Clinton v. Jeffers Jurisdictional Statement

    No.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

Bill Clinton, Governor of
Arkansas, ET AL ......................................................  Petitioners

vs.

M. C. Jeffers, et al ........................... ................... Respondents

JURISDICTIONAL STATEMENT

W inston Bryant*
Tim Humphries 
Frank J. W ills

Arkansas Attorney General 
323 Center St ., Suite 200 
Little Rock, AR 72201-2610 
(501) 682-2007

* Counsel o f  Record

ARKANSAS LEG ISLA TIVE D IG EST, INC,



1

QUESTIONS PRESENTED

This appeal presents two related questions concerning 
the propriety of a district court’s levying a fifty per cent, 
''enhancement” of a $653,687.00 lodestar fee award made 
pursuant to civil rights fee shifting statutes and based solely 
upon the risk of loss faced by respondents’ attorneys, 
specifically:

I.

W HETHER TH E M AJORITY’S DECISION TO G RA N T A 
FIFTY PER CENT. ENHANCEM ENT OF THE LODE­
STA R FEE A W A RD  SO LELY TO C O M P E N SA T E  
RESPONDENTS’ ATTORNEYS FOR RISK OF LOSS WAS 
CONTRARY TO LAW BECAUSE IT  PRODUCED NOT  
A REASONABLE FEE, BUT RATHER AN ILLEGAL 
WINDFALL.

II.

IF A RISK OF LOSS ENHANCEM ENT TO A LODESTAR 
FEE AWARD IS PERMISSIBLE, DID THE M AJORITY  
ERR WHEN IT  MADE THE AWARD W ITHOUT A N Y  
FINDING TH AT THIS CASE PRESENTED TH E RARE  
A N D  E X C E P T IO N A L  C IR C U M ST A N C E S T H A T  
WOULD JU STIFY SUCH AN ENHANCEMENT.



11

The Petitioners, who were defendants in the action 
below, are Bill Clinton, the Governor of Arkansas, W. J. 
McCuen, the Arkansas Secretary of State, and Winston 
Bryant, the Arkansas Attorney General, all in their official 
capacities and as members of the Arkansas Board of 
Apportionment. The Respondents, who were plaintiffs in the 
action below, are M. C. Jeffers, A1 Porter, Evangeline Brown, 
Clyde Collins, O. C. Duffey, Earl Foster, The Reverend Ellihue 
Gaylord, Shirley M. Harvell, Linda Shelby, J. C. Jeffries, 
Lavester McDonald, Joseph Perry, Clinton Richardson, 
T. E. Patterson, Ernest Simpson, Bryan Smith, and Charlie 
Statewright.

LIST OF PARTIES



Ill

Page
TABLE OF CONTENTS

QUESTIONS PR ESEN TED ...................................................... i

LIST OF PARTIES....................................................................  ii

TABLE OF CO N TEN TS.......................................................... iii

TABLE OF AUTHORITIES .................................................... iv

OPINIONS BELOW ................................................................... I

JURISDICTION ............................................................................1

STATUTES AND RULES INVOLVED.................................2

STATEMENT OF THE C A SE .................................................3

THE QUESTIONS PRESENTED ARE
SUBSTAN TIAL.................................................................. 4

I. W HETHER THE MAJORITY’S DECISION
TO GRANT A FIFTY PER CENT. EN­
HANCEMENT OF THE LODESTAR FEE 
AW ARD SOLELY TO CO M PEN SA TE  
RESPONDENTS’ ATTORNEYS FOR RISK  
OF LOSS WAS CO N TRA RY TO LAW 
BECAUSE IT PRODUCED NOT A REA­
SONABLE FEE, BUT RA TH ER AN IL­
LEGAL W IN D FA LL........................... '.’V .tW ............... 5

II. IF A RISK OF LOSS ENHANCEMENT TO A 
LODESTAR FEE AWARD IS PERMISSIBLE,
DID TH E M AJORITY ER R  WHEN IT 
MADE THE AWARD W ITH O U T ANY 
FINDING THAT THIS CASE PRESENTED 
THE RARE AND EXCEPTIONAL CIR­
CUMSTANCES THAT WOULD JUSTIFY
SUCH AN ENHANCEMENT....................................... 8

CONCLUSION............................................................................11

A P P E N D IX .............................................................A -l—A-24



IV

CASES: Page

Blanchard v. Bergeron, 489 U.S. 87 (1989) ............................4

Blum v, Stenson, 465 U.S. 886 (1984) ........................... 6, 8, 9

Coalition to Preserve Houston v. Interim Bd. o f  
Trustees o f W estheimer bid. School Dist.
494 F.Supp. 738, 742 ....................   4

Hensley v. Eckerhart, 461 U.S. 424 (1983) ............................ 7

Hendrickson v. Branstad, 934 F.2d 158
(8th Cir. 1 9 9 1 ) .................................................................. 8 ,9

Jeffers v. Clinton, 730 F.Supp. 196 (E.D. Ark. 1989)
a f f ’d mem. ..... U .S ................................................................ 6

TABLE OF AUTH ORITIES

Jeffers v. Clinton, 776 F. Supp. 465 (E.D. Ark. 1 9 9 1 )......... 1

Laffey v. Northwest Airlines, Inc.,
' 746 F.2d 4 (D.C. Cir. 1 9 8 4 ) ...................................... 5, 8, 9

Lewis v. Coughlin, 801 F.2d 570 (2nd Cir. 1986).................. 9

McKinnon v. City o f  Berwyn, 750 F.2d 1383
(7th Cir. 1 9 8 5 ) ..................................................................5 ,8

Morris v. American N at’l. Can C orp.,-----F .2d------,
1991 W.L. 271737 (8th Cir. 1991) .......................5, 8, 10

Pennsylvania v. Del. Valley Citizens Council fo r
Clean Air, 483 U.S. 711 (1 9 8 7 )........................... 4, 7, 8, 9

Smith v. Clinton, 687 F.Supp. 1310 (E.D. Ark. 1988),
a f f ’d m em .___U .S ................................................................ 6



V

CASES: Pa8e

Venegas v. Mitchell, 495 U.S. 82 (1990) .................................4

Wildman v. Lerner Stores Corp., 771 F.2d 605
(1st Cir. 1985) ........................   * - 5

STATUTES AND RULES:

28 U.S.C. §1253 ..............................................................................2

42 U.S.C. § 1 9 7 3 b ....................................    3

42 U.S.C. §19731(e) .............................................................2> 5

TABLE OF A UTH O RITIES



No.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

Bill Clinton, Governor of
Arkansas, et al ......................................................  Petitioners

vs.

M. C. Jeffers, et a l ............................................... Respondents

JURISDICTIONAL STATEMENT

Governor Bill Clinton of Arkansas, together with the 
other two members of the Arkansas Board of Apportionment, 
respectfully submit that this jurisdictional statement presents 
questions so substantial as to require plenary consideration, 
with briefs on the merits and oral argument, for their 
resolution.

OPINIONS BELOW

The opinion and dissent of the district court (J.S. App. 1) 
are reported at 776 F.Supp. 465 (ED . Ark. 1991).

JURISDICTION

The district court entered its final order awarding fees 
under the fee shifting provisions of the Voting Rights Act, 42 
U.S.C. §19731 (e), on October 24,1991. J.S. App. 1. Petitioners



?

filed their notice of appeal on November 20, 1991. J.S. App. 
21. This Court has jurisdiction under 28 U.S.C. §1253.

STATUTE INVOLVED 

42 U.S.C. §19731(e) provides:

Attorney’s fees

(e) In any action or proceeding to enforce the 
voting guarantees of the fourteenth or fifteenth amend­
ment, the court, in its discretion, may allow the prevail­
ing party, other than the United States, a reasonable 
attorney’s fee as part of the costs.



3

Respondents prevailed in their 1989 challenge to 
Arkansas’ 1981 State Legislative Apportionment Plan, which 
was brought pursuant to §2 of the Voting Rights Act, 42 
U.S.C. §1973b. Following respondents’ application under 42 
U.S.C. §19731 (e) for an award of fees and costs, a majority of 
the district court three-judge panel awarded respondents’ 
counsel fees and costs totaling $1,034,492.00. J.S. App. 20.

The fee and cost award was comprised of three elements: 
a "lodestar” fee award, based partially upon market rates 
outside the relevant community (J.S. App. 5), of $653,687.00; 
a cost and expense award of $72,060,00; and a fifty per cent, 
"contingency” enhancement of $308,745.00, which was made 
solely to compensate respondents’ attorneys for the "risk of 
loss.” J.S. App. 14. That enhancement was awarded over 
petitioners’ objection and one panel member’s dissent. J.S. 
App. 13, 16. The majority made no finding that this case 
presented rare and exceptional circumstances which would 
justify the contingency enhancement.

Petitioners have paid respondents’ counsel all of the fee 
and cost award except the $308,745.00 risk-of-loss enhance­
ment. A unanimous district court granted petitioners’ request 
to stay payment of the enhancement pending resolution of 
this appeal. J.S. App. 23-24.

STATEM ENT OF TH E CASE



4

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

Introduction. This appeal raises the question of when 
it is proper, if ever, to enhance a fee award, calculated under 
the "lodestar” method, solely to compensate prevailing 
party’s counsel for the "risk of loss” they faced in bringing 
civil rights actions. Although the propriety of such "con­
tingency” enhancements has been before the Court recently, 
see Pennsylvania v. Delaware Valley Citizens Council fo r  
Clean Air, 483 U.S. 711 (1987) (hereinafter "Delaware Valley 
II”), no clear answer has emerged.1 In Delaware Valley II, four 
members of the Court were "unconvinced that Congress 
intended the risk of losing a lawsuit to be an independent basis 
for increasing the amount of any otherwise reasonable fee.
. . .” Id. at 725. Of the four justices who unqualifiedly endorsed 
contingency enhancements, only two remain. Although there 
is no clear concensus on the issue, it appears that a majority of 
the Court has eschewed the contingent-fee analysis that the 
district court used to justify its risk-of-loss enhancement 
award. J.S. App. 12-13; see Venegas v. Mitchell, 495 U.S. 82,
___ (1990) ("[In] construing §1988, we have generally turned
away from the contingent-fee model to the lodestar model of 
hours reasonably expended compensated at reasonable 
rates”); Cf. Blanchardv. Bergeron, 489 U.S. 87,96 (1989) ("It 
should also be noted that we have not accepted the contention 
that fee awards in §1983 damages cases should be modeled

'Although Delaware Valley II addressed the propriety of contingency 
enhancements in the context of 42 U.S.C. 7604(d), the same standards 
appear to govern fee awards made pursuant to other civil rights statutes, 
including the Voting Rights Act. See Pennsylvania v. Del. Valley Citizens 
Council for Clean Air, 483 U.S. 711,713, n.l (1987); Coalition to Preserve 
Houston v. Interim Board of Trustees of Westheimer Independent School 
Dist., 494 F.Supp. 738, 742 (S.D. Tex. 1980), aff'd mem., 450 U.S. 901 
(1981).



5

upon the contingent-fee arrangements used in personal injury 
litigation.”).

Plenary review of the questions presented in this appeal 
is required to provide guidance to the lower courts, which are 
split on the issue of contingency enhancements. Compare 
M cKinnon v. City o f  Berwyn, 750 F.2d 1383, 1392 (7th Cir. 
1985) (risk of loss, alone, does not justify enhancement) and 
Laffey v. N orthw est Airlines, Inc., 746 F.2d 4,28-29 (D.C. Cir. 
1984) (risk of loss only justifies enhancement in "rare 
and exceptional circumstances”) with Morris v. American
National Can C orporation,___ F.2d------, 1991 W.L. 271737
(8th Cir. 1991) and Wildman v. Lerner Stores Corp., I l l  F.2d 
605,611,613 (1st Cir. 1985) (disagreeing with M cKinnon and 
noting the split among circuits). This appeal presents the 
issues clearly and cleanly, for not only did the district court 
improperly enhance the lodestar fee award solely to "compen­
sate the plaintiffs’ attorneys for the risk of loss,” J.S. App. 14, 
but also made its risk-of-loss enhancement without a finding 
that this case presented rare and exceptional circumstances. 
J.S. App. 11-13, 14.

I.

W HETHER THE MAJORITY'S DECISION TO GRAN T  
A FIFTY PER CENT. ENHANCEM ENT OF THE LODE­
STA R  FEE A W A R D  SO LELY  TO C O M PEN SA TE  
RESPONDENTS’ ATTORNEYS FOR RISK OF LOSS WAS 
CONTRARY TO LAW BECAUSE IT  PRODUCED NOT  
A REASONABLE FEE, BU T RATHER A N  ILLEGAL 
WINDFALL.

The prevailing party in a Voting Rights Act case is 
entitled to recover a "reasonable attorneys fee.” 42 U.S.C. 
§19731 (e). However, it is only a reasonable fee; civil rights



6

fee shifting statutes were not designed nor intended to 
produce financial windfalls for lawyers. See, Blum v. Stenson, 
465 U.S. 886,897 (1984).

In calculating respondents’ attorneys fees according to 
the lodestar method, the district court arrived at a figure of 
$653,687.00, which is presumed to be a "reasonable fee” for 
purposes of the civil rights fee shifting statutes. Blum , 465 
U.S. 897. Although petitioners urged the district court to use 
market rates prevailing in the local community to calculate 
the lodestar, J.S. App. 3, see Id. at 895, the majority concluded 
that "it (was) reasonable to pay at least some of plaintiffs 
out-of-town lawyers at out-of-town rates.” J.S. App. 5. It then 
calculated the lodestar for at least one of respondents’ lawyers 
at a rate that "may slightly exceed the local market rate from 
most top-notch lawyers.”2 * * J.S. App. 5. As a result, the district 
court arrived at a lodestar fee figure that not only was 
presumptively reasonable, but also was higher than a fee 
would have been if calculated according to prevailing market 
rates in the relevant community.

The district court then enhanced the lodestar, based 
solely upon "the risk of loss.”5 J.S. App. 14. Notwithstanding 
their making a fee award in excess of that which would have 
been made if calculated according to prevailing local market 
rates, the majority then determined that civil rights plaintiffs

2Aithough the district court's methodology of calculating the lodestar 
is not a subject of this appeal, it is detailed to illustrate the generous nature 
of the fee award made.

Ît could be argued that there was very little risk of loss involved for 
respondents in this case. Compare. Jeffers v. Clinton. 730 F.Supp. 196
(E.D. Ark. 1989) (Arnold, J.) with Smith v. Clinton. 687 F.Supp. 1310
(E.D. Ark. 1988) (Arnold, J .); see Laffey. 746 F.2d 29.



7

in general, not the plaintiffs in this particular action,4 would 
face substantial difficulty in retaining counsel absent "the 
prospect of enhancement.” J.S. App. 12. Such post hoc 
justification freed the district court from having to assess the 
need for risk enhancement in this particular case and allowed 
it to award respondents a windfall based upon its perception 
"that the civil rights market in Arkansas has changed” in the 
last nine years; presumably for the worse for civil rights 
plaintiffs’ attorneys. J.S. App. 13. Not only does such 
reasoning ignore the requirement that civil rights fee awards 
"must be determined on the facts of each case,” Hensley v. 
Eckerhart, 461 U.S. 424,429 (1983), but also flies in the face of 
the Delaware Valley 11 plurality’s observation that "any 
further increase in (the lodestar) sum based on the risk of not 
prevailing would result not in a 'reasonable’ attorneys fee, but 
in a windfall for an attorney who prevailed in a difficult case.” 
Delaware Valley II, 483 U.S. 727. Having liberated itself from 
the constraint that a fee award in a given case be dependent 
upon the facts of that case, the majority was then free to 
improperly enhance the fee award in this case in an apparent 
attempt to stimulate the sagging local "civil rights market. 
See J.S. App. 13.

A plurality of the Court has concluded "that multipliers 
or other enhancements of a reasonable lodestar fee to 
compensate for assuming the risk of loss is impermissible 
under the usual fee-shifting statutes.” Delaware Valley II, 483 
U.S. 727. A split in the circuits over this conclusion exists.

tin this action, plaintiffs actually were represented simultaneously by 
eleven lawyers. J.S. App. 19. Five of those lawyers live and practice in 
Arkansas. Regardless of the assertions made in respondents fee 
applications, it appeared that there was no dearth of lawyers willing to 
represent them.



8

Compare McKinnon, 750 F.2d 1392 with Morris, ___ F.2d
-----, 1991 W.L. 271737. Therefore, the question whether it is
ever proper to enhance a lodestar fee award solely to 
compensate respondents’ attorneys for risk of loss is a 
substantial question requiring plenary consideration by the 
Court.

II.

IF A RISK OF LOSS ENHANCEM ENT TO A LODESTAR 
FEE AWARD IS PERMISSIBLE, DID THE M AJORITY  
ERR WHEN IT  MADE THE AWARD W ITHOUT A N Y  
FINDING THAT THIS CASE PRESENTED THE RARE  
A N D  E X C E P T IO N A L  C IR C U M ST A N C E S T H A T  
WOULD JU STIFY SUCH AN ENHANCEM ENT

If risk of loss, alone, can ever justify enhancing a 
presumptively reasonable lodestar fee award, then the district 
court erred when it acceded to respondents’ enhancement 
request without finding that this case presented rare and 
exceptional circumstances. The Court has made it clear that 
only in cases of "exceptional success” does the possibility of 
enhancement exist. Blum, 465 U.S. 901. That language has 
been interpreted to mean that only rare and exceptional 
circumstances can ever justify an upward adjustment of the 
lodestar to reflect the contingency of payment due to the risk 
of loss. Laffey, 1AG F.2d 28-29; Hendrickson v. Branstad, 
934 F.2d 158, 162 (8th Cir. 1991). The purpose of requiring 
"rare and exceptional circumstances” before a contingency 
enhancement may be allowed appears to be to prevent 
arbitrary or unjust fee awards, cf. Delaware Valley II, 483 U.S. 
732 (a risk noted by Justice O’Connor).

What is meant by the term "rare and exceptional” has



9

been the subject of debate among the circuits. See Laffey, 746 
F.2d 28-29; Lewis v. Coughlin, 801 F.2d 570, 574-75 (2nd Cir. 
1986); Hendrickson, 934 F.2d 162, 163. According to this 
Court, the term appears to apply "only in the rare case where 
the fee applicant offers specific evidence to show that the 
quality of service rendered was superior to that one reasonably 
should expect in light of the hourly rates charged and that the 
success was exceptional." Blum, 465 U.S. 899 (emphasis 
supplied). Regardless of what the Court meant by the term 
"exceptional” there has been fairly clear guidance as to what 
the term does not mean. It does not mean that the issues 
presented were novel or difficult. Delaware Valley II, 483 U.S. 
731. It does not mean that the danger of protracted litigation 
existed. Id.

In this case, the district court made no finding that 
circumstances qualifying as "rare and exceptional” existed in 
granting the enhancement. Although the majority found that 
plaintiffs’ attorneys "did a splendid job” and provided "efforts 
(that) were superb,” it rewarded them by allowing higher 
than local market rates. J.S. App. 5. It made no finding that the 
quality of services rendered was superior in light of the hourly 
rates charged. See Blum, 465 U.S. 899.

The majority also noted that "over 5,000 billable hours 
does seem like an extraordinary amount of time to spend 
on one case.” J.S. App. 6. Flowever, noting respondents’ 
"Flerculean” efforts, it found that "the plaintiffs’ lawyers and 
paralegals reasonably expended 5,060.88 hours in this case.” 
J.S. App. 7. That total included compensation for work 
performed in connection with respondents’ unsuccessful 
efforts to intervene in an earlier Voting Rights Act case. J.S. 
App. 10.

In refusing to be confined to awarding the risk of loss



10

enhancement in the ''rare and exceptional case,” the district 
court was free to provide a windfall to respondents’ already 
generously compensated attorneys. Unmoored to the stand­
ard of the rare and exceptional case, the majority has injected 
the possibility of arbitrary fee awards into the jurisprudence 
governing fee awards in civil rights actions. Rather than being 
reserved for the "rare and exceptional” case, enhancement 
of fee awards appears becoming the rule rather than the
exception. See M orris,___ F.2d___ , 1991 W.L. 271737. The
Court should note probable jurisdiction over this appeal 
because the question whether a risk of loss enhancement 
is appropriate absent a finding of rare and exceptional 
circumstances is a substantial question requiring plenary 
consideration by the Court.



1 1

CONCLUSION

Jurisdiction should be noted. The questions presented 
within this jurisdictional statement are so substantial as to 
require plenary consideration, with briefs on the merits and 
oral argument, for their resolution.

Respectfully submitted,

By: WINSTON BRYANT
Attorney General 

TIM HUMPHRIES 
Assistant Attorney G eneral 
FRANK J. WILLS 
Assistant Attorney General 
323 Center St., Suite 200 
Little Rock, AR 72201-2610

Attorneys fo r  Petitioners



CERTIFICATE OF SERVICE

I, Frank J. Wills, Assistant Attorney General, do hereby 
certify that I have served the foregoing by mailing a copy of 
same, U.S. Mail, postage prepaid, to P. A. Hollingsworth, 415 
Main Place, Little Rock, AR 72201, on this 21st day of January, 
1992.

/s/ Frank J. Wills



A P P E N D I X



A -l

In THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION
M. C. Jeffers, Al Porter,
Evangeline Brown, Clyde Collins,
O. C. Duffy, Earl Foster,
The Rev. Ellihue Gaylord, Shirley 
M. Harvell, Linda Shelby,
J. C. Jeffries, Lavester McDonald,
Joseph Perry, Clinton Richardson,
T. E. Patterson, Earnest Simpson,
Brian Smith, and Charlie Statewright, 
on behalf of themselves and all
others similarly situated, .................. ........................  Plaintiffs,

v. No. H-C-89-004

Bill Clinton, in his official 
capacity as Governor of Arkansas and 
Chairman of the Arkansas Board of 
Apportionment; W. J. McCuen, in his 
official capacity as Secretary of 
State of Arkansas and member of the 
Arkansas Board of Apportionment; and 
Steve Clark, in his official capacity 
as Attorney General of Arkansas and 
member of the Arkansas Board of
Apportionment, .........................................................Defendants.

Submitted: June 11, 1991 
Filed:__________

Before ARNOLD, Circuit Judge, EISELE, Senior District 
Judge, and HOWARD, District Judge.*

ARNOLD, Circuit Judge.

*It has apparently been customary in three-judge-court cases for the 
originating district judge to decide fee matters for himself or herself. E.G., 
Smith v. Clinton, No. LR-C-88-29 (E.D. Ark. July 26, 1990). The statute 
permits this practice, but it does not require it. In this case, the entire Court 
chooses to consider and decide the motion for fees.



A-2

We have before us plaintiffs’ final motion for attorneys’ 
fees and expenses. Over two years ago the plaintiffs filed this 
lawsuit challenging the apportionment of the General 
Assembly of Arkansas. They argued that the redrawing of 
legislative districts after the 1980 census violated the Voting 
Rights Act, 42 U.S.C. §1973 et seq., and the Fourteenth and 
Fifteenth Amendments. After a twelve-day trial, the Court 
found that the plaintiffs had proved that the 1981 re­
apportionment decreased the opportunity for meaningful 
minority participation in state politics. Jeffers v. Clinton, 730 
F. Supp. 196 (E.D. Ark. 1989). We enjoined the State from 
holding elections under the discriminatory apportionment, 
and ordered it to submit a new plan. It did so, and with 
modifications suggested by the plaintiffs, this Court approved 
the new plan in time for the 1990 elections. 756 F. Supp. 1195 
(E.D. Ark. 1990). In due course, we filed another opinion on 
the plaintiffs’ constitutional claims. Rejecting the bulk of the 
plaintiffs’ contentions that the State acted with discrim­
inatory intent, we agreed that the enactment of general- 
election run-off statutes for municipal offices violated the 
Fifteenth Amendment. 740 F. Supp. 585 (E.D. Ark. 1990). 
The State appealed that decision, as well as our earlier holding 
that the 1981 apportionment violated the Voting Rights Act, 
to the Supreme Court of the United States. On January 7, 
1991, the Supreme Court summarily affirmed our decision on 
the plaintiffs’ voting-rights claim. I l l  S. Ct. 662 (1991). 
Several months later, the State withdrew its appeal on the 
constitutional claim. I l l  S. Ct. 1096 (1991). Those decisions 
concluded the merits of the case.

The plaintiffs’ victory has brought this request for 
reasonable attorneys’ fees and other expenses of the lawsuit. 
The plaintiffs have asked for a total of $758,352 (after 
rounding individual requests to the nearest dollar) in fees for 
the eleven lawyers and seven paralegals who worked on the 
case. They have also asked that we double that amount to



A-3

reflect the contingent nature of the case. In addition, the 
plaintiffs have asked for $166,831' in other expenses. The 
particulars of their request are set out in Appendix A.

The State objects. It argues that most of the hourly rates 
requested by the plaintiffs are too high by Arkansas standards, 
that the plaintiffs’ lawyers spent too much time on the case, 
that there is no need to enhance the attorneys’ fee, and that 
many of the expenses plaintiffs claim are unreasonable or 
poorly documented. The State, however, has not opposed all 
of the plaintiffs’ request. On two occasions, we have, on the 
plaintiffs’ motions, ordered the State to pay undisputed 
amounts of the plaintiffs’ request. The State has done so. Our 
final award will be decreased by those amounts, totalling 
$231,969.

In the main, we believe that plaintiffs’ requests are 
reasonable. Their petition is thorough and well documented. 
We award attorneys’ fees at rates ranging from $175 an hour 
for Ms. Hair and Mr. Hollingsworth, who jointly captained 
this case, to $90 an hour for Mr. Glover. With some 
adjustments, we award fees for the bulk of the time claimed by 
plaintiffs. The total fee award is $962,432. This figure 
represents a lodestar fee of $653,687 enhanced by a 
contingency multiplier of 50 per cent. Finally, again with 
reductions, this time substantial ones, we award various 
expenses of the litigation. The total expense award is $72,060. 
The details of our award of both attorneys’ fees and expenses

‘In plaintiffs’ final motion for attorneys’ fees and costs, they request 
$167,741 in expenses. Our calculations reveal a total of $167,481 in 
expenses. Despite our efforts, we cannot account for the additional $260. 
Plaintiffs’ motion also contains two requests for reimbursement of travel 
for J. Wilson on October 6, 1989, in the amount of $649-98. We have 
deducted this amount from their final request to avoid duplication, 
resulting in a final figure of $166,831.



can be found in Appendix B to this opinion. We reason to 
these conclusions as follows.

I.

Setting hourly rates for plaintiffs’ lawyers and paralegals 
is our first task. The plaintiffs request a spectrum of rates for 
their lawyers, ranging from $195 an hour for co-lead counsel 
Hollingsworth to $90 an hour for attorney Glover. The 
plaintiffs support their request with numerous affidavits, 
attesting to the reasonableness of these hourly rates. The 
State, relying primarily on the fee order in Smith v. Clinton, 
No. LR-C-88-29 (E.D. Ark. July 26, 1990), urges us to cap the 
lawyers’ fees at $130 an hour, and work down from there 
based on experience. The plaintiffs request between $60 and 
$40 for their paralegals. Again, relying on Smith, the State 
argues that $30 or $35 an hour is the going local rate, and 
therefore the reasonable rate.

The first legal question is whether all the out-of-town 
lawyers associated with the Legal Defense Fund should be 
held to local hourly rates. "[T]he prevailing market rates in 
the relevant community!)]” are presumptively reasonable, 
1Slum v. Stenson, 465 U.S. 886,895 (1984). Smith, supra, holds 
that Little Rock, Arkansas is the relevant community for a 
voting-rights case such as this. The guiding principle here is 
the availability of qualified and willing local counsel. If it is 
reasonable for civil-rights plaintiffs to look beyond Arkansas 
to find such lawyers, then the Court may look beyond 
Arkansas in setting a reasonable hourly rate for their services. 
Avalon Cinema Corp. v. Thompson, 689 F.2d 137 (8th Cir. 
1982) (en banc). We do not read Avalon Cinema, however, 
to determine conclusively that no prospective civil-rights 
plaintiff will ever need to seek a lawyer who is not an 
Arkansan. Avalon Cinema requires, rather, a case-by-case 
determination of the need for outside counsel. 689 F.2d at



A-5

140-41. This mammoth case could not have been undertaken 
without the Legal Defense Fund’s lawyers and resources. 
Indeed, it was not launched until local counsel could be certain 
of that partnership. See, e.g., O. Neal Supplemental State­
ment at paragraphs 9, 10; P. Hollingsworth Supplemental 
Statement at paragraph 4. The expertise, energy, and 
resources to challenge numerous legislative districts, covering 
approximately one-third of Arkansas, are simply not cur­
rently available in this State. We conclude, accordingly, that it 
is reasonable to pay at least some of plaintiffs’ out-of-town 
lawyers at out-of-town rates.

We believe the following schedule of hourly rates is 
reasonable. Ms. Hair, of the Legal Defense Fund, directed this 
case. She was the guiding force both before and at trial. She 
was first among equals as co-lead counsel, spending nearly 
twice as much time on this case as any other lawyer. And she 
did a splendid job. A reasonable hourly rate for her efforts, 
given her unique expertise in voting-rights cases, is the rate 
she requests: $175. Ms. Hair’s rate may slightly exceed the 
local market rate for most top-notch lawyers. Since her 
services were essential, however, it is reasonable to pay the 
non-local hourly rate she requests. Justice Hollingsworth, 
co-lead counsel and the individual who diligently coordinated 
the plaintiffs’ efforts in Arkansas, has requested $195 an hour. 
Though his efforts were superb, we think $175, the same rate 
allowed for Ms. Hair, is reasonable for Mr. Hollingsworth as 
well. See, e.g., Little Rock School District v. Pulaski County 
Special School District No. 1, No. LR-C-82-866, Order at 
Schedule B (E.D. Ark. Feb. 6, 1991) (awarding Justice 
Hollingsworth $165 an hour for work done in 1988); 
G reenwood v. Ross, No. LR-C-79-406, Order at 7-8 (E.D. Ark. 
Feb. 2, 1989) (Howard, J.) (awarding Hollingsworth an 
average hourly rate of $ 135 for work during 1986-1988, while 
noting that $165 was his current hourly rate).

The rest of the plaintiffs’ legal team will be paid at the



A-6

following hourly rates, which we find are reasonable: 
Ms. Karlan — $125; Ms. Cunningham, Ms. Dennis, and 
Mr. Bird — $110; Ms. Thomas, Ms. Bell, Mr. Neal, and 
Mr. Simes — $ 100; Mr. Glover — $90. We believe these rates 
reflect the relative experience and efforts in this case of the 
various lawyers. We agree with the State that at least some of 
the plaintiffs’ paralegals should also be limited to the hourly 
rate currently paid in Arkansas. An hourly rate of $40 is 
reasonable for plaintiffs’ local support staff. See Little Rock 
School District, supra at Schedule B. The paralegals helping 
non-local counsel, however, are entitled to the slightly higher 
non-local rate of $50 an hour.

II.

Having decided how much per hour to pay the plaintiffs’ 
lawyers, we must now decide how many hours they should be 
paid for. The State points out that not all time spent on a case 
is billable time. The plaintiffs agree. The final fee request 
mentions several instances of time spent, but not charged. 
These were not insignificant efforts: they total, by the 
plaintiffs’ estimation, some 900 hours of work. Even so, the 
plaintiffs seek fees for a large amount of time — 4,739.05 
hours of lawyers’ time and 671.1 hours of paralegals’ time. 
The State argues forcefully that the request is excessive. First, 
the State sees many projects that supposedly took too long, for 
example, the two Supreme Court appeals. While only two 
motions and supporting briefs were produced, the plaintiffs 
seek pay for almost 400 hours of work. Moreover, the State 
points to what it considers duplicative efforts. For example, 
both Ms. Hair and Ms. Cunningham worked on the post-trial 
papers. Finally, the State argues that some of the claimed time 
is simply not properly considered billable time. A prominent 
example is the travel time claimed by non-local counsel. On its 
face, the State’s general point has weight. Over 5,000 billable 
hours does seem like an extraordinary amount of time to 
spend on one case.



A-7

On reflection, however, we are persuaded that most of 
the plaintiffs’ lawyers’ and paralegals’ time was necessary and 
well spent. This was a Herculean effort. We tried the case for 
twelve days. It involved a cloud of witnesses and a mountain of 
exhibits. Extensive expert testimony was required. It took this 
Court three opinions to consider and decide the many issues 
raised. As the plaintiffs remind us, the State has recognized 
the magnitude of the case. It noted that the remedy, for 
example, ”involve[d] twenty-three of one hundred House 
districts and eight of thirty-five Senate districts [and] 
affect[ed] hundreds of thousands of voters in east and south 
Arkansas.” Defendants’ Motion for Stay of Judgment Pending 
Appeal at 6, No. 89-2008 (U.S., filed March 12, 1990). The 
plaintiffs’ lawyers’ time records are in the main thorough and 
credible. Indeed, one aspect of the plaintiffs’ final request 
deserves commendation. Responding to the State’s initial 
concerns, almost every lawyer’s claim was revised by omitting 
some challenged time. There are exceptions, of course, and 
the State has done a good job of bringing them to the Court’s 
attention. We consider them in detail below. Any remaining 
excessiveness or duplication is negligible. Accordingly, we 
find that the plaintiffs’ lawyers and paralegals reasonably 
expended 5,060.88 hours in this case. The particulars of this 
finding are set out in Appendix B.

The State first contends that almost every lawyer spent 
too much time working on the case. It suggests across-the- 
board cuts in most of the lawyers’ time requests. The State’s 
blanket assertions are not persuasive. It attacks, for example, 
the 89 hours Ms. Hair spent on the post-trial brief. That 
document was invaluable to the Court in preparing its 
opinion. We see excellence here, not excessiveness. The State 
also points to Ms. Hair’s and Ms. Cunningham’s efforts on 
appeal. It calculates the cost of plaintiffs’ motions to dismiss 
in the Supreme Court at $ 1,300 a page for the first motion and 
$890 a page for the second one. Those figures alarm. But like



A-8

most statistics, they do not teli the whole story. Divided into 
legal research, strategy conferences, review of the record, and 
actual drafting and editing, plaintiffs’ efforts on appeal come 
into focus. Beyond the statistics lie diligence and craftsman­
ship, not excess. Further, not all of this time was devoted to 
the documents themselves: the lawyers also spent time 
helping the Justice Department through the extensive record 
on appeal. Moreover, the State’s cost estimates do not account 
for our reduction in Ms. Cunningham’s hourly rates. In 
general, then, we find the amount of time plaintiffs spent 
both justifiable and justified.

The State is correct, however, in its general assertion 
regarding attorney Glover’s records. Their indefiniteness is 
troubling. The plaintiffs’ response — that Glover did valuable 
work gathering evidence — is probably true, but it is 
insufficient to meet the State’s objection. The infirmity lies in 
the lack of thorough documentation. The bulk of plaintiffs’ fee 
request sets a high standard on this score, one that Glover’s 
request does not meet. Our uncertainty leads us to award 
Glover one-half of the hours claimed for his work outside of 
trial.

The State next contends that the plaintiffs’ lawyers 
duplicated each other’s work. The fee award, the State 
continues, should be reduced accordingly. We agree that it is 
unreasonable to pay for the same work twice. It is not 
unreasonable, however, to divide responsibilities among 
many lawyers in a large case such as this. To remedy any 
duplication caused by the shuffling of lawyers, the plaintiffs 
have not claimed any time for lawyer Ifill of the Legal Defense 
Fund. That amounts to 118 hours. This is a reasonable 
adjustment. Except for the specific instances discussed below, 
we reject the State’s duplication objections.

While this case needed a team of lawyers and legal



A-9

assistants to prepare and try, we are nevertheless convinced 
that fewer people could have done the job at trial. There were 
always five, and sometimes as many as eight, lawyers at the 
plaintiffs’ table. That is duplicative. We believe three lawyers, 
or at most four, could have tried this case effectively. All of the 
co-lead counsels’ time at trial is reasonable: Ms. Hair and 
Justice Hollingsworth needed to be in the courtroom to run 
their case. Each of the other lawyers’ trial-time requests, 
however, must be reduced. A rotation of effort would have 
been the better course. To effect that rotation — in pay, if not 
in time — we award each of the other lawyers one-half of the 
trial time they claim. The same problem arises with respect to 
paralegals. One was surely a necessity. The three legal 
assistants that worked the trial, often in pairs, were not. We 
award each of them one-half of the trial time they claim.

The State also sees duplication during the remedy phase 
of the case. Often two, and sometimes three, lawyers attended 
each meeting of the Board of Apportionment. One lawyer 
could have adequately represented the plaintiffs’ views at each 
meeting. Justice Hollingsworth was the only plaintiffs’ lawyer 
to attend all of the meetings. He was their logical repre­
sentative, and we award all of his time. Lawyers Neal and 
Simes, on the other hand, though helpful, were not necessary 
participants on every occasion. We award half of the 
approximately thirty-nine hours they claim for attending 
Board meetings.

We come finally to the third aspect of the State’s 
excessiveness argument: improper time. The plaintiffs 
supposedly seek payment for time that it is not appropriate to 
bill. The State first contends that it is unreasonable to bill for 
time the out-of-town lawyers spent travelling to and from 
Arkansas. Here again, the State relies on the order awarding 
fees in the Smith case. As plaintiffs point out, much of the 
contested time was spent travelling in Arkansas interviewing



A-10

witnesses and gathering evidence. This is clearly appropriate. 
Further, we have found, distinguishing Smith , that this case 
could not have been prosecuted without a partnership of local 
and non-local counsel. It follows, therefore, that it is 
reasonable for those out-of-town lawyers to expect pay for the 
time spent getting to and from their client. Rose Confections, 
Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 396 (8th Cir. 
1987); Craik v. M innesota State University Board, 738 F.2d 
348, 349-50 (8th Cir. 1984) (per curiam). Moreover, though it 
is not required, at least some of the plaintiffs’ lawyers often 
worked in transit. See, e.g., Statement of D. Cunningham 
at paragraph 4; Supplemental Declaration of P. Hair at 
paragraph 18.

The State also contends that chunks of Ms. Hair’s, 
Ms. Karlan’s, and Mr. Simes's claims are not related to this 
case at all. The challenged time involves the unsuccessful 
intervention in Smith v. Clinton. The plaintiffs acknowledge 
the State’s point, but claim that the failed intervention formed 
the foundation of the Jeffers  complaint. The Smith time, 
plaintiffs say, is thus also Jeffers  time, and as such is properly 
claimed now. We are persuaded by the plaintiffs’ explanation.

The State finally points to a miscellaneous list of claimed 
time it says is improper. Much of what it objected to along 
these lines has been withdrawn in the plaintiffs’ final request. 
Two remaining items need to be adjusted. Ms. Hair claims the 
7.3 hours she spent getting an apartment in Little Rock. Since 
she is not from here, she needed a place to stay during the trial. 
It is not reasonable, however, to pay Ms. Hair $175 an hour to 
do what another (a local paralegal, for example) could have 
done for far less. We do not believe a private client would pay a 
lawyer for an apartment search or getting the utilities hooked 
up. This part of Ms. Hair’s request is denied. Mr. Neal claims 
fourteen hours for monitoring elections in the new districts 
created by this case. The State does not see the relevance of



A -ll

this time. Neither do we.2 We reject the rest of the State's 
objections to the time claimed by plaintiffs’ lawyers and 
paralegals.

III.

Multiplying the adjusted hourly rates by the adjusted 
amounts of time worked by each lawyer and paralegal yields 
an attorneys’ fee of $653,895. That is what the cases call the 
"lodestar” figure. As the name suggests, it is a guide. The 
lodestar "is presum ed  to be the reasonable fee to which 
counsel is entitled.” Pennsylvania v. Delaware Valley Citizens’ 
Council, 478 U.S. 546, 564 (1986) (emphasis in original, 
quotation omitted). Plaintiffs, however, seek more. They 
request that we enhance their attorneys’ fee by 100 per cent. In 
other words, they ask us to double it.

The Supreme Court has held that in certain circum­
stances enhancing the lodestar to account for the possibility of 
loss is proper. Pennsylvania v. Delaware Valley Citizens’ 
Council, 483 U.S. 711, 731, 733-34 (1987) (Delaware Valley 
II) (O’Connor, J., concurring in part and concurring in the 
judgment). The animating principle — of both the underlying 
fee statutes and the cases interpreting them — is the need to 
attract competent counsel for meritorious cases. If a con­
tingency enhancement is necessary to meet this need, then it 
is reasonable to award one. See, e.g., Hendrickson v. Branstad, 
934 F.2d 158,162-63 (8th Cir. 1991). Useful facts in analyzing 
this issue are how the "particular market compensates for

’In their final motion for attorneys’ fees, plaintiffs state they do not 
claim 30.5 hours billed by Mr. Neal. Since the plaintiffs do not indicate 
which 30.5 hours they are not claiming, we err on the side of assuming 
(since plaintiffs have the burden of establishing the right to the fees) the 
hours they do not claim are not the hours Mr. Neal billed for monitoring 
elections.



A-12

contingency” cases as a class, and whether, "without an 
adjustment for risk[,j the prevailing party would have faced 
substantial difficulties in finding counsel in the local or other 
relevant market,” Delaware Valley II, 483 U.S. at 733 
(quotation and citation omitted).

We conclude the plaintiffs here have met their burden 
under Delaware Valley II to justify enhancement of their 
attorneys’ fees. Under Morris v. American National Can 
Corp., 941 F.2d 710,715 (8th Cir. 1991)/ the plaintiffs are not 
required to show that they "actually faced substantial difficulty 
in retaining counself.]” Rather, the inquiry is whether the 
plaintiffs would have faced such difficulty in the absence of the 
prospect of an enhancement.

Plaintiffs here have made that showing. Justice Hol­
lingsworth states "that without compensation for risk, no law 
firm [his] size can regularly accept [civil-rights] cases.” 
P. Hollingsworth Supplemental Statement at paragraph 1. 
Another of the plaintiffs’ attorneys, L. T. Simes, asserts that 
”[p]rior to contacting [the Legal Defense Fund], I approached 
w o other organizations for assistance in this case — Eastern 
Arkansas Legal Services and the Lawyers’ Committee for Civil 
Rights. Each of these organizations refused to handle the case 
because of its difficulty and broad scope.” L. T. Simes 
Supplemental Statement at paragraph 5. Absent a con­
tingency enhancement, he doubts plaintiffs could have 
retained competent attorneys.

We find the affidavit of Jim Guy Tucker particularly 
persuasive on this issue. He has no financial stake in the 
outcome of this case in particular or civil-rights cases as a 
class. In his affidavit, Lieutenant Governor Tucker expresses

'A petition for rehearing with suggestion for rehearing en banc is 
pending before the Court of Appeals in Morris.



A-13

the opinion that without an enhanced hourly rate, attorneys 
have no incentive to accept voting-rights cases.

Similarly, plaintiffs have adequately demonstrated that 
the relevant market, Little Rock, Arkansas, compensates 
contingency cases as a class by enhancing attorneys’ fees. 
Again, Justice Hollingsworth avers via affidavit, that he 
regularly receives four or five times his hourly rates in 
successful contingency cases. P. A. Hollingsworth Declaration 
at paragraph 9. Other attorneys provide a similar figure.
R. Quiggle Statement at paragraph 4; O. Neal Supplemental 
Statement at paragraphs 6,7 (four or five times hourly rate in 
personal injury cases; 1.75 times hourly rate in social-security 
cases). In a more conservative estimate, John Walker states 
that the Little Rock market tends to compensate attorneys in 
contingency cases "in the neighborhood of two to four times 
as much as their normal hourly billing rates.” J. W. Walker 
Statement at paragraph 17.

Although the State disagrees with the plaintiffs' request 
for an enhancement of the lodestar, it has not presented any 
affidavits of its own which contradict those presented by the 
plaintiffs. Instead, it cites dicta in Venegas v. Mitchell, 110
S. Ct. 1679, 1682 (1990), for the proposition that enhance­
ments are disfavored. It also relies on the Court of Appeals’ 
observation in Avalon Cinema, 689 F.2d at 141, that "the day 
has not yet come when a civil-rights plaintiff must go out of 
[Arkansas] to get representation.” In the face of the specific 
evidence presented by plaintiffs, we decline to rely on the 
State’s general opposition to the plaintiffs’ request. Moreover, 
we note that Avalon Cinema was decided nine years ago. 
Plaintiffs’ uncontradicted affidavits indicate that the civil- 
rights market in Arkansas has changed since then. No such 
proof was before the Avalon Cinema court, and the issue in 
that case — the validity of a zoning ordinance under the First 
Amendment — was considerably less complex and specialized



A-14

than the multifarious questions presented in the present case.

Plaintiffs have established that they are entitled to an 
enhancement of their attorneys’ fees. We cannot agree, 
however, that plaintiffs are entitled to a 100 per cent 
enhancement of these fees. Such an enhancement, we think, 
would result in a windfall to attorneys some of whom might 
have taken the case without the possibility of an enhance­
ment. We find that an enhancement of 50 per cent will 
adequately compensate the plaintiffs’ attorneys for the risk of 
loss without affording them a windfall. After eliminating 
those hours not entitled to enhancement (i.e., hours spent on 
the fee petition itself), our calculations reveal that the 
plaintiffs are entitled to an enhancement of $308,745, 
resulting in a total attorneys’ fee award of $962,432.

IV.

The plaintiffs also seek reimbursement for other 
expenses of the litigation. These include expert witness fees, 
court costs, travel, photocopying, regular postage, telephone 
calls, and overnight mail. These expenses total approximately 
$170,000. The State raises both factual and legal objections.

The primary argument about what the law requires 
concerns the plaintiffs’ expert witnesses. By statute, most 
witnesses are limited to $40 a day, plus reasonable expenses in 
some circumstances, in compensation for their time. 28 U.S.C. 
§1821. The State urges that we adopt that ceiling for all the 
witnesses in this case, including the experts. Many courts, see, 
e.g., Friedrich v. City o f  Chicago, 888 F.2d 511 (7th Cir. 1989), 
vacated, 111 S. Ct. 1383 (1991), have allowed successful civil- 
rights plaintiffs to recover actual expert witness fees and 
expenses. In a recent case, however, the Supreme Court 
squarely rejected this special treatment of experts. West 
Virginia University Hospitals, Inc. v. Casey, 111 S. Ct. 1138 
(1991). The plaintiffs point out that this may not be the end of



A-15

the story. The proposed Civil Rights Act of 1991, which has 
been passed by the House of Representatives and is pending 
in the Senate, would overrule West Virginia University 
Hospitals. The plaintiffs urge us to withhold a ruling on this 
part of their fee petition until the Congress acts. We are not 
inclined to wait. It is true that we have retained jurisdiction in 
this case. By way of a legal argument, however, the most the 
plaintiffs can offer is the possibility that the law will change. 
That is not enough. Plaintiffs may recover only $40 per day of 
testimony plus travel expenses for each of their experts. West 
Virginia University Hospitals, 111 S. Ct. at 1148. Likewise, 
the fees not paid by plaintiffs but submitted directly to this 
Court by one of their experts, Jerry Wilson, cannot be 
recovered. We award the statutory fee plus allowable 
expenses, which amounts to a total award of $2,236 for 
plaintiffs’ expert-witness costs.

The State also challenges the plaintiffs’ expense claims 
in several other respects. While conceding the bulk of the 
court costs, it argues that four depositions not used at trial 
should be excluded. We disagree. The plaintiffs are correct in 
responding that these were reasonable discovery expenses. 
The State also challenges the approximately $10,000 plain­
tiffs seek in mail and telephone expenses. We agree that 
regular postage is not billed separately in this jurisdiction. 
Smith, supra, at 9. That part of plaintiffs’ claim is denied. We 
find approximately $900 in regular postage in the various 
expense reports. That amount will be subtracted from the 
expenses we award to the lawyers who claimed the postage. 
The State relies on the fee order in the Smith case for its 
contention that overnight mail and most of the long-distance 
telephone expenses should likewise be rejected. This part of 
plaintiffs’ request relates to the reasonableness of hiring non­
local counsel. Having concluded it was reasonable to hire 
out-of-town lawyers, we will not impair their communica­
tions with their clients and with local counsel. These expenses 
are reasonable.



A-16

Finally, the plaintiffs have requested several thousand 
dollars for "miscellaneous expenses.” The State objected. We 
too were troubled initially by the thinness of the plaintiffs’ 
explanation of these expenses in their interim fee petition. In 
their final request, however, the plaintiffs responded by 
offering the State the opportunity to review the receipts 
beneath this request. In light of that offer, and the State’s 
failure to elaborate any specific objection in its response to 
plaintiffs’ final request, we conclude that most of these 
expenses should also be allowed. An exception is the 
additional $9,288 in miscellaneous expenses that relates to 
plaintiffs’ expert-witness costs. For the reasons elaborated 
above, plaintiffs’ experts are limited to their statutory fees. 
The State has conceded that the rest of the plaintiffs’ expenses 
request — for such things as photocopies and exhibit 
preparation — is reasonable. It is accordingly allowed.

«  9 •

We have considered the plaintiffs’ fee request, and the 
State’s objections to it, with care. Our decision involves a lot of 
money. We do not award it lightly. Rather, we are convinced 
that these fees and expenses fairly compensate these lawyers 
for their efforts, while not providing them a windfall. The 
State will have thirty days from the date of this opinion to pay 
the award. The plaintiffs’ request for interest on this award 
from the date their fee petition was filed is denied.

It is so ordered.
/s/ Richard S. Arnold 

United States Circuit Judge 
/s/ George Howard, Jr.

United States District Judge 
This document entered on docket sheet 10/25/91.

EISELE, Senior District Judge, dissenting.

Although I agree with the majority that Plaintiffs’ lead



A-17

attorneys did a first rate professional job in the representation 
of their clients in this voting rights case, I, nevertheless, 
dissent from the fee award because I find it clearly excessive. 
In my view too many lawyers and too many paralegals were 
used; the hourly rates awarded are too high and the number of 
hours allowed excessive. Furthermore, I do not believe, under 
the facts and circumstances of this case, that any contingency 
enhancement is called for. I recognize we are dealing here 
with matters of judgment so I see little benefit in setting forth 
my specific objections.

Without going into details, the award which I would have 
approved would be somewhat less than one-half of the award 
actually made by the Court to the Plaintiffs as the prevailing 
parties.



A-18

APPENDIX A 
PLAINTIFFS’ REQUEST*

I. TIME

A, Attorneys

1. P. Hollingsworth 738.20 hrs x $195/hr = $143,949
2. P. Hair 1458.00 hrs x $175/hr = $255,150
3. P. Karlan 130.10 hrs x $150/hr = $ 19,515
4. D. Cunningham 871.00 hrs x $ 135/hr = $117,585
5. D. Dennis 394.00 hrs x $ 135/hr = S 53,190
6. P. Bird 92.00 hrs x S135/hr = $ 12,420
7. S. Thomas 428.60 hrs x $125/hr = $ 53,575
8. 0 . Neal 220.75 hrs x $125/hr = $ 27,594
9. K. Bell 12.90 hrs x S125/hr - S 1,613

10. L. Simes 261.75 hrs x 5100/hr’= S 26,175
11. D. Glover 131.75 hrs x S 90/hr = $ 11,858

Paralegals

1. T. Hollingsworth 216.00 hrs x $ 60/hr = $ 12,960
2. V. Thompson 30.00 hrs x $ 60/hr = $ 1,800
3. S. Mortman 121.30 hrs x S 60/hr = $ 7,278
4. C. Birnhak 82.00 hrs x $ 50/hr = $ 4,100
5. S. Bradford 51.00 hrs x $ 50/hr = $ 2,550
6. T. Aldrich 20.80 hrs x $ 50/hr = $ 1,040
7. O. Hampton 150.00 hrs x S 40/hr = $ 6,000

TOTAL = S758,352

'All dollar amounts are rounded to the nearest dollar.
‘’Plaintiffs' petition does not speak with one voice on Mr. Simes’s 

requested hourly rate. At some points, it is $100 per hour for all his time. 
At other points, it is S100 per hour for his time in court and $85 per hour 
for his time out of court. Since the State concedes, and we agree, that $ 100 
an hour is a reasonable rate for all his time, the discrepancy is not material.



A-19

II. EXPENSES

A. Paid by the Legal Defense Fund

1. telephone, postage, and copying
2. court costs
3. expert witness fees and costs
4. travel
5. miscellaneous
6. various expenses since June 1990

B. Paid by Individuals

1. P. Hollingsworth
2. O. Neal
3. K. Bell
4. L. Simes
5. J. Wilson

$ 15,031 
$ 9,296 
$ 82,882 
$ 26,068 
$ 16,099 
$ 1,776

S 9,891 
$ 1,235
$ 131
$ 484
$ 3,938

TOTAL = $166,831

APPENDIX B
ATTORNEYS’ FEES AND EXPENSES AWARDED

I. TIME

A. Attorneys

1 . P. Hollingsworth 738.20 hrs x $175/hr = Sl29,185
2. P. Hair 1450.70 hrs x $175/hr = $253,873
3. P. Karlan 130.10 hrs x $125/hr = $ 16,263
4. D. Cunningham 835.00 hrs x $ 110/hr = $ 91,850
5. D. Dennis 359.00 hrs x $110/hr = $ 39,490
6. P. Bird 92.00 hrs x $110/hr = $ 10,120
7. S. Thomas 405.60 hrs x $100/hr = $ 40,560
8. O. Neal 149.25 hrs x $100/hr = $ 14,925
9. K. Bell 12.90 hrs x $100/hr = $ 1,290

10. L. Simes 214.15 hrs x $100/hr’ = $ 21,416
11. D. Glover 59.87 hrs x $ 90/hr = $ 5,388



A-2Q

B. Paralegals

1. T. Hollingsworth 205.00 hrs x $ 50/hr
2. V. Thompson
3. S. Mortman
4. C. Birnhak
5. S. Bradford
6. T. Aldrich
7. O. Hampton

30.00 hrs x S 50/hr = $ 
108.30 hrs x S 50/hr = $

82.00 hrs x S 50/hr = $
51.00 hrs x 5 50/hr = S 
20.80 hrs x S 40/hr = S

117.00 hrs x S 40/hr77 = S

10,250
1,500
5,415
4,100
2,550

832
4,680

TOTAL = 5653,687

II. EXPENSES

A. Paid by the Legal Defense Fund

1. telephone, postage, and copying S 14,689
2. court costs S 9,296
3. expert witness fees and costs s 2,236
4. travel s 26,068
5. miscellaneous s 6,811
6. various expenses since June 1990 s 1,634

Paid by Individuals

1. P. Hollingsworth s 9,541
2. O. Neal s 1,181
3. K. Bell s 120
4. L. Simes s 484
5. J. Wilson s 0

TOTAL = s 72,060

III. FINAL ATTORNEYS’ FEES AND EXPENSES 
AWARD

A. Total Time S 653,687
+ Enhancement S 308,745
+ Total Expenses S 72,060

= Total Award 51,034,492
- Interim Awards S 231,969

= Balance Due S 802,523



A-21

IN THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION

M. C. Jeffers, et al. ...........................................................Plaintiff

v. No. H-C-89-004

Bill Clinton, et al................................ ........................ Defendants

NOTICE OF APPEAL TO THE 
UNITED STATES SUPREME COURT

Notice is hereby given that the defendants, Bill Clinton, 
W. J. McCuen, Winston Bryant and the Arkansas Board of 
Apportionment, hereby appeal to the Supreme Court of the 
United States from that portion of the final order awarding 
attorneys fees and costs which "enhanced” the fee award by 
fifty per cent, due to the possibility that the appellees might 
have lost the case. That order was entered on October 25, 
1991.

This appeal is taken pursuant to Title 28, U.S. Code 
Section 1253.

Respectfully submitted,

WINSTON BRYANT 
Attorney General

BY: /s/Frank J. Wills
FRANK j.  WILLS, III, #80162 
TIM HUMPHRIES, #84080 
Assistant Attorneys General 
323 Center, Suite 200 
Little Rock, AR 72201-2610 
(501) 682-2007 
Attorneys for Defendants



A-22

CERTIFICATE OF SERVICE

I, Frank J. Wills, III, Assistant Attorney General, do 
hereby certify that I have served the foregoing by mailing a 
copy of same, U.S. Mail, postage prepaid, to Les Hollings­
worth, Lead Attorney for Plaintiffs, Hollingsworth Law Firm, 
P.A., Main Place Building, 415 Main Street, Little Rock, AR 
72201, on this 20th day of November, 1991.

/s/ Frank J. Wills



A-23

In THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION
M. C. Jeffers, A1 Porter,
Evangeline Brown, Clyde Collins,
O. C. Duffy, Earl Foster,
The Rev. Ellihue Gaylord, Shirley 
M. Harvell, Linda Shelby,
J. C. Jeffries, Lavester McDonald,
Joseph Perry, Clinton Richardson,
T. E. Patterson, Earnest Simpson,
Brian Smith, and Charlie Statewright, 
on behalf of themselves and all
others similarly situated,...........................................  Plaintiffs,

v. No. H-C-89-004

Bill Clinton, in his official 
capacity as Governor of Arkansas and 
Chairman of the Arkansas Board of 
Apportionment; W. J. McCuen, in his 
official capacity as Secretary of 
State of Arkansas and member of the 
Arkansas Board of Apportionment; and 
Steve Clark, in his official capacity 
as Attorney General of Arkansas and 
member of the Arkansas Board of
Apportionment,........................................................Defendants.

Submitted: December 3, 1991 
Filed:---------------

Before ARNOLD, Circuit Judge, EISELE, Senior District 
Judge, and HOWARD, District Judge.

ORDER

The motion of defendants for partial stay of the order 
entered October 24, 1991, is granted. That portion of the



A-24

order which directs defendants to pay to plaintiffs’ counsel
5308,745.00 as enhancement is hereby stayed pending final 
disposition of the appeal. The unpaid amount, however, will 
bear interest from and after November 24, 1991, at the rate 
provided by law for judgments of United States district courts.

The motion of plaintiffs to hold defendants in contempt 
is denied.

It is so ordered.

/s/ Richard S. Arnold 
United States Circuit Judge

/s/ G. Thomas Eisele 
Senior United States District Judge

/s/ George Howard, Jr. 
United States District Judge

This document entered on docket sheet on 12/6/91.