pl. Pet., Ex. 2. The parties were unable to agree on fees and costs. They have submitted their positions through briefs, affidavits, and other documents. No party has asked for an evidentiary hearing, and the matter is ripe for decision.
Plaintiff Craig and his attorneys have petitioned for a total of $12,453.15 in costs and $251,899.70 in fees. The requested fee amount is based on 336.1 hours by Michael K. Sutherlin at $300 per hour; 374.6 hours by Kristopher Kazmierczak at $150 per hour; 324.67 hours by Joe Lewis at $250 per hour; 58.64 hours by Sutherlin's law clerks at $55 per hour; and 51 hours by Lewis' assistant, Donna Borgerding, at $50 per hour, plus a supplemental fee request of $7937.00 for additional work on the fee petition itself. The City has raised numerous objections, including challenges to the hourly rates sought and to specific hours charged to the case. After reviewing the parties' submissions, the court agrees with some of the City's objections and disagrees with others. As explained below, the court awards a total of $13,845.95 in costs and $168,990.20 in fees. This Entry reflects the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a) and 54(d)(2)(C).
The disputes over the fee petition are the latest chapter in a highly publicized debacle involving Indianapolis police officers. On August 27, 1996, a group of Indianapolis police officers attended a baseball game at Victory Field in downtown Indianapolis. The officers used the Mayor's Suite at Victory Field. Police Chief Donald Christ hosted the party to reward the officers for good work. The parties continue to dispute the precise amount of beer that individual officers and the group as a whole consumed during the party. Before and after the baseball game, some of the officers also visited two local bars on South Meridian Street. Later that evening, a group of officers began walking north on Meridian Street.
There is evidence, albeit disputed, that some of the officers in the group were making loud and vulgar remarks, many with offensive sexual and/or racial content. The officers were not in uniform at the time.
As the officers walked north on Meridian Street, a confrontation occurred. According to plaintiff Richard Craig, the officers were attacking a friend of his, Jeffrey Gordon. Craig says he went to Gordon's aid and a fight ensued. The outnumbered Craig and Gordon contend the officers beat them up. Several officers contend they suffered injuries in the brawl.
The officers managed to subdue both Craig and Gordon, and then arrested them. Uniformed officers were called to the scene and investigated the fracas. The event, which occurred in a busy part of downtown Indianapolis, was witnessed by scores, perhaps hundreds, of onlookers.
The event received extensive publicity under shorthand titles like "Downtown Police Brawl." The Indianapolis Police Department conducted an internal investigation that resulted in disciplinary action for a number of officers. The Marion County Prosecutor convened a grand jury. Police Chief Donald Christ resigned. On October 18, 1996, the grand jury indicted four police officers who are also defendants in this action: Paul Tutsie for battery, perjury, criminal mischief, and disorderly conduct; Jason Hansman for pointing a firearm, disorderly conduct, and battery; Edward Brickley for disorderly conduct, battery, and public intoxication; and Gregory Gehring for disorderly conduct and battery. The grand jury investigated plaintiff Craig and heard his testimony, but did not indict him. All criminal charges against Craig arising from the incident were eventually dismissed.
On November 4, 1996, plaintiff Craig filed this action in federal court. The detailed complaint asserted nine different causes of action against 17 individuals and the City of Indianapolis. This civil case remained relatively dormant while the indicted officers defended themselves on the criminal charges. After scores of witnesses testified during a trial lasting several weeks, the jury in the criminal case deadlocked on all charges. The state and the defendants then worked out agreed resolutions to the criminal charges.
This civil case then proceeded toward a trial scheduled for January 1999. Several developments along the way should be noted. Defendants Edward Brickley and Randall Cook asserted counterclaims against plaintiff Craig for assault and battery. Craig agreed to dismiss individual capacity claims against former Chief Christ and officers Jon Daggy and Stephen Randall after being satisfied that these defendants had not actually been at the scene of the melee. Craig also dropped his "policy and custom" claim against the City after the City agreed to indemnify the officers for compensatory damages, costs, and fees, and after the City conceded that the officers acted under color of state law and within the scope of their employment.
The City remained a defendant on the state law claims. Also, Jeffrey Gordon and two other persons filed a lawsuit in state court on August 21, 1998, asserting similar federal and state claims arising from the brawl. The defendants removed that action to federal court on August 26, 1998, where it was consolidated with this case for pretrial proceedings and trial.
In early November 1998 as the trial approached, some defendants made an offer of judgment to Craig under Fed.R.Civ.P. 68. Craig did not accept the offer, which was less favorable to him than the settlement ultimately reached. The fees and costs at issue now therefore include those incurred after Craig rejected the November 1998 offer. Cf. Marek v. Chesny, 473 U.S. 1 (1985) (in cases subject to fee-shifting statutes, post-offer costs affected by Rule 68 offer include attorneys' fees). After further settlement negotiations, Craig reached a tentative settlement agreement with the defendants. In its final form, the settlement provided a payment of $30,000 to Craig in exchange for a release of his claims. The settlement left the issue of attorneys' fees and costs for further negotiation or court decision. The settlement also did not resolve the counterclaims against Craig.
The governing statute here is 42 U.S.C. § 1988, which provides that the court may award a reasonable attorney's fee and costs to a prevailing party in a civil rights case like this one. The City has carefully avoided saying that plaintiff Craig is a "prevailing party" for purposes of § 1988, see Pl. Pet. Ex. 2, but the City has objected that the hours plaintiff's lawyers spent on the portion of the fee petition arguing the issue were unnecessary. Def. Resp. at 10 ("Plaintiff is entitled to fees pursuant to 42 U.S.C. § 1988 because defendants agreed to pay them as part of the settlement in this case."). The court therefore treats plaintiff Craig as a prevailing party for purposes of the fee petition.
In determining fees for a prevailing party under 42 U.S.C. § 1988, the starting point is the "lodestar" amount, which is the product of the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate for the lawyer. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The plaintiff's request for a total fee of $251,899.70 treats that amount as the lodestar amount. The City challenges plaintiff's lodestar amount on several grounds, arguing that: (1) plaintiff has failed to provide sufficient documentation of the time billed; (2) plaintiff's lawyers seek compensation at excessive hourly rates; and (3) numerous hours charged by the attorneys were unreasonable, duplicative, excessive, or otherwise improper for a fee award. The court considers these issues in turn.
I. Documentation of the Fee Request
A party submitting a fee petition is responsible for submitting evidence showing the attorney time spent on the litigation and a reasonable rate for each attorney. See Hensley, 461 U.S. at 433, 437 n. 12. Plaintiff's attorneys have submitted detailed records of their time with diary entries describing how they spent their time on this case each day, often with more than one entry per day.
The City asserts that these records are not "contemporaneous" but are instead summaries. It is not clear what the City seeks. Perhaps the City wants to require attorneys to submit their original scribbled notes, dictation tapes, or computer records of the original keystrokes for the time entries. That approach bears no resemblance to attorneys' actual billing practices with paying clients. The billing summaries of records made at or near the time recorded are, in general, appropriate for purposes of a fee petition under § 1988. Cf. Dutchak v. Central States, Southeast and Southwest Areas Pension Fund, 932 F.2d 591, 597 (7th Cir. 1991) (affirming fee award based on reconstructed records, with discount applied for likely inflation of time). Moreover, the Supreme Court has instructed attorneys to use "billing judgment" in submitting fee petitions, see Hensley, 461 U.S. at 434, so some editing of the original, raw records is expected.
There are, however, some significant problems with some of the records. In his reply memorandum, attorney Joseph Lewis concedes that his records repeat and double-count several pages of his time for a period of about three months. See Co-Counsel's Reply Mem. at 7, discussing pages 8-19 of Lewis' time records.
This is a stunning mistake, admitted only after the City spotted the problem, and attributed vaguely to an "interim period between co-counsel's permanent and temporary secretaries." The mistake was not only Lewis' mistake. The other attorneys who filed the fee petition also should have caught it. In fact, anyone who was awake when reviewing the document should have recognized the problem. This was the most egregious of several problems that have unnecessarily complicated and prolonged the court's task of sorting out the disputed issues.
The numerous errors in the records are addressed more specifically below. In general, however, the types of records plaintiff has submitted are sufficient to support the hours claimed. Whether all the hours claimed are compensable is another matter.
II. Hourly Rates
Plaintiff seeks a fee award based on hourly rates of $300 for Michael Sutherlin, $150 for Kristopher Kazmierczak, and $250 for Joseph Lewis. The City contends these rates are excessive and not supported by plaintiff's evidence.
For purposes of calculating the lodestar amount, the law presumes that the market rate for a prevailing party's legal services is the rate the party's attorney actually charges and receives for his or her services. Gusman v. Unisys Corp., 986 F.2d 1146, 1149-50 (7th Cir. 1993); Barrow v. Falck, 977 F.2d 1100, 1105 (7th Cir. 1992); accord, People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996) ("The attorney's actual billing rate for comparable work is `presumptively appropriate' to use as the market rate."). The Supreme Court and Seventh Circuit have made it clear that a fee award under § 1988 cannot include a multiplier based on the contingent nature of the fee. City of Burlington v. Dague, 505 U.S. 557, 567 (1992); accord, Barrow v. Falck, 11 F.3d 729, 731-32 (7th Cir. 1993); Barrow v. Falck, 977 F.2d at 1105. Plaintiff's requested hourly rates do not include any multiplier.
A wide range of evidence may be relevant in determining a market rate for an attorney's services. Evidence concerning the attorney's experience, expertise, and prior fee awards may all be relevant. The best evidence of a market rate, however, is an actual exchange of money between a willing buyer and a willing seller. Thus, the best evidence of an attorney's market rate for these purposes is evidence showing the rate the attorney actually charges and receives for his or her services on a non-contingent basis. E.g., Gusman, 986 F.2d at 1149-51; Barrow, 977 F.2d at 1105. The Seventh Circuit has warned district courts that "Markets know market values better than judges do,"and that "it is not the function of judges in fee litigation to determine the equivalent of the medieval just price." In re Continental Illinois Securities Litigation, 962 F.2d 566, 568, 570 (7th Cir. 1992); see also Barrow v. Falck, 977 F.2d at 1105. Courts should not try to identify "a `just' or `fair' price for legal services" but "the market price for legal services." Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir. 1992).
A. Michael Sutherlin
Mr. Sutherlin has practiced law since 1974 and has concentrated his practice primarily on civil rights and constitutional litigation. His affidavit in this case identifies numerous cases in which he has served successfully as lead counsel to vindicate the civil rights of victims of official wrongdoing. He contributes frequently to continuing legal education programs on civil rights and constitutional issues.
Most relevant is the evidence that Sutherlin charges and is paid $300 per hour for non-contingent work. Sutherlin testified in his affidavit that in 1995, he began charging $250 to $300 per hour in such matters. Sutherlin testified that in the past two years, he has been paid more than $100,000 at the $300 hourly rate.
The City has not challenged the market-based method for determining Sutherlin's rate. The City correctly points out, however, that the bills Sutherlin has submitted using the $300 rate also reflect unexplained downward adjustments of the bills. See Sutherlin Aff., Ex. A at 10-13. Where the nominal billing rate is discounted for actual bills and payments, the effective market rate is lower. The court will calculate the lodestar amount at the rate of $275 per hour for Sutherlin.
This court previously awarded fees to Sutherlin based on a rate of $275 per hour in Fletcher v. Calvert, IP 95-1011-C. The court's entry in that case addressed the market rate issue in more detail. As shown in Sutherlin's affidavit, he has been awarded rates of $275 and $250 per hour in other recent cases in this district. Rates awarded in similar cases are relevant evidence of an attorney's market rate. Tolentino v. Friedman, 46 F.3d 645, 652 (7th Cir. 1995).
B. Kristopher Kazmierczak
Mr. Kazmierczak graduated from law school in 1996 and was admitted to practice on November 4, 1996, the same day this action was filed. (He worked as a law clerk with Sutherlin prior to that date, and the petition seeks compensation for his hours as a law clerk at a rate of $55 per hour.) During the course of this litigation, Kazmierczak has also acted as counsel in a number of other civil rights cases, as reflected in his affidavit. Kazmierczak testified in his affidavit that he bills and receives payment for his services at the rate of $150 per hour, and he has documented that testimony with invoices and checks.
The City's entire response on this point is as follows:
Mr. Kazmierczak was admitted to the bar in November of 1996 (Kazmierczak Affidavit, paragraph 2) and immediately began work on this case. Whatever experience he may have had in the interim, there is no authority for the proposition that the market rate for a brand new admittee to the bar is $150 per hour.
Def. Resp. at 4.
The Seventh Circuit's warnings to district judges apply directly here. Even if a judge might view the rate as a little on the high side based on the judge's own experience and views, "Markets know market values better than judges do." In re Continental Illinois Securities Litigation, 962 F.2d at 570. Although the City itself might not be willing to pay Kazmierczak or other new lawyers $150 per hour to represent it, the evidence here shows that other clients have been willing to pay and have paid Kazmierczak at that rate. See also Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718-19 (5th Cir. 1974) ("If a young attorney demonstrates the skill and ability, he should not be penalized for only recently being admitted to the bar.").
To the extent the City is arguing that Kazmierczak's market rate has increased during the course of this lawsuit, it should be noted that he has submitted records of invoices and payments using the $150 rate as early as June 1997. Counsel in cases like this are entitled to compensation for the delay in payment of fees earned. One way to calculate that compensation is to set a rate of interest and work out the appropriate interest for each segment of work. A simpler way, which is often reasonably accurate, is to pay the attorney his or her current hourly rate for work done throughout the case. E.g., Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989); Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir. 1994). In light of the evidence that Kazmierczak has been able to bill and collect $150 per hour for non-contingent work during most of the relevant period here, the court will apply that rate to all of his time in this case after his admission to the bar.
C. Joseph Lewis
Mr. Lewis graduated from law school in 1976 and was admitted to the Indiana bar in 1977. He has practiced law in Indiana since then and describes his practice as focused primarily on criminal litigation, contract litigation, commercial litigation, and cases involving constitutional issues. Lewis Aff. ¶ 3.
Lewis seeks payment at $250 per hour. He has testified in his affidavit that he has "personally been paid $250 an hour for representing clients in various capacities," and he has supported that assertion with affidavits from three clients saying that they have paid Lewis at rates up to $250 per hour "on occasions," or "depending upon the complexity of the issues."
The City points out that Lewis does not claim that he has any experience or expertise in civil rights litigation of this type or that anyone has paid him $250 per hour to litigate cases like this one. The City also argues that $250 per hour would be appropriate only for lead counsel, which Lewis was not. Lewis has not responded directly to that challenge, but he asserts that he has sufficient experience and skill to justify the $250 rate. See Co-Counsel Reply Mem. at 14-15.
Fees under § 1988 should be awarded at market rates for "comparable work." See, e.g., People Who Care, 90 F.3d at 1310. An attorney whose market rate is $300 per hour for defending civil antitrust cases is not necessarily entitled to the same rate if and when she ventures to represent a plaintiff in an employment discrimination case or an excessive force case. See Cooper v. Casey, 97 F.3d 914, 920 (7th Cir. 1996). After an attorney has submitted evidence about his or her standard billing rate, however, pressing for elaborate detail and perfect knowledge about an attorney's market rate carries its own costs.
As the Seventh Circuit said in People Who Care: "Compiling years of invoices and billing statements is not inexpensive and a rule forcing attorneys to do so would add little to the integrity of the fee-collecting process." 90 F.3d at 1312.
In light of these principles, the court will apply a rate of $200 per hour for Lewis' time. The ambiguity in his and his clients' affidavits — showing that he charges and receives $250 per hour for some unspecified work, but not for all the work for those clients — undermines his claim to $250 as his market rate for this case. In the absence of more specific data, and as a means of avoiding further expensive litigation over the fee award, the court is discounting Lewis' rate from his premium or highest rate of $250 down to $200 for purposes of this case.
The City's other challenges to Lewis' rate are addressed more directly with respect to the hours claimed.
D. Donna Borgerding, Ron Hofer, and Sutherlin's Law Clerks
The fee petition also includes requests for 51 hours by Donna Borgerding at a rate of $50 per hour and $1,392.80 for the services of a private investigator, Ron Hofer, at a rate of $40 per hour. The City argues that these rates are not supported and that no information is provided about Borgerding's credentials or position. The City does not dispute the rate of $55 per hour for the time billed by Sutherlin's law clerks.
Borgerding's time records reflect tasks of a type suitable for a paralegal, if not a junior attorney, and cannot fairly be described as clerical or secretarial. She interviewed witnesses and reviewed the voluminous grand jury records in this case. The requested rate of $50 per hour is modest for a paralegal in the Indianapolis market. The court will allow the requested rate without insisting on further proof for the modest amount in dispute. See generally People Who Care, 90 F.3d at 1315 (remanding fee award based on, among other things, unjustifiably reduced paralegal rates: "The only inquiry for requested paralegal fees should be whether the work was sufficiently complex to justify the efforts of a paralegal, as opposed to an employee at the next rung lower on the payscale ladder.").
Lewis hired Hofer to interview witnesses in the fall of 1996, shortly after the brawl. Records submitted with Lewis' reply memorandum show that Lewis (or perhaps Craig or his family) actually paid Hofer at least some of the amounts billed. The requested rate is modest, as is the total amount in dispute — less than $1400. By using an investigator Lewis saved money as compared to doing the interviews himself. He also avoided the potential problems that can arise when a trial lawyer wants to impeach a witness based on the lawyer's own prior interview of the witness. The court will use the invoiced rate of $40 per hour for Hofer's time, but the court will treat the expense for Hofer's time as a cost rather than as part of the attorneys' fee award.
III. Compensable Hours
Plaintiff's original fee petition seeks compensation for 336.1 hours for Sutherlin, 374.6 hours for Kazmierczak, 324.67 hours for Lewis, 58.64 hours for law clerks employed by Sutherlin (including Kazmierczak before his bar admission), and 51.0 hours for Borgerding. Plaintiff's supplemental fee petition seeks compensation for an additional 17.4 hours for Sutherlin, 16.5 hours for Kazmierczak, and 4.4 hours for law clerks.
The total of 58.64 hours for law clerks does not mean that they billed their time in intervals of 36 3 seconds each. Instead, in the exercise of appropriate billing judgment, Sutherlin discounted the law clerks' recorded hours by 20 percent for purposes of the fee petition.
The City argues that many of these hours are not properly compensable. The City contends that some of the time is for activities not compensable at all under § 1988, and that other hours reflect unnecessary duplication by multiple attorneys or excessive time in relationship to the task performed. Before addressing the specific challenges, some discussion of the guiding principles may be useful.
In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269 (1975), the Supreme Court held that in the absence of explicit statutory authority to award fees to a prevailing party, courts could not award fees to "private attorneys general" as an exercise of their general equitable power. Congress amended § 1988 in 1976 in quick response to the Supreme Court's decision in Alyeska Pipeline. Congress explained that § 1983 and other civil rights laws
depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.
In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.
* * *
There are very few provisions in our Federal laws which are self-executing. Enforcement of the laws depends on governmental action and, in some cases, on private action through the courts. If the cost of private enforcement actions becomes too great, there will be no private enforcement. If our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases.
Sen. Rep. No. 94-1011, at 2, 6 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910, 5913.
The premise of § 1988 is that, without the prospect of a fee award for a successful plaintiff, important and meritorious cases will not be brought. In many cases, the private market for attorneys' services based on hourly fees or a share of a damage recovery simply does not offer lawyers a sufficient incentive for them to take on such cases except on a charitable basis.
Under § 1988, attorneys are entitled to compensation for all time reasonably expended on the litigation, without trying to parse whether they succeeded on every task or every contested motion. "That the lawyers spent some time in blind alleys is irrelevant; this is inevitable, and the hourly rate reflects the fact that not all time is equally productive. It would be possible, but silly, to bill $150 for productive time and nothing for other time; the standard hourly rate reflects the standard productivity of time." Kurowski v. Krajewski, 848 F.2d 767, 776 (7th Cir. 1988) (obviously discussing rates from the mid-1980s). As Judge Easterbrook has explained when sitting by designation as a district judge: "Counsel may track down leads that do not pan out, however; this is an essential function of lawyers. Blind alleys are an ordinary part of litigation, as are standby witnesses. The retrospective view is the wrong one. These hours are ordinary inputs into winning cases and are fully compensable." Bohen v. City of East Chicago, 666 F. Supp. 154, 158 (N.D.Ind. 1987).
At the same time, the prevailing plaintiff's attorneys must use "billing judgment," meaning they should edit their bills and should remove charges for time they would not reasonably or fairly expect a private client to pay. See Hensley, 461 U.S. at 434.
To show the need for close scrutiny of the challenged time entries, the City refers to the time entries concerning the appearance of James Bourne. See Def. Resp. at 6 n. 1. Mr. Bourne was hired by the homeowner's insurance carrier for Jeffrey Gordon, Craig's friend who was a plaintiff in the consolidated case. The insurer hired Bourne to defend only the counterclaims asserted by two defendants against Gordon.
This issue presents a microcosm of some of the problems here. The City points out that Sutherlin has three separate time entries for "reviewing J. Bourne appearances" on October 28, October 30, and November 6, 1998. Sutherlin's repetitive entries include the Bourne appearance in lists of activities or documents reviewed for relatively short times of 0.3, 0.4, and 1.0 hours. Lewis billed 0.2 hours on November 1, 1998, for "Reviewed appearance of J. Bourne," and another 0.2 hours for "Reviewed appearance by J. Bourne of Wyatt, Tarrant and Combs." Moreover, those two entries are each repeated one time in the duplicative pages of Lewis' records. Kazmierczak reviewed Bourne's appearance as part of an entry of 0.3 hours for October 29, 1998. Although it is impossible to say exactly how much time Sutherlin and Kazmierczak were billing for reviewing that one document, the City correctly points out that in the fee petition, "three attorneys recorded eight separate time entries for reviewing a three-line appearance by counsel retained to defend counterclaims asserted against someone other than their client." At the hourly rates sought by the attorneys, the entries amount to roughly $300 for the "task" of reviewing Bourne's appearance.
The court turns to the specific but more important challenges.
A. Media and Press Inquiries
Sutherlin and Lewis both request fees for time spent on press releases, press conferences, and other media communications, such as interviews with the Associated Press and the New York Times. The court disallows that time under § 1988. See Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994) (affirming denial of fees for time spent on public relations efforts; the "legitimate goals of litigation are almost always attained in the courtroom, not in the media"); Greater Los Angeles Council on Deafness v. Community Television of Southern California, 813 F.2d 217, 221 (9th Cir. 1987) (affirming denial of fees for time spent on publicity and lobbying). But see Davis v. City and County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992) (allowing time spent on press conferences, lobbying, and other public relations work that is "directly and intimately related" to successful representation of the client), vacated in part on other grounds and remanded, 984 F.2d 345 (9th Cir. 1993); Jenkins v. Missouri, 862 F.2d 677, 678-79 (8th Cir. 1988) (allowing time spent by counsel on tax levy election, as alternative to court-ordered tax increase, to finance mandated desegregation relief), aff'd on other grounds, 491 U.S. 274 (1989).
Plaintiff argues that his attorneys used the media as an effective discovery tool for locating witnesses, and that the media attention to the case required them to spend time on media relations to avoid harm to their case. See Pl. Reply at 3; Sutherlin Supp. Aff. ¶¶ 17-20. Plaintiff has not, however, identified a single witness who turned up in response to general press reports concerning this lawsuit. Defendants are not responsible for paying for a plaintiff's public relations campaign, regardless of its purpose. The court disallows 3.5 hours for Sutherlin and 5.5 hours for Lewis.
B. Defending Counterclaims
Defendants Cook and Brickley filed counterclaims under state law against Craig. The City argues that time spent defending the counterclaims is not compensable under § 1988. Plaintiff responds that the counterclaims were an integral part of the entire case. The parties have not provided any directly applicable authority on this issue. Section 1988 does not appear to authorize fee awards for the defense of state law counterclaims, at least when those counterclaims remain pending and plaintiff cannot be said to have been a prevailing party with respect to them. Applying the general principles set forth in Merriweather v. Family Dollar Stores of Indiana, Inc., 103 F.3d 576, 583-84 (7th Cir. 1996), and Lenard v. Argento, 808 F.2d 1242, 1246-47 (7th Cir. 1987), among many other cases, the court will disallow time attributable only to the counterclaims. Because of the very close relationship between Craig's claims and the counterclaims, this amounts to only a modest amount of time. On this basis the court disallows 0.6 hours for Kazmierczak, 3.5 hours for Sutherlin, and 2.2 hours for Lewis.
C. Dismissal of Defendants Daggy and Randall
The City next challenges the attorneys' time spent resolving Craig's claims against defendants Daggy and Randall, which Craig dismissed voluntarily in April 1997. The City argues that plaintiff never had a good faith basis for suing Daggy and Randall, so that counsel are not entitled to fees for time spent satisfying themselves that Daggy and Randall were not present for the Meridian Street brawl. Plaintiff contends the time was reasonably spent in pursuing the claims initially and then in dismissing them.
The City, Daggy, and Randall did not seek sanctions pursuant to Rule 11 based on plaintiff's decision to name Daggy and Randall in the complaint. In addition, plaintiff named them in his complaint while ongoing criminal proceedings complicated access to all the factual details. In light of the difficulty in sorting out individual officers' roles, especially in the early stages of the case, the court does not believe it was unreasonable for Craig to have named Daggy and Randall at the outset or to dismiss the claims against them a few months later. See City of Riverside v. Rivera, 477 U.S. 561, 570 (1986) (plurality opinion) (affirming fee award that included time spent on unsuccessful claims against some police officers where plaintiffs' rights were violated by a large number of officers unidentified at the time; district court found it was reasonable for plaintiffs to name 31 individual defendants at outset of case); id. at 584-85 n. 2 (Powell, J., concurring in judgment); see also Bohen v. City of East Chicago, 666 F. Supp. at 158 ("Blind alleys are an ordinary part of litigation. . . . The retrospective view is the wrong one."). The time spent resolving those claims will be allowed as part of the fees payable by the City.
D. Seeking Mayor Goldsmith's Deposition
During the summer of 1998, plaintiff made a significant effort to take a deposition of Indianapolis Mayor Stephen Goldsmith. The City resisted the effort. The court ultimately granted the motion to quash the deposition notice and subpoena, but without prejudice to reconsideration if other avenues of discovery (such as depositions of former Chief Christ and other senior police officials) proved to be inadequate. The issue did not come up again.
The City argues first that no time for this unsuccessful effort should be compensable. The court disagrees. Craig's attorneys had reasonable grounds for pursuing the mayor's deposition. The separate complaints by defendants Robertson and Vogt (in a separate lawsuit) alleged they were victims of a political damage control effort during Mayor Goldsmith's 1996 campaign for governor. Although the court ultimately concluded that such post-brawl events would not be part of the trial in this case, reasonable judges could disagree on that question. The effort to take the mayor's deposition was in essence another reasonable blind alley. See, e.g., People Who Care, 90 F.3d at 1314 (reversing district court's exclusion of attorneys' time on unsuccessful attempt to pursue interlocutory appeal; "court's focus should not be limited to the success/failure of each of the attorney's actions," but on "whether those actions were reasonable"); Kurowski v. Krajewski, 848 F.2d at 776 ("blind alleys" are part of successful litigation); Bohen, 666 F. Supp. at 158 (same).
The City also contends that Craig's attorneys spent an excessive amount of time on the issue, more than 24 hours among Sutherlin, Kazmierczak, and Lewis, and another 20.6 hours by Sutherlin's law clerks. The City filed a detailed, well-researched memorandum in support of its motion to quash. The City has not set forth how much time and money it spent to prevent the mayor's deposition, but the investment appears to have been considerable (unless the legal research had been done earlier for some other purpose). Plaintiff was entitled to make a similarly detailed response in the effort to take the mayor's deposition. The court will allow the time spent on this matter, but not the 0.5 hours identified as a duplicative entry for Kazmierczak.
The court addresses below, however, the City's broader challenge to Lewis' time after Sutherlin 4 and Kazmierczak entered the case.
E. Prevailing Party Issue
The City next challenges 6.5 hours spent on the original fee petition directed to the issue of whether Craig is a prevailing party for purposes of § 1988. The City argues that the time was unnecessary because the City had agreed to treat Craig as a prevailing party. The City's position at the time of settlement, however, was worded very carefully:
Please be advised that the defendants have not agreed, and do not agree, that Richard Craig is a "prevailing party." We have specifically denied liability and will continue to do so. We have agreed that, in the event that the parties cannot come to an agreement on attorneys' fees, the matter will be submitted to the Court and the Court will make a decision about the reasonable costs and fees in accordance with the guidelines applicable to an award of fees and costs to a prevailing party under 42 U.S.C. § 1988. Please file an amended notice with the Court which does not contain any reference to the parties agreeing that Mr. Craig is a "prevailing party."
Pl. Pet., Ex. 2. In light of this careful locution, plaintiff could reasonably anticipate that the City might try to challenge the fee petition on the prevailing party issue. Although the City chose not to do so, plaintiff could not know that ahead of time. The challenged time will be allowed.
F. Research on Policy/Custom Claim and Other Legal Research
The City challenges 7.5 hours for Sutherlin researching the law on policy and custom claims against local governments and joinder issues. The City also seeks a broader general reduction of time because plaintiff eventually dismissed the policy/custom claim against the City. The City also argues in essence that, if Sutherlin had to do "basic research" on the law, he should not be entitled to $300 (or $275) per hour, and if he is entitled to that high a rate, he could not reasonably charge for the research. Both arguments are misguided.
First, plaintiff's voluntary dismissal of the policy/custom claim does not negate the claim for time spent on it. The policy/custom claim was not even a blind alley. Plaintiff obtained two vital concessions before dismissing the federal claim against the City. First, the City assured plaintiff that it would indemnify the individual defendants for any compensatory damages, attorneys' fees, and costs that might be awarded.
Second, the City and other defendants admitted that the individual defendants were acting under color of state law and within the scope of their employment at all relevant times.
The practical importance of those concessions should not be underestimated. The promise of indemnification meant that plaintiff did not need to worry about whether he could collect a judgment on his federal claims. See Jones v. City of Chicago, 856 F.2d 985, 995 (7th Cir. 1988); David F. Hamilton, The Importance and Overuse of Policy and Custom Claims: A View from One Trench, 48 DePaul L. Rev. 723, 730-34 (1999) (discussing indemnification of individual defendants as affecting need for policy/custom claims against local governments under § 1983). The concession on the color of state law and scope of employment issues resolved potentially confusing issues for a jury. Under the circumstances of this case — off-duty officers in civilian clothing — plaintiff could not simply assume that he would prevail on these questions. Without the concession, plaintiff might have needed to spend even more time on discovery and legal research.
The objection to "basic research" by an expert in the field is superficially appealing but not persuasive in a legal world where Rule 11 has vitality and legal doctrines in civil rights cases are constantly evolving. As the Seventh Circuit pointed out in In re Continental Illinois Securities Litigation: "No matter how experienced a lawyer is, he has to conduct (or have conducted for him) research to deal with changes in the law, to address new issues, and to refresh his recollection." 962 F.2d at 570. The court continued: "a lawyer who tries to respond to a motion or brief without conducting fresh research is courting sanctions or a malpractice suit." Id.; see also, e.g., Norgaard v. Depuy Orthopaedics, Inc., 121 F.3d 1074, 1075-76 (7th Cir. 1997) (where controlling Seventh Circuit precedent gave the defense a winning argument, plaintiff's counsel was negligent in failing to research law of other circuits; such research would have shown that Supreme Court had granted certiorari to resolve circuit split and would have alerted plaintiff's counsel to the later Supreme Court decision that would likely have led the Seventh Circuit to overrule its precedent).
Defendants have no valid complaint here. Plaintiffs and plaintiffs' attorneys in civil rights cases are more often attacked for failing to undertake sufficient legal research than for spending too much time on the task. This was not a routine excessive force or unlawful arrest case. These lawyers did a thorough job handling a host of legal issues (which are reflected in the case management plan, the defendants' many affirmative defenses, and the motions practice). The time spent on legal research was spent reasonably in this case. Accordingly, the time for research on the policy/custom claim will be allowed.
The City also challenges 13.0 hours for Lewis from August 28 to October 28, 1996, researching issues of qualified immunity and related threshold issues. Lewis spent this time before Sutherlin and Kazmierczak spent significant time on the case. The court will allow this reasonable amount of time on preliminary research at the rate of $200 per hour.
G. Defense of Criminal Case
The City challenges at least 30 hours that Lewis spent on the criminal charges against and investigation of plaintiff Craig. Plaintiff has not offered any authority for including this time in a fee award. In a case like this one, where the plaintiff claims that as a result of the alleged violations of his constitutional rights, he was investigated and prosecuted without justification, his attorneys' fees incurred in the criminal proceedings may be a proper part of his claim for compensatory damages for the violations, but not part of a fee award in the civil case itself under § 1988. See Borunda v. Richmond, 885 F.2d 1384, 1389-90 (9th Cir. 1988) (treating attorneys' fees in criminal case as element of damages in civil case alleging arrest without probable cause, rather than as part of a fee award); Whitley v. Seibel, 676 F.2d 245, 252 (7th Cir. 1982) (treating attorneys' fees in criminal proceedings as element of damages in civil rights case for prosecution and imprisonment without probable cause); accord, Greer v. Holt, 718 F.2d 206, 207-08 (6th Cir. 1983) (§ 1988 does not provide for fee award for attorney's work in criminal case underlying § 1983 suit alleging assault by police officer).
Thus, because fees for defense of an unjustified prosecution would essentially be part of the plaintiff's damages, not part of a fee award in this case, the court disallows Lewis' time on the criminal case. How much time to disallow? The City was not specific in its challenge, so it essentially deferred to the court's efforts to answer the question. Lewis billed a total of 12.9 hours on August 27, 1996, the day of the brawl and Craig's arrest. Those time entries — researching assault and battery, and defenses to resisting arrest, fleeing, and assault and battery; and appearing in court to obtain Craig's release — are all directed toward the criminal charges and will be disallowed. After that first day, Lewis and his client understandably began to focus on the possibility of civil claims against the officers and the City, and Lewis' time after the first day included some efforts relevant to both proceedings. The court will exclude only those entries that appear to be devoted exclusively to the criminal case, including conferences with the prosecutor's office and related grand jury matters. The specific entries excluded are 3.1 hours on Sept. 12, 1996; 6.4 hours on Sept. 18, 1996; 1.1 hours for Sept. 25, 1996; 2.5 hours for Sept. 29, 1996; 1.6 hours for Sept. 30, 1996; 0.4 hours for Oct. 10, 1996; and 0.2 hours for Oct. 15, 1996, for a total exclusion on this basis of 28.2 hours for Lewis.
H. Time After Tentative Settlement
The City next argues that plaintiff's attorneys spent unreasonable amounts of time after Craig and the defendants reached a tentative settlement. That agreement was reached in a telephone call on November 16, 1998. Sutherlin sent a confirming letter the next day, and on November 25, 1998, counsel for the City responded to further correspondence by explaining the City's position on the "prevailing party" issue. On November 24, 1998, however, counsel for individual defendants made an effort to derail or at least to modify the settlement. See Sutherlin Supp. Aff. ¶¶ 3-4; Sutherlin Aff. Ex. B at 24 (entry for Nov. 24, 1998). Not until December 21, 1998, were settlement documents prepared for and signed by Craig. Even then, issues remained concerning the status of counterclaims against Craig.
In view of the dissension among the defendants concerning the agreement, Craig's attorneys reasonably treated the settlement as tentative and took steps to stay apprised of continuing developments in the consolidated Gordon case. Craig's attorneys had to balance on a tightrope, avoiding on one side a continued, full-speed effort to prepare for trial, and on the other side being blind-sided by a late collapse of the settlement. The court will not disallow or discount the time after the tentative settlement. (The court has already disallowed some of the time, however, because it related only to the counterclaims against Craig.)
The court would not have been receptive to a late, unilateral motion to continue the long-scheduled 5 consolidated trial based on an assertion that counsel had relaxed because they thought the case had been settled.
I. Time for Billing Arrangements and Coordination of Attorneys
The City next challenges time for the first two meetings between Sutherlin and Lewis concerning the case, as well as telephone conferences between Sutherlin and Lewis on January 13, 1997, and March 19, 1997. The court will allow the time for the initial meetings. Such initial consultations are reasonable where primary responsibility is handed off from an attorney who has a long-standing relationship with the client to an expert in the particular field. The court will disallow 1.5 hours for Sutherlin and 1.9 hours for Lewis on the telephone calls.
J. Review of Appearances and Other Routine Documents
The City points out next that plaintiff's attorneys repeatedly billed 0.2 or 0.3 hours for reviewing attorneys' appearances and other routine documents, such as unopposed motions for extensions of time and orders granting the same. Each entry is small, but they certainly added up. One problem for the court is that neither side has bothered to add up these disputed entries.
The court has also noted that plaintiff's petition seeks a total of $300 for reviewing the petition of James Bourne. As another example of this problem, the City points to the entries concerning Caren Pollack's appearances. Lewis billed 0.8 hours on January 12, 1998, for reviewing Pollack's appearance. Lewis had previously billed 0.2 hours on each of three other occasions reviewing Pollack's earlier appearances. Sutherlin and Kazmierczak also billed 0.2 hours each for reviewing Pollack's appearance on January 12, 1998. In another example, Lewis billed 0.2 hours on three different dates for reviewing James Stephenson's motion to withdraw his appearance.
Plaintiff's lawyers defend this billing practice, saying that they must read and evaluate all documents, that they may need to review other documents to verify who represents whom, and that an appearance may trigger other communications, such as contact with their client.
The plaintiff's defense of this practice has some merit in theory. In view of the numerous and duplicative entries in this case, however, any inclination the court might have had to indulge this practice has been stretched too far. In the absence of more specific calculations, the court estimates that 20 hours should be disallowed for Sutherlin and 20 hours for Kazmierczak on this basis. See Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) ("it is generally unrealistic to expect a trial court to evaluate and rule on every entry in an application;" affirming lump-sum reduction to hours claimed where district court explained basis for doing so); Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776 F.2d 646, 656-57 (7th Cir. 1985) (same for 15% reduction in antitrust case where district court found that many entries were "vague, inconsistent, and lacking adequate identification"); see also In re Continental Illinois Securities Litigation, 962 F.2d at 570 (recognizing that in deciding fee petitions where large sums are not in dispute, "laser precision" may not be worthwhile); cf. Spellan v. Board of Educ. for Dist. 111, 59 F.3d 642, 647 (7th Cir. 1995) (district court may not simply "eyeball" fee request and "cut it down by an arbitrary percentage because it seemed excessive to the court"), quoting Tomazzoli v. Sheedy, 804 F.2d at 94. The court addresses Lewis' time in a broader context in the next section below.
K. Lewis Role After Initial Stage of Case
The City raises a broader challenge to the time charged by Lewis. Plaintiff Craig originally went to Lewis for advice concerning the criminal charges and possible civil claims. Lewis' records show that he quickly undertook an investigation of both the relevant facts and the applicable law from August 28, 1996, to late October 1996, when he and Craig decided to have Sutherlin and his colleagues enter the case.
The City estimates that Lewis billed roughly 234 hours to the case after this case was actually filed on November 4, 1996, and that 157 of those hours are for nothing but reviewing documents. Def. Mem. at 14. The vast majority of the remaining time is billed to strategy conferences with Sutherlin and telephone calls with Craig's mother.
The time records make it clear that Sutherlin and Kazmierczak were pulling the laboring oars in the case after they entered the case. Lewis essentially stepped into the background and acted as a liaison between Sutherlin and Craig and his family.
Using the City's uncontested estimate of 234 hours after November 4, 1996, and applying the rate of $200 per hour, that amounts to a claim for about $46,800 for Lewis' liaison activities. That simply is not a reasonable expenditure of time, and it is not fair to charge defendants for it. Lewis points out that defendants employed several law firms and devoted what seemed, at least to plaintiff and his counsel, to be unlimited resources to the defense of this case. The time and manpower spent by the defendants are relevant to the overall fee determination here. They do not show, however, that Lewis made a contribution to the case sufficient to support such a large award of fees for his time. One looks in vain through Lewis' time records for any indication that he took a deposition, argued a motion, or researched or drafted a brief, or even a letter. He rarely had any direct contact with opposing counsel.
The court appreciates that Lewis continued to contribute to the case in his communications between plaintiff Craig and his family and lead attorney Sutherlin. Frankly, the court might be more sympathetic to arguments about the need for Lewis' efforts if his billing records submitted with the fee petition were not so wildly inaccurate, duplicative, and inflated. The court has already mentioned some examples, such as the complete duplication of several months worth of time, and the extraordinary amount of time billed for reviewing appearances, motions to withdraw appearances, motions for enlargements of time, and orders granting such routine motions. Others include:
These four entries concerning the mayor's deposition issue total 7.7 hours. Multiplied by Lewis' 6 court-approved rate of $200 per hour, that would amount to a charge of $1,540, all relating to the issue of the mayor's deposition without any indication that Lewis actually contributed anything other than his physical presence to the unsuccessful effort to take the deposition.
This list of unreasonable examples could go on at considerable length. The problems are so numerous and the admitted errors are so great that these records do not provide a reasonable and reliable basis for determining a reasonable fee for Lewis for the period after November 4, 1996. See, e.g., Tomazzoli, 804 F.2d at 96 (district court may exclude hours it believes are based on inaccurate or misleading records). Nevertheless, it is clear that Lewis put in some hours, and the court finds it probable that Lewis made some contribution toward plaintiff's cause after November 4, 1996. As a rough approximation of a reasonable fee, the court will allow a total of 40 hours for Lewis after November 4, 1996. See id. at 97-98 (affirming lump-sum reduction to hours claimed where district court explained basis for doing so); see also In re Continental Illinois Securities Litigation, 962 F.2d at 570 (recognizing that where large sums are not in dispute, "laser precision" may not be worthwhile). The evidence before the court does not allow for a more precise estimate, and the 40-hour figure resolves reasonable doubts against Lewis, whose records and lack of billing judgment contributed to the problem.
That is not to say that Sutherlin and Kazmierczak do not share some responsibility, at least for the 7 submission of such obviously duplicative, unreliable, and inflated records as part of the joint fee petition.
L. Lewis Time Before November 4, 1996
The City also challenges some of Lewis' entries in the early stages of the case. Some of these entries have already been addressed, such as the exclusion of time for work on Craig's criminal case. The court will also disallow 1.2 hours on October 24, 1996, for a duplicative entry on meetings with IPD's internal affairs investigation, and 7.1 hours on October 30, 1996, for duplicative entries on drafting the complaint.
M. Drafting the Complaint
After disallowing Lewis' double entry for drafting the complaint on October 30, 1996, there are still about 43 hours billed by Sutherlin, Lewis, and Kazmierczak (then employed as a law clerk) for drafting the complaint. Plaintiff points out that the complaint was 22 pages long, asserted nine causes of action against 18 defendants, and never needed to be amended. The complaint was complex and well-drafted, but 43 hours is too long to be reasonable. The court will allow the 10.2 hours for the law clerk's drafting but will disallow 8.0 hours for Sutherlin and an additional 8.0 hours for Lewis. That still leaves more than 27 hours, a generous allowance of time to draft and proofread the complaint.
N. Review of Grand Jury Testimony
The City argues that too many attorneys spent too much time reviewing grand jury testimony. The court disagrees. The plaintiff's attorneys' use of grand jury testimony reflects a tremendous savings of time and money over the alternative of having plaintiff's attorneys or investigators try to replicate through interviews and/or depositions the investigative work done by the grand jury. The attorneys spent a lot of hours reading and analyzing that testimony, but that testimony provided the heart of the case. All the time will be allowed.
O. Multiple Attendance at Hearings and Meetings
Sutherlin, Kazmierczak, and Lewis all attended and charged for some of the same hearings, pretrial conferences, and depositions. The court has already addressed this problem by reducing Lewis' allowable hours. In a case of this complexity, with a much larger number of defense counsel, a second and occasionally third attorney could reasonably contribute observations and insights for the benefit of the lead lawyer. Kazmierczak was so deeply involved in the substance of the case that his attendance at such events was reasonable. The court will make no further reduction on this basis.
P. Entries Challenged as Not Specific
The City challenges numerous entries for "conferences," "interviews," "meetings," and so forth as not specific enough to be compensable. In fact, the actual time entries themselves are more specific than the City argues. Especially when read in context, with an eye on the calendar and the docket, the records provide a sufficient indication of the subject matter. The record-keeping requirements under § 1988 are not intended to become oppressive burdens. "Plaintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures." Hensley, 461 U.S. at 437. In addition, experienced counsel know that they cannot guarantee the confidentiality of billing records and prepare their time entries in light of the risk that the records might be disclosed to opponents at a time when a detailed entry would provide tactical intelligence. The court will not disallow time on this basis.
* * *
This total consists of 61.6 allowable hours from August 27, 1996, through November 4, 1996, 8 and an estimated 40 hours after that date. The 61.6 hours are the result of the court's calculations after disallowing the various categories and specific time entries discussed in this opinion.
The Supreme Court has instructed that the "product of reasonable hours times a reasonable rate does not end the inquiry." Hensley, 461 U.S. at 434. The lodestar amount may be adjusted upward or downward, and the results obtained in the lawsuit may be an important consideration, often the primary one. Id. The City proposes a large but unspecified reduction in the lodestar amount because it views plaintiff's Craig's success as "limited." The City notes that the fees sought exceed by several times the amount of damages paid to Craig. The City also points out that Craig once offered to settle the case for a total of $750,000 (including fees and costs), and he agreed to settle for much less.
The court finds that the lodestar amount should not be reduced on the theory that Craig achieved only "limited" success. At the most basic level, the City of Indianapolis agreed to put $30,000 in his pocket for having been beaten up by police officers. The settlement agreement most certainly effected a "material alteration of the legal relationship of the parties." See Farrar v. Hobby, 506 U.S. 103, 111 (1992), quoting Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 792-93 (1989). Receipt of $30,000, especially in the absence of permanent injury or expensive medical bills, cannot be treated as anything other than substantial relief.
In evaluating the extent of a plaintiff's success, the Seventh Circuit has looked to the factors identified by Justice O'Connor in her concurring opinion in Farrar. See Connolly v. National School Bus Services, Inc., 177 F.3d 593, 597 (7th Cir. 1999). Justice O'Connor argued that district courts should consider several factors in evaluating the extent of a plaintiff's success: the difference between the amount recovered and the damages sought, the significance of the issue(s) on which the plaintiff prevailed, and the public purpose of the lawsuit. See 506 U.S. at 121-22. Adapting those factors for a case that has been settled, those factors weigh against a reduction of the lodestar here.
First, Craig recovered a substantial amount of money, especially in light of the facts that his physical injuries were temporary and did not require expensive medical treatment. Also, Craig has had other troubles with the law that were likely to prevent his lawyers from presenting him as a wholly sympathetic victim. Although Craig early in the case said he would settle the case for $750,000, including attorneys' fees, that high a number should be seen, and was seen in this case, as merely an invitation to the defendants to go first, to see if they were prepared to put a serious settlement offer on the table at that point. They were not, and the case proceeded toward trial. For purposes of deciding a fee award, the court does not attribute any greater significance to Craig's initial settlement demand than it does to the defendants' failure to make a significant offer earlier in the case.
With respect to the importance of the issues on which Craig prevailed, in the context of a settlement, the principal point is that the settlement cannot be tossed aside as a nuisance-level settlement. Cf. Fletcher v. Fort Wayne, 162 F.3d 975, 978 (7th Cir. 1998) (affirming denial of fees where plaintiff who had demanded $150,000 then accepted a Rule 68 offer of judgment for $5000, and another plaintiff who had demanded $30,000 accepted a Rule 68 offer of judgment for $2500). By settling the defendants did not admit liability, but their substantial settlement offer is sufficient to show that Craig had a reasonable prospect of prevailing on the merits of his core claims for excessive force and the closely-related state law torts.
With respect to the public purpose of the lawsuit, there was an important public purpose for this lawsuit. The events in question here received extensive publicity. Even when viewing the evidence in the light reasonably most favorable to the defendants, the story is not a savory one. The evidence favorable to plaintiff shows that the event consisted of a large group of intoxicated police officers showering fellow citizens with sexual and racial insults on a public street, and then ganging up to beat up civilians who objected and stood up for themselves or others. The criminal trial against four of the officers ended inconclusively. A private plaintiff's effort to expose this sort of controversial event to scrutiny in a court, where one hopes that hearsay and public relations spin will have muted effects, serves an important public purpose.
Because this case settled, no jury made a finding of liability as to any of the defendants. By making a substantial settlement offer two months before trial, the City and the other defendants avoided a trial. Their offer did not, however, diminish the importance or legitimacy of the public purpose of the lawsuit. See Hyde v. Small, 123 F.3d 583, 585 (7th Cir. 1997) ("the cumulative effect of petty violations of the Constitution arising out of the interactions between the police (and other public officers) and the citizenry on the values protected by the Constitution may not be petty;" vacating and remanding denial of fee award where plaintiff won verdict of $500 for unreasonable arrest). Plaintiff Craig has alleged and produced evidence of much more than "petty" violations of his constitutional rights, in any event. In sum, as this court views the factors articulated by Justice O'Connor in Farrar, the extent of plaintiff's success does not warrant any reduction in the lodestar amount.
With respect to the City's argument based on the ratio between the settlement for Craig and his attorneys' fee request, the Supreme Court has squarely rejected the suggestion that fee awards are subject to a rule of proportionality. The controlling case is City of Riverside v. Rivera, 477 U.S. 561 (1986). Because of some striking similarities to this case, it deserves close attention. A large number of unidentified police officers, acting without a warrant, broke up a party at the home of two of the plaintiffs, using tear gas and using "unnecessary physical force." 477 U.S. at 564. The police arrested four of the plaintiffs. The district court found that the plaintiffs' party was not creating a disturbance, and criminal charges against the plaintiffs were ultimately dismissed for lack of probable cause. The plaintiffs sued the city, the police chief, and 31 officers for violations of their constitutional rights and on state law grounds. The district court granted summary judgment in favor of 17 of the defendant officers. A jury eventually awarded compensatory and punitive damages totaling $33,350, of which $13,300 was for federal claims and $20,500 for state law claims. Id. at 564-65. The plaintiffs petitioned for attorneys' fees and the district court awarded a total of $245,456.25 in fees. The Ninth Circuit affirmed that award.
Before the Supreme Court, the principal issue was whether the fee award was unreasonably high when compared to the damages the plaintiffs were awarded. The Supreme Court affirmed the award in its entirety. Justice Brennan wrote an opinion for four justices, while Justice Powell concurred in the judgment. The plurality explicitly rejected a rule of proportionality, stating that such a rule "would seriously undermine Congress' purpose in enacting § 1988." 477 U.S. at 576. Section 1988 was enacted precisely because the established private market for attorneys' services was not sufficient to provide adequate representation in civil rights cases:
A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with Congress' purpose in enacting § 1988.Id. at 578. The plurality opinion went on to explain why the case illustrated the need for awarding a fee based on all hours reasonably spent on the litigation. The case presented difficult and complex issues, both factually and legally; the defense was vigorous, and had substantial resources. It was "highly unlikely that the prospect of a fee equal to a fraction of the damages [plaintiffs] might recover would have been sufficient to attract competent counsel." Id. at 579.
Justice Powell provided the fifth vote for affirming the entire award. He was obviously troubled by the size of the fee award, but he voted to affirm based on the district court's findings of fact concerning the reasonableness of and necessity for the hours the plaintiffs' attorneys spent on the case. Justice Powell also explicitly rejected a rule of proportionality: "Petitioners argue for a rule of proportionality between the fee awarded and the damages recovered in a civil rights case. Neither the decisions of this Court nor the legislative history of § 1988 support such a `rule.' The facts and circumstances of litigation are infinitely variable." 477 U.S. at 585 (Powell, J., concurring in the judgment). Justice Powell recognized that where recovery of private damages was the purpose of a civil rights lawsuit, a district court must give primary consideration to the amount of damages awarded in making a fee award. He recognized, however, that a court may also take into account the vindication of constitutional rights and the broader public interest served by a lawsuit. Id. at 585-86. He also took into account the public interest served by the damages awarded for police conduct where there were allegations that police misconduct was motivated by ethnic hostility and there was evidence of racial slurs by some officers. Id. at 586. Justice Powell also observed, however, that cases would be rare in which such a large disparity between damages and fees would be justified. Id. at 586 n. 3.
The Court recognized in Rivera that an important variable in litigation is the extent of the defense's commitment to the case. That commitment affects what it takes a plaintiff to litigate a case properly. See 477 U.S. at 579 (plurality). Where the defense decides to mount a vigorous fight, the plaintiff normally has to commit additional resources as well. The defendants fought this case vigorously for more than two years. They filed extensive motions for summary judgment that required plaintiff to lay out the extensive and conflicting factual record in detail.
The Supreme Court in Rivera, and the Seventh Circuit and this court repeatedly, have recognized that a defendant who has fought a case vigorously cannot argue when it comes time to award fees that the plaintiff invested an irrational amount of attorneys' time. "Thus, [defendants] could have avoided liability for the bulk of the attorney's fees for which they now find themselves liable by making a reasonable settlement offer in a timely manner. * * * `The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.'" Rivera, 477 U.S. at 580 n. 11, quoting Copeland v. Marshall, 641 F.2d 880, 904 (D.C. Cir. 1980) ( en banc); accord, e.g., Pressley v. Haeger, 977 F.2d 295, 298 (7th Cir. 1992) ("Three lawyers toiled a total of 1272 hours on Pressley's behalf. If this seems excessive in light of the stakes — as it did to the district judge, who trimmed the allowable hours to 1102 — it was not excessive in relation to the need to overcome a defense that Haeger and the Village waged with 2041 hours of lawyers' time;" where jury awarded $40,000 in damages, Seventh Circuit reversed fee award of $177,000 to be increased on remand because district judge had reduced requested hourly rates without justification).
In addition, this case necessarily involved a great deal of attorney time, primarily in digesting the facts and preparing to present them at trial. There were scores of identified witnesses for the events in question. The evidence bore the usual contradictions, complexities, and ambiguities of eyewitness testimony, which grew exponentially with the number of witnesses. It is worth keeping in mind that the criminal trial of the four indicted officers took about four weeks. The multiplicity of defense counsel and firms was unavoidable to some extent because of conflicts among defendants, but that factor added to the plaintiff's lawyers' time in the case.
The City's argument that the fees are excessive in this case essentially amounts to an argument that the case never should have been brought. No doubt that course would have been preferable for defendants. But as long as the case was going to be pursued to the eve of trial, and as long as the defendants were going to defend the case vigorously from the outset, the hours in the lodestar amount above were reasonable. "There is an irreducible fixed cost to litigation. If the plaintiff cannot recover that cost in an award of attorney's fees, he will find it difficult to hire a lawyer." Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988). In this case, plaintiff Craig's attorneys' fees were undoubtedly increased by the convergence of several of these factors, including the need to match the defendants' thoroughness and energy.
It is no answer to say that a party and his attorney would not reasonably invest so much time in the case if there were no fee-shifting statute. That is exactly why § 1988 was enacted. "In many case arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must recover what it costs them to vindicate these rights in court." Sen. Rep. No. 94-1011 at 2, reprinted in 1976 U.S.C.C.A.N. 5908, 5910, quoted in Hensley, 461 U.S. at 445 (Brennan, J., concurring in part and dissenting in part).
The answer to a defendant like the City who argues that the ultimate settlement or damage award was not worth the plaintiff's investment in the case lies in Rule 68 of the Federal Rules of Civil Procedure. A defendant who sees at the outset of a case (1) a significant risk of losing on the merits and (2) the potential for a significant fee award, perhaps even exceeding the amount of damages, has a mechanism for limiting its exposure to a fee award. Such a defendant can make an early offer of judgment to the plaintiff that complies strictly with Rule 68. The offer must be in writing and it must be specific and definitive. See Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1076 (7th Cir. 1999) (discussing importance of clear offers of judgment and construing ambiguities against offeror); Webb v. James, 147 F.3d 617, 621, 623 (7th Cir. 1998) (same). If the offer is not accepted, and if the judgment finally obtained by the plaintiff "is not more favorable than the offer, the offeree [plaintiff] must pay the costs incurred after the making of the offer." Fed.R.Civ.P. 68.
The Supreme Court has held that when the case is subject to a fee-shifting statute, the "costs" covered by Rule 68 include attorneys' fees. Marek v. Chesny, 473 U.S. 1, 9 (1985). As a result, the early offer of judgment, if the amount is set high enough to create a significant risk for the plaintiff that he or she will ultimately win a smaller amount of damages, creates a new risk for the plaintiff and plaintiff's attorney that a substantial investment of time will not be compensated after judgment.
Should it make a difference that plaintiff Craig floated an early settlement offer of $750,000? The City seeks to use that offer as a gauge for Craig's goals in the lawsuit, so that his settlement for less than five percent of that amount shows that the results of the lawsuit were minimal. This result would retroactively attribute enormous, virtually punitive, consequences to an opening pie-in-the-sky demand in settlement negotiations. Some very recent Seventh Circuit opinions might support that approach, but for the City's settlement in this case, in which it agreed to treat Craig as if he were a prevailing party. See In light of the City's position on this question, recent Seventh Circuit decisions that treat plaintiffs as if they had not prevailed when they receive less than 10 percent of an earlier settlement demand or prayer for relief in a complaint do not apply here to bar a fee recovery. See Perlman v. Zell, ___ F.3d ___, ___, 1999 WL 562133, at *9 (7th Cir. Aug. 2, 1999) ("We have held in a series of recent cases that a litigant who wins less than 10% of his initial demand either is not a prevailing party for purposes of fee-shifting statutes or should be treated as if he had not prevailed."); citing Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir. 1999) (treating plaintiffs as prevailing parties but finding that use of lodestar calculation was unreasonable in light of limited success; affirming fee and cost award of $15,665 where jury verdict for plaintiffs was $4500, but lodestar amount was more than $50,000; "A fee 19 times the damages, which plaintiffs sought, is off the map."), Fletcher v. Fort Wayne, 162 F.3d 975 (7th Cir. 1998), and Simpson v. Sheahan, 104 F.3d 998 (7th Cir. 1997); but see, e.g., Ustrak v. Fairman, 851 F.2d at 989 (affirming fee award 21 times damages awarded).
In any event, the City's reliance on the opening settlement demand would not be persuasive even if the City had not agreed to treat Craig as if he were a prevailing party. First, the City has not made any attempt to flesh out the details of the parties' early abortive settlement positions. Few plaintiffs in a case like this would not be willing to settle at the outset for a sum like $750,000, but an opening demand — one intended primarily just to see if the other side is willing to make a serious settlement offer — may not be a reliable measure of the plaintiff's goals. This court views the plaintiff's opening demand of $750,000 as merely a negotiating device to see if the defense was willing to put a serious amount of money on the table at the outset, and thus to see just how worried the defendants were about their financial exposure in the case. Even if there were some circumstances where a settlement demand might have substantial probative value on this issue, this case is not one of them.
Second, notwithstanding some of the language in Perlman and Cole, the Seventh Circuit has refused to apply a mechanical, mathematical rule to such questions. See Connolly, 177 F.3d at 597 ("we have rejected mechanical rules which call on a court simply to compare the amount demanded and the amount recovered because federal antidiscrimination law vindicates important public interests which may not be reflected in the size of a particular recovery"); Zagorski v. Midwest Billing Services, Inc., 128 F.3d 1164, 1167 (7th Cir. 1997) (reversing denial of fees under Fair Debt Collection Practices Act where plaintiffs obtained stipulated judgment of $100); Hyde v. Small, 123 F.3d at 585 (vacating and remanding denial of fees in Fourth Amendment case where jury awarded $500; plaintiff was entitled to bring modest claim and to pursue it successfully to trial, especially where defendants failed to make a modest Rule 68 offer of judgment); Ustrak v. Fairman, 851 F.2d at 989 (providing for fee of $21,100 where damages were $1001).
For these reasons, the court is not adjusting the lodestar amount downward. The court will award the lodestar fee amount of $168.990.20.
Plaintiff Craig seeks an additional $12,453.15 in costs. The City questions some of those costs, but plaintiff has addressed most of the specific challenges in the supplemental affidavit of Michael Sutherlin. The $1,200.00 estimated cost for copying strikes the court as conservative in light of the volume of paper in this case and the plaintiff's obligation to serve copies on several different defense firms. The City also suggests that it should receive the benefit of the 10 percent discount offered by court reporters for payment within 30 days on bills for deposition transcripts, which make up the vast majority of the claimed costs. The court disagrees. If the time value of money comes into play here, it is worth remembering that plaintiff is being reimbursed much later for all amounts paid. The court will allow the full amount of costs claimed. The court will add to that the sum of $1,392.80 for the investigative services of Ron Hofer. That amount includes both expenses and charges for Hofer's time. Hofer is not an attorney and is not employed by an attorney. His bill is more properly treated as a cost under § 1988 than as part of the attorneys' fee itself.
For the reasons set forth above, the court will enter judgment awarding $168,990.20 in attorneys' fees and $13,845.95 in costs.