Bolden v. Mobile Brief of City of Mobile, et al.

    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 :

• ■ . . ’ - - : . • ’ • • . : . -

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