Bolden v. Mobile Brief of City of Mobile, et al.
Public Court Documents
February 23, 1978

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Brief Collection, LDF Court Filings. Bolden v. Mobile Brief of City of Mobile, et al., 1978. 44868310-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/41c41526-3baf-4ab3-9935-bb4755bfa5c4/bolden-v-mobile-brief-of-city-of-mobile-et-al. Accessed April 27, 2025.
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7 7- United S tates C ourt of A ppeals F O R TH E F IF T H C IR C U IT No. 77-2693 W IL E Y L . BO LD EN , E T A L., P la in tiffs -A p p ellan ts , v ersu s C IT Y O F M O B IL E , E T A L., D efendants-A pp ellees- C ross A p p ellants. Appeal from the United S tates D istrict C ourt for the Southern D istrict of A labam a, Southern D ivision B R IE F O F C IT Y O F M O B IL E , E T A L. F R E D G. C O LLIN S C ity A ttorney C ity H all M obile, A labam a 36602 C ounsel for C ity of M obile, e t al. C H A R L E S B . A R EN D A LL. JR . W ILLIA M C. TID W ELL, I I I Hand, A rend all, B ed so le , G reav es & Jo h n sto n 3000 F ir s t N ation al B an k B u ild ing M obile, A labam a 36602 C ounsel for C ity o f M obile, e t al. SCOFIELD S' QUALITY PRINTERS. P 0 BOX 53096. IV O LA 7 Q 1 S 3 . 50A/822-1611 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 77-2693 WILEY L. BOLDEN, ET AL., Plaintiffs-Appellants, versus CITY OF MOBILE, ET AL., Defendants-Appellees- Cross Appellants. CERTIFICATE REQUIRED BY FIFTH CIRCUIT LOCAL RULE 13(a) The undersigned, counsel of record for the City of Mobile, et al., certifies that the following listed parties have an interest in the outcome of this case. These representations are made in order that Judges of this Court may evaluate possible disqualification or recusal pursuant to Local Rule 13(a). 1. The City of Mobile, Alabama. 2. Robert B. Doyle, Jr., Gary A. Greenough, and Lambert C. Mims, Commissioners. 3. The Plaintiffs, Wiley L. Bolden, Rev. R. L. Hope, Janet 0. LeFlore, John L. LeFlore, Charles Maxwell, Ossie B. Purifory, Sherman Smith, Ollie Lee Taylor, Sylvester Williams, and Mrs. F. C. Wilson. 4. The Plaintiffs' attorneys, J. U. Blacksher, Larry T. Menefee, Edward Still, Gregory B. Stein, Armand Derfner, and their law firms, Crawford, Blacksher, Figures and Brown, and ii Epstein, McClain and Derfner. 5. Legal Defense Fund, Inc. and Non-Partisan Voters League of Mobile County. 6. The class of black citizens of Mobile, Alabama. 7. The Honorable Robert S. Vance testified as a witness for Plaintiffs on the attorney's fee issue. c: Attorney or Kecora ror cne City of Mobile, et al. iii REQUEST FOR ORAL ARGUMENT Defendants request oral argument in order that these important issues concerning the propriety of a court awarded attorney's fee pursuant to the Voting Rights Act can be properly resolved. IV TABLE OF CONTENTS Page Certificate Required by Local Rule 13(a) i Request For Oral A r g u m e n t .......... iii Table Of C o n t e n t s ................................ iv Table Of Authorities C a s e s ............................................. vi S t a t u t e s ........................................... vii Other Authorities...................................vii I. STATEMENT OF THE I S S U E S ........................ 1 II. STATEMENT OF THE CASE Proceedings Below .............................. 3 Statement Of Facts .............................. 5 III. SUMMARY OF ARGUMENT A. The Cross A p p e a l............................ 13 B. The Direct A p p e a l .......................... 14 IV. ARGUMENT A. The Cross A p p e a l............ 15 The Johnson Factors .................... .. . 15 Expenses ..................................... 20 B. The Direct A p p e a l .......................... 24 The District Court's Findings As To The Customary Rate and The Other Johnson Factors Are Not Clearly E r r o n e o u s ................. 24 The District Court Properly Considered The Contingent Nature Of The Award And The Purpose Of The Award.......... 28 V The District Court Properly Considered The Novelty and Com- plexity Of The Case . ...................... 30 The District Court Committed No Other Reversible Error . . . . . ............... 31 The District Court Properly Deducted The Sums Advanced By The Non-Partisan Voters League.... ................................... 33 V. CONCLUSION...................................... 34 Certificate of Service ................................ 36 vx TABLE OF AUTHORITIES Cases; Page Alyeska Pipe Line Service Co. v. Wilderness " Society, 4 2F"U 7 S . 2 4 0 (19 75) 7 . . . ......... 20, 23 Baum v. United States, 432 F .2d 85 (5th Cir. 1970) . 21 Burgess v. Williamson, 505 F.2d 870 (5th Cir. 1975) ................................... 21 City Bank of Honolulu v. Rivera Davila, 438 F .2d 1367 (1st Cir. 1971) . . . . . . . . . . 22, 23 Clanton v. Allied Chemical Corp., 416 F. Supp. 3$ (E.D. Va. 1976) .................. 18 Dorothy K. Wilson & Co. v. Town Heights Development, Inc., 68 F.R.D. 431 (D.D.C. 1975) . 22 Dunn v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 279 F. Supp. 937 (S.D.N.Y. 1968) . 21 Fain v. Caddo Parish Police Jury, 564 F.2d 707 (5th Cir. 1977) ................... 24 n.22 Farmer v. Arabian-American Oil Co., 379 U.S. 227 (1964).............................. 20 Harrisburg Coalition v. Volpe, 65 F.R.D. 608 (M.D. Pa. 1 9 7 4 ) ................... 22 Henkel v. Chicago, St. Paul, Minneapolis &~~Omaha Ry. Co.~, 284 U.S. 444 (19 32) . . . . . . 21 Hyland v, Kenner Products Co., _____ F • Supp. ____, 13 FEP Cases 1647 (S.D. Ohio 1976) ............. 23 Johns-Manvilie Corp. v. Cement Asbestos Products Co., 428 F .2d 1381 (5th Cir. 1970) . . . 21 Johnson v. Georgia Highway Express, Inc. 488 F . 2d 714 (5 th Cir. 1974) ................... Passim Miller v. Carson, 563 F .2d 741 (5th Cir. 1 9 7 7 ) .................................. 18 Vll McWilliams Dredging Co. v. Department of Highways, 187 F. 2d 61 (5th Cir. 1 9 5 1 ) ........... 20 National Council of Community Health Centers, Inc, v. Weinberger, 387 F. Supp. 991 (D.D.C.) reversed on other grounds, 546 F .2d 1003 (D.C. Cir. 1976) 7777........................ 27 Pollard v. United States, 69 F.R.D. 646 (M.D. Ala. 1976) ........................ .. 26 Torres v. Sachs, 538 F .2d 10 (2d Cir. 1976) .................................. 32 Vincennes Steel Corp. v. Miller, 94 F .2d 347 (5th Cir. 1938) . . . . . . . . . . . 21 Wahl v. Carrier Mfg. Co., 511 F .2d 209 (7th Cir. 1975) . . ........................ .. 22 Wolf v. Frank, 555 F.2d 1213 (5th Cir. 1977) . . . . 24, 31 Statutes: Civil Rights Attorney1s Fees Awards Act of 1976, 42 U.S.C. § 1988 ................................. 22 , 23 Voting Rights Act, 42 U.S.C. § 1973 1 ( e ) ............................ 4, 14, 17,22, 23 28 U.S.C. § 1920 ..................................... 20 , 21 28 U.S.C. § 1821 ............. ..................... . 21, 24 Other Authorities: F.R.c .P. 54(d) . . . . ................. . . . . . . 23 F.R.C.P. 60 (a) . . . . .............................. 4 n . 5 S. Rep. No. 94-295, 94th Cong., 1st Sess. (1975) . . 29 n.27 S. Rep. No. 94-1001, 94th Cong., 2d Sess. (1976) . . 29 H. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976) . . 29 n.27 Wright & Miller, Federal Practice and Procedure . . 4 n.5,- 2 Q ̂ 2 1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 77-2693 WILEY L. BOLDEN, ET AL., Plaintiffs-Appellants, versus CITY OF MOBILE, ET AL., Defendants-Appellees- Cross Appellants. Appeal from the United States District Court for the Southern District of Alabama, Southern Division BRIEF ON BEHALF OF CITY OF MOBILE, ET AL. I. STATEMENT OF THE ISSUES Direct Appeal by Plaintiffs Below 1. Whether the district court abused its discretion by not awarding attorney's fees of more than $50 per hour for all hours claimed (with a very minor exception) for all four attorneys who worked on the case for Plaintiffs. - 2 - 2. Whether the district court abused its discretion by not including in the fee award $1500.00 that Plaintiffs' counsel received from the Non-Partisan Voters League and which was not required to be returned to the League. Cross Appeal by City of Mobile, et al. 1. Whether the district court erred by raising the hourly rate it would otherwise have awarded Plaintiffs solely because of the hourly rate received by defense counsel. 2. Whether the district court erred in assessing the same hourly rate for the two inexperienced plaintiffs' counsel that it did for the two experienced plaintiffs' counsel solely because defense counsel were paid the same hourly rate for all attorneys working on the defense. 3. Whether the district court erred in failing to reduce the fee award because of duplication of effort by the fdur lawyers involved and because of much non-legal work included in the time records of several of those lawyers. 4. Whether the district court, under the guise of "attorney's fees," properly awarded litigation expenses to the Plaintiffs that do not qualify as "taxable costs." f i v, II. STATEMENT OF THE CASE Proceedings Below The City of Mobile, Alabama operates under a three-member city commission form of government with all commissioners elected at large. Plaintiffs, representing a class of all black citizens of Mobile, sued the City and its three commissioners alleging unconstitutional "voter dilution" as a result of the at-large election of commissioners. After an extensive trial, the district court upheld the Plaintiffs' claim and issued an order declaring the present form of city government unconstitutional. Thereafter, the district court entered a second order abolishing the commis sion government and substituting in its place a mayor-council system with nine council members elected from single-member districts. These orders are now on appeal and awaiting decision before this Court, i/ Following issuance of its remedial order, the district court held an evidentiary hearing on the attorney’s fee issue. £■/ Following this hearing, the district court entered an 1/ Bolden, et al. v. City of Mobile, et al., Civil Action Nos. 76-4210 and 77-2042, consolidated on appeal by order of this Court of June 8, 1977. 2/ A single attorney's fee hearing was held for both this case and for Brown, et al. v. Moore, et al., Civil Action No. 75-298-P in the district court, a similar action against both the Mobile County Commissioners and the Mobile County Board of School Commis sioners . It was agreed that the evidence taken at the hearing would be applicable to both cases regardless of which party had called the particular witness. Tr. 95, 113. The appeals of the attorney's fee awards against the City (No. 77-2693) and against the School Board (No. 77-2507) have been consolidated on this aPPeal by order of this Court of November 8, 1977. 4 order awarding $50 per hour for all hours claimed 1/ by Plaintiffs’ counsel against the City of Mobile and $40 per hour for all hours claimed by Plaintiffs' counsel against the Mobile County School Board. 1/ The district court made its fee award pursuant to the Voting Rights Act, 42 U.S.C. § 197 3 1 (e) (Supp. 1977) . R. 91-92. The fee award against the City of Mobile was $57,802.50 plus an additional award of $7,237.54 expenses, a total of $65,050.04. R. 99-100. From this figure the district court subtracted $750 (one half of the non-returnable fee received by Plaintiffs1 counsel from the Non-Partisan Voters League) leaving a total award of $64,300.04. V The Plaintiffs have appealed, claim ing that the award against the City is too low. The City has cross appealed since district court introduced an improper considera tion into the determination of the fee. 3/ The district court did reduce the hours claimed by 12.95 Fours for time spent on automobile travel, rather than on more expeditious airline travel. R. 99. This reduction represents approximately 1% of the total hours claimed. £/ The district court also awarded an effective rate of approxi mately $30 per hour in the portion of the Brown ̂ v . Moore case involving the Mobile County Commission. Plaintiffs did not appeal that award. 5/ Obviously, a small mathematical error was made in these calculations since $57,802.50 plus $7,237.54 equals $65,040.04, $10.00 less than the figure in the Order. Accordingly, the final award should be reduced by $10.00 to $64,290.04. The district court cannot without leave of this Court correct this clerical error since this appeal has now been docketed. F.R.C.P. 60(a). However, for a minor clerical error of this nature, the court of appeals may on appeal treat the record as if this clerical correc tion had been made by the district court. Wright & Miller, Federal Practice and Procedure § 2856, at 156. 5 Statement of Facts Plaintiffs claim fees for the services of four attorneys on this case. Mr. Blacksher of Crawford, Blacksher, Figures and Brown, Mobile, Alabama, and Mr. Still of Birmingham, Alabama, were the lead counsel. Assistance was provided by Mr. Menefee and Mr. Stein, both associates in Mr. Blacksher's law firm. Mr. Blacksher and Mr. Still graduated from law school and were admitted to the Alabama State Bar in 1971. Mr. Blacksher served as law clerk to a federal district judge in Birmingham for one year and entered the private practice of law in Mobile, Alabama in January, 1972. Mr. Blacksher has concentrated on plaintiffs' civil rights practice; this case was his first experi ence in the voting rights field. R. 39-43 (Affidavit of Mr. Blacksher); Tr. 115-16. Mr. Still has been engaged in the practice of law since 1971. He, too, has concentrated on plain tiffs ' civil rights practice, including voting rights cases. R. 31-32 (Affidavit of Mr. Still). Mr. Menefee graduated from law school and was admitted to the bar in 1971. However, he did not begin active legal practice until January, 1976, when he became associated with Mr. Blacksher's law firm. In the interim he clerked one year for a federal dis trict judge, worked one year for the University of Alabama, and spent two years in the Peace Corps. This case and its companion 6 case were the first on which Mr. Menefee worked, and he spent most of his first six months of practice on these cases. R. 51-52 (Affidavit of Mr. Menefee). Mr. Stein graduated from law school in 1975, and was admitted to the bar in September, 1975. He immediately began work on this case which had been filed the previous spring. As with Mr. Menefee, this case (along with other cases that the law firm was handling at the time Mr. Stein was associated) was the first on which Mr. Stein worked. R. 61-63 (Affidavit of Mr. Stein). In their application for attorney's fees, Plaintiffs claimed fees at the rate of $75 per hour for Mr. Blacksher and Mr. Still, and $50 per hour for Mr. Menefee and Mr. Stein, plus a 25% bonus, for effective hourly rates of $93.75 per hour and $62.50 per hour, respectively. R. 6. The City objected to these rates as extra vagant and requested an evidentiary hearing. R. 75-76. At the hearing before the district court, two witnesses testified on behalf of Plaintiffs and five on behalf of the defendants; three being called by the City of Mobile and two by the Mobile County Commission. In addition, Plaintiffs intro duced into evidence four depositions of Birmingham lawyers. Tr. 62-64. Plaintiffs ' first witness, Mr. Robert S . Edington, §.'/ testified that in his opinion a reasonable rate of compensation 6/ Mr. Edington has practiced in Mobile since 1956, engaging in a general civil practice. Tr. 4-5. 7 in this case for Mr. Blacksher and Mr. Still would be $75 per hour, and for Mr. Stein and Mr. Menefee would be $60 per hour, and that he would make a small reduction in those rates in light of the non-contingent nature of a small portion of the fee. Tr. 12-13. He did not support the award of a bonus in addition to those hourly rates. Mr. Edington also testified that he engaged in very little federal or state court litigation, but was primarily engaged in office practice. Tr. 19, 22. Mr. Edington appeared as a wit ness for Plaintiffs in the trial of this case on the merits (Tr. 34), and he is co-counsel with one of Plaintiffs’ counsel (Mr. Blacksher) in a pending Title VII sex discrimination lawsuit in Mobile in which he hopes to be awarded an attorney’s fee by the court. Tr. 20. Finally, Mr. Edington testified that in his judgment the representation by Plaintiffs' counsel in this matter would not harm their professional standing, but rather would enhance their reputation in the community and tend to produce additional employment. Tr. 18-19. Mr. Irving Silver, U who also testified on behalf of the Plaintiffs, stated that he was primarily engaged in bankruptcy, collection, truth-in-lending, and personal injury litigation. Tr. 39-40. In his opinion, the fee rates claimed by Plaintiffs ($75 per hour and $60 per hour) are reasonable. Tr. 44. 7/ Mr. Silver has approximately twelve years legal experience, Including approximately nine years of private practice, compared to approximately five years legal experience for Mr. Blacksher and Mr. Still at the time of trial, and less than one year for Mr. Menefee and Mr. Stein. Tr. 39. 8 Mr. Silver, too, testified that in his opinion the repre sentation of the Plaintiffs in these cases was not undesirable or unpopular, except for the contingent nature of the possible fee. Tr. 44, 56. Mr. Silver supported this opinion by ad mitting that years prior to the filing of this lawsuit against the City of Mobile, Plaintiffs' Mobile counsel's law firm had begun representing the plaintiffs in the on-going Birdie Mae Davis school desegregation case, a case of considerable notoriety in the local area. Tr. 59-60. Despite the high fee rates to which they testified, on cross-examination both of Plaintiff's witnesses admitted that such rates were not the customary or prevailing rates for attorneys of equivalent experience and competence in the Mobile, Alabama area. £/ For example, Mr. Edington testified that about $50 per hour is the customary rate for lawyers of approximately five years experience. Tr. 22-24, 26. Further, Mr. Edington admitted that he knew of no lawyers in the Mobile, Alabama area with one year or less legal practice who receive as much as $50 per hour for their work. Tr. 25. 2/ Mr. Silver admitted that 8/ On direct examination both witnesses testified as to what they thought a "reasonable" rate would be for this case. How ever, that issue is for the court under the guidelines in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), and the point on which the witnesses should testify is the "custo mary rate" in the area. As discussed infra, at the hearing both of Plaintiffs' witnesses testified to customary rates for similar work for equivalently experienced counsel of approximately $50 per hour for lawyers with about five years experience and less for the two inexperienced lawyers. Tr. 22-26, 51-54. 9/ Upon inquiry from the court, counsel for the City of Mobile stated that the time of new lawyers in his firm "fresh out of law school" and those with up to one year's experience was gener ally billed at $35 per hour. Tr. 30. 9 the fees he normally collects in the litigation he normally handles are generally $50 per hour in longshoreman and harbor workers cases (Tr. 51) and $50 per hour or less in bankruptcy cases (Tr. 53-54). Plaintiffs also introduced the depositions of four Birmingham lawyers on the attorney's fee issue. They testified to fee rates of from $100 to $150 per hour for Mr. Blacksher and Mr. Still, down to $60 to $75 per hour for Mr. Menefee and Mr. Stein. 12/ However, an examination of their testimony shows that each had only limited experience in the Mobile area, and they were really basing their estimates on Birmingham rates which most thought were similar to those in Mobile, — / or upon what they thought the case was "worth," or what they would have charged to take it. 12/ Mr. Sam W. Pipes, 12/ a witness on behalf of the City, testified that a reasonable prevailing hourly rate in Mobile for attorneys of Mr. Blacksher's and Mr. Still's background and experience is $50 per hour, and for Mr. Stein and Mr. Menefee is $25 per hour. Tr. 67-68. Mr. Pipes based his opinion as to a lower rate for Mr. Menefee and Mr. Stein in part on his obser vation that younger lawyers require considerably more hours than more experienced lawyers to perform the same work. Tr. 69. 10/ See Brief of Appellants at 8-9. 11/ See Friend Depo. 11-13, 44-45; Harris Depo. 10-12, 29, 31-33, 36-37; Thornton Depo. 5-6, 9-10, 36-37, 60-61, 68-69; Vance Depo. 8, 29, 31-33, 37-38. See also note 8 supra. 12/ See discussion at pp. 25-26, infra. 13/ Mr. Pipes has practiced lew in Mobile, Alabama for approximately thirty-nine years; he is a past president of the Alabama State Bar and a member of the American College of Trial Lawyers. Tr. 66-6 • 10 In reaching his opinion as to the rates, Mr. Pipes considered (1) the experience of the attorneys, (2) their background and expertise, and (3) the customary charges of other lawyers of similar experience. Tr. 68-69. Likewise, his opinion as to a reasonable rate took into account the contingent nature of the lawsuit. Tr. 69. Finally, Mr. Pipes testified that in his opinion the use of four lawyers by Plain tiffs in this case likely led to "a great duplication of work." Tr. 69. Mr. T. Dwight Reid, M/ a witness for the City, testified that a reasonable prevailing hourly rate in Mobile, Alabama for attorneys of Mr. Blacksher's and Mr. Still’s length of practice and experience is $50 per hour, and for Mr. Menefee and Mr. Stein is $30 per hour. Tr. 80-81. Mr. Reid based his opinion on the length of practice and experience of the attorneys, the difficult and unusual nature of the case, and the contingent nature of the fee award. Tr. 81, 85. Mr. Reid testified that for attorneys of similar experience representing public clients, the customary fee in the Mobile, Alabama area is $40 per hour. Tr. 82. However, he increased his estimate of a reasonable fee for Mr. Blacksher and Mr. Still from $40 per hour to $50 pet hour to take into account the contin gent nature of the attorney's fee award. Tr. 86. Mr. Reid believed that the success attained by Plaintiffs' counsel in this 14/ Mr. Reid has practiced law in Mobile, Alabama since 1961, is a member of the Mobile and Alabama State Bar Associations and the American Trial Lawyers Association, and practices in both state and federal courts. Tr. 79-80. 11 suit would enhance their reputation and their ability to obtain new clients. Tr. 82. Finally, Mr. Reid testified that in his opinion the Plaintiffs could readily have obtained other counsel in the Mobile, Alabama area to press their case against the City of Mobile. Tr. 83. i~L/ Mr. Joseph M. Matranga, M l/ another witness on behalf of the City of Mobile, also testified that $50 per hour is reasonable for Mr. Blacksher and Mr. Still and $30 per hour for Mr. Menefee and Mr. Stein. Tr. 89. Mr. Matranga testified that is was custo mary in Mobile for two, but no more than two, lawyers to partici pate in the trial of a complex case. Tr. 91. Finally, Mr. Matranga testified that $50 per hour is "certainly adequate" even recogniz ing that Plaintiffs' counsel did "an excellent job." Tr. 94. Mr. Mylan R. Engel, U J called by the County Commission, testified that he thought a reasonable rate in the Mobile area for attorneys of Mr. Blacksher’s and Mr. Still's experience is $50 per hour, and is $30 per hour for attorneys of experience similar to that of Mr. Menefee and Mr. Stein. Tr. 97-98. His opinion included consideration of the complexity of the litiga tion and the contingent nature of the fee award. Tr. 103. 15/ In fact, Mr. Reid testified that he would have accepted representation of the Plaintiffs for $40 per hour. Tr. 86. 16/ Mr. Matranga has practiced law in Mobile, Alabama for approximately 19 years. He is a member of the Mobile County, Alabama State, and American Bar Associations, and a member of the American Trial Lawyers Association. His practice includes litigation in state and federal courts. Tr. 88. 17/ Mr. Engel has practiced law in Mobile, Alabama for over 24 years. He has considerable past service as a state legislator and has served on the board of trustees of the University of gouth Alabama. He regularly represents governmental defendants m federal litigation. Tr. 96-97, 99-101. 12 Mr. Engel testified that he did not think this case was "undesirable1* in the Mobile area now, and that he believed that several other law firms in the Mobile area would have been will ing to undertake the litigation. Tr. 99. Finally, Mr. Engel testified that he regularly represented the Mobile County Personnel Board in defending civil rights litigation and was paid $30 per hour for that work; he received $50 per hour from the University of South Alabama for similar work. Tr. 100. In this connection, Mr. Engel noted that attorneys in the Mobile area customarily charge governmental and other nonprofit organizations less than the prevailing rate for private litigation. Tr. 100-101. Mr. J. Edward Thornton, jL§/ also called by the County Commis sion, testified that a reasonable hourly rate in the Mobile area for attorneys of experience similar to that of Mr. Blacksher and Mr. Still is $35 per hour and for attorneys of similar experience to Mr. Menefee and Mr. Stein is $20 per hour. Tr. 107-108. Mr. Thornton testified that duplication is likely when four attorneys are involved in the handling of a lawsuit. Tr. 108-109. Finally, Mr. Thornton testified, in response to questioning by the district court, that the fee paid by a governmental defendant to its counsel should not be the controlling consideration in making a court awarded fee to the prevailing plaintiff since the fee paid private counsel is a negotiated fee which the governmental 18/ Mr. Thornton was admitted to the Alabama Bar in 1934. He is admitted to practice in all state and federal courts in Alabama, the United States Court of Appeals for the Fifth Circuit, and the United States Supreme Court. He is a member of the American Law Institute, a fellow of the American Bar Foundation, and a past President of the Alabama State Bar Association. Tr. 106-107. 13 unit is free to accept or reject at the outset. Tr. 110-112. III. SUMMARY OF ARGUMENT A. The Cross Appeal First, the district court found that $40 per hour was the customary rate for work similar to that performed by attorneys of similar background and experience as that of Plaintiffs' lead counsel and that it was inclined to award fees at that rate. However, disregarding its own findings, the district court upped its award to $50 per hour for the two lead counsel solely because private counsel for the City of Mobile received that hourly rate. Likewise, the district court awarded $50 per hour to plaintiffs' other two lawyers even though they each had less than one year's legal experience, again solely because the City's private counsel received the same hourly rate for all attorneys working on the case. Although the fee paid opposing counsel may be relevant to a determination of the "customary rate" in the locality, it is not itself one of the Johnson v. Georgia Highway Express criteria, certainly not the controlling criterion, and the district court erred in raising the hourly rate it found otherwise proper solely because of this factor. Second, the district court failed to make allowance for duplication of effort expended by four plaintiffs 1 lawyers (one from another city) and failed to charge at a lower rate the non- 14 legal clerical and statistical work performed by Plaintiffs1 counsel, particularly Mr. Menefee and Mr. Stein. Third, the district court erred by including in its award certain litigation expenses of the Plaintiffs that are not properly includable as either "costs" of the litigation or as "attorney's fees" authorized by 42 U.S.C. § 1973 1(e). The expense of telephone calls, expert witnesses, photocopying charges, postage, and travel are not taxable as "costs" under prevailing Fifth Circuit law. Nor are these items properly considered attorney's "fees;" rather, they are litigation expenses of the client either paid directly by the client or advanced on his behalf by counsel subject to reimbursement by the client. They are, ultimately, expenses of the client, and not part of the attorney's professional fee. B» The Direct Appeal The district court properly considered each of the Johnson criteria, particularly the contingent nature of the award, the results obtained, the skill and competence of Plaintiffs8 counsel, the customary rate in the community, awards in similar cases, and the professional and economic benefit this case would have, and had already had, for Plaintiffs* counsel. The district court did not abuse its discretion when, considering all these factors, it awarded fees at the rate of $50 per hour for all hour^ claimed. 15 Satisfaction of Plaintiffs’ demand for attorney's fees at rates considerably higher than the customary local rates for similar experienced counsel for governmental work: ($40 per hour) or for complex federal litigation ($50 per hour), or higher than the arms-length rate paid special counsel for the City ($50 per hour), would represent an unwarranted windfall at public expense contrary to the purpose and spirit of the statutory attorney's fees authorization. Plaintiffs have made absolutely no showing that the extravagant rates they are requesting are necessary to attract competent counsel to these types of cases. To the contrary, the evidence at the hearing shows that the fees awarded by the district court are more than adequate to attract competent counsel, while avoiding windfall recoveries. IV. ARGUMENT A. The Cross Appeal The Johnson Factors In reaching its decision, the district court gave due consideration to each of the twelve factors enumerated in Johnson v. Georgia Highway Express, 488 F .2d 714 (5th Cir. 1974 ) . The City of Mobile takes issue with only one of those findings. Although the City did not challenge before the district court the accuracy of the time records submitted by Plaintiffs' 16 attorneys, the City did "charge duplication of effort by the four attorneys that worked on the case." R. 93. However, the district court failed to make any deductions for duplication, awarding instead every hour claimed for all four attorneys, i£/ The district court failed to give proper scrutiny to the possibil ity of duplication, particularly since four lawyers (one from Birmingham) worked on the case, and three often participated in the same conference or court room appearance. See Johnson v. Georgia Highway Express, 488 F.2d at 717. Likewise, the district court failed to award a lower rate for those hours spent on non-legal work. In Johnson the Fifth Circuit cautioned that non-legal work, even if performed by a lawyer, should command a lesser rate. 488 F.2d at 717. Examina tion of the time records of Mr. Stein and Mr. Menefee indicates that a large portion of the total time of 473.1 hours for Mr. Menefee and 34 hours for Mr. Stein is in the nature of "investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers" and which "may command a lesser rate." 488 F,26 at 717. Concerning item no. 5, the customary fee, the district court said: 19/ See note 3 supra 17 Testimony indicated that the prevailing rate for municipal or public service work in this area hovers near the $40 per hour rate. R. 94. The City agrees with the finding that the customary rate for such work is $40 per hour. Concerning the other Johnson factors, the district court made and took into account favorable findings for the Plaintiffs on items no. 2, 3, 8, and 9. Item no. 4 (preclusion of other employment), item no. 7 (priority of action), and item no. 11 (length of relationship with the client) were found not to warrant an extra award. The district court specifically considered in Plaintiffs! favor the contingent nature of the attorney's fee award, noting that while the fees provided by Congress in indigent criminal cases ($30 for trial time and $20 for office investiga tion time) were "an indication by Congress of its idea of an appropriate attorney1s fee at public expense," such fees did not allow for the contingent nature of attorney’s fee claims under 42 U.S.C. § 1973 1 (e). R. 94-95, 97-98. Concerning item no. 10 (undesirability of the case), the district court found that this case had not and would not have an adverse effect on counsels' practice, but, to the contrary, had already resulted in additional employment opportunities in similar cases. R. 96-97. Finally, on item no. 12 (awards in similar cases), the court said,"A review of similar actions in the south indicates $35 to $50 per hour is a reasonable fee." R. 97. 18 In addition to the cases cited by the district court, the City notes also the following additional cases awarding fees in a similar range. Miller v. Carson, 563 F.2d 741, 756 (5th Cir, 1977) ($60 per hour in-court and $40 per hour out-of- court for experienced attorney; $30 per hour for less experienced lawyers working with him); Clanton v. Allied Chemical Corp., 416 F. Supp. 39, 43 (E.D. Va. 1976) (request for $60 to $70 per hour for attorneys with four to five years experience and $50 per hour for attorneys with one to three years experience is excessive) Taking all these factors into consideration, ?.Q/ the district court found that it "would ordinarily be inclined to award a maximum fee of $40 an hour." R. 99 (emphasis added). However, solely because counsel for the City of Mobile had been paid $50 per hour, the district court upped its award to Plaintiffs3 counsel to that same figure - $50 per hour. Tr. 99. This action by the district court is erroneous as a matter of law. Nowhere does Johnson v. Georgia Highway Express indicate 20/ The district court also stated that it considered the per capita income, regressive tax structure, and ability to pay of the governmental units involved. R. 98-99. While Plaintiffs object to these considerations, it is clear that they are a legitimate part of the inquiry into the "customary rate" in the locale. The evidence at the hearing was undisputed that the customary rate charged public clients in the Mobile area was in fact lower, generally $10 an hour lower, than the fees charged private clients in similar litigation. In asking this Court to ignore that fact, the Plaintiffs are asking, in effect, that they be awarded a higher fee than that which they would have received had they been voluntarily selected by a governmental defendant to defend it in such litigation. Clearly such a "windfall" to the prevailing Plaintiffs' counsel is unwarranted and not intended under the authorizing act. See text at pages 28-30, infra. 19 indicate that the fee awarded opposing counsel is itself a factor, much less the controlling factor, in setting the award to plaintiffs' counsel. Certainly, the fee paid opposing counsel may be evidence of the customary rate which is one of the proper criteria. However, in this case the district court took into account that fee and still found that the customary rate in the Mobile area was $40 per hour. Accordingly, the district court's action in ignoring its own finding and giving controlling importance to the fee paid the City's counsel is erroneous. Since the district court specifically stated what fee it would have awarded but for consideration of this extraneous factor, this Court should reduce the award to $40 per hour for the time of Mr. Blacksher and Mr. Still. Similarly, the district court awarded $50 per hour for the time of Mr. Menefee and Mr. Stein, even though they had far less experience and expertise than Mr. Blacksher and Mr. Still, and despite the uniform testimony of all witnesses, including Plaintiffs', that a lower rate was both reasonable and customary for lawyers of such widely differing skill and experience. Once again the district court erred by disregard ing the uncontradicted evidence and its own findings and award ing $50 per hour across-the-board to Plaintiffs' counsel solely because that was the basis on which Defendant's counsel was 20 paid. 21/ Based on the record evidence, this portion of the fee award should be reduced to $30 per hour. Expenses In addition to attorney's fees, the district court awarded the Plaintiffs $7,237.54 in expenses, despite the .City’s objec tions that a large portion of these expenses was not properly taxable as costs or includable as "attorney's fees." "Taxable costs" are not synonymous with "expenses" of litigation. Wright & Miller, Federal Practice and Procedure; Civil § 2666. The starting point for the assessment of taxable costs is 28 D.S.C. § 1920, Wright & Miller, supra § 2670, at 157, and "the discretion given district judges to tax costs should be sparingly exercised with reference to expenses not specifically allowed by statute." Farmer v. Arabian-American Oil Co., 379 U.S. 227, 235 (1964); see Alyeska Pipe Line Service Co. v» Wilder ness Society, 421 U.S. 240 (1975). In the Fifth Circuit, the district court may tax expenses as costs only when "there [is] a statute, a rule, order or practice of the court allowing them as taxable costs in the case." McWilliams Dredging Co. v. Department of Highways, 187 F.2d 61, 62 (5th Cir. 1951). 21/ In this connection, the district court failed to notice or ignored the fact that the "average" $50 per hour rate charged the City by its counsel was for two lawyers of limited experience equivalent to that of Mr. Menefee and Mr. Stein and for lead counsel (Mr. Arendall) of almost 40 years' experience. In contrast, Mr. Blacksher and Mr. Still had been in practice only five or so years at the time of trial. 21 Under 28 U.S.C. § 1920(1), (3), witness fees are normally taxable as costs, but although the district court has discretion whether to award or deny such fees, it may not award more than the amounts specified in 28 U.S.C. § 1821. Vincennes Steel Corp. v. Miller, 94 F.2d 347, 350 (5th Cir. 1938); Dunn v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 279 F. Supp. 937, 939 (S.D.N.Y. 1968); Wright & Miller, supra § 2678, at 227. Fees for expert witnesses follow the same rule, and thus are not taxable as costs over the amount specified in 28 U.S.C. § 1821. Henkel v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 284 U.S. 444 (1932); Burgess v. Williamson, 506 F .2d 870, 879 (5th Cir. 1975); Baum v. United States, 432 F.2d 85 (5th Cir. 1970); Wright & Miller, supra § 2678, at 236. Subsection (4) of 28 U.S.C. § 1920 provides that the court in its discretion may tax as costs the expense of papers necessarily obtained for use in the case. In the Fifth Circuit, the cost of charts, exhibits, and models cannot be taxed as costs unless pre paration of such items was approved in advance by the court. Johns- Manville Corp. v. Cement Asbestos Products Co., 428 F .2d 1381, 1385 (5th Cir. 1970). No such approval was secured in this case. Finally, "costs that are merely incidental to the trial or are incurred in preparation for it" are not taxable as costs. Wright & Miller, supra § 2677, at 223. In particular, telephone charges, ordinary copying expenses, postage, attorneys' travel 22 expenses, and other normal law office overhead expenses are not taxable as costs. Wahl v. Carrier Mfg. Co., 511 F„2d 203, 217 (7th Cir. 1975) (telephone calls, postage, and typing); City Bank of Honolulu v. Rivera Davila, 438 F.2d 1367, 1371 (1st Cir. 1971) (telephone calls and taxi fare) ,* Dorothy K. Winston & Co. v. Town Heights Development, Inc., 68 F.R.D. 431, 434 (D.D.C. 1975) (attorney's travel and subsistence expenses for depositions); Harrisburg Coalition v. Volpe, 65 F.R.D. 608 (M. D. Pa. 1974) (attorney's travel expenses, postage / paper, telephone, and cab fares). Not only are many of the expenses claimed by Plaintiffs not includable as taxable costs, neither are they includable as part of the "attorney's fee" to be awarded by the district court. Under both the Voting Rights Act of 1965 and the Civil Rights Attorney's Fees Awards Act of 1976, the district court may allow the prevailing party "a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1973 1(e); 42 U.S.C. § 1988. These provisions do not provide for an award of fees to the attorneys; rather, they provide for an award to the pre vailing party of a reasonable amount for his attorney’s fees as part of the taxable costs. See Johnson v. Georgia Highway Express, Inc., 488 F .2d at 716. The "fees" of the attorney are the professional charges made by him to his client. The out-of-pocket expenses billed 23 by an attorney to his client are not part of his professional fees. Nor are litigation expenses (such as filing fees, deposi tion costs, and fees paid to expert witnesses) that are paid by the attorney on his client's behalf and then billed to the client a part of the attorney's fee. Rather, they are expenses of the client that will be eventually paid by him as part of the costs of the litigation he undertook. City Bank of Honolulu v. Rivera Davila, 438 F .2d at 1391 (prevailing party awarded attorneys' fee but denied attorneys' travel expenses to deposition and trial as part of costs); Hyland v. Kenner Products Co., ____ F. Supp. ____, 13 FEP Cases 1647, 1649 (S.D. Ohio 1976) (filing fees, printing expenses, and expenses of expert witnesses not includable in attorneys' fees; must be determined under usual taxable cost rules). As discussed previously, such expenses have never been considered part of the "taxable costs" which are awarded to the prevailing party under Rule 54(d), F.R.C.P. No statute or other rule authorizes a district court to award these normal litigation expenses to a prevailing party. The purpose of both the attorneys * fee amendment to the Voting Rights Act and the Civil Rights Attorney's Fees Awards Act of 1976 was to reverse the traditional American rule (as reaffirmed in Alyeska) in a limited area and allow the court to award a reasonable attorneys' fee as part of the taxable costs. However, there is no indica tion in the legislative history that either of these statutes was 24 intended to change the traditional rules developed by a long series of cases regarding what is or is not a taxable cost or to make all litigation expenses taxable just because billed by the attorney to his client or advanced by the attorney on his client’s behalf. In sum, Plaintiffs' request that the City pay their travel, meal, copying, telephone, postage, and expert witness fees (over the amounts allowed by 28 U.S.C. § 1821) should be denied as not properly includable in the taxable costs or the attorney's pro fessional fees. S , The Direct Appeal The District Court's Findings As To The Customary Rate and The Other Johnson Factors Are Not Clearly Erroneous The district court's award of attorney’s fees may be upset only for an abuse of discretion. Wolf v. Frank, 555 F.2d 1213, 1214 (5th Cir. 1977). No such abuse of discretion has been shown here. As discussed previously, the district court considered studiously each of the twelve Johnson factors. 22/ plaintiffs concentrate most of their fire on two points - the customary rate and the contingent nature of the award. 22/ The standards of Johnson, a Title VII case, apply equally as well to the Voting Rights Act. Fain v. Caddo Parish Police Jury, 564 F.2d 707, 710 (5th Cir. 1977)V " “ ~~~~ 25 Concerning the customary rate, cross-examination of Plaintiffs' two witnesses appearing at the hearing revealed that although they thought that higher rates were reasonable in this case, their own experience in the Mobile, Alabama area was that about $50 per hour was the customary rate for lawyers of skill and experience similar to that of Mr. Blacksher and Mr. Still. And, although Plaintiffs introduced four depositions from Birmingham lawyers, the district court was justified in giving these depositions little weight since it is apparent that the fee rates mentioned in those deposi tions are far in excess of the customary or prevailing rates in the Mobile, Alabama area. ^3/ All four Birmingham attorneys admitted in their depositions that they had only limited legal experience in the Mobile, Alabama area, and they were not generally familiar with the customary legal fees in Mobile but were relying on their knowledge of the Birmingham area. 24/ And, although several deponents said they thought fee rates in the two areas were similar, all witnesses testifying at the hearing on this point agreed that the custo mary rates in Mobile were lower than the rates in Birmingham for comparable work by attorneys of similar expertise and experience. Tr. 70, 82. Furthermore, the deponents testified as to what they thought the services were "worth" or what rate they would have 23/ See Tr. 65. 24/ See note 11 supra. 26 required to take this case. £5/ Neither of these criteria meets the correct standard established by the Fifth Circuit as the "customary fee for similar work in the community." 488 F.2d at 718. It is the prevailing rate to which the deponents should have testified, not what they thought the case was worth or what minimum figure they would have required to take the case. liSJ These or other Birmingham attorneys may not have been willing to take the case for less than the figures they gave, but it is clear that the customary fee for similar work in Mobile is simply not $75.00 per hour (or more) for attorneys of Mr. Still’s and Mr. Blacksher’s experience, nor is it $60.00 per hour (or more) for new lawyers in their first few months of practice. Finally, the rates received by the highest cost lawyers in the city or the state are not the rates which should guide the district court in fashioning a reasonable fee to be paid by the losing party. In Pollard v. United States, 69 F.R.D. 646 (M.D. Ala. 1976), Judge Frank M. Johnson, Jr., quoted with approval this languages The law is not a money-grubbing profession; windfalls should not be given to those who successfully represent persons not properly treated by our Government. Awarding of fees 25/ See, e.g., Harris Depo. at 28-29; Friend Depo, at 23-24; Thornton Depo. at 27-28, 32-35, 42-43, 45, 57-59; Vance Depo. at 29. In his enthusiasm for the results obtained by the Plaintiffs, Mr. Thornton said that even a reasonable hourly rate of $500 per hour was a possibility. Thornton Depo. at 45. 26/ See note 8 supra. 27 is not intended to accomplish other social purposes, nor is it the function of the Court to attempt to equalize financial awards for all types of legal work. Some legal fees in the private sector are excessive. It is becoming increasingly expensive to protect the rights of citizens in court. It would be a gross mistake to make the highest level of charges in the private sector a measure of compensation to be paid all attorneys who seek to vindicate an identifiable public interest. 69 F.R.D. at 651, quoting from National Council of Community Mental Health Centers, Inc, v. Weinberger, 387 F. Supp. 991, 997 (D.D.C. 1974), reversed on other grounds, 546 F.2d 1003 (D.C. Cir. 1976). As did the two Mobile attorneys called by Plaintiffs at the hearing, most witnesses testifying on behalf of the Defendants agreed that the customary fees for complex, non governmental federal court litigation for attorneys of Mr. Blacksher"s and Mr. Still's expertise and experience in the Mobile, Alabama area is approximately $50 per hour and for Mr. Menefee and Mr. Stein is $30 per hour. Several defense witnesses placed both rates lower; none placed them higher. All witnesses agreed that the customary rate for governmental clients in Mobile, Alabama was less then that for private clients, even on compar able cases. The district court specifically found that "the pre vailing rate for municipal or public service work in this area hovers near the $40 per hour rate." R. 98. Certainly, this determination was not clearly erroneous. - 28 - The District Court Properly Considered The Contingent Nature of the Award And The Purpose of the Award Plaintiffs erroneously claim at page 21 of their brief that the district court held that contingency was not to be considered in setting the fee award. At page 7-8 of its opin ion, the district court noted that while Congress had set certain rates for indigent criminal cases thus indicating Congress's "idea of an appropriate attorney's fee at public expense," higher rates were appropriate in this action since indigent criminal case rates are "certain, win or lose, and not contingent as in this type of action." R. 97-98. The district court also gave consideration to the congres sional policies underlying an award of attorney's fees, specifi cally noting that the "purpose of statutory fee provisions is to attract competent counsel in these types of actions." R. 99. While Plaintiffs have extensively discussed carefully selected excerpts from the legislative history and from various high fee cases from around the country, they have lost sight of this guid ing principle. That guiding principle was explicitly recognized by the district court and was expressed in the very legislative history on which Plaintiffs purport to rely; These cases have resulted in fees which are adequate to attract competent counsel, 29 but which do not produce windfalls to attorneys. S. Rep. No. 94-1001, 94th Cong., 2d Sess. 6 (1976). [R. 16]. 27/ Clearly, it is the need to attract competent counsel, but to avoid windfalls, that must be the touchstone of the decision as to a “reasonable attorney's fee." The Fifth Circuit has recognized this principle from the start: To put these guidelines into perspective and as a caveat to their application, courts must remember that they do not have a mandate . . . to make the prevailing counsel rich. Concom itantly, the [attorney's fee provision] should not be implemented in a manner to make the private attorney general's position so lucrative as to ridicule the public attorney general. The statute was not passed for the benefit of attorneys but to enable litigants to obtain competent counsel worthy of a contest with the caliber of counsel available to their opposition . . . . 488 F.2d at 719 (emphasis added). 27/ The quoted language is taken from Senate Report No. 94-1001 to accompany P.L. 94-599, The Civil Rights Attorney's Fees Awards Act of 1976, reproduced at pp. 11-17 of the Record. The Senate version, rather than the House version, of the bill was enacted. However, the legislative history of the House version is to the same effect: The application of these standards [citing, inter alia, Johnson] will insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys. H. Rep. No. 94-1558, 94th Cong., 2d Sess. 9 (1976) [R. 23]. In this case, the district court awarded attorney's fees pursuant to the 1975 amendments to the Voting Rights Act. The legislative history of the attorney's fee authorization portion of those amendments is similar: It is intended that the standards for awarding fees under Section 402 and 403 be generally the same as under the fee provisions of the 1964 Civil Rights Act. S. Rep. No. 94-295, 94th Cong., 1st Sess. 40, reprinted in [1975] U.S. Code Cong. & Ad. News 774, 807. 30 Plaintiffs' argument boils down to a claim that they must be awarded counsel's fees higher than those they would have received had the governmental entity voluntarily retained their services. Such a position is unfounded, clearly goes beyond what is necessary to attract competent counsel, and represents a windfall rather than reasonable compensation which must, ultimately, be paid from the taxes of the citizens of the community. Although Plaintiffs argue at great length that the fees awarded are insufficient to attract counsel, 3̂/ they failed to offer any proof of this claim at the hearing before the district court. To the contrary, the only witnesses who testified to this point stated that $50 per hour (or less) would be more than sufficient to attract competent local counsel in the Mobile area to similar cases, even considering the "notoriety” of the case. Tr. 83, 86, 99. The District Court Properly Considered The Novelty and Com- plexity of the Case Contrary to implications by the Plaintiffs, the district court did give consideration to the complexity and novelty of the issues and awarded attorney' s fees accordingly. The complexity and novelty of the case was reflected in the number of hours spent by Plaintiffs' attorneys in researching the issues, prepar ing for trial, and presenting the case at trial. In awarding all 28/ See Brief of Appellants at 34. 31 hours claimed by Plaintiffs' attorneys, the court necessarily took these factors of additional complexity and novelty into account since it awarded fees for the extra hours occasioned by those factors. Wolf v. Frank, 555 F.2d at 1217-18. By making the hours expended the basis of the award, the district court has already compensated Plaintiffs' counsel for the addi tional time required because of the complexity and novelty of the case. Double compensation for those same factors is unwar ranted. The District Court Committed Mo Other Reversible Error Plaintiffs make other equally unfounded claims in their brief. For example, on page 28 Plaintiffs make a number of sweeping generalities which they allege support their position. Two of the more significant are: (1) attorneys representing public bodies "typically enjoy long-lasting professional rela tionships" with those clients and (2) opposing counsel is "likely to suffer, not benefit . . . from suing the public body." Brief of Appellants at 28. While impressive, these general observations suffer from a fatal flaw - they are not true. Counsel for the City does not have a "long-lasting professional relationship with the City" but, to the contrary, the Hand, Arendall law firm was retained as special counsel for this case at a negotiated, arms- length rate. Second, the district court specifically held that 32 Plaintiffs* counsel would not suffer, but to the contrary would benefit, from its representation in this case. R. 36-97. Likewise, at page 28, Plaintiffs improperly argue a matter not in the record (the hourly rates allegedly paid Washington counsel for the appeal) and as to which they made no proffer of proof. Tr. 15, 103, Plaintiffs* discussion of Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976), is misleading. The Second Circuit in Torres held that the fees paid prevailing plaintiffs should not be discounted simply because those attorneys worked for publicly financed legal services organizations. It did not hold that plaintiff's counsel should receive the highest reasonable rate ever paid in private litigation. To the contrary, the court indicated that the basis should be "the going rates for similar services received by privately employed counsel for work of comparable importance." 538 F.2d at 11. There could hardly be better evidence of that standard than the fee customarily paid government retained attorneys for similar work. Finally, the City notes that at footnote * * on page 30 of their brief Plaintiffs argue another matter not in the record by claiming that their attorneys * "expertise and efficiency led them to spend 400 fewer hours than defendants' counsel, a reversal of the usual balance." Not only is there no evidence in the 33 record to support the implication that Plaintiffs1 counsel were more expert and efficient than the Hand, Arendall firm, but common knowledge refutes the unproved1 assertion that usually defense attorneys will devote less time to a case than will the opposing counsel. ^9/ To prepare to defend complex litigation of this type is akin to defending a civilian population against guerilla attack, with the Plaintiffs free to marshall their forces and to pick and choose where they will strike while Defendants, not knowing where the attack will come, must spread their forces and prepare to defend everywhere. In any event, Plaintiffs introduced no evidence to support either assertion which they belatedly seek to raise here. The District Court Properly Deducted The Sums Advanced By The Non-Partisan Voters League _______ _____________ Plaintiffs argue strenuously that they "should not have to pay anything"to vindicate their rights and that they are entitled "to recover what it cost them." Brief of Appellants at 36. Plaintiffs sidestep the fact that the extra $750 they want awarded to them was paid by the Non-Partisan Voter League, not by them. In effect, they want reimbursement for costs they never paid and to be awarded more than "what it cost them." Their claim should be rejected. 29/ See Tr. 77. 34 V. CONCLUSION On The Cross Appeal Based on the findings of the district court and the record evidence, the rates used to calculate the attorney's fees should be reduced to $40 per hour for Mr. Blacksher and Mr. Still and to $30 per hour for Mr. Menefee and Mr. Stein. In addition, the case should be remanded to the district court for recalculation of the total award, using the rates determined on this appeal, but effecting a deduction from the award for duplication of effort and for the non-legal portion of the time expended by Plaintiffs' counsel. Finally, on remand, the district court should disallow as expenses any amounts not includable as taxable costs. On The Direct Appeal This Court should affirm the district court on Plaintiffs' direct appeal. / day of February, 1978.Respectfully submitted this OF COUNSEL: 35 Hand, Arendall, Bedsole, Greaves & Johnston Post Office Box 123 Mobile, Alabama 36601 Legal Department of the City of Mebile Mobile, Alabama 36602 C. B. Arendall, Jr. William C. Tidwell, III Post Office Box 123 Mobile, Alabama 36601 Fred G. Collins, City Attorney City Hall Mobile, Alabama 36602 By: Attorney for Defendants, The City of Mobile, Alabama, Robert B. Doyle, Jr., Gary A. Greenough, and Lambert C. Mims 36 CERTIFICATE OF SERVICE I do hereby certify that I have on this day of February, 1978, served two copies of the foregoing Brief Of City Of Mobile, et al. on counsel for all parties to this proceeding by United States mail, properly addressed, first class postage prepaid, to: Armand Derfner, Esquire Messers. Epstein, McClain & Derfner P. 0. Box 608 Charleston, South Carolina 29402 J. U. Blacksher, Esquire Messers. Crawford, Blacksher, Figures & Brown 1407 Davis Avenue Mobile, Alabama 36603 Edward Still, Esquire 601 Title Building Birmingham, Alabama 35203 Jack Greenberg, Esquire 10 Columbus Circle Mew York, New York 10019 Robert C. Campbell, III, Esquire Messers. Sintz, Pike, Campbell & Duke Plaza West Building 800 Downtowner Boulevard Mobile, Alabama 36609 . .. .. . .. .. : s : • ■ . . ’ - - : . • ’ • • . : . - ’ . ’ • . • - ’■ ’ ' . ' ' ~ ’ ’ •' ‘ ' ■ .■ ' ' : " • ■ • ’ ? ’ — „ ' . r’ . ..•■• .’■ - ’ . , . '■ ... ' .. .: . ‘ ■, .* vxr-- it; -i .;i■: “ \JTtv * ,, , M • . . 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