Correspondence from Menefee to Ralston and Guinier; Plaintiffs' Supplemental Brief on Pennsylvania v. Delaware Valley (Redacted)

    IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL., 

Plaintiffs, 

ve. CIVIL ACTION NO. 82-1192 
SECTION C 

DAVID C. TREEN, ETC., ET AL., 

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Defendants. 

PILAINTIFFS' SUPPLEMENTAL BRIEF ON 

PENNSYLVANIA V. DELAWARE VALLEY 

Plaintiffs submit this supplemental brief in support of 

it's claim for attorneys' fees and expenses in light of the recent 

Supreme Court decision in Pennsylvania Vv. Delaware Valley 
  

Citizens' council for Clean Air, 107 S.Ct. 3078 (June 26, 1987) 

(hereinafter Delaware Valley II). The opinion was rendered after 

reargument A on the issue of whether separate or additional 

compensation may be awarded to a prevailing plaintiff's attorney 

who had assumed the risk of losing and not being paid. 

Justice White wrote an opinion in which Rehnquist, 

Powell and Scalia joined. O'Connor wrote a separate opinion and 

Blackmun wrote an opinion in which Brennan, Marshall and Stevens 

joined. No opinion commanded a majority of the Court. O'Connor 

concurred in the Court's judgment announced by White. Though 

Justice O'Connor agreed in the judgment of the Court announced by 

  

1/ Pennsvlvania v. Delaware Valley Citizens' Council for Clean 

Air, 278 U.S. , 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (Delaware 
Valley I). : 

   



White, she agreed with the interpretation of the statutory purpose 

in Justice Blackmun's opinion®24 

The opinions of the Court addressed two major issues. 

All three opinions considered whether, when, and how to determine 

compensation for attorneys who have prevailed in a case taken on a 

contingent fee basis. The opinions also further clarified the 

standards for determining the lodestar amount; the number of hours 

times the non-contingent hourly rate. Aside from those two 

principle subjects, the Court necessarily offered some additional 

guidance in other areas. Accordingly, this brief is divided into 

three sections. 

I. COMPENSATION FOR RISK 

Though the three opinions analyzed the legislative 

history somewhat differently and expressed various concerns about 

manageable standards, all nine justices on the Court ultimately 

recognized that enhancement above a non-contingent hourly rate 

could be appropriate in certain circumstances.3£ 

The opinion by Justice White held that an enhancement 

may be awarded in "exceptional cases"=2£ White states that the 

risk of non-payment should be determined at the beginning of 

  

2/ "For reasons explained by the dissent, I conclude that 
Congress did not intend to foreclose consideration of contingency 
in setting a reasonable fee under fee-shifting provisions . . 
i107 S.Ct. at 3089. 

3/ See Opinion of Justice Blackmun, fn. 1, p. 3091 and fn. 7, Pp. 
3095, explaining that Part IV of the White opinion is "not the 
governing law." 

4/ This further defines the "exceptional case" circumstance as 

announced in Blum v. Stinson, 465 U.S. , 104 S.Ct. .  



litigation and should be an objective test based on the likely 

response of the bar to accepting such litigation.2£ The White 

opinion says that as a "general rule" an enhancement should be no 

more than one-third of the lodestar rate. There should be 

findings by the Court that without an enhancement there would be 

substantial difficulty finding counsel to accept such representa- 

tion.8£ 

Justice O'Connor's opinion emphasizes that "compensation 

for contingency must be based on the difference in market 

treatment of contingent fee cases as a class, rather than on the 
  

assessment of the riskiness" of any particular case. 4 Justice 

O'Connor does not feel that enhancement should be "based on the 

legal risk or risks peculiar to the case. "8, She agrees that 

finding difficulty in obtaining counsel without enhancement is 

necessary. 24 

The Blackmun opinion also says that enhancement does not 

depend on the risk of a particular case but upon the fact of con- 

tingency.+% His opinion goes on to commend an inquiry whether or 

not the fact of a contingent fee relationship is mitigated by 

other factors such as the client being able to pay some fees. 

  

5/° 107 s.ct. at 3088, see fn. 11. 

6/ 107 s.ct. at 3089. 

/ 107 S.Ct. at 3089 (emphasis in original). 

8/ 107 s.ct. at 3091. 

9/ 107 s.ct. at 3091. 

10/ 107 S.Ct. at 3097.  



Blackmun's opinion also described an "extra" enhancement for the 

exceptional cases. He described exceptional cases as those 

involving significant and apparent legal risks, or those that 

achieve significant results, or are of broad public interest.if 

Blackmun's opinion would also allow an extra enhancement because 

of the "serious and persistent opposition" of the defendants.2£ 

Thus Blackmun's opinion contemplates an enhancement in 

all cases vhich are in fact contingent. Some factors might 

mitigate the risk undertaken by the plaintiff's attorneys, such 

as a client paying for somz fees or expenses. Some factors may 

aggravate the risk such as the delay in payment and the size of 

the firm that had to absorb the risk. The goal of the enhancement 

is to "place contingent employment as a whole on roughly the same 

economic footing as non-contingent practice. "iL Blackmun's 

enhancement would thus vary within a range reflective of how the 

market compensates enhancement depending not on the peculiarities 

of the facts or legal issues in a particular case but focused 

largely upon the fee arrangment and staffing arrangements. Though 

Justice O'Connor expresses some doubt about measuring the risk 

experienced by small firms, 224 Blackmun's test for this "normal" 

  

11/ 107 S.Ct. at 3100. "In such a case, the Court must make 

detailed findings regarding the particular legal risks that were 

apparent at the outset of the litigation and the importance of the 

result obtained - findings that would justify the additional 

enhancement." 

12/ 107 s.ct. 3102, £n. 18. 

13/ 107 S.Ct. 3097 (emphasis in original). 

14/ 107 s.ct. 3090.  



enhancement is quite similar to that advocated by Justice 

O'Connor. Blackmun goes on, however, to advocate an "extra" 

enhancement which O'Connor is unwilling to support because she 

fears the standard is not manageable. 

In summary, all three of the opinions allow for an 

enhancement: All favor a test that is not heavily dependent on 

the peculiarities of the particular case but more generally 

reflective of the market for contingent fee cases. While Blackmun 

would probably favor an enhancement in every case where a fact of 

contingency exists, White would tend to reserve an enhancement 

only for the "exceptional" cases. O'Connor apparently would favor 

an enhancement in every case if the market normally awarded an 

enhancement for contingent fee cases. The White opinion favors a 

cap on an enhancement of one-third of the lodestar amount. But 

even White allows for enhancements beyond one-third if there is 

"exacting justification" for the higher enhancement. Blackmun 

clearly allows for "extra" enhancement if a number of other 

factors are present and O'Connor doesn't specifically address the 

question. 

The overriding concern of the White opinion seems to be 

the difficulty formulating a judicially manageable standard. 

Presumably, if a standard is articulated that practice shows is 

manageable, does not create a conflict of interest between the 

attorney and his client, does not require the Court to 

"retroactively assess" the plaintiff's chance of success and does  



not unduly penalize a defendant with the strongest defense, it 

would satisfy the concerns of the White opinion. 

The evidence in this case fully supports the requested 

enhancement according to the standards enunciated in Delaware 

Valley II. This evidence can be analyzed in a way that meets the 

requirements of all nine justices who were then sitting on the 

Court. 

The defendant has argued that though the case was taken 

on a contingent fee basis by the petitioning attorneys there was 

no risk of not prevailing. They claim the case was a laydown, 

full of ‘'"smoking-gun" and "MX-missile" evidence. In light of 

Delaware Valley II the defendant's theory collapses. The 

defendants do not contest that there was in fact a contingent fee 

arrangement and there was no mitigation of that risk by the 

plaintiff paying some fees or expenses. Thus, Blackmun's criteria 

is satisfied. The defendants admit that the market as a whole 

compensates successful contingent fee litigation with enhanced 

fees. Plaintiffs' Exhibit No. 21, Interrogatory No. 10: 

(Ques.) Do you contend that the following statement incorrectly 
reflects the practice among attorneys in New Orleans, Louisiana? 

Lawyers who are to compensated only in the event of 
victory expect and are entitled to be paid more when successful 
than those who are assured of compensation regardless of result. 
Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981) (en banc) 

(Ans.) ...Defendants contend that the "more" which Plaintiffs, 
whose fee is contingent on victory, are to be paid, depends on how 
great a risk there is to the litigation. For example, a lawyer 
who had a 50% chance of success when the complaint was filed 

should receive more than a lawyer who had a 90% chance of success 

when the complaint was filed, despite the fact that both lawyers 
would only be compensated in the event of victory....  



This admission by the defendants is supported by the testimony of 

Judge Barham, Mr. Strickler, Mr. Weil and each of the plaintiffs’ 

attorneys in private practice.22£ The O'Connor and Blackmun tests 

are fully satisfied. 

The White test of an "exceptional case" and requiring 

evidence that representation would be difficult to obtain is als» 

satisfied by the evidence. Judge Feldman testified that he listed 

this case as one of his most significant cases when preparing fur 

his confirmation process. Fedlman depo. p. 10-17. Mr. Park:r 

described the significance of the decision in voting righ:s 

jurisprudence in considerable detail calling it an "extremely 

important" decision. Parker, Tr. p.14-23, see p.23, 1ln.20. Mr. 

Strickler described at length the difficulty of attracting 

attorneys to handle civil rights cases over the last twenty years. 

Strickler Tr. p. 25-26. He described how the reputation of being 

a "civil rights" attorney hindered his ability to attract regular 

fee paying clients. Strickler Tr. Pp. 21-23. Mr. Weil, a 

nationally recognized management consultant to law firms, fully 

confirmed these points. He said that even with the enhancement 

requested by the plaintiffs a fee award may only attract some 

large firms who would view it as pro bono work; e.g. plaintiffs’ 

request is not large enough to meet the economic market. Weil, 

Tr. iD. 53. There is no contradictory evidence offered by the 

defendants. 

  

15/ Barham, depo. p. 23-25; Strickler Tr. p. 15-16; Weil - Tr. Pp. 
44-47.  



This case must be considered "exceptional" under any 

reasonable use of the term. The case involved the fundamental 

right to vote of a large class of citizens for the U.S. House of 

Representatives, required suing the State of Louisiana, analyzing 

the motives of its legislature in a highly political matter and 

analyzing the effects in New Orleans, a civy with a black Mayor 

and a more complex racial history than most areas of the South. 

There are necessarily few reapportionment cases, they are 

necessarily large and involve powerful political interests. They 

attract determined opposition. A concensus of the bar, and 

apparently the U.S. Congress, considered the post-City of Mobile 
  

v. Bolden law highly unfavorable to plaintiffs claim. The United 

States Attorney General determined that the challenged plan had 

neither the purpose nor effect of discrimination. Mr. Quigley 

testified that other attorneys felt the case was too risky and 

they purposefully put together a litigation "team" to spread the 

risk. 

How much enhancement is appropriate? White's opinion 

suggests more than 1/3 of the lodestar would be appropriate only 

with the most exacting justification. No evidentiary or legal 

precedent is referred to for that standard. O'Connor's opinion 

urges District Courts and Courts of Appeals to determine how 

particular markets compensate for contingency and develop a 

consistent application for future cases. Plaintiffs have 

presented substantial evidence of - how the New Orleans market 

compensates for contingency and we urge the court to make such a  



finding. Blackmun's opinion also keys the amount of enhancement 

to be competitive with the private market. 107 S.Ct. at 3101 

Judge Barham testified that effective hourly rates for 

successful contingent litigation would typically range from two to 

eight times the non-contingent hourly rate. Barham Depo. p.23-25 

Mr. Weil and Mr. Strickler offered similar testimony. In the wake 

of tort-reform legislation the Florida Supreme Court has 

determined that court zwarded contingent fees, utilizing Johnson 

factors, +84 should range between 1.5 and 3.0 times the hourly 

rate. ZL Plaintiffs have requested an award that approximately 

doubles the non-contingent hourly rate. In light of how the 

market as a whole compensates contingency it is a modest request. 

Plaintiffs' request does not require the type of case-specific 

inquiry which troubles the White opinion. The market has set the 

rate and there is no contradictory evidence in this record. 

II. DETERMINING THE I.ODESTAR AMOUNT 

Recent decisions of the Supreme Court have focused on 

the components constituting the "lodestar amount". +8 Delaware 

Valley II substantially clarifies most of the remaining issues 

concerning the determination of the lodestar amount. In this 

  

16/ Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 
1974). 

17/ Florida Patient Compensation Fund v. Rowe, 472 So.2d 1145 
(Fla. 1985). 

18/ E.g. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 
L.Ed.2d 40 (1983); Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 

79 L.Ed.2d 891 (1984). 
   



action many of the essential facts concerning the lodestar amount 

are stipulated to by the parties. 

The parties stipulated to a range of non-contingent 

hourly rates for each of the petitioning attorneys. Plaintiff 

suggested non-contingent hourly rates for each of the petitioning 

attorneys that was near the 80th to 90th percentile within the 

stipulated range.22£ Plaintiffs contend that this was complex, 

difficult, novel and specialized federal civil litigation and thus 

justified the non-contingent hourly rates at the higher end of the 

stipu.ated range. Additionally plaintiffs's attorneys testified 

that these rates were consistent with what they charged in 

private practice for similar work. Judge Barham said the rates 

would be appropriate at the standard rate (i.e. 50th percentile) 

for similarly experienced attorneys in his firm. Barham depo. 

pPp.18-21 Mr. Weil said that these rates were consistent the 

surveys of law firms that he conducts each year given years of 

experience, type of litigation, geographic area, and size of 

metropolitan region. Weil testimony pp. 41-43. The magistrate 

stated from the bench that the non-contingent hourly rates 

  

18/ The parties stipulated that non-contingent rates for 
similarly experienced attorneys were within the following ranges. 
Plaintiffs' requested non-contingent rate is shown to the right: 

Attorney Stipulated Rate Requested Rate 

Mr. Halpin $100-175/hr $160/hr 
Ms. Guinier 100-175/hr 160/hr 
Mr. Kellogg 75-150/hr i3s/hr 

Mr. Scheckman 75-150/hr i25/hr 

Mr. Quigley 75-150/hr 125/hr 
Mr. Derfner 100-220/hr 178/nr  



plaintiffs claimed were really not disputable, essentially a 

matter of judicial notice. See Quigley testimony, Tr. 129 1n.1l7- 

25. 

The most noteworthy development in Delaware Valley IT 

concerning the lodestar amount is the increasing emphasis that the 

Court places upon the lodestar amount being fully compensatory for 

an increasing number of factors. Factors such as ability of 

counsel, novelty and difficulty of issues, protracted nature of 

the defense which in the past were thought to be part of an 

enhancement, have increasingly been placed by the Court as compo- 

nents of the lodestar amount. Additionally, in no case has the 

Supreme Court indulged in a retroactive dissecting of an 

attorney's time records. Thus, while the Court use to speak of 

reasonable hours times reasonable hourly rates the Court in 

Delaware Valley II almost entirely abandoned the modifier 

"reasonable" in discussing the calculation of the lodestar. 

Increasingly the Court emphasizes that the lodestar amount should 

fully reflect all factors except risk, delay and undesirability. 

The White opinion says, "Payment for the time and effort 

involved - the lodestar - is presumed to be the reasonable fee 

authorized by the statute, . . n2L The O'Connor opinion says 

that the lodestar amount is "an appropriate hourly rate multiplied 

by the hours expended. "214 This is after Justice O'Connor has the 

novelty, difficulty, potential for protracted litigation, complex- 

  

20/ 107 s.ct. at 3088. 

2l/ 107 s.ct. 3091.  



ity, special skill of counsel and legal risk peculiar to the case 

all collapsed into the lodestar calculation.224 And the Blackmun 

opinion emphasized that the reimbursement "must be full and com- 

plete" and similar to other complex federal litigation such as 

antitrust.23£ Justice Blackmun emphasized the completeness of 

compensation that is required: 

In most cases where the "legal risks" are 
high, and the case therefore novel and diffi- 
cult, attorneys may be expected to spend a 
greater number of hours preparing and litigat- 
ing the case. The courts should consider this 
seriously in determining the number of 
"reasonable" hours to be incorporated in the 
lodestar and should be careful not to reduce 
unduly the number of hours in a novel and dif- 
ficult case. 

107 s.Ct. 3100. 

The Blackmun opinion urges the lower courts to give "significant 

weight" in the circumstances where an attorney faces difficult and 

hard fought litigation with well-funded opponents. 

The fact that an attorney faces strong opposi- 
tion by a well-funded opponent should cer- 
tainly be given significant weight by a court. 
‘This factor, however, ordinarily becomes rele- 
vant in the assessment of the reasonableness 
of the hours expended by the attorney prepar- 
ing and litigating the case. Like the novelty 
or difficulty of a case, a strong and persist- 
ent opponent usually demands a significant 
increase in the hours devoted to a case. 

107. S.Ct. at 3102, fn. 18. 

  

22/ 107 s.ct. at 3089-91. 

23/ 107 s.Ct. 3078.  



Thus, Delaware Valley II goes substantially further to 

simplifying the lodestar calculation. So many factors are now 

included within the lodestar calculation that the Court now seems 

to emphasize, insofar as is relevant in this case, that essen- 

tially all time should be compensated for. Furthermore, the 

hourly rate should be fully reflective of a number of factors 

which in the past were considered reasons for enhancement. Thus, 

the hourly rate should reflect that th2 litigation was conducted 

by experienced counsel and that the litigation was complex similar 

to federal antitrust litigation. 

In light of Delaware Valley ITI the number of hours for 

which plaintiff claims compensation should be fully allowed. It 

was not disputed that the petitioning attorneys actually expended 

the time claimed. Nor was it disputed that they were experienced 

attorneys. All of them testified that, even with hindsight, they 

believed the time was reasonable. e.g. Quigley deposition p.65. 

Plaintiffs' attorneys testified that because this was not a fee 

generating case the incentive was to spend as little time as 

possible on the case while meeting professional requirements. e.g. 

Scheckman deposition p.61 The total amount of time was shown to 

be within the range of other 1980 reapportionment cases. Mr. 

Parker and Mr. Strickler who have had experience in similar 

litigation said the time was reasonable. Parker, Tr 23-36, esp 

$2.33, In 14 Mr. Strickler particularly noted the lengthy pre- 

trial document and the very few facts which the defendants were 

will to stipulate. Strickler, Tr. 12 Only Mr. Leonard, who  



believed the case should have been won on summary judgment in one- 

half of the time, and the Magistrate, who also did not see the 

trial or pre-trial proceedings, thought the hours were excessive. 

The only legal claim to conpensablitcy of hours raised 

by the defendant concerns hours spend by counsel on the Section 5 

issues before the Department of Justice. That has been previously 

briefed. Delaware V:zlley II suggests that all of plaintiffs’ 

hours should be cuvmpensated for and multiplied by the non- 

contingent hourly ra‘e to determine the lodestar amount. 

III. OTHER ISSUES 

The Court in Delaware Valley II gave guidance on several 

other issues that are relevant to this litigation. 

A. Delay in Compensation 

If there was any doubt whatsoever Delaware Valley IT 

made it clear that courts should fully take into account any delay 

in compensation experienced by plaintiff's attorneys. Justice 

White's opinion says that delay is not part of the question of 

risk and then acknowledges that "courts have regularly recognized 

they delay factor" and such adjustments are not "inconsistent with 

the typical fee-shifting statute. "24 Justice Blackmun's opinion 

agrees with the White opinion but goes further noting that delay 

"[magnifies] the economic risk associated with the uncertainty of 

payment." 254 see testimony of Mr. Weil, p.45-46 

  

24/ 107. 85.Ct. at 3082. 

25/ 107 S.Ct. 3099. The opinion goes on to state that "indeed, 
some types of litigation such as cases seeking institutional 
reform or involving complex environmental issues, have a potential  



Work on this litigation began in November, 1981, the 

Court rendered its decision on the merits in the spring of 1983, 

the fee application was filed in September of 1984 and plaintiffs’ 

attorneys have not yet received one penny in compensation for 

their time or the money they advanced for this litigation. The 

fer petitions themselves, reflecting customary non-contingent 

hourly billing rates at the time they were filed, are now out- 

dieted. This Court should take into consideration that delay when 

-i: renders its decision. Four years at 6% per year will alone 

justify a 24% enhancement for delay. 

B. The Relevant Context to Judge the Legal Criteria 
Is the Relevant Marketplace for legal Services 

Plaintiffs have contended throughout this litigation 

that the Johnson factors are to be assessed according to the 

marketplace. The defendants have contended in numerous instances 

that the criteria are subjective to the individual attorney. For 

example, they have contended that plaintiffs' attorneys sought out 

and enjoy this type of practice so it could not be deemed 

wundesirable"or difficult, The appropriate standard however is 

whether the bar as a whole, the legal marketplace, considers this 

work to be desirable, whether the litigation would be considered 

difficult by the bar as a whole, whether the issues would be 

considered novel by the bar as a whole. 

  

for such significant delay that attorneys must be assured of an 

appropriate enhancement in order to offset the financial 

disincentives to taking such cases." The opinion notes that this 
may be especially hard on small law firms.  



Specifically Justice White confirms this obvious market 

perspective when he cites with approval the language in Lewis Vv. 

Coughlin, 180 F.2d 570, 575 (2nd Cir. 1986), that the test "should 

be an objective one based on the likely response of the bar to the 

case's pretrial merits. "28 Justice O'Connor also affirms the 

market type of analysis when she calls for a standard based on the 

"difference in market treatment of contingent fee cases . . 21 

And the Blackmun opinion makes clear that when Congress enacted 

the fee statutes it had determined that the market would not pro- 

vide an adequate supply of interested lawyers to provide represen- 

tation. Blackmun notes that Blum embraced "prevailing market 

rates in the relevant community. "28 

The basic objective for courts to keep in mind 
in awarding enhancements for risks is that a 
"reasonable attorney's fee" should aim to be 
competitive with the private market, even if 
it is not possible to reflect that market per- 
fectly. 

107 S.Ct. 3101. 

The plaintiffs have presented essentially unrebutted 

evidence as to how the private bar would have viewed this 

litigation in particular, voting rights litigation and contingent 

fee civil rights litigation more generally. The overwhelming 

majority of the bar would consider the issues novel, the 

  

26/ 107 8.Ct., at 3088, fn. ll. 

27/ 107 s.ct. 3089. 

28/ 107 s.ct. at 3093.  



litigation difficult and the case risky and undesirable. 

C. Discretion Is To Be Exercised by the Trial Court 

The Court emphasized that decisions about attorney 

fees are to be at the discretion of the trial court.22L The 

trial court is familiar with the course of litigation, the counsel 

who appeared before it, and the type of work they perfo:med. The 

trial court is familiar with the issues that were raised. The 

Court urges the adoption of more consistent standards for 

evaluating contingent fees with less reliance on a -case-specific 

criteria. There is overwhelming evidence in this record about the 

marketplace for legal services and how it would compensate these 

petitioning attorneys. That evidence fully meets the Supreme 

Court standards. The defense convinced the magistrate that this 

was an easy case which should have been won on summary judgment. 

Respectfully submitted, 

  

LARRY T. MENEFEE 

Fifth Floor Title Building 
300 North 21st Street 
Birmingham, AL 35203 
(205) 592-6227 

WILLIAM P. QUIGLEY 
STEVEN SCHECKMAN 
631 St. Charles Avenue 
New Orleans, LA 70130 
(504) 524-0016 

R. JAMES KELLOGG 
840 Gov. Nichols 
New Orleans, LA 70116 

  

29/ 107 s.ct. at 3089.  



STANLEY HALPIN 
2206 W. St. Mary 
Lafayette, LA 70506 

LANI GUINIER 
LEGAL DEFENSE FUND 

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 218-1900 

ARMAND DERFNER 
Box 603 

Charleston, SC 29402 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing brief has been 

served upon the following by mailing a copy thereof by first class 

United States mail, properly addressed and postage prepaid on this 

the day of September, 1987: 

Kendall Vick, Esq. 
Assistant Attorney General 
State of Louisiana 
Department of Justice 
7th Floor, 234 Loyola Building 
New Orleans, LA 70112-2096 

  

Larry T. Menefee