Plaintiffs' Objections to the Findings and Recommendations of the Magistrate; Plaintiffs' Brief in Support of Objections to Report of the Magistrate

    IN THE UNITED.STATES DISTRICT COURT POR THF 

EASTERN DISTRICT OF LOUISIANA 

- =- =- =X 

BARBARA MAJOR, et al., 

Plaintiffs, 

VS. : Civil Action No. 82-1192 
Section C 

DAVID C. TREDN, etc., et al. 

Defendants. 

PLAINTIFFS' OBJECTIONS TO THE FINDINGS AND 

RECOMMENDATION OF THE MAGISTRATE 

Plaintiffs, Barbara Majors, et al., object to the findings 

and recommendations of the United States Magistrate entered July 

13, 1986, as follows: 

Te Plaintiffs object to the "fifty (50) percent across- 

the-board reduction" in the hours claimed by the plaintiffs’ 

attorneys as being contrary to the facts and the controlling law. 

oe Plaintiffs object to the "deduction of all hours billed 

by attorneys in connection with the administrative proceeding 

under Section 5 of the Voting Rights Act" and the subsidiary 

finding made under that recommendation as being contrary both to 

the facts and the law. 

Be Plaintiffs object to the disallowance of recovery of 

all fees for expert witnesses as being contrary to both law and 

the facts.  



4, Plaintiffs object to the hourly rates recommended for 

each attorney. They are unreasonably low in light of the 

evidence produced in this litigation and the Johnson factors 

subsumed within that figure. 

Ss Plaintiffs object to the recommendation that attorneys 

who did not appear on the pleadings receive no compensation for 

the work performed or reimbursement of expenses in this litiga- 

tion as being both contrary to the facts and the law. 

Ge Plaintiffs object to the recommendations that there was 

nothing novel or difficult in the questions presented in the 

litigation, that the litigation required no exceptional legal 

skill on the part of plaintiffs' attorneys, that plaintiffs 

incurred no risk of not prevailing in this litigation and that 

civil rights litigation is not undesirable as being contrary to 

the facts in this litigation and the law. 

7. Plaintiffs object to the disallowance of litigation 

expenses as being contrary to the law and the facts. 

8. Plaintiffs object to the recommendation of the Magis- 

trate in that it does not award fees and expenses which are 

adequate to attract competent counsel to represent plaintiffs in 

civil rights litigation. 

 



In support of these objections plaintiffs rely on the 

accompanying memorandum, the record compiled in support of 

motion for attorneys' fees, and their Proposed Findings of 

submitted to the Magistrate. 

Respectfully submitted this 22nd day of August, 1986. 

LARRY MENEFEE 

BLACKSHER, MENEFEE & STEIN, P.A. 

5th Floor Title Building 
300 21st Street, North 

Birmingham, Alabama 35203 
{205) 322-7300 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

QUIGLEY & SCHECKMAN 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 

(504) 524-0016 

BY: 
  

R. JAMES KELLOGG 

840 Gov. Nichols 
New Orleans, Louisiana 70116 
(504) 524-2487 

STANLEY HALPIN 

2206 W. St. Mary 
Lafayette, Louisiana 70506 
{318) 367-2207 

LANI GUINIER 

CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor 
New York, New York 10013 

(212) 2191900 

ARMAND DERFNER 

Box 608 
Charleston, South 
Carolina 29402 

Attorneys for Plaintiffs  



CERTIFICATE OF SERVICE 
  

I hereby certify that on this day of August, 1986, a 

copy of the foregoing PLAINTIFFS' OBJECTIONS TO THE FINDINGS AND 

RECOMMENDATION OF THE MAGISTRATE was served upon the following 

counsel of record: 

Patricia N. Rowers, Esq. 
Assistant Attorney General 
State of Louisiana 
Department of Justice 
234 Loyola Bldg., 7th Floor 
New Orleans, Louisiana 70112-2096 

by depositing in the United States mail, postage prepaid. 

  

ATTORNEY FOR PLAINTIFFS 

 



IN THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF LOUISIANA 

X 

BARBARA MAJOR, et al., 

Plaintiffs, 

VS. Civil Action No. 82-1192 

Section C 

DAVID C. TREEN, etc., et al, 

Defendants. 

X 

PLAINTIFFS' BRIEF IN SUPPORT OF OBJECTIONS 

TO REPORT OF THE MAGISTRATE 

Plaintiffs Barbara Major, et al., urge the Court to make 

major revisions in the findings and recommendations of the 

Magistrate concerning an award of attorneys' fees and expenses 

plaintiffs' counsel. After winning a hard fought and contro- 

versial decision from a three-judge panel, plaintiffs attempted 

to negotiate settlement of their claims for attorneys' fees and 

expenses. After negotiations proved unsuccessful, plaintiffs, 

almost two years ago, filed their motion for an award of attor- 

neys' fees and expenses with affidavits and time logs from the 

plaintiffs' attorneys attached thereto. The parties conducted 

extensive discovery. Plaintiffs' attorneys were deposed and 

served with as many as four separate discovery requests. The 

State of Louisiana made two separate trips to the Washington, 

to 

 



D.C., area taking depositions. The hearing was held in May, 

1985, with post-hearing briefs submitted and the Magistrate's 

recommendation issued approximately one year later. 

The evidence presented to the Magistrate was voluminous. 

Each of plaintiffs' attorneys took the stand. Plaintiffs 

called, as expert witnesses in support of their claim, Mr. George 

Strickler, practicing attorney and professor of law at Tulane 

University Law School; Mr. Robert Weil, of Altman & Weil, 

economist and management consultant to the legal profession from 

Ardmore, Pennsylvania and Mr. Frank Parker, an attorney speciali- 

zing in Voting Rights litigation with the Lawyers' Committee for 

Civil Rights Under Law in Washington, D.C. Additionally, 

plaintiffs introduced the testimony of Mr. Mack Barham, an 

  

Plaintiffs were represented in this action by Mr. Stanley Halpin, 

Ms. Lani Guinier, Mr. James Kelloaag, Mr. Steve Scheckman, Mr. 

William Quigley and Mr. Armand Derfner. Additionally, Mr. 

Napoleon Williams of the NAACP Legal Defense and Educational Fund 

of New York City initially appeared on the pleadings for the 

plaintiffs prior to Ms. Guinier's involvement in the litigation. 

There was no fee claimed for him and plaintiffs did seek reim- 

bursement for one trip by Mr. Williams to New Orleans. The 

Magistrate disallowed that expense. (Findings and Recommenda- 

tions of the Magistrate, p. 40; hereinafter "F & R, Pp. "Ye MY, 

Larry Menefee of the law firm of Blacksher, Menefee & Steln in 

Mobile, Alabama, was admitted pro hac vice by the court to handle 

most of the work for plaintiffs' claim for award of attorneys’ 

fees and expenses. 

   



attorney of New Orleans, Louisiana, by way of deposition and the 

testimony of the former defense counsel in this litigation, Judge 

Martin Feldman, by way of deposition. 

The defendants called only one witness, Mr. Jerris Leonard, 

an attorney practicing in Washington, D.C. with experience in 

voting rights litigation. Mr. Leonard and his firm assisted the 

State of Louisiana as counsel in their defense of plaintiffs’ 

claim for an award of attorneys' fees and expenses. 

Numerous documentary exhibits were introduced, including all 

of the original time records and expense records of plaintiffs’ 

attorneys, economic studies prepared and collected by Mr. Weil, 

and the entire record of the proceedings on the merits. 

Generally, in each instance when plaintiffs' attorneys took 

the stand they described the work they performed in the litiga- 

tion, the difficulties they encountered and their experience in 

this area of litigation. Plaintiffs' attorneys responded 

point-by-point to each written objection which the defendants had 

filed to plaintiffs' claim either in their live testimony or by 

supplemental affidavits which the Magistrate requested them to 

file. Generally, the defendants conducted little or no cross- 

examination. 

The parties offered two starkly opposing views of this 

litigation. Plaintiffs contended that this was novel, difficult 

and complex litigation that was vigorously contested by the  



defendants. Plaintiffs contended that the effort they expended 

in this litigation was reasonable in light of the difficulty of 

the factual and legal issues, the determined defense offered by 

the defendants, and the quality of legal services that the Code 

of Professional Responsibilities required them to provide for 

their clients. 

Defendants, on the other hand, contended that it was a 

simple, easy case, and should have been handled on summary 

judgment in about 1,000 hours. Defendants' expert witness, Mr. 

Jerris Leonard, former assistant attorney general in charge of 

civil rights under the Nixon Administration stated that plain- 

tiffs' case was easily won and should have been won on summary 

judgment. 

The opinion of the Magistrate made severe cuts in plain- 

tiffs' claims for fees and expenses. The Magistrate recommended 

$135,969.40 in fee awards and reimbursement of $12,572.62 for 

litigation expenses. The effective hourly rate that plaintiffs 

received for their work on this litigation, after absorbing the 

unreimbursed expenses, five years after the litigation commenced 

is $39.00 per hour. 

Plaintiffs contend that the recommendation of the Magistrate 

both commits serious error on the factual record before the 

Magistrate and adopts several legally erroneous standards. The 

effect of the Magistrate's ruling, if upheld by the court, could  



be disastrous for the enforcement of voting rights laws contrary 

to the often and strongly stated congressional purposes of the 

fee shifting provisions of the Voting Rights Act. 

The recommendation of the Magistrate does not describe or 

evaluate the evidence. Not a single exhibit or witness is cited 

in support of the conclusions of the Magistrate. The Magistrate 

had no opportunity to observe the conduct of the litigation on 

the merits and, to the best of plaintiffs' counsel knowledge, has 

no experience in handling complex voting rights or civil rights 

litigation. 

The plaintiffs contend that the Court should exercise that 

broad discretion which is granted to the trial judge who is 

intimately familiar with the litigation and make findings of fact 

and conclusions of law as described below in lieu of those 

recommended by the Magistrate. Yates v. Mobile County Personnel 
  

Board, 719 7.24 1530 {1ith Cir. 1983). 

Iw THE MAGISTRATE ERRED IN REDUCING THE NUMBER OF 

HOURS CLAIMED BY PLAINTIFFS' ATTORNEYS BY 50% (F & 

R, Pe. 8) 

The Magistrate's arbitrary reduction of plaintiffs' attor- 

neys' hours by 50% is not permissible under the law governing the 

award of attorneys' fees. As the Supreme Court of the United 

States has held on a number of occasions, the starting point for 

calculating a reasonable fee is the number of hours expended  



times an appropriate hourly rate. Hensley v. Eckerhardt, 461 
  

U.S. 424 (1983); Blum v. Stenson, 465 U.S. 886 (1984); City of 
  

Riverside v. Rivera, eS , 54 U.S.L. Week 4845 (1986); 
  

Pennsvlvania v. Delaware Valley Citizens' Council for Clean Air, 
  

UeSs , 54 U.S. L. Week 5017 (1986). Where hours are fully 

documented and there is no question but that the time has in fact 

been spent, the trial court can only reduce time based on 

specific factual findings justifying particular reductions. 

See, e.g., Northcross v. Bd. of Education of Memphis, 611 F.2d 
  

624 (6th Cir. 1979); Tasbv v, Estes, 651 F.24 287, 289-90 (5th 
  

Cir. 1981); see also, National Ass'n of Concerned Veterans v. 
    

Secretary of Defense, 675 F.2d 1319 (D.C. Cir. 1982). 
  

Although some courts have approved of a small percentage 

reduction for duplication of effort where there are multiple 

attorneys ( see, e.g., Northcross, supra), in no instance has an 
  

across-the board reduction of half of documented hours without 

explanation and without specific fact finding being approved. 

Thus, a fact finder should not engage in "Monday-morning quar- 

ter-backing", but should follow the basic principle that if hours 

spent could have been properly billed to a client, then they 

  

The only evidence in the record which could support the Magis- 

trate's recommendation is the testimony of Mr. Leonard. But Mr. 

Leonard's testimony was thoroughly discredited because of his 

lack of familiarity with the litigation. It conflicts sharply 
with Judge Feldman's testimony. The Magistrate could not, and 

therefore, did not rely on Mr. Leonard's testimony.  



should be presumed to reflect a reasonable amount of time spent. 

See, Johnson v. University College of the University of Alabama, 
  

706 F.2d 1205, 1207-08 (11th Cir. 1983); Pennsylvania v. Delaware 
  

Valley Citizens' Council, 54 U.S.L. Week at 5022. Thus, for 
  

example, one court has held that once a plaintiff has established 

through evidence the amount of fees, a defendant may not respond 

by generalized objections but must come forward with particular- 

ized evidence to justify reduction of the amount requested. 

National Ass'n of Concerned Veterans v. Secretary of Defense, 

3 

  

supra, at 1337-38. 

In the present case the 50% across-the-board reduction is 

unsupported by any evidence and, indeed, does not purport to be 

supported by any factual determination, but rather because the 

Magistrate "simply feels" that the case could have been tried in 

that time. F & R, p. 8. The only piece of evidence even 

referred to is the hours billed by private counsel for the defen- 

dant. The time requested by private counsel, however, encom- 

passed only five quarters, whereas plaintiffs' time was expended 

over eleven quarters. Moreover, the time billed by private 

  

Clearly, no reduction based on Hensley v. Eckerhardt, supra, was 

justified and the Magistrate did not purport to base her decision 

on Hensley. Plaintiffs obtained precisely the relief they 

sought, a holding that the redistricting violated the Voting 

Rights Act and a court imposed plan that did not dilute black 

voting strength. 

  

 



counsel for the defendants does not reflect at all the time spent 

by the three attorneys employed by the State, and there is 

nothing in the record that reflects the total amount of time 

those attorneys spent. 

Judge Feldman and three other members of his firm billed the 

state for 864.75 hours over a period of five quarters. Plain- 

tiffs claim compensation for 2,502.48 hours expended over a 

period of 11 uszters. : Judge Feldman explained in his depo- 

sition that there were a number of matters that he did not bill 

the state for before he entered and after he terminated his work 

in this litigation. Judge Feldman apparently agrees that 

plaintiffs' extra effort in this litigation provided the winning 

margin: 

A. Counsel for the vlaintiffs prepared the case in a way 
that in my view won the case for plaintiffs, but it was a 
case that was close enough, I think it could have gone 
either way, and I think the plaintiffs' lawyers did such a 
good job that they won the case for the plaintiffs. 

(Feldman's Dep., pP. 2). 

  

Plaintiffs expended an average of 230 hours per quarter that they 
worked on this litigation. Judge Feldman and the members of his 
firm billed the state for approximately 180 hours per quarter 
that they were involved in this litigation. If only modest five 
hours per month per state attorney is assumed, the defendants’ 
entire litigation team would have expended the same number of 
hours as plaintiffs over same period.  



Thus, the Magistrate misapplied the decision of this Court 

in Harkless v. Sweeny Independent School District, 608 F.2d 594 
  

(5th Cir. 1979). Harkless squarely held that the time spent by 

defendant's counsel in a losing cause should not be the measure 

of the reasonableness of the time spent by plaintiffs' counsel in 

a winning one. It is simply illogical to assume that attorneys 

who win should have spent no more time than attorneys who lose. 

In the typical civil rights case, where virtually all of the 

evidence and witnesses are in the hands of the defendants and 

where the plaintiffs have the burden of proof, it can be expected 

that plaintiffs' lawyers must spend more time than defendant's. 

Additionally, plaintiffs produced evidence of the number of 

hours expended in the other deep south legislative and congres- 

sional reapportionment litigation conducted after the 1980 

census. In summary fashion, that evidence shows the following: 

State Case Plaintiffs Defendants 
  

  

Mississippi Jordan v. Allain 1,266 between 
3,000 and 
3,300 

  

Alabama Burton v. Hobbie )., 726 
  

Georgia Busby v. Smith 3.102 
(plus 846 paralegal 
hours) 

  

South 6,499 
Carolina State of South (1,193 paralegal 

Carolina v. United hours) 

States 

  

   



State Case Plaintiffs Defendants 
  

  

North Thornburg v. Gingles 2,800 private 

Carolina {district court counsel only 

proceedings only) 2459.56 

  

These cases show an expenditure of time ranging from 1300 to 6500 

hours on reapportionment cases that were in litigation from six 

months to two years. 

Given the facts that: (1) there is no question with regard 

to the accuracy of the time records; (2) billing judgment was 

exercised (the undisputed evidence shows that a variety of 

matters were not included in the submissions); and (3) the time 

spent in this case is comparable to that spent in other voting 

rights cases in the South, there was simply no basis whatsoever 

for the massive reduction by the Magistrate. 

In summary, plaintiffs’ claim is supported by testimony of 

their own attorneys and expert witnesses such as Frank Parker and 

George Strickler. Additionally, it appears that plaintiffs 

expended time that was not significantly disproportionate to the 

time expended by defense counsel. Plaintiffs' time is also 

within the range of the number of hours expended on comparable 

litigation in other Southern reapportionment cases. With such a 

showing, plaintiffs are entitled to have their hours presumed to 

 



be correct. Pennsvlvania v. Delaware Valley Citizens' Council 
  

for Clean Air, 54 U.S.L.W. at 5022, citing Blum v. Stenson, 465 
  

  

U.S. 886 (1984). 

IL. PLAINTIFFS OBJECT TO THE MAGISTRATE'S RECOMMEN- 

DATION TO DISALLOW ALL TIME SPENT BY PLAINTIFFS’ 

ATTORNEYS OPPOSING PRECLEARANCE OF THE LOUISIANA 

CONGRESSIONAL REDISTRICTING PLAN PURSUANT TO 

SECTION 5 OF THE VOTING RIGHTS ACT. 

The Magistrate erred both legally and factually in 

disallowing all of the 207.4 hours expended by plaintiffs’ 

attorneys opposing the Justice Department's preclearance of Act 

20. 

The time expended by plaintiffs' attorneys was between the 

months of December, 1981 and June, 1982. This action was filed 

on March 26, 1982. The efforts by plaintiffs in opposition to 

preclearance were proximately and intimately related to the 

litigation in federal court. The Magistrate legally erred in 

determining that compensation for administrative proceedings 

under the Voting Rights Act can only be awarded to "successful 

litigation under Section 2 of the Voting Rights Act." F & R, p. 

10. The correct legal standard was recently restated by the 

Supreme Court in Pennsylvania v. Delaware Valley Citizens' 
  

Council for Clear Air, 54 U.S.L.W. at 5021, viz., work that is 
  

"useful and of a type ordinarily necessary" for the enforcement 

of civil rights may be compensated even if performed in an  



administrative proceeding, citing Webb v. Board of Education of 
  

Dyer County, 471 U.S. yi 835 L.Bd.2d 233 (1985). 
  

The Magistrate made an alternative finding to support her 

conclusion. The Magistrate found that the "administrative 

proceedings under Section 5 were [not] crucial or at all helpful 

in the ultimate litigation under Section 2." F & R, 10. 

Again, with deference to the opinion of the Magistrate, it is 

contrary to all of the evidence that was before the Court. Mr. 

William Quigley took the stand and testified at some length 

concerning the submission made to the Justice Department in 

opposition to preclearance. Mr. Quigley was the attorney who 

handled virtually all of the efforts before the Justice Depart- 

ment's opposing preclearance. Mr. Quigley went section by 

section through the objections filed with the Attorney Senetal 

explaining how each section was evidence which was later intro- 

duced into the court proceedings and was directly and intimately 

related to the effort in the litigation. Furthermore, all of 

the attorneys involved agreed that it was their professional 

judgment that the work done in the Section 5 proceedings was an 

important step in this litigation. Judge Feldman, counsel for 

the defendants, felt that this work on the Section 5 effort was 

very important. 

Well, there was a time when we thought it was the only  



aspect of the case. Yes. It was very important. 

(Feldman Depo., p. 39, line 18) If defense counsel viewed 

Section 5 proceedings as important and expended a commensurate 

amount of professional effort, can it be unreasonable for 

plaintiffs' attorneys to reach a similar conclusion? 

Further, Mr. Quigley testified, without contradiction, that 

only 30-40 of the total of 207 hours were devoted solely to 

pre-clearance activities. The balance was directly related to 

litigation work as well. Therefore, under any rule, at least 167 

hours were compensible. ; 

Finally, we note that this term of Court the Supreme Court 

will hear argument in North Carolina Department of Transportation 
  

v. Crest Street Community Concil, S.Ct. No. 85-767, another case 
  

involving the standard articulated in Webb v. Board of Education 
  

of Dyer County, supra. We suggest first, therefore, that the 
  

Magistrate's decision is clearly contrary to the Supreme Court's 

decision in Delaware Valley, and, second, that if there is any 
  

question regarding that issue that it be resolved by a supple- 

  

The Magistrate also recommends that time spent in pre-clearance 

should not be compensated for because plaintiffs did not prevail 

there. Such a result is illogical; thus, if a plaintiff loses at 

trial, but wins the case on appeal s/he gets fees for the entire 

case even though s/he did not "prevail" before the trial court. 

See, e.g., Newman v. Piggie Park Enterprises, 377 F.2d 433, 436 

{2th CIr, 1967), modified, 390 U.S. 400 (1968). 
   



mental order of the Court following the decision of the Supreme 

Court in North Carolina Department of Transportation v. Crest 
  

Street Community Council. 
  

III. PLANTIFFS OBJECT TO THE DISALLOWANCE OF ALL FEES 

FOR EXPERT WITNESSES. 

Plaintiffs utilized a number of expert witnesses in pre- 

senting this litigation. The amount of work they performed was 

substantial and essential to the presentation of plaitniffs' 

claims. Expert witnesses were utilized for the litigation on the 

merits of plaintiffs' claim and for plaintiffs' claim for an 

award of attorneys' fees and expenses. The Magistrate recommends 

the disallowance of all of the expert witness fees claimed based 

upon the recent Fifth Circuit decision in IWA v. Champion 
  

International Corp., slip op. 83-4616, filed June 2, 1986. F & 
  

R, p. 27. Thus, the Magistrate disallowed approximately $35,000 

in fees and expenses to expert witnesses. 

The Magistrate acknowledged that these expert witnesses 

would be allowed the normal court attendance fee of $30.00 per 

diem but disallowed even that fee by explaining that it was not 

established "that a court appearance or deposition was involved." 

Id. Yet on the same page the Magistrate allowed court reporter 

fees for depositions of the experts. The entire record of the 

trial was available to the Magistrate to determine who actually  



was called as witnesses. Plaintiffs suggest this further 

highlights the difficulty the Magistrate had in handling this 

recommendation because of her unfamiliarity with the merits of 

the litigation. 

Plaintiffs recognize that the decision of the Fifth Circuit 

in the IWA case suggests that fees for expert witnesses may not 

be awardable. Plaintiffs are strongly of the opinion, however, 

that the decision of the Fifth Circuit is in error and wish to 

preserve the issue for further review. i 

This is particularly so in light of the decision of the 

Supreme Court this last term in Thornburg v. Gingles, U.S. 
  

, 54 U.S.L. Week 4877 (1986). There, the Court ruled on the 

legal standards and nature of proof governing actions brought 

under Section 2 of the Voting Rights Act. The Court notes the 

vital importance of expert witness testimony in developing proof 

in a voting rights case. 54 U.S.L. Week at 4883. 

  

With all due respect to the Court of Appeals, its overruling of 

Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) on this point was 

not necessary to the decision in IWA. Further, the decision in 

IWA ignores virtually all of the relevant legislative history of 
the Fees Act that makes it clear that Congress intended attor- 

neys' fees to include all expenses necessary to provide adequate 

representation. Thus, the Senate report makes it clear that 

pre-1976 case law was to govern the award of fees. See, Sen. 

Rep. No. 94-1101 (94th Cong., 2d Sess., 1976), Pp. 6. In two of 

the three cases cited in the Senate report -- Davis v. County of 

Los Angeles, 8 E.P.D. ¥ 9444 (C.D. Cal. 1974) and Swann v. 

Charlotte Mecklenburg Bd. of Ed., 66 F.R.D. 483 (W.D.N.C. 1975) 

—— substantial expert witness fees were awarded as part of the 

attorneys' fees. 

  

  

  

   



Just as in Thornburg, the evidence of experts was crucial in 

the development of plaintiffs' case and to the decision of this 

Court. If the Court feels bound by the decision of the Fifth 

Circuit in IWA as a matter of law, we respectfully suggest that 

it make findings that the work done by the experts was necessary 

both for the preparation of our case and for the decision of the 

Court. The issue then can be pursued by plaintiffs in a higher 

court. 

PLAINTIFFS OBJECT TO THE "CUSTOMARY HOURLY RATES" 
DETERMINED BY THE MAGISTRATE FOR EACH OF PLAIN- 
TIFFS' ATTORNEYS AS BEING BOTH FACTUAL AND LEGALLY 
ERRONEOUS. 

The Magistrate has recommended hourly rates for plaintiffs’ 

attorneys as set forth in the chart below. F & R, pp. 14-18. 

Plaintiffs' attorneys have requested hourly rates as shown in the 

second column of the chart below. 

Attorney 

Kellogg 

Scheckman 

Quigley 

Guinier 

Halpin 

Derfner 

Menefee 

Rate Recommended Requested 
  

$ 90 

80 

80 

135 

135 

None determined 

100  



Plaintiffs produced evidence through Professor Strickler, 

Judge Barham, and Judge Feldman that the requested noncontingent 

hourly rates were reasonable for lawyers with similar experience 

in complex federal civil litigation in New Orleans. Ms. Guinier 

and Mr. Derfner produced similar information by way of affidavit 

and testimony for New York City and Washington, D.C. attorneys. 

Mr. Menefee produced evidence for Mobile, Alabama, rates. Addi- 

tionally, plaintiffs' attorneys testified that the requested rate 

is what they have billed doing similar work in private practice 

and/or had received in fee awards in other cases. ? Finally, 

plaintiffs had testimony from Mr. Robert Weil, a nationally known 

economist and law office consultant, that according to his annual 

survey of attorney fees these were the noncontingent hourly rates 

most appropriate for these attorneys doing this type of litiga- 

tion. 

The Magistrate's recommendations for hourly rates are 

contrary to both the law and the evidence. The Supreme Court has 

held that the basic standards for determining a reasonable hourly 

rate is the rate that can be commanded by the attorney in the 

marketplace. Blum v. Stenson, 465 U.S. 886 (1984). This 
  

determination is to be made by reference to the 12 factors set 

  

For example, Mr. Quigley was awarded fees of $125 and $120 by 
this Court in Sullivan v. Foti, No. 82-1782 (E.D. La.) and 

Thompson v. City of New Orleans, No. 85-5475 (E.D. La.) respec- 

tively. Neither case was of the complexity of the present one. 

  

   



out in Jones v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 
  

1974). Moreover, where the record is undisputed as to what the 

appropriate rates are, the fact finder is not free to disregard 

that evidence and substitute its subjective judgment. Neely v. 

City of Grenada, 624 F.2d 547 (5th Cir. 1980). 
  

Here, plaintiffs' attorneys established that the rates they 

requested are rates that they had billed paying clients for 

similar work, that the requested non-contingent hourly rates were 

reasonable, and that they were in the low end of the market range 

for attorneys with similar experience in complex federal liti- 

gation in New Orleans, New York, Washinaton, D.C., and Mobile, 

Alabama. As the Supreme Court decisions have also made clear, 

experienced and expert attorneys who exhibit a high degree of 

skill have the right to have those factors calculated into the 

hourly rates. Pennsylvania v. Delaware Valley Citizens’ Council, 
  

supra. Thus, an attorney of high skill will command a higher 

rate than a less experienced attorney doing the same work. 

By cutting both hours and hourly rates the Magistrate has 

given plaintiffs' attorneys the worst of all possible worlds and 

has awarded them fees at a rate, on the average, of $39 per hour 

for the time they unquestionably have expended. Thus, the result 

is wholly inconsistent with governing law and the facts of this 

case. As noted, the evidence in this record as to hourly rates 

is undisputed; the defendants produced no evidence contrary to  



that introduced by the plaintiffs. Again, as another court has 

held, once a showing has been made by plaintiffs' attorneys of 

the proper hourly rate based on the elements identified in Blum, 

the burden shifts to the defendant to come forward with evidence 

sufficient to rebut that showing. National Ass'n of Concerned 
  

Veterans, supra. This the defendants have totally failed to do. 
  

Additionally, it appears that the Magistrate's recommenda- 

tion was affected by her misperception of what constituted legal 

work. For example, in discussing Mr. Kellogg's hourly rate the 

Magistrate recommends: 

Mr. Kellogg has stated that his responsibilities in 
Major v. Treen were the day-to-day operation of the case, 
handling of the motions practice aspect of this case and 
acting as supervisor of trial preparation and overall 
co-ordinator of the efforts of counsel. 

  

It is obvious that all of Mr. Kellogg's activities, 
although necessary in order to achieve an orderly result, 
were not legal work. Under the circumstances, the court is 
of the opinion that an hourly rate of ninety ($90) dollars 
per hour would adequately compensate Mr. Kellogg for the 

work performed. 

8 
25 RR, DP. 14. Mr. Kellogg was the designated trial attorney 

for this litigation. All of the work plaintiffs’ attorneys seek 

compensation for is of a type traditionally performed by lawyers. 

Some of plaintiffs' attorneys spent many hours lobbying Congress 

  

8 For example, also see the conclusion by the Magistrate that work 
by Ms. Guinier and Mr. Halpin prior to trial was "nonlegal in 
effort.” Fs. FP, Dp. 18,  



for passage of the amendments to Section 2 of the Voting Rights 

Act. None of those hours were requested. The motion and 

discovery practice in the district court is the very heart of 

lawyers' work. The case required an intensely detailed factual 

devalopnent oF the electoral and legislative history. Developing 

the facts and legal theories from various sources is time 

consuming and tedious work and at the very heart of major, 

complex, and difficult civil litigation. 

V. PLAINTIFFS OBJECT TO THE RECOMMENDATION OF THE 

MAGISTRATE THAT THERE WAS VIRTUALLY NO RISK OF NOT 

PREVAILING IN THIS LITIGATION, F & R , P. 18-19 

Plaintiffs' attorneys took this litigation on a contingent 

fee basis. They would be paid for their services only in the 

event they prevailed. The Magistrate correctly cited Jones v. 

Diamond, 636 F.2d 1364 (5th Cir. 1981), en banc, for the proposi- 

tion that attorneys who handle contingent fee litigation "are 

entitled to be paid more when successful than those who are 

assured of compensation regardless of the result." F & R, p. 18; 

But the Magistrate concluded that there was little chance the 

plaintiffs would not prevail in this case and that since the work 

was spread among five attorneys the slight risk was further 

lessened. PF & R, p. 19. 

The former attorney for the State, Judge Martin Feldman,  



assessed the litigation differently from the Magistrate: 

A. The case was close enough, I think, that it could have 

gone either way. And quite frankly, I think it was a 

common belief, at least in political circles, and maybe 

even some legal circles, that a different panel might 

have decided the same case on the same evidence in a 

different way. But I think that what tipped the scale 

is the presentation of the case. 

(Feldman Depo., p. 23). Judge Feldman went on to say that even 

after the trial of the case he thought it was close enough that 

it might get one dissenting voter which could be used in an 

appeal to the Supreme Court. (Feldman Dep., p. 65-66). Judge 

Feldman said that this was one of the most important cases he had 

ever litigated and listed it in papers he prepared for confir- 

mation hearings as a federal judge (Feldman Depo., p. 10-17). 

Plaintiffs called Mr. Frank Parker, attorney in Washington, 

D.C. at the Lawyers' Committee for Civil Rights, who testified 

about the risks associated with Voting Rights litigation. His 

own national survey of Voting Rights cases handled after the 

amendment to Section 2 of the Voting Rights Act indicated that 

plaintiffs were prevailing in only two out of every three cases. 

Plaintiffs' attorneys testified about the general sense in the 

civil rights community that this litigation was especially risky. 

Among the factors that concerned plaintiffs the most was the 

preclearance granted by the attorney general. This was the first 

case where an affirmative preclearance had been granted where the  



Court reached a different decision. Additionally, the unique and 

recent history of the New Orleans metropolitan area made proof of 

plaintiffs’ claims in this litigation particularly novel and 

difficult. New Orleans was governed by a black mayor and race 

relations in New Orleans have been different than much of the 

rural south. Plaintiffs had to confront a major challenge to the 

constitutionality of Section 2 of the Voting Rights Act. 

Thus, it is clear that the Magistrate's determination that 

there was no risk in this litigation was simply incorrect. 

First, this case was the first in which a court held that a 

redistricting plan violated the Voting Rights Act after it had 

been approved by the Department of Justice. The issue presented 

was both novel and undecided and it was not at all clear what the 

results would be. Indeed, plaintiffs had to contend not only with 

the opposition of the State of Louisiana but also had to overcome 

the Department of Justice's position that the redistricting was 

appropriate and did not violate the Act. 

Second, the Magistrate's holding that because there was a 

number of attorneys involved there was essentially no risk to any 

of them is both unprecedented and illogical. If a case presents 

a risk of not winning, that risk exists for all the attorneys 

involved and should be used to calculate the fees. The fact that 

an attorney did not put in all of the hours necessary to litigate  



a case by him or herself has nothing whatsoever to do with 

whether that attorney assumed the risk of not receiving any 

compensation for the time he or she did spend. 

Plaintiffs further contend that for the state to take the 

inconsistent positions in this litigation that it has, is 

evidence of bad faith. If, as the state's attorney now argue, 

the Louisiana reapportionment was clearly and obviously violative 

of the Voting Rights Act then it (and their attorney, Judge 

Feldman), must have been guilty of bad faith litigation by 

conducting such a vigorous defense of an illegal reapportionment 

plan when public officials have a duty to enforce the laws of 

this country. Alternatively, if Judge Feldman's assessment of 

the litigation, with which plaintiffs' agree, was correct, this 

case presented a close question and the litigation was difficult 

and hard fought. Thus, the state's position in opposing every 

penny of plaintiffs' claim for attorneys' fees and expenses has 

9 

been made in bad faith. 

  

One court has termed such a defense "disingenuous". Aumiller v. 

University of Delaware, 465 F. Supp. 676 (D. Del. 1978). Plain- 

tiffs contend that they are entitled to recovery of fees under 

the "bad faith standard". That standard is part of the inherent 

equitable powers of the court and is generally described as being 
available when a party has "acted in bad faith, vexatiously, 
wantonly, or for oppressive reasons". Alyeska Pipeline Service 
Co. v. Wilderness Soc., 421 U.S. 240, 258-59 (1975); Roadway 

Express, Inc. VY. Piper, 447 U.S. 752, 765-67 (1980). 

  

  

  

  

   



Finally, plaintiffs note that the question of whether and to 

what extent the risk of losing may be factored into a fee 

determination is before the Supreme Court in that part of Penn- 

sylvania v. Delaware Valley Citizens' Council, supra, set for 
  

reargument this term. Under Jones v. Diamond, supra, the factor 
  

of risk can certainly be taken into account in calculating the 

hourly rate. Such a result is also fully consistent with the 

holdings of the Supreme Court in Blum v. Stenson, supra, and 
  

Delaware Valley. 
  

Whether a multiplier for a contingency factor can then be 
  

applied to an hourly rate is the question left open by Delaware 

Valley that will be decided by the Court in its coming Term. We 

respectfully suggest that the court may calculate the proper 

lodestar amount in this case and leave to be decided in a 

supplemental proceeding, after Delaware Valley is decided, 
  

whether a multiplier is appropriate. 

Vie. PLAINTIFFS OBJECT TO THAT PORTION CF THE MAGIS- 

TRATE'S REPORT WHICH DENIES FEES AND EXPENSES TO 

COUNSEL WHOM THE MAGISTRATE DETERMINED NOT TO HAVE 

APPEARED AS COUNSEL OF RECORD. 

As a factual matter, the Magistrate erred in determining 

that Mr. Armand Derfner was not counsel of record in the case and 

disallowing his claim for fees (F & R, at p. 7 and 49-50) and in 

disallowing the claim for reimbursement of $535.75 for food  



travel and lodging on behalf of Mr. Napoleon B. Williams, an 

attorney with the NAACP Legal Defense Fund, on the ground that he 

was not counsel of record and not needed in the litigation. Both 

Mr. Derfner and Mr. Williams did appear on pleadings in this 

litigation. Mr. Williams was the original staff attorney with 

the NAACP Legal Defense Fund who appeared on the complaint in 

this action and was later replaced by Ms. Guinier. Mr. Williams 

has billed for none of his time in this case and only requested 

compensation for one trip to New Orleans. It was a modest 

request in light of his actual involvement. The Magistrate also 

factually erred as to Mr. Derfner. Mr. Derfner appeared as 

counsel of record on the pleadings in this case filed in the 

District of Columbia District Court. to enforce subpoenas. Mr. 

Derfner's work was fully described in his affidavit supplied to 

the court. 

Plaintiffs also object, however, to the legal rule developed 

by the Magistrate in this regard. There is no precedent that an 

attorney must appear as counsel of record in order to recover 

fees. It is an unwise and unworkable legal standard to promul- 

gate. For example, Mr. Derfner was one of the principle archi- 

tects of the Section 2 amendments to the Voting Rights Act in 

Congress. It was reasonable for plaintiffs to determine that 

consultation with him would be of benefit to the presentation of 

their claims. It would not have been necessary for him to have  



entered a separate appearance in this litigation with all of the 

attendant service of document requirements of the Federal Rule 

when he was used only to provide the research and voting rights 

expertise that he did. 

Thus, the disallowance of fees for work that was clearly 

done was contrary to the law of this Circuit. Tasby v. Estes, 
  

651 F.2d 287 (5th Cir. 1981). Just as the Court noted there: "It 

follows that if [Mr. Derfner] is not compensated for such work -- 

which had to be done by someone -- no one will be." 651 F.2d at 

289. See also, Northcross v. Bd. of Education, 611 F.2d 624, 637 
  

{6th Cir. 1979). 

Furthermore, the standard used by the Magistrate is not the 

one customarily applied in private practice. The State of 

Louisiana utilized at least seven attorneys in this litigation. 

They did not all appear on the pleadings in this litigation. 

Judge Feldman had several attorneys in his office who worked on 

this litigation, billed the State of Louisiana, and were paid by 

the State of Louisiana for their time yet not all of them ever 

appeared on the pleadings. 

No different standard should be applied to the petitioning 

attorneys here merely because they represent the plaintiffs in a 

civil rights case rather than the defendants. 

 



VII. PLAINTIFFS OBJECT TO THE DISALLOWANCE OF 

LITIGATION EXPENSES BY THE MAGISTRATE. 

The Magistrate disallowed significant portions of normal 

routine expenses traditionally billed by attorneys such as food, 

gas, local ground transportation, copying, and service of 

subpoenas. 

First, plaintiffs wish to emphasize that their requested 

reimbursement for expenses is frugal. None of the Louisiana 

attorneys billed for any long distance telephone calls. Mr. 

Halpin, for example, stayed with friends during the trial and did 

not bill for any hotel expenses. Second, plaintiffs contend that 

the traditional standard employed by the courts has been to 

reimburse attorneys for all expenses reasonably incurred in 

connection with the litigation. Dowdell v. City of Apopka, Fla., 
  

698 F.2d 1181, 1188-92 (11th Cir. 1983); Gates v. Collier, 616 
  

F.24 1263 (5th Cir. 1980), mod., 636 F,2d 942 (5th Cir. 1981); 

Miller v. Carson, 563 F.2d 741, 754-56 (5th Cir. 1977); Fairley 
  

v. Patterson, 493 F.2d 598, 606-07, n. 17 (5th Cir. 1974). The 
  

Magistrate's opinion disallows so many small items that it is 

exceedingly difficult to concisely frame the objection to the 

Magistrate's rulings. Whatever the sum of the disallowed costs, 

perhaps more importantly, the legal principle upon which the 

disallowance were based is erroneous.  



Plaintiffs believe that three categories of expenses can be 

delineated which the Magistrate disallowed. First, the Magis- 

trate disallowed a number of small expense items for failure to 

produce receipts. Plaintiffs produced either receipts or other 

contemporaneous bookkeeping entries of all claimed items. The 

items that were denoted with contemporaneous bookkeeping entries 

were small expense items for gas or taxi fare. Generally, these 

occurred in Mr. Halpin's records or when Ms. Guinier requested 

reimbursement from the Legal Defense Fund. All of these records 

and the claim for reimbursement were produced under oath by 

attorneys admitted to practice before the court. There is no 

rule of law that every item of expenses must be documented in the 

way required by the Magistrate. 

The second major category of unallowed expenses largely 

concern travel expenses associated with issues concerning Section 

5 pre-clearance with the Department of Justice. It was dis- 

allowed because of the Magistrate's conclusion that Section 5 

proceedings were not reasonable or necessary in their relation to 

the litigation. If the district court concludes that the Section 

5 preclearance issues were relevant to the litigation, then those 

expenses should be allowed. 

The third major area concerns expenses which the Magistrate 

determined attorneys had not said what the costs items were for. 

For example, the Magistrate disallowed $481.25 of photocopying  



expense for Mr. Menefee. F & R, p. 56. Mr. Menefee produced 

contemporaneous photocopy logs showing the date and the number of 

copies and the operator who did the copying. The Federal Rules 

of Civil Procedure require copies served upon all counsel, 

co-counsel and to the Court. The record in this case clearly 

shows that numerous copies of documents, pleadings and briefs 

were required. Mr. Menefee took the stand, introduced his 

affidavit and the defendants chose not to cross-examine him and 

contest the claims that he made. 

The Magistrate disallowed four items requested by Stephen 

Scheckman on the ground they had not been submitted in compliance 

with a discovery deadline of April 2, 1985. (F & R, pp. 28-29). 

However, the record is clear that on April 2, 1985, Mr. Scheckman 

fully complied with that deadline. However, he also notified 

defense counsel that a supplemental submission would be necessary 

because of newly discovered items hitherto not submitted that 

were not subject to the discovery request or deadline. This was 

done on April 11, 1985, and there is no question but that the 

expenses requested were indeed made and were reimbursable. Since 

there was no prejudice to defendants for the brief delay in their 

actual submission and defendants were on notice of plaintiffs’ 

intent to submit them, they should be awarded. 

 



With regard to certain expenses claimed by Lani Guinier, the 

Magistrate recommended their denial provisionally unless proof 

was submitted as to their proper allocation to this litigation. 

The Magistrate's decision provides that she would be allowed to 

supplement the record in this regard. (F & R, Pp. 38-39.) 

Submitted with this memorandum is Ms. Guiner's affidavit that 

clearly establishes the proper allocation and submits further 

proof with regard to other items of her expenses that were 

denied. (F & R, pp. 35-44.) Therefore, these expenses should be 

awarded. 

Finally, the record shows that the bill submitted by the 

defense attorney, Judge Feldman, included charges for restau- 

rants, travel time, copying expenses and postage. All of these 

items were reimbursed by the State of Louisiana to their own 

attorneys. Plaintiffs have supplied voluminous documentation in 

support of their claimed expenses. They are reasonable in amount 

and of a type normally reimbursed by clients. The attorneys 

should be held in no higher or different standards than attorneys 

generally in private practice. The legal standard adopted by the 

Magistrate is unprecedented and will result in far more court and 

attorney time to litigate than will ever be justified by the 

amount in controversy. Thus, it will be a significant deterrent 

for private attorneys who may wish to undertake such litigation.  



CONCLUSION 
  

For the foregoing reasons, plaintiffs' objections to the 

Magistrate's recommendations should be upheld and they should be 

awarded the amount of fees and costs prayed for in their motion. 

Respectfully submitted this 22nd day of August, 1986. 

LARRY MENEFEE 

BLACKSHER, MENEFEE & STEIN, P.A. 

5th Floor Title Building 
300 21st Street, North 
Birmingham, Alabama 35203 
(205) 322-7300 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

QUIGLEY & SCHECKMAN 

631 St. Charles Avenue 
New Orleans, Louisiana 70130 
(504) 524-0016 

BY: 
  

R. JAMES KELLOGG 

840 Gov. Nichols 
New Orleans, Louisiana 70116 
(504) 524-2487 

STANLEY HALPIN 

2206 W. St. Mary 
Lafayette, Louisiana 70506 
(318) 367-2207 

LANI GUINIER 

CHARLES STEPHEN RALSTON 

99 Hudson Street 

16th Floor 
New York, New York 10013 

(212) 219-1900 

ARMAND DERFNER 

Box 608 
Charleston, South Carolina 29402 

Attorneys for Plaintiffs  



CERTIFICATE OF SERVICE 
  

I hereby certify that on this day of August, 1986, a 

copy of the foregoing PLAINTIFFS' BRIEF IN SUPPORT OF OBJECTIONS 

TO REPORT OF THE MAGISTRATE was served upon the following 

counsel of record: 

Patricia N. Bowers, Esq. 
Assistant Attorney General 
State of Louisiana 
Department of Justice 
234 Loyola Bldg., 7th Floor 
New Orleans, Louisiana 70112-2096 

by depositing in the United States mail, postage prepaid. 

  

ATTORNEY FOR PLAINTIFFS