Williams v. City of New Orleans Brief for Amici Curiae

    No. 95-30380
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

LARRY WILLIAMS; GUSTAVE THOMAS; WILLIE CARTER, JR.; 
EDGAR MORGAN, JR; RONALD BECHET, SR; PATRICIA LEBLEAUX;

and JEANNE MCGLORY;
On behalf of themselves and all others similarly situated,

Plaintiffs-Appellants, 

versus

CITY OF NEW ORLEANS, et al.,
v fc.

Defendants-Appellees

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana

BRIEF FOR AMICI CURIAE:
RICHARD P. IEYOUB, ATTORNEY GENERAL OF THE STATE OF LOUISIANA ON 
BEHALF OF THE STATE OF LOUISIANA, ITS AGENCIES, AND ITS 
DEPARTMENTS; WHITMAN KLING, ACTING ASSISTANT COMMISSIONER OF 
ADMINISTRATION, OFFICE OF RISK MANAGEMENT; RICHARD STALDER, 
SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND 
CORRECTIONS; AND ROSE FORREST, SECRETARY OF THE LOUISIANA 

DEPARTMENT OF HEALTH AND HOSPITALS

PATRICIA NALLEY BOWERS, #3341
HERBERT B. BOWERS, III, #3340
BOWERS & BOWERS
PLACE ST. CHARLES
201 ST. CHARLES AVENUE
SUITE 2505
NEW ORLEANS, LOUISIANA

70170
(504) 522-3340

Attorneys for Amici Curiae



No. 95-30380
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

LARRY WILLIAMS; GUSTAVE THOMAS? WILLIE CARTER, JR.; 
EDGAR MORGAN, JR; RONALD BECHET, SR; PATRICIA LEBLEAUX;

and JEANNE MCGLORY;
On behalf of themselves and all others similarly situated,

Plaintiffs-Appellants, 

versus

CITY OF NEW ORLEANS, et al.,

Defendants-Appellees

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana

BRIEF FOR AMICI CURIAE:
RICHARD P. IEYOUB, ATTORNEY GENERAL OF THE STATE OF LOUISIANA ON 
BEHALF OF THE STATE OF LOUISIANA, ITS AGENCIES, AND ITS 
DEPARTMENTS; WHITMAN KLING, ACTING ASSISTANT COMMISSIONER OF 
ADMINISTRATION, OFFICE OF RISK MANAGEMENT; RICHARD STALDER, 
SECRETARY OF THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND 
CORRECTIONS; AND ROSE FORREST, SECRETARY OF THE LOUISIANA 

DEPARTMENT OF HEALTH AND HOSPITALS

PATRICIA NALLEY BOWERS, #3341
HERBERT B. BOWERS, III, #3340
BOWERS & BOWERS
PLACE ST. CHARLES
201 ST. CHARLES AVENUE
SUITE 2505
NEW ORLEANS, LOUISIANA

70170
(504) 522-3340

Attorneys for Amici Curiae

-l-



CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for amici curiae certifies 

that the following listed persons, amici curiae or their counsel, 

have an interest in the outcome of this appeal insofar as it is 

anticipated that the Court's opinion on this matter may establish 

a standard for the Fifth Circuit and the district courts who must 

follow its precedent regarding when it is appropriate to pay out of 

town hourly rates as opposed to the hourly rates prevailing in the 

community in which the court hearing the matter sits. The 

representations are made in order that judges of this Court may 

evaluate possible disqualifications or recusal:

Amici Curiae:

Richard P. Ieyoub, Attorney General for the State of Louisiana 

appearing on behalf of the State of Louisiana, its agencies, and 
its departments; Whitman Kling, Acting Assistant Commissioner for 

the Division of Administration of the State of Louisiana, Office of 

Risk Management; Richard Stalder, Secretary of the Louisiana 

Department of Corrections; and Rose Forrest, Secretary of the 

Louisiana Department of Health and Hospitals.

Counsel for Amici Curiae:
Patricia Nalley Bowers and Herbert B. Bowers, III1

lPlease note that the same counsel were special counsel to the 
defendants-appellees, the City of New Orleans, et al., in the fees 
litigation in the district court which is the subject of this 
appeal. However, Mr. and Mrs. Bowers withdrew as counsel of record

-ii-



TABLE OF CONTENTS

PAGE

INSIDE TITLE PAGE...................................................i
CERTIFICATE OF INTERESTED PERSONS................................ ii

TABLE OF CONTENTS..................................................iv
TABLE OF CASES, STATUES, AND OTHER AUTHORITIES................... V

STANDARD OF REVIEW AND BURDEN OF PROOF............................1

SUMMARY OF ARGUMENT................................................ 2

ARGUMENT............................................................ 3
CONCLUSION......................................................... 19

CERTIFICATE OF SERVICE............................................ end

for the City on the fees matter effective September 27, 1994 
[Record Document 826 (Sometimes referred to hereinafter as
r .D.___)] prior to Judge Sear issuing the January 27, 1995 Minute
Entry (R.D. 828) which forms the basis of the Judgment (R.D. 833) 
and ultimately this appeal. Thus, Mr. and Mrs. Bowers are listed 
both on this certificate as counsel for amicus curiae (Attorney 
General Richard Ieyoub and related parties) and on the certificate 
of interested persons provided by the Plaintiffs-Appellants, 
Williams, et al. as special counsel to the City of New Orleans. 
Both the current counsel for the City of New Orleans, et al. , 
Annabelle H. Walker, and counsel for the Plaintiffs-Appellants, 
Charles Stephen Ralston, were contacted prior to the filing of this 
amici curiae Brief and have no objection to Mr. and Mrs. Bowers 
acting as counsel for amici curiae in this Court.

-in -



TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES

Aguillard, et al. v. Edwards, et al. , 778 F.2d 225 (5th Cir.
1985)...............................................................18
American Booksellers Ass'n, Inc. v. Hudnut, 650 F.Supp. 324, 328 
(S.D. Ind. 1986)................................................... 10
Avalon Cinema Corporation v. Thompson, 689 F.2d 137, 140-41 (1982)

Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, n.ll
(1984)...............................................................7
Brooks v. Georgia State Bd. of Elections, 997 F .2d 857 (1993).. 1,5

Chrapliway v. Uniroyal, Inc., 670 F.2d 760, 767-69 (1982)...... 7

Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1094 (5th 
Cir. 1982).......................................................... 1
Davis v. County of Los Angeles, 8 EPD f9444 at 5048 (C.D. Cal.
1974)................................................................9
Doe, et al. v. Foti, et al. , E.D. La. #93-1227................. 18

Donaldson v. O'Connor, 454 F.Supp. 311, 314 (N.D. Fla. 1978)....5

Gates v. Deukmejian, 987 F.2d 1392, 1405 (1992)................. 7

Goff v. Texas Instruments, Inc., 429 F.Supp. 973, 978 (N.D. Tex
1977).............................................................. 11
Grendel's Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984)

Hamilton, et al. v. Morial, et al. , E.D. La. # 69-2443..........17

Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.
1974).............................................................5,9

Louisville Black Police Off. v. City of Louisville, 700 F.2d 268, 
277-78 (1983)...................................................... 7

-IV-



^/Maceira v. Pagan, 698 F.2d 38,40, (1983)......................... 6
National Wildlife Federation v. Hanson, 859 F.2d 313, 317-18

(1988).............................................................. 6
Polk v. New York State Dept, of Corr. Services, 722 F.2d 23, 25

L (1983).............................................................. 6
'Public Interest Group of N.J. v. Windall, 51 F.3d 1179, 1184 (3rd 
Cir. 1995)........................................................ 1/6

 ̂Ramos v. Lamm, 713 F.2d 546, 555 (1983)........................... 7
Reazin v. Blue Cross and Blue Shield of Kansas, 899 F.2d 951, 982- 
83 (1990)........................................................... 8
Riddell v. National Democratic Party, 712 F.2d 165 (5th Cir. 
1983)................................................................1
Standford Daily v. Zurcher, 64 F.R.D. 680, 682 (N.D. Cal. 1974)...9

Sojourner, et al. v. Edwards, et al., E.D. La. #91-2447......... 18

Swann v. Charlotte- Mecklenburg Board of Education, 66 F.R.D. 483, 
486 (W.D.N.C. 1975)................................................ 9
Todd Shipyards Corp. v. Turbine Service, Inc., 592 F. Supp. 380, 
392 (E.D. La. 1984)................................................ 5
Williams, et al. v. City of New Orleans, et al., 543 F.Supp. 662 
(E.D. La. 1982)....................................................17

La. R.S. 13:5108.1 et seq..........................................5

-v-



STANDARD OF REVIEW AND BURDEN OF PROOF
Amici curiae agree with appellees, the City of New Orleans, et 

al. that the standard of review for an ''award of attorneys' fees is 

"abuse of discretion" [Riddell v. National Democratic Party, 712 
F .2d 165, 168 (5th Cir. 1983); Copper Liquor, Inc. v. Adolph Coors 
Co., 684 F . 2d 1087, 1094 (5th Cir. 1982)], with subsidiary fact

findings being reversible "only if clearly erroneous". Copper 
Liquor, supra, at 1094. But see also Public Interest Group of N.J. 
v. Windall, 51 F.3d 1179, 1184 (3rd Cir. 1995):

The standards the district court should use in 
calculating an attorney fee award are legal guestions 
subject to plenary review.
Because it also impacts on the formulation of a rule by this 

circuit regarding out of town/local rates, amici curiae also point 

out that the Supreme Court has held that the burden of proof 

regarding the reasonableness of hourly rates belongs to the fee 

seeking attorneys:
In seeking some basis for a standard, courts 

properly have reguired prevailing attorneys to justify 
the reasonableness of the reguested rate or rates.

Blum v. Stenson, 465 U.S. 886, 895,n.11, 104 S.Ct. 1541,
1547,n.11 (1984)

SUMMARY OF ARGUMENT
There is no test in this Circuit for when, if ever, it is 

appropriate to pay out of town (non-forum) rates to fees seeking 

counsel. The Supreme Court has told us only that the rates should 

be those of the "relevant community" without telling us which 

community (location of the court or counsel's office) is relevant.

-1-



The other circuits have generally established rules that allow the 

use of out of town rates if it can be demonstrated that local 

counsel was not available to do the job, either because they didn't 

want to do so, didn't have enough time, didn't have enough 

experience, or couldn't fund or staff the case.
However, only the Tenth Circuit has strictly interpreted its 

test by holding that, in all but the most unusual cases, competent 

local counsel should routinely be available. Amici suggest that 

all attorneys should be limited to rates prevalent in the forum 

since there is nothing in the fee acts, and particularly the civil 

rights act and its congressional history, to suggest otherwise.

In the alternative, amici suggest that this Circuit adopt a 

rule somewhat similar to the Tenth Circuit, making it clear that 

the use of out of town or out of state rates should be the 

exception rather than the rule with such rates being allowed only 
if plaintiff can actually show that he approached numerous local 

counsel and was turned down over and over, making it impossible for 

him to hire "competent" local counsel. Such a rule would negate 
the implication of the plaintiffs herein that a plaintiff should be 

able to contact out of town counsel he considers to have a special 

expertise just because he wants the best, the brightest, and the 

most experienced in the country.
Furthermore, the rule eventually formulated by this Circuit 

needs to take into account litigation by the national policy 

advocacy groups such as the group seeking fees in the instant case. 

These groups gravitate to high visibility, controversial class 

actions like this one. In addition, in many of the cases handled

-2-



by these national groups, at least in Louisiana, little or no 

actual effort is made by plaintiffs to obtain qualified local 

counsel and the group tries to meet the tests established by the 

other circuits by putting on testimony of the local plaintiff civil 
rights bar that seeking local counsel would have been a vain and 

useless act. Lastly, many of the cases handled by these national 

groups are "targeted" by them to advance their particular agenda, 

to gain publicity, to make money, or for any of a variety of 

reasons. The facts of this case confirm that analysis.

Amici curiae contend that these groups do not merit special 

rules. While they certainly should be welcome to come to Louisiana 

and press their agenda if they so desire, they, like any other out 

of town counsel, should be held to strict proof that prior to the 

plaintiffs' first contact with the advocacy group, he tried on 

numerous occasions to retain "competent" local or in state and was 

unable to do so.
Accordingly, in order to help protect the public fisc of 

Louisiana, amici curiae respectfully request that this Court 

establish a "bright line" test along the lines discussed herein for 

the awarding of out of town rates, if any, to fees seeking counsel.

ARGUMENT
No standard exists in this Circuit regarding when, if ever, it 

is appropriate to pay out of town hourly rates to fees seeking 

counsel as opposed to the local hourly rates of the community in 

which the district court hearing the matter sits. Amici curiae 
(Richard P. Ieyoub, Attorney General for the State of Louisiana

-3-



appearing on behalf of the State of Louisiana, its agencies, and 

its departments; Whitman Kling, Acting Assistant Commissioner for 

the Division of Administration of the State of Louisiana, Office of 

Risk Management; Richard Stalder, Secretary of the Louisiana 

Department of Corrections; and Rose Forrest, Secretary of the 

Louisiana Department of Health and Hospitals) have a substantial 

interest in the establishment of such a standard and the content of 

same for the following reasons.
As this Court is aware, the State of Louisiana and its various 

agencies, departments, subdivisions, etc., generally through the 

legal fiction of naming such personages as the Governor or the 

secretaries (CEO's) of the various departments, are sued on a daily 

basis in the several federal courts situated in Louisiana under a 

variety of theories, most of which employ as one form of remedy the 

use of attorneys' fees to prevailing plaintiffs. The vast majority 

of these suits are brought on behalf of the plaintiff or plaintiffs 

by attorneys who reside and practice law in the same locality where 

the court hearing the matter sits.
However, in any given year, a certain number of these suits 

are initially filed or end up being substantially handled by out of 

town counsel. While, of course, there are exceptions, the suits 

filed and/or handled by out of town counsel tend to be high profile 

class actions which generate substantial amounts of publicity and 

revolve around resolution of currently controversial and hotly 

contested issues. Examples of such litigation which come readily 

to mind, in addition to the case at bar, are abortion regulation, 

prayer in school, state aid to non-public schools, scientific

-4-



creationism, conditions of confinement in correctional 

institutions, and reapportionment.
In the event that the plaintiffs win such litigation, their 

attorneys apply for fees and the Louisiana public fisc is affected 

through payment of attorneys' fees judgments by the Division of 

Administration, Office of Risk Management, pursuant to Louisiana 

statues regarding indemnification. (La. R.S. 13:5108.1 et seg. ) 

Since the use of out of town rates, particularly for counsel from 

such cities as Los Angeles, San Francisco, Washington, D.C., and 

New York, can have the effect of doubling or tripling a fee award, 

the impact on the public fisc is significant. Accordingly, amici 
curiae present the following arguments in regard to the formulation 

in this Circuit of a standard for the imposition of out of town 

rates.
The U.S. Supreme Court has limited its guidance in this area 

to commenting that hourly rates should be the "prevailing market 

rates in the relevant community". Blum v. Stenson, 465 U.S. 886, 
895, 104 S.Ct. 1541, 1547 (1984). Unfortunately, the Supreme Court 

has yet to announce what the "relevant community" is and this Court 

has not addressed the problem since Blum.2 Many of the other

2The Northern District of Florida, in an old opinion, did 
analyze this Court's position on the local/out of town rate issue, 
looking at Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 
(5th Cir. 1974) and both pre- and post-Johnson cases. See 
Donaldson v. O'Connor, 454 F.Supp. 311, 314 (N.D.Fla. 1978). 
Similarly, the Eastern District of Louisiana, relying on precedent 
from outside this circuit, stated in dicta that an exception to the 
local rate rule may exist when particular counsel is required, but 
the issue was not raised on appeal. See Todd Shipyards Corp. v. 
Turbine Service, Inc., 592 F.Supp. 380, 392 (E.D.La. 1984), aff'd 
in part and remanded on other grounds, 763 F .2d 745 (5th Cir.1985, 
reh'g en banc denied, 770 F.2d 164 (5th Cir. 1985). However, no 
modern, post-Blum standard appears to exist in this circuit.

-5-



circuits, while holding that rates from the community in which the 

district court sits are generally appropriate, have created 

exceptions to this rule using a variety of formulations:
First Circuit: Maceira v. Pagan, 698 F.2d 38, 40 (1983)(Local 

rates appropriate if an ordinary case requiring no specialized 

abilities not amply reflected among local lawyers; out of town 

rates appropriate if no evidence that lawyers with same degree of 

experience and specialization available in locale.)

Second Circuit: Polk v. New York State Dept, of Corr. 
Services, 722 F.2d 23, 25 (1983)(Dicta recognizing that exceptions 

to local rates have been made by other circuits when special 

expertise of counsel from distant district is required.)

Third Circuit: Public Interest Group of N.J., Inc. v. Windall, 
51 F .3d 1179, 1185-88 (1995)(Affirming use of entire state of New 

Jersey as relevant market based on 1)evidence that few Southern New 

Jersey firms were willing to represent plaintiffs, 2)lack of any 

evidence from which the geographic boundaries of a southern New 

Jersey Market could be inferred, and 3)evidence that lawyers from 

entire state routinely appeared in that district which covered 

entire state, while commenting that its Task Force on attorneys' 
fees recommended "forum rate rule" with exceptions for special 

expertise from distant district or local counsel unwilling to 

handle.)
Fourth Circuit: National Wildlife Federation v. Hanson, 859 

F . 2d 313, 317-18 (1988) (Use of out of town rates appropriate 

because local counsel not available and Washington, D.C. was 

closest locality available with appropriate counsel, thereby making

-6-



it reasonable for plaintiffs to choose Washington counsel.)

Sixth Circuit: Louisville Black Police Off. v. City of

Louisville, 700 F.2d 268, 277-78 (1983)(Use of local rates for

Legal Defense Fund out of New York [sometimes referred to 

hereinafter as LDF] because attorneys had not been in private 

practice in New York so as to establish their New York marketplace 

rate while commenting that l)due to district court's discretion it 

is free to look to national market, area of specialization market 

or any other market appropriate in order to compensate fairly, and 

2) organization does not get to choose its rate by choosing its 

headquarters city.)
Seventh Circuit: Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 

767-69 (1982)(Court may question out of town billing rate if

similar services available locally at lower rate or if party did 

not act reasonably in seeking out of town counsel.)

Eighth Circuit: Avalon Cinema Corporation v. Thompson, 689

F . 2d 137, 140-41 (1982)(While local rate normally correct, out of 

town rates may be used if plaintiff can show that he has been 

unable through diligent good faith efforts to retain local 

counsel.)
Ninth Circuit: Gates v. Deukmejian, 987 F.2d 1392, 1405

(1992)(Recognizing out of town rates as exception to forum rates 

when local counsel unwilling or unable to handle case due to lack 

of experience, expertise, or specialization to properly handle 

case.)
Tenth Circuit: Ramos v. Lamm, 713 F.2d 546,555 (1983)( Local 

rates should apply in all but the most unusual circumstances,

-7-



because major cities have substantial number of lawyers to handle 

all but most unusual civil rights cases and finding that standard 

not met in this comprehensive class action challenge to virtually 

all conditions of confinement in a Colorado prison reguiring a five 

week trial, appeal, and remand) and Reazin v. Blue Cross and Blue 
Shield of Kansas, 899 F.2d 951, 982-83(1990)(wherein for first 

time Tenth Circuit upheld unusual circumstances sufficient for out 

of town rates up to $40 an hour over local rates where district 

court found "not a lawyer or firm in town could have devoted to 

this case the timely expertise, experience, and manpower put forth 

by" out of town counsel(Ten months filing to trial for case that 

reguired 134 page opinion).)
Eleventh Circuit: Brooks v. Georgia State Bd. of Elections, 

997 F . 2d 857 (1993)(Recognizing exception to forum rule because 

district court's finding that there were no local attorneys 

familiar with voting rights litigation was not clearly erroneous)

Thus, it can be seen that the other circuits, when taken 

together, have generally found that in order to promote the goal of 

private attorneys general enforcing the civil rights legislation, 

out of town rates may be used when plaintiff can demonstrate that 

local counsel was not available to do the job that needed to be 

done, either because local counsel didn't want to handle the case, 

didn't have enough time to handle it, didn't have the appropriate 

expertise to handle it, or couldn't fund or staff it. However, the 

Tenth Circuit has apparently stood alone in mandating that district 

courts take into account that civil rights litigation is now 

extremely commonplace and, accordingly, that there should be very

-8-



few findings, especially in large cities, that plaintiff, having 

made good faith efforts, was unable to find local counsel available 

for the case.
Amici curiae would suggest that using the Blum "relevant 

community" as anything other than the forum community is not 

supported by the Congressional history of the various fee award 

statutes and, in particular, of 42 U.S.C. §1988. Out of the four 

cases cited by the Senate Report in regard to §1988 as correctly 

awarding attorneys' fees, three do not treat the issue of out of 

town/local rates at all: Standford Daily v. Zurcher, 64 F.R.D. 680, 

682 (N.D.Cal. 1974); Davis v. County of Los Angeles, 8 EPD f9444, 

at 5048 (C.D.Cal. 1974); and Swann v. Charlotte-Mecklenburg Board 
of Education, 66 F.R.D. 483, 486 (W.D.N.C. 1975). The fourth, 

Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir. 

1974) provides only the admonition that the fee for similar work in 

the community should be considered, but does not define what the 

relevant "community" is.
However, in the alternative, if this Court chooses to follow 

the lead of the other circuits and establish a similar rule, amici 
curiae would suggest that the rule of the Tenth Circuit is the most 

appropriate in that it makes clear that l)the award of out of town 

rates is to be the exception as opposed to the rule, and 2)the 

plaintiff must make a substantial showing that there was no capable 

local attorney who could have and would have handled the case for 

him. Such a rule would discredit the concept implied by the 

Legal Defense Fund in its brief on behalf of plaintiffs that a 

plaintiff is justified in seeking out of town/national organization

-9-



counsel without making a bona fide effort to find local counsel 

simply because the organization has a reputation for handling such 

cases. (LDF brief at p. 20, n. 7) The plaintiffs have cited no 

support for this proposition and amici are aware of only one case 

which treats the issue. In American Booksellers Ass'n, Inc. v. 
Hudnut, 650 F.Supp. 324, 328 (S.D.Ind. 1986), the court approved 

out of town rates on the basis of the alleged national expertise of 

the Finley Kumble firm out of New York and on the basis that Finley 

Kumble had been plaintiffs' routine counsel in such matters for 

over eight years.
Amici assume for sake of argument herein that such an 

"institutional expertise" was established by LDF. But see the 

Third Memorandum of City Defendants in Opposition to Plaintiffs' 
Motion for Attorneys' Fees, R.D. 823 at pages 35-38 regarding Mr. 
Sherwood and Ms. Reed (hereinafter City's 3rd Memo at ___).

Amici contend that plaintiffs should not be entitled to turn 

to, and expect the losing defendants to pay for, the best and 
brightest lawyers in the country. Rather, the standard should be 

that plaintiffs are entitled to competent counsel. The intent of 

Congress in establishing the civil rights fee statute was to see 

that all persons, regardless of their ability to pay counsel, would 

be able to have their constitutional civil rights protected. 

Similarly, the principle has been established that those accused of 

crime are entitled to counsel so as to protect their precious right 

of liberty. In this regard, there have been no holdings that every 

criminal defendant is entitled to the best and brightest criminal 

attorneys in the country. Accordingly, there can be no rational

-10-



ruling that the protection of a plaintiff's constitutional civil 

rights, which while certainly important do not normally reach the 

same level of importance as the right to liberty, mandates a higher 

level of counsel competence than that provided for the indigent 

accused.
The First Circuit has addressed this concept within the

context of highly publicized and controversial lawsuits such as the

one at bar, although in regard to the number of hours, not the

appropriate hourly rate. In Grendel's Den, Inc. v. Larkin, 749

F .2d 945 (1st Cir. 1984), Judge Coffin, writing for the panel,

found that Harvard constitutional scholar and professor, Lawrence

Tribe, had spent a reasonable amount of time on the initial portion

of the case, but thereafter:
...[t]he early economy of effort and careful focus upon 
only what was necessary was lost in the heat and 
excitement of litigating an interesting First Amendment 
case...[t]he basic assumption underlying Grendel's fee 
application: [was] that the standard of service to 
rendered and compensated is one of perfection, the best 
that illimitable expenditures of time can achieve. But 
just as a criminal defendant is entitled to a fair trial 
and not a perfect one, a litigant is entitled to 
attorney's fees under 42 U.S.C. §1988 for an effective 
and completely competitive representation but not one of 
supererogation.
Grendel's Den, supra, 953-54.

See also Goff v. Texas Instruments, Inc., 429 F.Supp. 973,978 

(N.D.Tex. 1977)(No requirement that defendants pay for "the best 

and most scrupulous out-of-state counsel that money can buy.")

However, assuming arguendo that this Court will establish a 

standard which permits out of town rates on some occasions, amici 
submit that even the Tenth Circuit rule does not provide enough 

guidance in that it is not broad enough to cover all situations,

-11-



such as the one at bar. The Tenth Circuit rule, and even the 

weaker versions of it advocated by the other circuits, all seem to 

envision a situation where a plaintiff or a group of plaintiffs 

decide to sue, begin seeking an attorney, and are turned down for 

the reasons listed by the various circuits by attorney after 

attorney in their community, thus presumably forcing the 

plaintiff[s] to resort to out of town counsel.
That is not the situation though either in this particular 

case or in the general group of high visibility, controversial 

class actions like this one. Rather, the vast majority of these 

cases are handled by national policy advocacy groups who have 

chosen to have their offices in large cities. Furthermore, this 

group of cases share one or more of the following characteristics:

1 ) little or no actual effort was made by plaintiffs to obtain 
gualified local counsel and the national policy advocacy lawyers 

attempt to meet the exception to local rates rule by providing live 

or affidavit testimony from members of the local civil rights 

plaintiffs7 bar that any attempt to locate qualified local counsel 

would have been a vain and useless act since they "know" that no 

local attorney would have taken the case; and
2) the case was "targeted" by the national group as one which 

it would be advantageous for them to handle or be involved in for 

a variety of reasons.
The particulars of this case confirm this analysis. In 

1969, Charles Cotton, the attorney who originally filed the 

Williams suit, graduated from law school and passed the bar. His 

first job was at the Legal Defense Fund (hereinafter LDF) in New

-12-



York, where the general idea was that he would be trained to return 

to the southern provinces and file lawsuits to alleviate the racial 

discrimination that existed there.
Before Mr. Cotton left LDF in New York, he was urged by LDF 

attorneys Mel Zarr and Frank White to return to New Orleans and 

concentrate on filing suits against discriminating municipalities 

(Deposition of Charles Cotton, R.D. 823 & 824, at pages 85-86,

hereinafter Depo, Cotton,___-___). Later, at a LDF conference, Mr.

Cotton specifically discussed filing a suit against the New Orleans 

police department with Mr. Williams and Mr. Thomas, two of the 

plaintiffs herein (Depo, Cotton, 25). Additionally, Mr. Cotton 

flew to New York to discuss filing the case with LDF officials on 

November 6 through November 9, 1972 and conducted numerous 

conversations with LDF attorneys both before and after the suit was 

filed. In the first years of his practice after leaving New York, 

LDF provided substantial financial support to Mr. Cotton related to 

this case. (Depo, Cotton, 7,28-30,36).
Despite this continuing relationship with LDF wherein Mr. 

Cotton acted, in effect, as an arm of the LDF in New York, it 

failed to exert proper oversight over the litigation considering 

Mr. Cotton's lack of experience.3 The result was entirely 

predictable. Mr. Cotton was in over his head, financial concerns 

influenced his decisions, the LDF in New York didn't exercise 

enough supervision, Mr. Cotton became "burned out", and the case 

was improperly handled resulting in eventual dismissal in August,

3Details regarding Mr. Cotton's lack of experience are 
catalogued in the City's 3rd Memo at 12-13.

-13-



1978 .
The dismissal of the case, perhaps not too surprisingly, 

caught the attention of the plaintiffs. However, after their 

disappointing experience with Mr. Cotton (Deposition of Gustave 

Thomas, one of the named plaintiffs, R.D. 823 & 824 at pages 12-18

and 22-23, hereinafter Depo, Thomas, ___-___), the plaintiffs made

absolutely no effort whatsoever to locate local counsel, other than 

some apparently fruitless contacts with Mr. Wilson (Depo, Thomas, 

23-25). Instead, Mr. Thomas, who had observed the success that it 

was having in other suits around the country, turned in 

exasperation without further ado to LDF proper out of New York.

(Depo, Thomas, 18-21,23-26).
This scenario is confirmed by Mr. Wilson, who testified at his 

deposition that he made no attempt after the initial dismissal in 

1978 to seek lead counsel locally before trying to get LDF to take 

over the case (Deposition of Ronald Wilson, R.D. 823 & 824 at pages

58-59, hereinafter Depo, Wilson, __-__). Additionally, Mr. Wilson

was aware of no efforts by the plaintiffs themselves to find local 

counsel after the initial dismissal in 1978 (Depo, Wilson, 58-59).

Mr. Sherwood of LDF New York confirmed this assessment in a 

sort of back-handed way. His first contact with the plaintiffs 

themselves after the initial dismissal was on 9/14/79 when he got 

a telephone call from Gus Thomas (Deposition of Peter Sherwood, 

R.D. 823 & 824, Vol. Ill at page 30, hereinafter Depo, Sherwood, 
Vol. ___,__). He testified that his recollection was that the New

“Details regarding these problems are provided in the City's 
3rd Memo at 13-14.

-14-



Orleans lawyers which he recalls plaintiffs approaching were Mr. 

Cotton, Mr. Bagneris, and Mr. Thibodaux and that Mr. Thomas told 

him that he couldn't get a lawyer to handle the case (Depo, 

Sherwood, Vol. I, 55-58; Vol. Ill, 31). However, this information 

is contradicted by Mr. Thomas' own testimony referred to above 

wherein Mr. Thomas made no mention of contacting Mr. Thibodaux and 

no mention of contacting any lawyers after the dismissal other than 

Mr. Bagneris and Mr. Wilson.
While admitting that a general civil rights counsel in New 

Orleans could have handled this case (although he doubts as well as 

LDF) (Depo, Sherwood, Vol. II, 15), he made no effort to help the 

plaintiff recruit local counsel, because in the past he felt that 

LDF had had little success in recruiting large firms for this type 

of work (Depo, Sherwood, Vol. I, 60). This testimony, in addition 

to be self serving, must be viewed as highly speculative, because 

Mr. Sherwood made no attempt to contact any local attorneys in 

regard to this case. There is no telling what a New Orleans 

practitioner, whether solo, small firm, medium firm, or large firm 

might have done if offered this case, particularly since Mr. 

Sherwood also testified that LDF in his experience would handle 

cases by providing technical assistance to local counsel and 

funding the case if they were satisfied with the local attorney's 

abilities (Depo, Sherwood, Vol. II, 16). See also long list of 

employment discrimination cases handled by private counsel in which 

Mr. Sherwood admitted that LDF provided some form of assistance 

(Depo, Sherwood, Vol. Ill, 43-55).
Rather, Mr. Thomas and Mr. Wilson called Mr. Sherwood and

-15-



asked LDF proper to take the case. The Court re-opened the case and 

LDF then petitioned the Court to re-certify the class. Peter 

Sherwood flew to New Orleans to argue the motion.
As with all class certification motions, one of the pivotal 

issues was whether the named plaintiffs had counsel who could 

adequately represent the proposed class. Upon satisfying himself 

that Mr. Sherwood had the appropriate qualifications to represent 

the class, Judge Sear agreed to re-certify it.
Plaintiffs' allegation at pp.19-22 of their brief that Judge 

Sear's decision that the class would be adequately represented by 

Mr. Sherwood and the LDF proper was, in fact, a decision that the 

plaintiffs could not be adequately represented by anyone other than 

Mr. Sherwood and LDF proper is incorrect. Further, plaintiffs' 

position is nonsensical in view of Judge Sear's explicit findings 

that LDF acted in an advisory capacity prior to the motion for 

recertification; that LDF failed to demonstrate local counsel was 

unavailable5; and that, through his own experience, he knew that

5LDF contends, in support of its contention that no local 
counsel were available, that it filed the uncontroverted affidavits 
of three local lawyers who stated that there was no lawyer in the 
area either willing or able to take on such a large piece of 
litigation against the City. (Brief of Plaintiffs/Appellants, at 
page 21) Aside from the obvious problems of affidavit testimony 
about why actions not taken fifteen years before wouldn't have done 
any good even if they had tried, the LDF has neglected to mention 
that these affidavits were filed on 1/25/95 only one day prior to 
the signing of Judge Sear's 34 page opinion when it was obviously 
substantially complete and almost 16 and 1/2 months after Judge 
Sear's deadline for final submissions of the fee application. (See 
R.D.827,828, and 821 respectively.) Accordingly, it seems highly 
likely that Judge Sear had signed his opinion well before the 
plaintiffs' Motion to Supplement the Record crossed his desk. Amici 
leave to the City of New Orleans to argue and the Court to decide 
whether such submissions were timely so as to provide 
uncontroverted evidence in the record.

-16-



ample expertise was available locally. Memorandum and Order 

entered 1/27/95, R.D. 828 at p.2, n.l and p.28-29, n.6.

Thus, it can easily be seen that this case does indeed fit the 

profile for highly publicized and controversial cases described 

above at page 12 of this brief. First, there can be no question 

that the case was highly publicized and controversial. See in 

general Williams, et al. v. City of New Orleans, et al., 543 

F.Supp. 662 (E.D.La. 1982), rev. 694 F.2d 987 (5th Cir. 1982), d.c. 

judgment affm'd 729 F.2d 1554 (5th Cir. 1984)(en banc).

Second, little or no effort was made by plaintiffs before suit 

was filed to seek out adequate local counsel. Similarly, after Mr. 

Cotton, with the inadequate supervision of LDF, succeeded in having 

the case dismissed, little or no effort was made by plaintiffs or 

their representatives to find new local counsel. Rather, in both 

instances, the lead plaintiffs were familiar with LDF and their 

efforts stopped there. In the first instance, they accepted the 

LDF protege and long distance LDF assistance and in the second 

instance they demanded LDF proper.
Third, affidavit testimony, albeit apparently untimely, was 

offered by the local plaintiff civil rights bar that there would 

have been no point in the plaintiffs trying to find local counsel 

because the plaintiffs' bar "knows" that no one would have taken 

the case.6

6Almost identical testimony by the local plaintiffs' civil 
rights bar has been offered live, listed on witness lists, and/or 
referred to in settlement discussions in four fee applications 
since 1990 totalling close to $2,000,000.00 in Hamilton, et al. v. 
Morial, et al, E.D.La. #69-2443 (6000 member class action 
concerning conditions of confinement at Orleans Parish Prison) and 
one recent fee application in a companion case to Hamilton: Doe, et

-17-



Fourth and finally, this case was certainly targeted by the 

Legal Defense Fund. It had an entire program devoted to training 

young lawyers to bring such cases with its assistance and 

supervision. It provided the host conference where the plaintiffs 

and Mr. Cotton, its protege, held their first talks about filing 
the suit. Its employees allegedly gave up chances to work at high 

paying Wall Street firms to work at LDF, because in general, the 

LDF caseload was so interesting and exciting, but even within that 

universe Williams was especially so, because the discrimination in 

the New Orleans police department "was one of the worst cases LDF 

had ever encountered". Depo, Sherwood, Vol I, 66-67, 85.7

al. v. Foti, et al, E.D. La. #93-1227 (150-300 member class action 
challenging conditions of confinement for juveniles).

’Similar targeting occurs routinely. In the Hamilton and Doe 
cases referred to above, the national policy advocacy group 
involved is the National Prison Project of the American Civil 
Liberties Union. Deposition testimony taken in regard to the fee 
applications revealed that the NPP receives tremendous volumes of 
mail from prisoners all over the country and targets for suit the 
jails and/or prisons in which it considers the conditions to be the 
worst and the suits to be the easiest to win.

Likewise this Court will remember the hordes of out of town 
counsel who descended upon Louisiana and this Court in regard to 
the creation science controversy several years ago, Aguillard, et 
al. v. Edwards, et al., 778 F.2d 225 (5th Cir. 1985)(on suggestion 
of reh' en banc) and numerous earlier opinions, and the publicity 
surrounding the preparation of Sojourner, et al. v. Edwards, et 
al.,E.D.La. #91-2447, in regard to Louisiana's abortion law by 
counsel for the American Civil Liberties Union (case later handled 
by same counsel under auspices of the Center for Reproductive Law 
and Policy) before the law had even been passed by the Legislature, 
vetoed by then Governor Roemer, and the veto overridden by the 
Legislature.

Lastly, the Court is no doubt aware of the recent arrival of 
the famous/infamous Johnny Cochran, along with other out of town 
counsel, to "help handle" the Bogalusa chemical evacuation matter 
despite Mr. Cochran's published comments that local counsel would 
be lead (and therefore presumably well capable of handling it 
without out of town counsel's involvement).

-18-



CONCLUSION
Given the information presented in this brief, amici want this 

Circuit to formulate a hard and fast rule whereby all attorneys who 

litigate in a particular forum are paid according to the rates 

prevalent in that forum with travel expenses being awarded in 

addition only if plaintiff can make a realistic showing that he 

actually contacted numerous local attorneys (by name) none of whom 

were willing and/or able to take his case. After all, there is no 

concrete indication in the history of the fee award acts and, in 

particular, §1988, that awards of amounts greater than those 

prevalent in the forum district were contemplated by Congress. In 

this time of concern for the fiscal integrity of not only this 

state, but also this country, there should be no consideration of 

expanding on the plain meaning of acts passed by government.

In the alternative, amici curiae reguest that this Circuit 

establish a "bright line" rule for the award of out of town hourly 

rates. Such a rule, like the first alternative outlined above, 

would reguire that the plaintiff make a realistic showing that he 

actually contacted numerous local attorneys (by name) who rejected 

his pleas for representation. Further, amici ask that this rule be 

strictly construed, as does the Tenth Circuit, so as to recognize 

that all but the most unusual cases can be handled by in town 

counsel and, if not that, certainly by in state counsel, thereby 

creating a heavy burden of proof on a plaintiff to show that there 

were no local or in state counsel competent to handle the case. 

Next amici ask that there be strict interpretation of the 

requirement that plaintiff only needs to be able to retain

-19-



"competent" local counsel. Accordingly, recovery should be limited 

to local rates with no additional travel expenses, even if 

plaintiff chose to hire the best and brightest and most expensive 

counsel in the country, as long as competent local or in state 

counsel were available. Lastly, there should be no exceptions to 

the proposed circuit rule for national policy advocacy groups. It 

is the business and calling of such groups to litigate these types 

of cases. They need no extra incentive. If an advocacy group 

chooses to target for litigation the affairs of the states and 

their citizens who form this circuit, it should be welcome to do so 

in the spirit of open debate. However, unless the advocacy group 

can meet the proposed rule as it applies to all other out of town 

counsel, i.e. that plaintiffs can put forward a realistic showing 

that, prior to the first contact with the advocacy group, they 

actually tried to contact numerous local counsel(by name) and were 

refused representation, it should be limited to the appropriate 

local rates for competent counsel without additional travel 

expenses.
As final note, amici curiae reguest that this Court re­

emphasize in formulating this "bright line" rule that the burden of 

proof is on the plaintiffs to show that they are entitled to out of 

town rates. Thus, only after plaintiffs have presented evidence as 

outlined above, would defendants be reguired to attempt to refute 

it.

-20-



Respectfully Submitted, 

BOWERS & BOWERS

201 St. Charles Avenue 
Suite 2505
New Orleans, Louisiana 70170 
(504) 522-3340

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing pleading has 
been served on all counsel of record by depositing same in the 

United States mail, first-class postage prepaid and properly 
addressed this 16th day of November, 1995.