Mobile County Jail Inmates v. Purvis Brief for Plaintiffs-Cross-Appellants and Plaintiffs-Intervenors-Cross-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 
NO. 82-7024

MOBILE COUNTY JAIL INMATES,
Plaintiffs-Cross-Appellants

ROBERT G. McCRAY, et al.,
Plaintiffs-Intervenors- 

Cross-Appellants
v s .

THOMAS J. PURVIS, SHERIFF, et al.,
Defendants-Appellants.

On Appeal from the United States District Court 
for the Southern District of Alabama

BRIEF FOR PLAINTIFFS-CROSS-APPELLANTS 
AND PLAINTIFFS-INTERVENORS-CROSS-APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
STEVEN L. WINTER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019
JAMES U. BLACKSHER 
LARRY T. MENEFEE 
405 Van Antwerp Building 
P.O. Box 1051 
Mobile, Alabama 36601

Counsel for Plaintiffs- 
Cross-Appellants

DAVID P. BROOME 
P.O. Box 2125 
Mobile, Alabama 36601

Counsel for Plaintiffs- 
Intervenors-Cross-Appellants



CERTIFICATE OF INTERESTED PARTIES
The undersigned certifies that the following have an 

interest in this appeal:
Britt Mose Lovett, Jr., Robert G. McCray, Ollie

McKinnis, Jr., Leon G. Allen, and the inmates of 
the Mobile County Jail.

J. U. Blacksher, Larry T. Menefee, Gregory Stein, 
Blacksher, Menefee and Stein, P.A.

David P. Broome, Gallalee, Denniston & Cherniak.
W. Clint Brown.
Steven L. Winter, NAACP Legal Defense and Educational 

Fund, Inc.
Stanley A. Bass, Queens Legal Services.
Thomas J. Purvis, Sheriff.
Dan Wiley, John Archer, and Douglas Wicks, Mobile 

County Commissioners.
Joseph S. Hopper, Robert G. Britton, Forrest James, 

State of Alabama.

Steven L. WinterCounsel for Plaintiffs-Cross-
Appellants



STATEMENT REGARDING PREFERENCE
This case is not entitled to preference.

STATEMENT REGARDING ORAL ARGUMENT 
Cross-Appellants respectfully submit that this case 

requires oral argument. It presents questions critical to 
the effective implementation of the Civil Rights Attorneys' 
Fees Awards Act of 1976, 42 U.S.C. § 1988 ("the Act"). The 
outcome of this appeal will affect not just the parties 
listed above but, indirectly, every future civil rights
litigant who cannot afford counsel.



TABLE OF CONTENTS

Page
Statement of Issues .................................... 1
Statement of the Case .................................. 2

A. The Proceedings Below ........................ 2
B. Conditions at the Mobile County Jail .......  6
C. The Fees Hearing ............................. 6%

Summary of Argument ..................    18
Statement of Jurisdiction .............................  20
Argument ...............................................  20

I. This Court Must Review the Lower Court's 
Subjective Application of the Johnson 
Factors and Provide a Uniform and Objective 
Method for Their Application of the Basic 
Policy of the Fees Act Is Not to Be
Subverted ..................................... 20

II. In Setting Hourly Rates, the Lower Court Misapplied the Johnson Factors— Including 
Those Relating to Contingency, Undesir­
ability, and Length of Professional 
Relationship— Resulting in Fees Below Market 
Rates for Traditional, Non-Contingent, Civil 
Litigation .................................... 23
A. Application of the Johnson Factors

in the Manner Congress Intended 
Would nave Resulted in Substan­
tially Higher Fees .......................  23

B. The Hourly Rates Awarded Do Not Reflect 
Defendants' Evidence Regarding Non- 
Contingent Rates When Adjusted by the 
Length of Professional Relationship
Factor ..................................  25

C. The District Court Misapplied the 
Contingency Factor in Failing to 
Properly Evaluate the Contingent 
Nature of this Litigation and in 
Failing to Award Rates that Reflect 
the Economic Effects of the Contingent
Nature of Counsel's Compensation ........  27

-i-



Page
D. The Lower Court Erred in Not Applying 

the Undesirability Factor to Increase 
the Award ...........................

E. A Proper but Conservative Application 
of the Johnson Factors Would Result 
in Fees which Approximate those 
Requested by Counsel and which Exceeded 
those Awarded in this Case ...........

III. The Court Below Erred in Compensating LDF Counsel At Mobile Rates and Not 
Looking at the Value of Their Special 
Services in the Market in which They 
Work ................................

IV. The Court's Wholesale, Percentage 
Reductions in Counsel's Hours and 
Expenses Were Unwarranted; to the 
Extent that Any Deductions Should 
Have Been Made, tne Court's Were 
Clearly Excessive and Arbitrary ..

V. The Court Erred in Not Holding the 
Defendants Jointly and Severally 
Liable ...........................

41

43

44

48

53
Conclusion .......................................... . . 54
Appendix A

Letter From Hon. Robert P. Aguilar, United 
States District Judge for the Norther District 
of California (May 3, 1982)

-li-



TABLE OF CASES

Aamco Automatic Transmission, Inc. v. Taylor, 82
F.R.D. 405 (E.D. Pa. 1979) .................  32

Adams v. Mathis, 458 F. Supp. 302 (M.D. Ala.
1978)   3

Allen v. Terminal Transportation Co., Inc., 486
F. Supp. 1195 (N.D, Ga. 1980) ..............  53

Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 240 (1975)   31

Bell v. Wolfish, 441 U.S. 520 '(1979)   27,29
Benton v. Rushen, No. C-80-3130 RPA (N.D. Cal.

Dec. 30, 1981)   42
Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.

1980)   45
Black Gold, Ltd., v. Rockwool Industries, Inc.,

1982-1 Trade Cases If64,4 61 (D. Colo.
1981)   24,32

Blum v. Stenson, No. 81-7385 (2d Cir. Oct. 19, 1981),
aff'g 512 F. Supp. 680 (S.D.N.Y. 1980)   25

Bolden v. City of Mobile, Civ. Action No. 75-297-P
(S.D. Ala. June 14, 1977)    15

* Bradford v. Blum, 507 F. Supp. 526 (S.D.N.Y.
1981)   47,48

Burger v. CPC International Inc., 76 F.R.D. 183
(S.D.N.Y. 1977)   31

Carter v. Shop Rite Foods, Inc., 503 F. Supp. 680
(N.D. Tex. 1980)   25

Charol v. Andes, 88 F.R.D. 265 (E.D. Pa.
1980)   24

* Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th
Cir. 1982)   46

Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d
575 (5th Cir. 1980)   20,22

* Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.
1980) .......................................

* Davis v. County of Los Angeles, 8 E.P.D. 1(9444
(C.D. Cal. 1974)   24,44

Cases Page



Cases Page
Davis v. Fletcher, 598 F.2d 469 (5th Cir.

1979)   22
Dorfman v. First Boston Corp., 70 F.R.D. 366 (E.D.

Pa. 1976)   31
Fain v. Caddo Parish Police Jury, 564 F.2d 707

(5th Cir. 1977)   22
Fairly v. Patterson, 493 F.2d 598 (5th Cir.

1974)   40
Foster v. Boise-Cascade, Inc., 577 F.2d 335 (5th

Cir. 1978)   23,46
Gates v. Collier, 616 F.2d 1268 (5th Cir.

1980)   34
Gibbs v. Town of Frisco City, 626 F.2d 1218 (5th

Cir. 1980)   49
Haines v. Kerner, 405 U.S. 948 (1972)   45
Harris v. City of Fort Myers, 624 F.2d 1321 (5th

Cir. 1980)   31
Hendrick v. Hercules, 658 F.2d 1088 (5th Cir.

1981)   5,22
Hew Corp. v. Tandy Corp., 480 F. Supp. 758 (D.

Mass. 1979) ■................................. 24,40
Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971)   45
Inmates of the Suffolk County Jail v. Eisenstadt,

360 F. Supp. 767 (D. Mass. 1972), aff'd,
494 F.2d 1196 (1st Cir. 1974), cert, denied,
419 U.S. 977 (1974) .......................  29

In re Ampicillin Antitrust Litigation, 81 F.R.D.
395 (D.D.C. 1978)   24,32

In re Coordinated Pretrial Proceedings in
Antibrotic Antitrust Actions, 410 F. Supp.
680 (D. Minn. 1975) .......................  24

In re Gas Meters Antitrust Litigation, 500 F.
Supp. 956 (E.D. Pa. 1980)   24

In re Gypsum Cases, 386 F. Supp. 959 (C.D. Cal.
1974)   24

In re THC Financial Corp. Litigation, 86 F.R.D.
72 (D. Hawaii (1980)   24



Cases Page
Jezrian v. Csapo, 483 F. Supp. 383 (S.D.N.Y.

1979) .......................................  24
* Johnson v. Georgia Highway Express, Inc., 488

F.2d 714 (5th Cir. 1974) ...................  passim
Johnson v. University College of the Univ. of

Ala., No. 81-7860 (11th Cir.) (pending) ....... 15
* Jones v. Armstrong Cork Co., 630 F.2d 324 (5th

Cir. 1980)   5,45
* Jones v. Diamond, 636 F.2d 1364 (5th Cir.

1981) ......................................  5,22,29,30,38
Jones v. Federated Dept. Stores, Inc., 527' F.

Supp. 912 (S.D. Ohio 1981)   30,41,52
Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio 

1971), aff'd sub nom. Jones v. Metzger,
456 F. 2d 854 (6th Cir. 1972) ...............  29,45

Jordan v. Wolke, 615 F.2d 749 (7th Cir.
1980)   27

Keith v. Volpe, 501 F. Supp. 403 (C.D. Cal.
1980)   25

Knighton v. Watkins, 616 F.2d 795 (5th Cir.
1980)   42,44

Knutson v. Darby Review, Inc., 479 F. Supp. 1263
(N.D. Cal. 1979)   32

Lamphere v. Brown Univ., 610 F.2d 46 (1st Cir.
1979)   25

* Lindy Bros. Builders, Inc. v. American Radiator, 21,22,24,
Etc., 540 F. 2d 102 (3rd Cir. 1976)   28,30,32,41

Lockheed Minority Solidarity Coalition v. Lockheed 
Missiles & Space Co., Inc., 406 F. Supp. 828 
(N.D. Cal. 1976)   32

Manhart v. City of Los Angeles, 652 F.2d 904 (9th
Cir. 1981)   25,30

Matter of First Colonial Corp. of America, 544
F. 2d 1291 (5th Cir. 1977)   21

McPherson v. School District #186, 465 F. Supp.
749 (S.D. 111. 1978)   48



Cases Page
Miller v. Carson, 563 F.2d 741 (5th Cir.

1977)   29,54
* Morrow v. Finch, 642 F.2d 823 (5th Cir.1981)   34,53
NAACP v. Button, 371 U.S. 415 (1963)   45
Neely v. City of Granada, 624 F.2d 547 (5th Cir.

1980)   22
* Northcross v. Board of Education, 611 F.2d 624

(6th Cir. 1979) ........................  passim
Northeastern Tex. Co. v. A.T.T., 497 F. Supp.

230 (D. Conn. 1980)   24
Parker v. Califano, 561 F.2d 320 (D.C. Cir.

1977) aff'g Parker v. Mathews, 411 F. Supp.
1059 (D.D.C. 1976)   25

Parker v. Lewis, 670 F.2d 249 (D.C. Cir.
1981)   32,54

Ramos v. Lamm, F. Supp. , Civ. Action
No. 77-K-1093 (D. Colo. March 17, 1982) .... 8,47

Rhem v. Malcolm, 371 F. Supp. 594 (S.D.N.Y.), 
subsequent opinion, 377 F. Supp. 495 
(S.D.N.Y.), aff'd, 507 F.2d 333 (2d Cir.
1974)   29

* Richardson v. Restaurant Marketing Assoc., 527
F. Supp. 690 (N.D. Cal. 1981)   25,34,35

Schwegman Bros. v. Calvert Distillers Corp., 342
U.S. 384 (1951)   38

Selzer v. Berkowitz, 477 F. Supp. 688 (E.D.N.Y.
1979)   52

* Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. 21,24,34
Cal. 1974)   37,38,40,44

Stewart v. Rhodes, 656 F.2d 1216 (6th Cir.
1981) ....................................... 46

* Swann v. Charlotte-Mecklenburg Board of Ed., 66
F.R.D. 483 (W.D.N.C. 1975)   40,43

Tasby v. Estes, 651 F.2d 287 (5th Cir. 
1981) .......................... 5,52



Cases Page
Taylor v. Jones, 495 F. Supp. 1285 (E.D. Ark.

1980) .......................................  30
Taylor v. Sterrett, 344 F. Supp. 411 (N.D. Tex.

1972), aff'd, 499 F.2d 367 (5th Cir.
1974)   29

Taylor v. Sterret, 600 F.2d 1135 (5th Cir.
1979)   29

Thompson v. Cleland, Civ. Action No. 74-C-3719
(N.D. 111. 1979) ...........................  25

United States v. Terminal Transport Co., Inc.,
653 F.2d 1016 (5th Cir. 1981), aff'g Allen 
v. Terminal Transport Co., Inc., 485 F. Supp.
1195 (N.D. Ga. 1988)   5,54

Vecchione v. Wohlgemuth, 480 F. Supp. 776 (E.D.
Pa. 1979)   32

Vulcan Society v. Fire Department of White Plains,
533 F. Supp. 1054 (S.D.N.Y. 1982)   25,30

* Watkins v. Mobile Housing Board, 632 F.2d 565 (5th
Cir. 1980) ..............................  40,49

Wells v. Hutchinson, 499 F. Supp. 174 (E.D. Tex.
1980)   25

Williams v. Boorstin, 20 F.E.P. Cases 1539 (D.D.C.
1979)   41

Wolf v. Frank, 555 F.2d 1213 (5th Cir.
1977)   24

OTHER AUTHORITIES

ABA Code of Professional Responsibility,
Canon 5 ..................................... 52

Berger, Court Awarded Attorney's Fees: What is
"Reas nable?" 126 U. Pa. L. Rev. 281
(1977)   22

* H. Rep. No. 94-1558, 94th Cong., 2d Sess. at 9
(1976) ......................................

122 Cong. Rec. S. 17052 (daily ed. Sept. 29,
1976)   39

Larson, Federal Court Awards of Attorney's Fees 
(1981) ................................... 22



Cases Page
S. Rep. No. 94-1011, 94th Cong., 2d Sess. at 4,

6 (1976) .................................... 21,24
Turner, When Prisoners Sue: A Study of Prisoner

Section 1983 Suits in the Federal Courts,
92 Harv. L. Rev. 610, 617-18 (1979) ........

STATUTORY AUTHORITIES

The Civil Rights Attorneys' Fees Awards Act, 42 
U.S.C. §1988

In anyactionor proceeding to enforce a 
provision of sections 1981, 1982, 1983, 
1985, and 1986 of this title, title IX 
of Public Law 92-318, or title VI of the 
Civil Rights Act of 1964, the court, in 
its discretion, may allow the prevailing 
party, other than the United States, a 
reasonable attorney's fee as part of the 
costs...................................

40,44

27,42

passim



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 
NO. 82-7024

MOBILE COUNTY JAIL INMATES,
Plaintiffs-Cross-Appellants

ROBERT McCRAY, et al.,
Plaintiffs-Intervenors- 

Cross-Appellants
v s .

THOMAS J. PURVIS, SHERIFF, et al.,
Defendants-Appellants.

On Appeal from the United States District Court 
for the Southern District of Alabama

BRIEF FOR PLAINTIFFS-CROSS-APPELLANTS 
AND PLAINTIFFS-INTERVENORS-CROSS-APPELLANTS

STATEMENT OF ISSUES

1. Is there a need for additional guidance in the applica­
tion of the Johnson v. Georgia Highway Express factors to enable 
the lower courts to, in a uniform and objective manner, arrive at 
fees adequate to attract competent counsel as Congress intended?

2. Did the district court misapply the Johnson factors —  
including those pertaining to contingency, undesirability and 
length of professional relationship —  and instead interpose its



own subjective notion of a proper fee, resulting in rates inade­
quate to achieve the congressional purpose?

3. Did the court err in awarding local rates to counsel 
with special expertise not available locally?

4. Were the court's wholesale, percentage reductions in 
counsel's hours and expenses unwarranted, arbitrary, and 
excess ive?

5. Did the court err in not holding all the defendants 
jointly and severally liable?

STATEMENT OF THE CASE
A. The Proceedings Below

This case originated in 1973 when two community groups 
approached local counsel, Mr. Blacksher, and asked him to bring 
suit on behalf of their relatives in the Mobile County Jail

*/("MCJ") challenging the conditions of confinement. Tr. 189-90.~ 
Blacksher accepted the representation without fee, and without 
the apparent ability to recover a contingent fee. Tr. 190. He 
began by asking the NAACP Legal Defense & Educational Fund, Inc., 
("LDF") in New York to provide institutional support in the form 
of expertise and expenses. Tr. 190-91. LDF agreed to do so, and 
provided background material to enable Blacksher to begin prepa­
ration of the case. R. 940, 1011. During 1973 and 1974, just 
over 50 hours were spent preparing the suit, including interviews

jV References to the transcript of the hearing on counsel fees 
are designated by Tr. References to matters contained in the 
Record Excerpts required by Eleventh Circuit Rule 22(a) and 
to other documents contained only in the record on appeal are indicated by R.

2



with inmates and former inmates and research regarding the date 
of construction, capacity and conditions of the MCJ. _id. ; Tr.
1 90.

On November 21, 1974, Britt Mose Lovett, Jr., filed a pro se 
action under 42 U.S.C. §1983 challenging the medical care and 
other treatment he received at the MCJ. R. 1. He wrote to 
Blacksher, whose partner had been appointed to handle Lovett's 
criminal defense, and asked him to represent him. Tr. 191. An 
agreement was signed retaining Blacksher's firm and other lawyers 
such as LDF, that they might associate. Tr. 208-09. An amended 
complaint alleging unconstitutional conditions at the MCJ 
and naming the sheriff, the county commissioners, and the 
state as defendants was filed on January 27, 1975; it bore 
the names of the Blacksher firm and LDF. R. 52. The motion to 
certify the class of all pre-trial detainees incarcerated in 
the MCJ was granted on May 6, 1975. R. 111-12.

Upon oral motion of all the parties, the court transferred 
this case in late 1975 to the Middle District of Alabama for 
consolidation with a statewide case pending before Judge 
Johnson. R. 136. During the year it was in Montgomery, the 
case was handled primarily by lawyers from the Department of 
Justice. Tr. 193. Plaintiffs' lawyers spent only 61.6 hours 
during that time; almost half of that was spent taking deposi­
tions to prepare the case for trial. R. 942, 952, 991-92, 1012. 
The case returned after Judge Johnson decided not to certify the 
statewide class. See Adams v. Mathis, 458 F. Supp. 302, 304 n. 1 
(M.D. Ala. 1978).

3



On return, Blacksher asked the court to bring in the United 
States, who had the case ready to go to trial, so their work 
would not be lost. Tr. 193. This did not occur. The plaintiffs 
prepared the case anew, engaging new experts and updating discov­
ery. ^d. at 193-94. Actual trial preparation did not begin 
until 1978 when a new LDF lawyer joined the case. See Docket 
Entries 52-59; R. 942, 992, 998.

In 1980, plaintiffs in McCray v. Sullivan intervened.
Docket Entry 97.—^ The McCray class consists of state —  
i.e., convicted —  inmates backed-up in the MCJ. They were 
represented by David P. Broome, the fourth or fifth attorney 
appointed by Judge Hand to represent the class. _Tr. 227.
Broome sought intervention in order to eliminate duplication, 
since Blacksher and LDF already had the experts and legal 
expertise necessary to try the case. Tr. 229.

Subsequent settlement efforts failed. See R. 945, 1000. 
Trial took eleven days and included the testimony of an expert 
penologist, medical doctor, psychiatrist, and sanitarian (former­
ly with the United States Public Health Service), a professor of 
sociology from the University of South Alabama, numerous lay wit­
nesses including inmates and their families, as well as the 
presentation of over 75 exhibits containing hundreds of documents. 
R. 1149. The court ruled for the plaintiffs, finding extensive

] _ / An earlier attempt to intervene made by the county's female 
prisoners housed'at the city jail was rejected. Docket Entry 
62. Three individual cases against the MCJ were consolidated 
"for the purpose of adjudicating in one action all the claims 
seeking declaratory and injunctive relief from conditions at 
the Mobile County Jail." R. 763.

4



constitutional deficiencies in the operation of and conditions 
at the MCJ. R. 875-916. None of the defendants appealed from 
the ruling on the merits.

A two day hearing on counsel fees was held. Tr. 1. The
court ruled for the plaintiffs, awarding $79,372.75 in fees and
$20,906.91 in costs, R. 1168, about half what plaintiffs requested.
R. 1150. Because it found that the majority of the problems
in the jail stemmed from the overcrowding caused by the state,
the court apportioned the award between the state (2/3) and the2/
county (1/3). R. 1151-52. The county paid its portion of 
the award, R. 1205; the state appealed and filed a motion for a 
stay. R. 1180-83. Plaintiffs filed the instant cross-appeal.
R. 1185. Although the court expressed sympathy with the plain­
tiffs' position that the state's appeal was frivolous in light of

3/
recent Fifth Circuit precedent, it stayed only the 
disputed portion of the award, requiring the state to pay the 
rest. R. 1214.

2/ Although the sheriff was also a party to the litigation 
in his official capacity, the court did not enter a judgment 
against him because all of the expenses of the sheriff's 
department and the jail are borne directly by the county.
3/ The state appealed the award of fees to LDF as associated 
counsel —  but see Tasby v. Estes, 651 F.2d 287, 289-90 (5th 
Cir. 1981); the award of expert witness fees as part of fees and 
costs - but see Jones v. Diamond, 636 F.2d 1364, 1382 (5th 
Cir. 1981) (en banc); hourly rates of $70 and $75 —  but see
Hendrick v. Hercules, 658 F.2d 1188 (5th Cir. 1981) (approving 
$120/hr.); the court's findings with regard to the expertise 
of LDF counsel —  but see Jones v. Armstrong Cork Co., 630 
F.2d 324, 325 (5th Cir. 1980); and the apportionment based 
on the court's factual findings —  but see United States v. 
Terminal Transport Co., Inc., 653 F2d 1016 (5th Cir. 1981).

5



B. Conditions at the Mobile County Jail
A review of the underlying facts, as found by the district 

court, is helpful to an understanding of the issues presented 
on the instant fee appeal. The court found extensive constitu­
tional violations in the areas of physical facilities, security, 
fire safety, personal hygiene, food service, general psychologi­
cal aspects of confinement, visiting, medical and psychiatric 
care, discipline, recreation, mail practices, and the rights of 
Muslim inmates. The court's findings, included in the Record 
Excerpts, indicate the complex and sophisticated nature of the 
proof adduced by the plaintiffs. For example, the court made 
findings regarding minimum lighting levels in foot-candles, R. 
768, the physiological dangers caused by the poor lighting and 
ventilation, R. 768-70, and the psychopathogenic effects of the 
cell conditions, R. 783-84. The plaintiffs succeeded in 
proving constitutional deficiencies in the provision of medical 
care, despite the fact that the MCJ had improved staffing in 
recent years, R. 794, and the medical program had been approved 
by the AMA. R. 797-98.

C. The Fees Hearing
Extensive affidavits and supplemental affidavits were filed 

by all plaintiffs' counsel itemizing all time and expenses.
B* 937—63, 986—1018, 1065—68, 1130—41, 1143—45. All three of 
plaintiffs' lead counsel -- Blacksher, Winter, and Broome —  
testified and were extensively cross-examined. Tr. 189-226, 
133—64, and 226—52. In addition, plaintiffs presented practi­
tioners in Mobile, Tr. 33-35, and 55-74, an expert on economics

6



and statistics, Tr. 121, an expert in jail and prison litiga­
tion, Tr. 77-79, and the attorney representing the defendant 
sheriff, Tr. 252-60, to establish reasonable rates of compensation. 
The defendants called two witnesses to establish hourly rates, Tr. 
164 & 176, and one to detail the county's financial difficulties. 
Tr. 260. Except for these two issues, plaintiffs' proof was 
essentially undisputed.

To facilitate review, the facts adduced at the fees 
hearing and the conclusions reached by the district court 
will be set out according to the factors enumerated in Johnson 
v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

1- Time and labor required: The affidavits of plaintiffs'
counsel established that 1347.75 hours were spent in this 
litigation. The bulk of this time was spent by three lawyers: 
Blacksher (480), Winter (483), and Broome (188.05). R. 1155. 
Although plaintiffs were represented by nine lawyers over the 
eight years of the litigation, five of these expended 22 hours 
or less ' each. Id.

The state was represented by counsel from the Attorney 
General's office (McAlpine) and private counsel representing the 
Board of Corrections (Barnes). The county was represented by 
private counsel who, until January 1981, was paid a yearly salary 
(Wood) and out-of-town counsel (Rinehart) paid hourly. The 
sheriff was also represented by private counsel paid hourly 
(Stout). Defendants' counsel billed their clients for 1593.89 
hours, almost 250 hours more than expended by plaint iffs,-^Even

_4/ The breakdown by attorney was: McAlpine (10), Barnes
(182.75), Curtis (80) (Curtis is Barnes' law partner), R. 1038, Rinehart (791.14), R. 1072, Wood (142, from 1/81), R. 1069 Stout (388), Tr. 269.

7



this figure is deflated, since one of the county's principal 
lawyers, Wood, was on salary for six of the six and one half 
years of the litigation and only began keeping hours in January 
1981. Tr. 269.

Plaintiffs' expert on jail and prison litigation, Ralph 
Knowles, testified that the time spent by the plaintiffs 
was reasonable in light of the size and complexity of the 
case. Tr. 84. He testified that in a similar case against 
a single state prison, his office spent 5874.3 hours for a 5 
1/2 week trial. Tr. 85. This is approximately 210 hours 
per trial day, compared with the 122.5 hours per trial day 
in this case. Knowles also testified that in reviewing the 
time sheets he saw no claim that, "in any stretch of my 
imagination," could be considered unnecessary duplication.
Tr. 86-87. In his opinion: "No responsible lawyer would
handle this case by himself...." Id.

Defendants objected to the fact that two plaintiffs' >
6/lawyers attended the deposition of plaintiffs' experts.

5/ Knowles has been "involved in the most significant prison 
litigation to have occured in this country." Ramos v. Lamm,
____ F. Supp. ____, Civ. Action No. 77-K-1093, Slip Op. at
30 (D. Colo. March 17, 1982); Tr. 78-79. He was in private 
practice in Tuscaloosa between 1970 and March 1978 when he 
left for Washington D.C. to become the Associate Director of 
the National Prison Project of the ACLU. Tr. 77-78. In 
January 1981, he returned to private practice in Tuscaloosa.
As Judge Kane noted in Ramos: "A general conclusion regard­
ing his excellent ability and integrity is not sufficient.
I must point out that during the entire time I have been 
connected with the profession of law as a student, practitioner 
and judge I have never observed a lawyer who was more 
talented or accomplished in the art of cross-examination."Id.
6/ At all other depositions, only Winter appeared for the 
plaintiffs.

8



Knowles testified that, in his experience both in private 
practice in Tuscaloosa and in prison litigation nationally, 
it was common for both plaintiffs and defendants to have two 
lawyers at such depositions. Tr. 100-01. In fact, defendants 
in this case had three lawyers, one for the sheriff and two 
for the county, at all the expert depositions. R. 1137.

The experts' depositions were handled by the LDF lawyer 
(as was their testimony at trial). Blacksher was present to 
consult on strategy, keep abreast of the case, and to familiarize 
himself with the critical witnesses and the complexities of 
the case. Tr. 135, 148-50, 194-96. See also Knowles Test.,
Tr. 101-02. Indeed, counsel scrupulously avoided duplication, 
as Blacksher testified:

[W]e tried to allocate our time as economically as 
possible. That was as much from a selfish standpoint 
as anything else.... I want to say that in my 
professional opinion, it would have been negligence 
for me, as a co-counsel, not to be present at the 
deposition of my expert witnesses or their expert 
witnesses. I am not talking about>the deposition 
of guards where we carefully made sure that only 
one of us was present.
Whether I get paid for it or not, if confronted 
with the situation, I would have to do it as class 
representative. I think Mr. Wood probably agrees 
with me, because in every case that we took one of 
those depositions, he had his out of town counsel 
with him, too....

Tr. 195-96. All three plaintiffs' lawyers met to delegate 
tasks to avoid duplication. For example, Broome's main role 
was to prepare inmate witnesses; he did no work on the briefs 
or depositions in this case. Tr. 230. All the briefs were 
written by LDF counsel, as the judge knew from the signatures 
and certificates of service.

-9-



At the request of the court, Tr. 161, counsel prepared
a supplemental affidavit detailing all hearings, depositions,7/
and conferences at which multiple counsel were present.
It shows only 14.5 hours for the contested expert depositions 
and 63.7 hours of multiple attendance, excluding trial, 
during the entire case. R. 1137-38. Defendants put on no 
evidence on these points.

Although the court opined that the hours seemed "quite 
reasonable" in light of its "own experience in handling this 
case," T. 270, it made several wholesale deductions for 
alleged duplication. It found but did not identify duplication 
because of the inequality of knowledge and expertise between 
the LDF lawyer and local counsel. It also noted excessive 
travel by the LDF lawyer to be present at depositions where
the court felt a single lawyer sufficed. It reduced Blacksher's

8/
and Winter's out of court time by 15%. it particularly 
relied upon the testimony, see Tr. 166, that personal injury 
lawyers who litigate for a percentage of the award do not 
increase the percentage if they associate another lawyer as

1 _ / The court's request was only for multiple attendance at 
depositions and meetings with the experts. Tr. 161-62.
Counsel listed all multiple attendance during his involvement 
in the case. There were an additional 12 hours when two 
other lawyers attended depositions during the Montgomery 
phase of the case. R. 942, 952, 991-992, 1012. All told this 
accounts for only 5.6% of all time expended.
J3/ The 15% reduction was in addition to and after other 
specific reductions. R. 1157. These other reductions are not being challenged on appeal.

10



R. 1157 58. It also noteda specialist.
mistakenly —  that Mr. Knowles might have handled the case more 
cheaply from Tuscaloosa. Jtd. at 1157 n.9.

The court also reduced Broome's time by 40% on the 
grounds that he was able to take advantage of the work done 
by the "Blacksher/Winter team." Id. at 1159. It identified 
no unnecessary items of work.

2-3. Novelty and difficulty of the questions and skill 
required; The court held that: "With the expertise of the
LDF attorney the law was ... no more difficult than other 

rights litigation." R. 1159. The court noted that 
the case was factually complex. Id. at 1160. This reflects 
the testimony. As Ralph Knowles put it:

I think that jail and prison litigation, as 
it has evolved in the last ten or fifteen years, 
has become very complex litigation. It requires 
knowledge of many different facets of what goes on in jails and prisons.

v,

> The totality concept requires that you do
that, as the Court knows, having heard the testimony. 
You get into areas ranging from fire safety and 
epidemiology to effects of crowding, violence, 
security, and construction problems —  a multitude 
of complex areas that involve the special expertise 
in the use of expert witnesses.... I think there have been bad rulings in cases in this country 
that are in the journals now, which were the result 
of not having fire power and, the expertise to 
appropriately present the facts to'the Judge.

2/

Tr. 80-81.
4« Preclusion of other employment: The court found

that no stigma attached to plaintiffs' counsel and that there

9/ The testimony was that in personal injury cases the 
usual fee is between 25 and 40% of the recovery. Tr. 58, 
166. These fees, however, often result in an effective hourly rate as high as $200/hr. Tr. 58.



were no conflicts of interest as a result of involvement in 
this case. It noted that, whenever an attorney undertakes 
litigation, he precludes some other employment. R. 1160.

Broome, appointed counsel for the McCray class, is 
engaged in a traditional private civil practice consisting 
of business, real estate, personal injury, and insurance 
work. Tr. 227-28. His involvement in this case precluded 
him from working on matters of existing fee paying clients.
Tr. 238. Blacksher spent time on this case before the passage 
of the Act despite competing involvement in Title VII 
and other fee paying cases. Tr. 193. Winter's requested 
rate was lower than available in New York for corporate law 
practice, Tr. 155-56; the rate awarded was lower than what 
he received by way of settlement for non-contingent, on­
going compliance work in a similar case in Georgia. Tr. 119.

5-6. Customary fee and whether the fee is fixed or
contingent: The bulk of the testimony centered on hourly
rates and the effects of contingency and inflation. Plaintiffs
requested hourly rates of $65 for Broome, $75 for the members
of the Blacksher firm, $95 for Blacksher and Winter, and $125

10/
and $130 for two senior LDF attorneys. They asked that

10/ These attorneys, Joel Berger and Stan Bass, had thirteen 
and eighteen years of experience in prison and jail litigation.
R. 1008-09, 1013-14. Each has argued several of the most impor­
tant and seminal cases in the field of jail and prison litigation 
before the Supreme Court and the courts of appeals. _Id. The 
total time billed in this suit was about 20 hours each.

The court disallowed Berger's hours and compensated Bass at 
$70/hour. Only the amount of the award to Bass is challenged on 
this appeal.

12



these rates be increased by 50% to reflect the contingent
nature of the litigation, the complexity of the factual

11/presentation, and the results obtained.
Defendants' lawyers who received hourly rates were paid 

as follows: Rinehart - $50/hour for all time including travel,
R. 1073; Barnes - $50/hour until January 1981, $60 thereafter,
R. 1038. Stout - $50/hour uatil 1977, $60 thereafter. Tr. 259. 
Defendants' witnesses testified that reasonable hourly rates 
would be $50-60/hour, Tr. 180 (Campbell), and $60-65/hour. Tr.
170 (Engel). In large part, this reflected their own rates for 
defending civil rights cases for large governmental clients, as 
the court found. R. 1163. Engel, for example, gets a $1500 per 
month retainer and $50/hour for defending the county personnel 
board whom he has represented since 1957. Tr. 164-169.
When he defended the University of South Alabama in a case 
in 1977-78, however, he charged them $70/hour. Tr. 173-74. 
Campbell bills the school board at $50, "but," he admitted,
"I am probably low." Tr. 180.

Plaintiffs' testimony was that fees for non-contingent 
federal litigation in Mobile ranged from $55-100, depending 
on the experience of the lawyer. Tr. 35 (Thurber). A lawyer 
-of Blacksher's quality and experience would charge between 
$85-100 for non-contingent work. Tr. 37. Cunningham, 
whom the state's counsel characterized as coming from the 
most prominent firm in Mobile, testified that a reasonable

V \ _ / The plaintiffs did not request that the 50% multiplier 
by applied to the non-contingent work on the fee application.

-13-



rate for Blacksher for non-contingent work is "at least a 
$100 an hour." Tr. 62. Knowles testified that his partner 
was receiving $90 for non-contingent compliance work in an 
Alabama jail case and that he had received $60/hour for work 
done in 1977. Tr. 99, 87-88. Plaintiffs' economics expert ex­
plained that, due to inflation, it would take eighty-eight 1981

1 2/dollars to equal Knowles sixty 1977 dollars. Tr. 126-27.—
The court excluded plaintiffs' evidence with regard to 

customary rates for New York counsel, for prison litigation 
nationally, and for LDF as awarded by other courts. Tr. 88- 
89, 138. Plaintiffs made a proffer, indicating that the 
amounts requested (hourly rates plus 50%) were reasonable in 
light of rates in New York and Washington and court awards 
in other cases. Plaintiffs also proffered that market rates 
in New York for Winter's time were $105-115. Tr. 118-19.

With regard to the contingency, plaintiffs' witnesses 
agreed that the requested bonus was reasonable. Tr. 43-44,
60. Defendants' witnesses admitted that their lower fees 
were based on monthly or quarterly billings so they bore 
little or no loss due to delay in payment. Tr. 172, 185. In 
fact, the school board lawyer increases his billing from 
quarterly to monthly in a big case. Tr. 185.

12/ Plaintiffs adduced evidence on the effects of 
inflation on the value of money not collected for over eight 
years. For example, to get 1981 dollars with the same purchasing 
power, a $50/hour fee for work done in 1973 would have to be 
multiplied by 2.03, Tr. 126, or $ 101.50/hour.

-14-



Finally, plaintiffs also established that lawyers normally 
charge a higher fee when recovery is contingent on success.
As Cunningham explained:

[I]n an awful lot of contingent fee cases, there 
is an excellent chance you are going to prevail.
What you're dealing with is the risk of not prevailing.

Tr. 66.
In assessing the customary fees, the court looked to 

other awards in Alabama. Tr. 88; R. 1162-63.—  ̂ it held 
that the case was not truly contingent: "Certainly there was 
some risk of losing, but jail conditions cases in which 
plaintiffs are totally unsuccessful are exceedingly rare."
R. 1160—61. Finally, the court held that the case was not 
contingent as to Blacksher because LDF covered expenses.
Id. at 1161.

8. The results obtained: This was a totality of con­
ditions case. The plaintiffs prevailed on virtually every 
issue. R. 761 et seq., 1161.

9* Experience, reputation and ability of attorneys:
The court recognized the abilities of plaintiffs' principal 
attorneys. R. 1161-62. Of Blacksher, the court had previously 
noted his "special competence in pretrial, trial and legal 
analysis in civil rights litigation." Bolden v. City of 
MobiLe, Civ. Action No. 75-297-P, Slip Op. at 5 (S.D. Ala. June 
14, 1977). The court noted that the LDF attorney, "though in

V 3 /  Currently, there are four consolidated cases before this court challenging the practice in Alabama district 
courts of limiting fees in §1988 cases to $60/hour despite the 
higher rates that in fact prevail in private practice. See,
9 -9•' Johnson v. University Colleqe of the Univ. of Ala.. No.81-78607 ------ ------------------ — —

-15-



practice only about four years has accumulated considerable 
expertise in the area of prison litigation." R. 1162.

The court described the custom in Mobile of charging 
less for the work of attorneys in practice less than five 
years. _Id_. The testimony, however, did not support this 
hard and fast rule. Tr. 237.

10. Undesirability of the case; The court observed 
that younger members of the bar readily accept civil rights 
cases. It excluded this factor from consideration in the fee 
calculation. R. 1162. It made no findings about the relative 
desirability of jail cases.

The evidence established the undesirability of jail work.
As stated by plaintiffs' counsel:

[J]ail litigation ... is perhaps the most unpleasant and it is complex and extremely protracted. It 
has many spin-off effects. Once you are known as 
the attorney for the jail conditions, it causes 
many additional late-night phone calls and additional 
calls to the office to solve all of the inmates' 
personal problems, making it very difficult and, in a sense, unpleasant litigation.

Tr. 13-14. Broome, for whom this was the first jail case,
Tr. 245, put it simply: "[I]t is a very depressing type of
litigation.... You have to spend time in that facility
interviewing the inmates and getting in the cell with them...."

14/Tr. 239.—

14/ The physical state of the cells was abhorrent. See
R. 767-70, 779-80. Moreover, this case involved some personal risk.
Counsel were the only free world people who had ever entered
the MCJ cells. As the district court found: "Because they
fear the inmates, the guards do not enter the cells unless the
inmates have been removed." R. 771.

-16-



Even defendants' witnesses admitted that this case was
undesirable in 1974 when counsel accepted representation.
Tr. 181, 171. Although they thought the Act now made
these cases desirable, the record makes clear that —  with
the exception of Blacksher and LDF, who have dedicated
themselves to vindicating the civil rights of the unrepre-IV
sented —  virtually every lawyer involved in jail 
litigation in Mobile was appointed. Tr. 12, 41, 226, & 
227.

11• Nature and length of the professional relationship: 
Defendants' evidence established that a long term relation­
ship with a client results in lower fees because of the substan­
tial amount of repeat business it provides. For example, Engel 
testified that he charges the county personnel board, which 
provides 25% of his practice, $50/hour while the University of

JJV LDF's corporate charter provides that it was formed to 
assist blacks in securing their constitutional rights by the 
prosecution of lawsuits. The trial court noted that Blacksher 
and his firm are well known for their civil rights practice.
R. 1162. Yet even Blacksher testified about his reluctance to take this case.

I want to say from the beginning of this case 
to the end, I have never sought out this work. I 
took it as a great responsibility to represent this 
class of inmates. I felt personally offended by 
the conditions that they lived in and I felt like 
they were entitled to a good job, but I was also 
up to my ears in other business that I was, frankly, 
more involved in....

Tr. 193. As recognized by the Sixth Circuit: "The entire
purpose of the statutes was to ensure that the representation 
of important national concerns would not depend upon the 
charitable instincts of a few generous attorneys." Northcross 
v . Board of Ed., 611 F.2d 624, 638 (6th Cir. 1979).

-17-



South Alabama pays him $70. Tr. 169, 173, 174. The school 
board's lawyer charges it $50/hour. Tr. 185. In representing 
a corporate client which provides three or four matters a year, 
however, the same lawyer gets $75/hour on a non-contingent 
basis. Tr. 187.

The court found that plaintiffs' counsel did not have a 
long standing professional relationship with the client.
R. 1161. This was not a factor in determining the rates 
awarded in this case. R. 1164.

12. Awards in similar cases: The parties submitted
examples of such awards nationwide. R. 1162. The court, 
however, restricted itself to Alabama cases. Id.

SUMMARY OF ARGUMENT

The court below misapplied the Johnson v. Georgia Highway 
Express factors. While sanctioned by case law and specifi­
cally incorporated by the legislative history of §1988, 
the Johnson factors alone are not sufficient to ensure the 
uniform and objective determinations necessary to achieve 
the purposes of the Act. This was recognized by the Congress 
in citing specific cases as correct applications and weight­
ings of the Johnson factors. It is also reflected in the
increasing volume of counsel fee awards cases presented to 
this court.



Although the court below discussed the Johnson factors,
it essentially applied its own subjective notion of appropriate 
hourly rates. An objective but conservative application of 
the contingency, undesirability, and length of professional 
relationship factors based on the evidence provided by the 
parties would yield hourly rates substantially in excess of 
those awarded.

The court below also erred in excluding evidence of 
national and New York rates for out-of-town counsel. The 
evidence clearly established that expertise not available 
in the local community was necessary for the preparation and 
trial of this case. The court's own findings establish 
that out-of-town counsel had that expertise and that it 
contributed to the presentation of this case. Nevertheless, 
the court compensated him at Mobile rates which neither 
reflect that expertise nor account for his higher costs. If 
the complexity and specialized nature of a case require the 
assistance of an out-of-town specialist, the Act requires that 
he be compensated at rates that reflect the prevailing 
market for his services. Otherwise, the congressional 
purpose to attract competent counsel cannot be achieved.

The court arbitrarily made wholesale percentage deduct­
ions in the hours and expenses of counsel. In light of 
undisputed evidence, the reasons identified by the court do 
not justify any reductions. Even if they did, the amounts 
deducted exceed the specified items by 300%. This is just 
another example of how, within the framework of the Johnson



factors, the court first reached subjective determinations 
regarding the proper amount of counsel fees and then applied 
ex post facto reasoning in justification.

Although the court's apportionment of the award was 
sound, it erred in not holding the defendants jointly and 
severally liable. The purpose of the Act is not to punish 
defendants relative to their liability but to compensate 
plaintiffs for their fees and expenses. Prevailing plaintiffs 
should be able to recover their fees without additional delays; 
defendants should be responsible to either arrange or litigate 
contribution. Civil rights plaintiffs, no less than tort 
victims, are entitled to prompt compensation.

STATEMENT OF JURISDICTION

The court has jurisdiction over this case pursuant to 28 
U.S.C. §1291. Jurisdiction in the district court was premised 
on 28 U.S.C. §1343(3) & (4). The substance of the litigation 
was governed by 42 U.S.C. §§1983 & 1988.

ARGUMENT

I. THIS COURT MUST REVIEW THE LOWER COURT'S SUBJECTIVE AP­
PLICATION OF THE JOHNSON FACTORS AND PROVIDE A UNIFORM 
AND OBJECTIVE METHOD FOR THEIR APPLICATION IF THE BASIC 

_______ POLICY OF THE FEES ACT IS NOT TO BE SUBVERTED______
The well worn standard for the review of fee awards is

the "abuse of discretion" standard. Copper Liquor, Inc, v

-20-



Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980).
Unhappily, this formulation does not advance 
the analysis; it merely restates the problem, 
for one must understand what one means by 
"discretion."

Lindy Bros. Builders, Inc, v. American Radiator, Etc.,
540 F.2d 102, 115 (3rd Cir. 1 976) (en banc) (Lindy II).

When Congress provided that a court should, "in its 
discretion," award "a reasonable attorney's fee," 42 U.S.C. 
§1988, it did not intend that the important policies it was 
seeking to effectuate be left to the subjective determina­
tions of hundreds of individual federal judges. Rather, it 
made clear that awards should be made under the same standards 
as the fee provisions of the 1964 Civil Rights Act and the 
statutes providing for fees for other types of equally complex 
federal litigation such as antitrust. S. Rep. No. 94-1011,
94th Cong., 2d Sess. at 4, 6 (1976). To this end, it noted the 
Johnson factors, but provided specific examples of their proper 
application, _id. at 6, citing Stanford Daily v. Zurcher, 64 
F.R.D. 680 (N.D.Cal. 1974), and other cases. These cases 
were approved as having "resulted in fees which are adequate 
to attract competent counsel, but which do not produce wind­
falls to attorneys." S. Rep., supra, at 6. See also H.
Rep. No. 94-1558, 94th Cong., 2nd Sess. at 9 (1976).

Experience shows that Congress was right. It is not 
enough to require the lower courts to discuss the Johnson 
factors. See Matter of First Colonial Corp. of America, 544

-21-



F.2d 1291, 1300 (5th Cir. 1977); Fain v. Caddo Parish Police
Jury, 564 F.2d 707, 709 (5th Cir. 1977). Courts have continued 
to "parrot" the Johnson factors without meaningful explication.
See Davis v. Fletcher, 598 F.2d 469, 470-71 (5th Cir. 1979).
As a result, this court continues to be presented with widely 
divergent awards based on recitations of the Johnson factors.
Compare Hendrick v. Hercules, 658 F.2d 1088 ( 5th Cir. 1981)($ 120/hr. 
for Birmingham, Ala.), with Neely v. City of Granada, 624 F.2d 
547 (5th Cir. 1980)($35 and $45/hr. for Jackson, Miss.).

Other circuits and numerous commentators have recognized 
the problems with the unguided use of the Johnson factors.
E. R. Larson, FEDERAL COURT AWARDS OF ATTORNEY'S FEES 133-34 
(1981); Copeland v. Marshall, 641 F.2d 880, 890 (D.C.Cir.
1 980)(en banc); Northcross v. Board of Education, 611 F. 2d 
624, 642 (6th Cir. 1979); Berger, Court Awarded Attorneys'
Fees: What is ''Reasonable?1' 126 U.Pa.L.Rev. 281 , 286-87 
(1977). This court has begun to respond, giving guidance to 
the lower courts in the application and weighting of the 
Johnson factors with its refinements in Copper Liquor, 
supra, 624 F.2d at 587 & n. 15, and Jones v. Diamond, 636
F. 2d 1 364, 1 382 (5th Cir. 1981)(en banc) . However, these 
guidelines still fail to "lead to consistent results, or, in 
many cases, to reasonable fees." Northcross, supra, 611 F.2d 
at 642. For example, the court below purported to follow the 
"lodestar" method advanced by Copper Liquor, supra. Yet it 
still undercompensated counsel, in part by application of the 
"subjective factors," ic[. , 624 F.2d at 583 n. 15, inherent in 
the pure Johnson approach.

-22-



Particularly where the legislative history is so explicit, 
a court abuses the discretion that Congress consigned to it
when it fails to follow the proper standards. See Lindy
II, supra; Davis, supra. This is precisely the issue here.
The lower court misapplied the proper standards, supplanting
them with its own subjective determinations. This continuing
problem is subverting the basic purpose of the Act.

Will competent and successful trial attorneys 
accept employment in a complex ... case if this 
is the standard by which fee awards are to be 
computed?

Foster v. Boise-Cascade, Inc., 577 F.2d 335, 337-38 (5th 
Cir. 1978)(Vance, C.J., dissenting).

II. IN SETTING HOURLY RATES, THE LOWER COURT MISAPPLIED THE 
JOHNSON FACTORS— INCLUDING THOSE RELATING TO CONTINGENCY, 
UNDESIRABILITY, AND LENGTH OF PROFESSIONAL RELATIONSHIP—  
RESULTING IN FEES BELOW MARKET RATES FOR TRADITIONAL, 
__________ NON-CONTINGENT, CIVIL LITIGATION______________
A. Application of the Johnson Factors in the Manner 

Congress Intended Would Have Resulted in Substan- 
 tially Higher Fees_____________________

The purpose of the act is to attract counsel to civil 
rights litigation so that the important congressional policies 
behind the civil rights statutes will be vindicated. S. Rep., 
supra, at 2, 6; H. Rep. supra, at 3, 9. This is accomplished 
by awarding fees that approximate "the fair market value of the 
attorney's services." Northcross, supra, 611 F.2d at 638. 
Accord, Copeland, supra, 641 F.2d at 894.

-23-



Plaintiffs requested hourly rates of $65 to $95.
These were in line with —  indeed, a bit below —  market rates 
for the various attorneys. They requested that the court 
adjust that amount by the application of a 50% multiplier to 
account for the contingent, factually complex and undesirable 
nature of the case and the results obtained.

This was the very approach applied in both Stanford 
Daily, supra, 64 F.R.D. at 688, and Davis v. County of Los 
Angeles, 8 E.P.D. 1(9444 at 5048 (C.D. Cal. 1 974), two of the 
cases adopted by Congress as a proper application of the 
Johnson factors. S. Rep., supra, at 6. This approach was 
being applied in many antitrust cases, see, e. g. , Lindy II, 
supra; In re Coordinated Pretrail Proceedings in Antibiotic 
Antitrust Actions, 410 F. Supp. 680 (D. Minn. 1975) (enhancement 
factors of 2.0 and 2.5); In re Gypsum Cases, 386 F. Supp. 959 
(C.D. Cal. 1974) (multiplier of 3), which Congress also cited 
as paradigmatic of how fees should be awarded under §1988. S.
Rep., supra, at 6. It has been followed in a host of antitrust” ^

16/ See, e .g. , Wolf v. Frank, 555 F.2d 1213 (5th Cir. 1 977)
(33%); Black Gold, Ltd, v. Rockwool Industries, Inc., 1982-1 
Trade Cas. 1164,461 (D. Colo. 1981) (multiplier of 1.25). In re 
Gas Meters Antitrust Litigation, 500 F.Supp. 956 (E.D.Pa.
1980); Charol v. Andes, 88 F.R.D. 265 (E.D.Pa. 1980) (1.5); 
Northeastern Tex. Co. v. A.T.T., 497 F.Supp. 230 (D.Conn. 1980) 
(30%); In re THC Financial Corp. Litigation, 86 F.R.D. 721 (D.HawaTI 1980) (1.4 and 1.5); Jezrian v. Csapo, 483 F.Supp.
383 (S.D.N.Y. 1979) (2.0 and 1.5); Hew Corp. v. Tandy Corp.,
480 F.Supp. 758 (D.Mass. 1979) (1.25 multiplier despite $58,400 
retainer); In re Ampicillin Antitrust Litigation, 81 F.R.D. 395 
(D.D.C. 1978)( 1 .5 multiplier in addition to inflation adjustment).

-24-



and civil rights cases since the passage of the Act.
The court awarded no multiplier and set hourly rates of 

1 8/$60, $70 and $75. it indicated that the increase of
these rates over the $50-60/hour urged by defendants reflected 
the slight risk involved in prevailing, an inflation factor, 
and awards in other cases. R. 1163. As we show below, these 
hourly rates do not even reflect rates for non-contingent 
litigation in Mobile, let alone any adjustment for contingency 
and inflation. As we further show below, the application of the 
Johnson factors in an objective manner would yield rates 
substantially the same as the hourly rates plus multiplier 
approach intended by Congress and urged on the court below.

B. The Hourly Rates Awarded Do Not Reflect Defendants' 
Evidence Regarding Non-Contingent Rates When Adjust- 
ed By the Length of Professional Relationship Factor
The defendants' witnesses and lawyers established that

their rates were $50-60/hour. In all these cases, the clients

1V  See, e.g. , Blum v. Stenson, No. 81-7385. (2d Cir. Oct. 19,1981), aff'g 512 F. Supp. 680 (S.D.N.Y. 1981) (50% adjust­
ment); Manhart v. City of Los Angeles, 652 F.2d 904 (9th Cir.
1981) (1.32 multiplier); Northcross, supra, 611 F.2d at 638 (10% 
despite only slight contingency); Lamphere v. Brown Univ., 610 
F. 2d 46 , 47 (1st Cir. 1 979) ( 10%); Parker v. Califano, 561 F.2d 
320 (D.C. Cir. 1 977), aff' g Parker v. Mathews, 411 F. Supp.1059 (D.D.C. 1976) (25%); Vulcan Society v. Fire Department of 
the City of White Plains, 533 F. Supp. 1055 (S.D.N.Y. 1982) 
("modest" 50%; case neither novel nor undesirable); Richardson 
v. Restaurant Marketing Assoc., 527 F.Supp. 690 (N.D. Cal.
1981) (multiplier of 2); Carter v. Shop Rite Foods, Inc., 503 
F. Supp. 680 (N.D. Tex. 1980) (33% and 11% above $90/hr. for 
two different stages of the litigation); Keith v. Volpe, 501 F. 
Supp. 403 (C.D. Cal. 1980) (3.5); Wells v. Hutchinson, 499 F. 
Supp. 174 (E.D.Tex. 1980) (2); Thompson v. Cleland, Civ. Action
No. 74-C-3719 (N.D.111. 1979) (multiplier of 2; rates of $55-86/hr.).
18/ Since more than 80% of counsel's time was out of court, 
the extra $5/hour for in court time is de minimis. It amounts 
to about $300 each to Blacksher and Winter, about $215 for Broome. With deductions of time, the effective hourly rates 
were $65, 60 and 46.

-25-



were large governmental organizations which provided a 
significant percentage of the attorney's practice, typically 
25%. Thus, these rates reflect a discount to a large client 
that provides a stable and secure, repeat source of business. 
Defendants' witnesses testified that their fees were higher 
when they represented other clients. The school board 
lawyer charges $75/hour for a corporate client that provides 
three or four matters a year. Tr. 187. Engel charged the 
University of South Alabama $70/hour to defend them in 
1977-78. Tr. 174.

Plaintiffs' counsel have no prospect of repeat business 
from Mr. Lovett. Nor do they desire or expect to support a 
practice on work coming to them from other class members.
They will not even have the prospect of plaintiffs providing 
the three or four fee paying matters a year that the school 
board lawyer expects from his corporate client. If the Johnson 
length of professional relationship factor means anything, 
it must mean that, in fixing an appropriate hourly rate, a 
district court must take into account the different way the 
market handles fees for steady clients and fees for "one-shot" 
representations. Counsel cannot be awarded "contingent" rates 
that barely equal what they can obtain in the marketplace on a 
non-contigent basis from a one time client and still be expected 
to be attracted to civil rights litigation as Congress intended. 
Accordingly, the base non-contingent rates for the type of 
representation plaintiffs' counsel undertook are the $70 and 
$75 rates charged non-repeat paying clients in Mobile.

-26-



C. The District Court Misapplied the Contingency Factor 
in Failing to Properly Evaluate the Contingent Nature 
of this Litigation and in Failing to Award Rates that 
Reflect the Economic Effects of the Contingent Nature 
 of Counsel's Compensation______________

In applying the Johnson contigency factor, the 
court made three errors. First, it did not properly assess the 
real contingencies facing counsel when they accepted repre­
sentation in this case. Second, it did not assess the economic 
effects of the delay in payment inherent in contingent fees. 
Third, it misunderstood the reasons why Congress determined 
that the contingency factor warranted an increase in awards and 
thus failed to accommodate those concerns.

1 . The court erred in assessing the contingent risks of 
this litigation; The court held that the fee was not truly 
contingent because the likelihood of not prevailing in jail 
cases is slight. R. 1159-61. The court erred on several 
counts.

First, it is simply not true that jail cases are all "sure 
winners." _Id̂. It ought not to take expert testimony —  which 
plaintiffs offered, Tr. 80-81 —  to establish that jail cases 
are lost. This court can review the reports itself. See, e.g ., 
Bell v. Wolfish, 441 U.S. 520 (1979); Jordan v. Wolke, 615 F.2d 
749 (7th Cir. 1980). A recent empirical study of prisoner 
cases nationally found that 68% were dismissed before the 
defendants even filed a response, only 4.2% made it to trial. 
Turner, When Prisoners Sue: A Study of Prisoner Section 
1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610, 617-18 
(1979). In a 664 case sample, injunctions were granted in 
three cases and nominal damages awarded in two others. Id. at

-27-



624. As one judge wrote:
Although there are now provisions for award of 
attorney's fees to successful §1983 litigants, 
attorneys are generally unwilling to take such cases 
in view of the unlikelihood of prevailing on the merits.

Id. at 651 n. 195 (Letter to the author from Chief Judge
1 9/Edward S. Northrup, D.Md., Nov. 1 4, 1977).—

Second, the judge engaged in impermissible hindsight in 
assessing the chances of success. It is fundamentally unfair to 
judge the chances of success after plaintiffs have presented 
their case, marshalled the facts, briefed the law, and convinced 
the judge. Nor can the chances of success be judged in 
light of subsequent developments in the case law: "[T]he 
district court should appraise the professional burden undertaken 
—  that is, the probability or likelihood of success, viewed at 
the time of filing suit." Lindy II, supra, 540 F.2d at 117 
(emphasis added). Accord, Northcross, supra, 611 F.2d at 
638-39.

Jail condition cases may now look like easy pickings.
"However, that situation did not prevail ... when most of the 
services at issue were performed." Northcross, supra, 611 F.2d 
at 639 (school desegregation litigation). At the start of this 
case, and at every relevant point thereafter, counsel could 
only have viewed their chances of success as unsure. When

19/ The author of the article spoke or corresponded with 
other district court judges who expressed similar sentiments.
As another judge wrote: "The lack of assured compensation is 
the primary factor inhibiting the appointment of counsel." Id., 
Letter to the author from Chief Judge Thomas J. MacBride, 
E.D.Cal., Dec. 22, 1977.

-28-



Blacksher first undertook the representation in 1973, the case 
law was slim. Only one of the first few jail cases had been 
affirmed by a court of appeals. See Jones v. Wittenberg, 330 
F. Supp. 707 (N.D. Ohio 1971), aff'd sub nom. Jones v. Metzger, 
456 F.2d 854 (6th Cir. 1972); Taylor v. Sterrett, 344 F.Supp.
411 (N.D.Tex. 1 972), aff'd, 499 F.2d 367 (5th Cir. 1 974) ;
Inmates of the Suffolk County Jail v. Eisenstadt, 360 F.Supp.
767 (D.Mass. 1972), aff'd, 494 F.2d 1196 (1st Cir. 1974), cert, 
denied, 419 LJ.S. 977 (1974); Rhem v. Malcolm, 371 F. Supp. 594 
(S.D.N.Y.), subsequent opinion, 377 F. Supp. 495 (S.D.N.Y.), 
af_fj_d, 507 F. 2d 333 (2d Cir. 1 974). When the amended
complaint was filed in early 1975, only the Taylor decision, 
which rested in large part on state law, had come down in this 
circuit; this court's opinion in Miller v. Carson, 563 F.2d 741 
(5th Cir. 1977), was still more than a year away. In 1979, when 
the bulk of trial preparation was done, and in 1980, when 
preparation was completed and the trial was held, the latest 
developments in jail litigation were Bell v. Wolfish, 441 CJ.S. 
520 (1979), and the panel opinions in Jones v. Diamond, 594 
F.2d 997 (5th Cir. 1979), and Taylor v. Sterrett, 600 F.2d 1135 
(5th Cir. 1979)(dismissing case). Wolfish significantly raised 
plaintiffs' burden of proof, dispensing with the "least restric­
tive means" test and requiring proof of conditions that "amount 
to punishment." 441 U.S. at 535. See Tr. 108-09. Jones had 
sanctioned crowding in cell areas providing as little as 15,

20/ It should be noted that LDF lawyers were involved in all of 
these cases but Rhem. Rhem, which was not an LDF case, was handled by Joel Berger, now an LDF lawyer.

-29-



11, and 6.8 square feet per inmate, see Brief of the NAACP
Legal Defense and Educational Fund, Inc., as Amicus Curiae 
before the Fifth Circuit sitting en banc in Jones v. Diamond, 
No. 78-1289 at 13, crowding more severe than that then existing 
at the MCJ. Even when this court reversed, 636 F.2d 1364, 
counsel for defendants noted in letters to the district 
court that Jones was not dispositive of the issues in this 
case.

The court also overlooked the contingencies caused by 
the factual complexity of this case and the tenacious opposi­
tion of the defendants. Complexity increases the risk: A case
that should be won based on the law may not succeed if the 
court cannot be brought to perceive the intricate relationships 
between the facts. Accordingly, courts have adjusted awards to 
reflect the contingencies due to complexity. Manhart v. City 
of Los Angeles, 652 F. 2d 904, 908 (9th Cir. 1981); Lindy II, 
supra, 540 F.2d at 117; Vulcan Society, supra, 533 F.Supp. at 
1065 (issues not novel, undesireable or risky, but factually 
complex: "modest" 50% adjustment applied); Jones v. Federated 
Dept. Stores, Inc., 527 F. Supp. 912, 916-17 (S.D. Ohio 1981); 
Taylor v. Jones, 495 F. Supp. 1285, 1297 (E.D. Ark. 1980)
(20%). Here, the testimony and the ultimate findings of 
the district court establish the complex nature of jail litiga­
tion. Tr. 80-81; R. 761 et seq. The Wolfish standard has only 
increased the complexity of the burden.

The tenacity of the defense also increases counsel's 
risk of not prevailing. Vulcan Society, supra, 533 F. Supp. at 
1065; Jones, supra, 527 F. Supp. at 917; Taylor, supra, 495

-30-



F. Supp. at 1285; Burger v. CPC International Inc., 76 F.R.D.
183, 189 (S.D.N.Y. 1977) (securities); Dorfman v. First 
Boston Corp., 70 F.R.D. 366, 375 (E.D. Pa. 1976) (securities; 
50% adjustment for vigorous opposition). Where, as here, "the 
facts are strongly disputed," Northcross, supra, 611 F.2d at 
638, counsel's risk of not prevailing is increased.

Yet another contingency stood between counsel and compen- 
sat ion.

[Tjhis case was not simply contingent in the usual 
sense, i.e., dependent on winning the merits. At 
the time plaintiffs' counsel undertook this assign­ment, ... there was no statute providing for 
attorneys' fees even if they prevail.... This was thus doubly contingent....

Harris v. City of Fort Myers, 624 F.2d 1321, 1325-26 (5th 
Cir. 1980). Less than four months after the amended 
complaint was filed, the Court's opinion in Alyeska Pipeline 
Service Co. v. Wilderness Society, 421 U.S. 240 (1975), made 
clear that there was no basis for an award of fees unless 
plaintiffs could show that "the defendants litigated in bad 
faith." Harris, supra, 624 F.2d at 1326. Thus, as stressed in 
Harris, the court below

would have been more than justified in granting 
a "multiplier" or "incentive" award above the 
fixed hours claimed in light of the contingen­
cy nature of the case. [Emphasis added] .

Id. But, as we show below, the court failed to even compens­
ate for the effects of delay in payment, let alone the risk 
of nonpayment.

2. The court erred in failing to assess the economic 
effects of the delay in payment: The market asks more when

-31-



fees are contingent for two reasons. First, there is a 
premium because the entire fee is at risk. Second, risk 
aside, the delay in payment until successful completion of 
the case means that the lawyer is losing the value of the 
use of the money. Thus:

The delay in receipt of payment for services 
rendered is an additional factor that may be in­
corporated into a contigency adjustment. The 
hourly rates used in the "lodestar" represent the 
prevailing rate for clients who typically pay their 
bills promptly. Court-awarded fees normally are re­
ceived long after the legal services are rendered.
That delay can present cash-flow problems for the 
attorneys. In any event, payment today for services 
rendered long in the past deprives the eventual 
recipient of the value of the use of the money in the 
meantime, which use, particularly in an inflation­
ary era, is valuable. A percentage adjustment to 
reflect the delay in receipt of payment therefore 
may be appropriate.

Copeland, supra, 641 F.2d at 893, citing Lindy II, supra,
540 F.2d at 117; Black Gold, Ltd, v. Rockwool Industries,
Inc. , 1 982-1 Trade as 1(64,461 (D. Colo. 1 981) ( 1 .25); Vecchione

v v. Wohlgemuth, 480 F. Supp. 776, 795 (E.D. Pa. 1979) (10%
adjustment); Knutson v. Darby Review, Inc. 479 F. Supp. 1263,
1277 (N.D. Cal. 1979) (15% for delay alone); Aamco Automatic 
Transmissions, Inc, v. Taylor, 82 F.R.D. 405, 415 (E.D.Pa. 1979); 
Lockheed Minority Solidarity Coalition v. Lockheed Missiles
& Space Co. , Inc.., 406 F. Supp. 828, 834-35 (N.D.Cal. 1 976) (20%).

£ * 21/Cf. Parker v. Lewis, 670 F.2d 249, 250 (D.C.Cir. 1981).—

21/ Adjusting the award to reflect the economic effects of delay 
accomplishes another important purpose of the Act. Since 
counsel for the defendants are being paid promptly, they bear 
no economic risk by prolonging the litigation. Plaintiffs' 
counsel, on the other hand, are not being paid and are advancing often considerable expenses. An adjustment for delay helps 
deter the defendants from taking advantage of plaintiffs' 
"tremendous disadvantage ... in terms of finances and resources." Northcross, supra, 611 F.2d at 634. Accord, Jones, supra, 527 F. Supp. at 917.

-32-



This case involved work done as early as 1973. The 
district court was asked to accomodate for inflation by 
applying the inflation adjustment factors derived from the 
Consumer Price Indices of the relevant years. Tr. 119-32.
It was asked to accomodate for the other aspects of contin­
gency by use of a 50% adjustment. The court said that it 
compensated for the effects of inflation by awarding current 
rather than historical rates, R. 1155, 1164, citing In re 
Ampicillin Antitrust Litigation, 81 F.R.D. 395, 402 (D.D.C.
1978). But see id. at 405 (1.5 multiplier in addition to 
inflation adjustment). The hourly rates, however, were the same 
as defendants' witnesses were charging for non-contingent work 
in 1977-78. Thus, in reality, the rates awarded accounted 
neither for contingency nor inflation. The court did not even 
consider whether counsel should be compensated for the lost 
value of the use of the money.

If the Act is to succeed —  attracting competent counsel 
to civil rights litigation —  then lawyers must be compensated 
at rates that reflect what they could earn elsewhere in the 
legal marketplace. Copeland, supra, 641 F.2d at 894; Northcross, 
supra, 611 F.2d at 638. Counsel could have undertaken non­
contingent commercial work and had payment when their time was 
expended. Their payment now is eroded by inflation and the 
lost value of the use of the money.

The market quantifies the economic value of the use of 
money (or delay in payment) by the payment of interest. This 
court has recognized this in the fee context and awarded

-33-



interest not only on the judgment, Gates v. Collier, 616 F.2d 
1268 (5th Cir. 1980), but from the time the hours were actually 
expended. Morrow v. Finch, 642 F.2d 823, 826 (5th Cir.
1981). In an inflationary era, the market interest rate quan­
tifies the value of the use of the money above the eroding 
effects of inflation. Thus, application of the average prime 
rate for the relevant years to the historical rates for non­
contingent litigation would provide an objective method of 
assessing the economic effects of the contingent nature of the 
fees. See Richardson v. Restaurant Marketing Assoc., 527 F. Supp.
690, 698 (N.D.Cal. 1981)(augmentation of back pay award in

22/Title VII case based on average prime rates).—
Application of this objective measure of the economic

effects of contingent payment to the most conservative hourly 
, 23/ .rates indicates how much the district court erred in 

compensating counsel. The sheriff's lawyer was getting $50/hour 
until 1977, and $60 thereafter. Tr. 259. Taking this as a 
measure of non-contingent rates charged large repeat clients in

22/ In Richardson, the court also discussed the effects of 
delay and inflation on the award of attorneys' fees. Follow­
ing the Stanford Daily approach sanctioned by the legisla­
tive history, it applied a multiplier of 2 to accomodate for 
the contingent nature of success, the quality of representa­
tion, and the delay in payment. It increased the multiplier 
to 2.25 to accommodate for inflation. 527 F. Supp. at 702.
23/ The testimony established 1981 non-contingent rates of 
$85—100/hour. The calculations in this section are based on 
defendants' evidence of $70 and 75/hour fees for "one-shot" representation.

-34-



. .. 24/Mobile, and increasing it by $10 for non-contingent 
"one-shot" representation (based on defendants' witness's 
$70/hour defense in 1977, Tr. 174, see Section B., supra), we 
have base rates for local counsel of $60 from 1975 and $70 from 
1977. Extrapolating back, we could construct rates for 1973 and
1974 of $50. Adjusting these by the average yearly prime

25/ 26/rates which are set out in the margin, would
provide the rates set out in Table 1. These rates, averaging

24/ The county's Montgomery lawyer received $50/hr. during 
the entire course of the litigation, R. 1073, the school 
board lawyer received $45 until 1976 and $50 thereafter, Tr. 
180, and the state's lawyer received $40 until April 1979 and $50 thereafter. R. 1038.
25/ The Richardson court used a 90% of prime figure. 527 
F.Supp. at 698. This was based on the IRS adjusted prime 
rate figures which are based on 90% of the prime rate on 
September 15. Ld. The IRS, however, has recently changed to 
a 100% of prime figure. 1 982 Federal Tax Guide (CCH) 1I6919A.
26/ In Richardson, supra, the court obtained average prime 
cate figures for 1975-1980 from the Federal Reserve Bank.
527 F.Supp. at 698. They were as follows:

1 975........ 7.86% 1978........9.06%
1976 ....... 6.84% 1979.......12.67%
1977 ....... 6.83% 1980......  1 5.27%

Id. The figures for 1973, 1974, and 1981 were:
1973........ 8.03% 1981  18.87%
1 974.......10.81%

These figures come from the Economic Report of the President, 
Annual Report of the Council of Economic Advisors at 310 
(U.S. G.P.O., Wash., D.C. 1982), House Doc. No. 97-123, 97th Cong. 2d Sess.

-35-



at about $111 per hour, are the minimum necessary to 
compensate counsel for the delay in payment; they do not 
reflect any risk, special ability, preclusion of other employ­
ment or any other Johnson factor.

TABLE 1

Historical Multiplier Based2g/ 
On Prime Rate —

EquivalentYear Rate Value Rate
1973 $50 2.448 $122.40/hr.
1974 $50 2.266 1 13.30/hr.
1975 $60 2.045 122.74/hr.
1976 $60 1.896 1 13.76/hr.
1977 $70 1.775 124.25/hr.
1978 $70 1.661 116.27/hr.
1979 $70 1.523 106.61/hr.
1980 $70 1 . 352 94.64/hr.
1981 $70 2 9/1.17 3— 82.11/hr.

Average rate $1 10.68/hr.

27/ The prime rate is granted only to a bank's most credit­
worthy customers, those with almost no risk of non-payment. 
Riskier obligations demand higher rates. Thus the prime rate establishes a minimum measure of the degree by which fees 
owed but not paid should be increased. Application of the prime 
rate to the hourly rates charged to clients who pay regardless 
of result would undercompensate an attorney who brings a civil 
rights action on a contingency basis.
28/ The multipliers are derived from the prime rates set out in 
n. 26, supra. They are rounded down to three decimal places, 
unless the fourth digit was a nine. (2.0457 becomes 2.045; 1.7749 becomes 1.775). (Continued on next page.)

-36-



3. The court did not account for the other aspects of 
contingency which Congress sought to remedy; In discounting 
the contingeny of the fee in this litigation, the court 
overlooked two additional reasons Congress expected that 
awards to prevailing civil rights plaintiffs would be aug­
mented for contingency. Congress was aware that, in the tradi­
tional legal marketplace, contingent fees are larger than the 
efforts or risk in the particular case might seem to warrant.
It knew that this is critical to the economic health of the bar 
and its continued availability to the public.

From the attorney's standpoint, the contin­
gent fee insures that counsel are compensated not 
only for their successful efforts but also for 
unsuccessful litigation. Its use allows attorneys 
—  including attorneys who could not otherwise 
absorb the costs of lost cases —  to take the fi­
nancial gamble of representing penurious clients, 
since, over the long run, substantial fees awards 
in successful cases will provide full and fair com­
pensation for all legal services rendered to all 
clients. From the public's standpoint, the contin­
gent fee helps equalize the access of rich, middle- 
class, and poor individuals to the courts by mak­
ing attorney decisions concerning representation 
turn on an action's merits rather than on the 
size of a client's income.

Stanford Daily, supra, 64 F.R.D. at 685. Congress sought 
to replicate this economic fact of life by approving the

The multipliers decline because of the effects of 
compounding of interest. That is, money earned in 1973 
experienced an extra year of delay and accrual of interest that the 1974 money did not. The equivalent value rates 
fluctuate because of the change in historical rates in 1975 and 1 977.
39/ The 1981 figure is calculated based on an interest rate 
of 17.30%, or 11/12 of the average prime rate for that year. 
This is because the court's award was made on November 24,
1981. The court awarded post-judgement interest at the average prime rate. R. 1166.

-37-



use of a contingency multiplier as in Stanford Daily.
Courts' application of the doctrine in the aid 
of "private attorneys general" helps attract 
attorneys to the enforcement of important con­
stitutional principles and significant congres­
sional policies which might otherwise go unrepre­sented .

Stanford Daily, supra, 64 F.R.D. at 685.
These principles were only recently recognized by this 

court.
Lawyers who are to be compensated only in the 
event of victory expect and are entitled to be 
paid more when successful than those who are 
assured of compensation regardless of result.
This is neither less nor more appropriate in 
civil rights litigation than in personal injury 
cases. The standard of compensation must enable 
counsel to accept apparently just causes with­
out awaiting sure winners.

Jones v. Diamond, supra, 636 F.2d at 1382 (emphasis added).
To be able to take the more risky cases, counsel must be 
awarded substantial contingent fees in the cases they do 
win. Stanford Daily, supra.

Secondly, Congress was aware that cases providing court 
awarded contingent fees would not be as attractive as other types 
of contingent fee litigation. As Senator Kennedy, one of the 
sponsers of the bill,— ^ noted:

32/ In Schwegman Bros, v. Calvert Distillers Corp, 342 U.S. 
384 (1951), the Court noted that: "It is the sponsors thatwe look to when the meaning of the statutory words is in 
doubt." Id. at 394-95.

-38-



Even with enactment of this bill, the lawyer 
who undertakes to represent a client will face 
more uncertainty of payment than one involved 
in a usual contingency fee case. His fee is con­
tingent not only upon his success, but also upon 
the discretion of the judge before whom he appears.

Even if he wins his case, ... his rate of com­
pensation is fixed not by a grateful client, but by 
a disinterested judge.

122 Cong. Rec. S 17052 (daily ed. Sept. 29, 1976). Courts have 
an obligation to adjust the hours times rates figure by a 
substantial contingency factor to equalize the economic desir­
ability of furthering important congressional policies.

4. The court erred in counting monies advanced by LDF for 
expenses as decreasing the contingency factor: The court 
noted that this was not a true contingent case because LDF 
covered costs and expenses for the Blacksher firm. R. 1161.
The court erred in this assessment.

First, whether or not this decreased the contingent nature 
of the case for Blacksher, it was still very much contingent 
for LDF. It would not recover those expenses, or a fee, 
unless plaintiffs prevailed. As established at the hearing,
LDF is a private civil rights law firm which increasingly relies 
on counsel fees. Tr. 134—35. Both the legisla­
tive history and the case law are clear that fees cannot be 
denied or limited because plaintiffs' counsel is a public 
interest organization. See H. Rep., supra, at 8 n. 16,

31/ LDF is a non-membership organization and receives no money from the government. Id.



citing Fairly v. Patterson, 493 F.2d 598 (5th Cir. 1974); S.
Rep., supra, at 6; Watkins v. Mobile Housing Board,
632 F. 2d 565 ( 5th Cir. 1 980).— /

Moreover, even as to Blacksher, the court erred. Both the
legislative history and the case law make clear that the
advancement of some fees does not defeat the policies requiring
a contingency adjustment. Stanford Daily itself involved the
payment of $8500 in fees by the client. 64 F.R.D. at 686 ("the
fact that a fraction of their fees were [sic] guaranteed should

34/not obscure the fact that the remainder was contingent....").—  
Except for a few hundred dollars at the beginning of the 
litigation, Tr. 202, the monies advanced were expenses. 
Blacksher's fees were totally contingent on success. In Swann 
v. Charlotte-Mecklenburg Board of Ed., 66 F.R.D. 483 (W.D.N.C. 
1975), cited S. Rep. supra, at 6, the court held that the very 
same arrangement between LDF and a cooperating attorney as that

32/ Of the four cases cited by the Senate Report as examples 
of how fees were to be awarded under the Act, two involved 
the award of fees to LDF. Johnson v. Georgia Highway Express, 
supra; Swann v. Charlotte-Mecklenberg Bd. of Ed., 66 F.R.D.483 (W.D.N.C. 1975).
33/ Watkins involved a reversal of a fee award by the same 
district court judge as in the instant case. There too, the court 
discussed the Johnson factors. However, the district court's 
opinion suggested that it had entertained this same impermissible 
consideration in reducing the award of fees to Legal Services. This court reversed. Ik3. at 567.
34/ Other courts have recognized the contingent- nature of the 
recovery despite more generous fee arrangements. Hew Corp. v. 
Tandy Corp., 480 F.Supp. 758 (D.Mass. 1979)(application of 1.25 
multiplier despite $58,000 in fees).

-40-



here did not reduce the contingent nature of the fee. Id. at 
486.^

D. The Lower Court Erred in Not Applying the Undesirabi- 
 lity Factor to Increase the Award______________

The court held that civil rights cases are not 
undesirable to younger members of the bar and, therefore, 
concluded that this factor would not affect the award. It made 
no finding regarding the relative desirability of jail litiga­
tion.

Defendant's own witnesses admitted this litigation was 
undesirable in 1973-74. Since that is when the case began, 
that is the appropriate point of measurement. Northcross, 
supra; Lindy II, supra.

Plaintiffs showed by undisputed testimony that jail litiga­
tion is depressing and, to some degree, physically dangerous. 
Moreover, the best measure of the relative desirability is the 
willingness of the bar to undertake these cases. Jones v. Federated 
Dept. Stores, supra, 527 F. Supp. at 917; Williams v. Boorstin,
20 F.E.P. Cases 1539, 1540 (D.D.C. 1979) (court cites inability to 
find lawyers to accept appointments in small Title VII cases).— ^
The private bar in Mobile, as elsewhere, is simply not taking 
these cases despite the availability of court awarded fees. The

35/ In Swann, the expenses amounted to $29,000, as opposed to 
the $10,000 here. 66 F.R.D. at 486; Tr. 143.

To the extent that the court in Northcross reduced its 
assessment of contingency based on monies advanced by LDF, it 
misread the legislative history of the Act. 611 F.2d at 641 (10% contingent factor).
36/ As Knowles testified, there is not even a prisoners' rights 
bar comparable to the existing Title VII bar. Tr. 81.

-41-



record establishes —  and this Court can take judicial notice 
of the fact —  that virtually all such cases in the Southern 
District of Alabama, as elsewhere, are handled by appointed 
counsel or Legal Services. See Knighton v. Watkins, 616 F.2d 
795, 797 (5th Cir. 1980). Indeed, the McCray case went through 
four or five appointed lawyers until Broome consolidated it 
with the instant case and took it to trial.

Counsel are not even accepting appointments despite the 
availability of fees. Turner, supra, 92 Harv. L. Rev. at 651 n. 
195. While undersigned counsel was working on this brief, he 
received a letter from a judge of the Northern District of 
California concerning a pro se prisoner case pending in that 
court. Attached to the letter was a copy of an order in which 
the judge dismissed certain claims and, finding that some were 
"with significant merit," sustained others. The order recited 
that

the Court ... undertook efforts to obtain counsel for 
plaintiffs pursuant to their request for appointment 
of counsel. Though this Court has contacted a number 
of firms, to this date the Court has been unable to 
secure counsel for plaintiffs.

Benton v. Rushen, No. C-80-3130 RPA, Slip Op. at 2 (N.D.Cal.
Dec. 30, 1981). The letter indicated that, having contacted 
Legal Services, the court was still unable to find counsel 
willing to accept appointment. The court inquired whether LDF 
would accept appointment or whether it could recommend counsel 
who would. The letter noted the availability of court awarded 
fees if the case is successful. A copy of the letter is attached 
as Appendix A to this brief.

-42-



Plainly, prisoner cases are undesirable to the bar, even in 
cases that would seem to have a good chance of success and 
thus a strong likelihood of providing fees. There can be no 
better evidence that the very purpose of the Act is failing 
because of the inadequacy of fee awards as in the instant 
case.

E. A Proper but Conservative Application of the Johnson 
Factors Would Result in Fees which Approximate 
those Requested by Counsel and which Exceeded those 
 Awarded in this Case_________________

If the court had started with the fees paid by the 
defendants to their counsel, see Swann, supra, 66 F.R.D. at 486, 
adjusted them upward to account for the fact that these reflected 
long term professional relationships, and compensated counsel 
for the delay in payment, it would have awarded hourly rates to 
local counsel of approximately $111 an hour. If it had then 
adjusted the fees 10% for the slight risk of loss which it 
acknowledged, see Northcross, supra, 611 F.2d at 641 (10% 
enhancement factor for work done in enforcement of prior desegre­
gation order), and calculated the value of the undesirability at 
even 5%, it would have awarded fees of $128/hour, just $14 less 
than requested by plaintiffs' counsel ($95/hr. plus 50%). This 
would nob even have reflected plaintiffs' evidence of non-contingent 
rates. Nor would it have accounted for a realistic assessment 
of the contingencies of not prevailing, the contingency of the 
fee at a time when there was no statutory authority for such 
awards, the congressional purpose to compensate at rates suffi­
cient to carry counsel through lost cases, the preclusion of 
other employment, see discussion, supra, at 12, nor the high

-43-



calibre of counsel's legal skill, as found by the district
court. See discussion, supra, at 15-16. If each of these 
factors were valued at only $3 apiece, the award would have 
exceeded what plaintiffs requested. At $70 and $75/hour, it
did not even approach what Congress intended as a reasonable
- „ „ „ 37/fee. S. Rep., supra, at 6.—

III. THE COURT BELOW ERRED IN COMPENSATING LDF COUNSEL
AT MOBILE RATES AND NOT LOOKING AT THE VALUE OF THEIR 
SPECIAL SERVICES IN THE MARKET IN WHICH THEY WORK
The court read Johnson as requiring it to apply 

"the customary fees in the locality." R. 1162, citing 
Knighton, supra, 616 F.2d at 800. It refused to apply 
customary fees in counsel's home locality. Id., 1162-63.

The court's reliance on Knighton was misplaced. It 
misread Johnson, particularly with regard to the customary 
fees and ability of the attorneys' factors. In so doing, it 
seriously undercut the very purpose that Congress sought to 
advance: attracting counsel of requisite skill to civil 
rights litigation by compensating them at rates comparable 
to the fair market value of their services.

Knighton involved an award of fees to appointed coun­
sel in a prisoner suit at rates below the local market. 616
F.2d at 800-01. There, the lower court routinely imposed $45 
and $35/hour maximum rates. Id. at 799. The evidence showed 
that local rates were $50; the court of appeals noted that 
it recently had awarded $65 and $75/hour for similar work.

37/ The $50 awarded in Stanford Daily in 1974 and the $60 
awarded in Davis in 1974 and Swann in 1975 had the equivalent 
buying power of $90, $99, and $108 awarded in 1981. See Tr. 119-32.

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Id. at 800. In that context, the court directed the lower 
court's attention to "the customary fees in the locality." Id. 
There was no out-of-town counsel involved in that case at all.

In contrast, Johnson dealt with the very issue involved
here: a fee award to both local and LDF counsel. Johnson
talked of "[t]he customary fee in the community," 488 F.2d
at 718 (emphasis added), not "locality." It noted the place
occupied by LDF counsel in the legal community: "An attorney
specializing in civil rights litigation may enjoy a higher
rate for his expertise than others, providing his ability

38/corresponds with his experience," Id_. at 719.—  This 
court has recently reaffirmed that LDF counsel are entitled 
to higher rates than local counsel in the same case. Jones 
v. Armstrong Cork Co., 630 F.2d 324, 325 (5th Cir. 1980).

There can be no question but that LDF counsel had that 
expertise and ability. Knowles testified that Stan Bass, whom 
he characterized as "a really prominent name in the field 
of civil rights litigation, ... was one of the first ... to be 
involved in extensive prison litigation," and "is just a premier 
lawyer in this area." Tr. 82-83. See, e.g. , Haines v. Kerner, 
405 U.S. 948 (1972); Holt v. Sarver, 442 F.2d 304 (8th Cir. 
1971); Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972). The

38/ Both this court and the Supreme Court have recognized LDF 
"as having 'a corporate reputation for expertise in presenting 
and arguing the difficult questions of law that frequently arise 
in civil rights litigation,'" Bernard v. Gulf Oil Co., 619 F.2d 
459, 470 (5th Cir. 1980)(en banc), quoting NAACP v. Button, 371 
U.S. 415, 422 (1963). See also Northcross, supra, 611 F.2d at 637.

-45-



skill and expertise in this area, R. 1162, and that it actively-
contributed to the resolution of this case. R. 1159.

"[T]he court erred as a matter of law in limiting the
hourly rates to local rates....” Chrapliwy v. Uniroyal, Inc.,
670 F.2d 760, 768 (7th Cir. 1982).

The complexity and specialized nature of a case 
may mean that no attorney, with the required 
skills, is available locally.... The court did 
not indicate skepticism over the need for out of 
town counsel.... Congress intended to encourage 
plaintiffs to employ counsel capable of putting 
forth a rigorous prosecution to meet the rigorous 
defense which defendants would most likely assert.

★ ★ ★

Attorneys with specialized skills in a narrow area of law .. tend to be found in large cities, 
where an attorney may have a greater opportunity 
to focus on a narrow area of law. As a specialist, 
the attorney will usually charge more for performing 
services in his area of expertise than a general 
practitioner will charge for performing similar 
services. Furthermore, the costs of practicing 
law will vary from city to city, and such costs 
will be reflected in the rates of the attorneys.

Id. at 768-69. In addition, the higher rates will reflect
that the expertise and specialization that counsel brings to the
case enable him to perform the same services in less time —

3 9/he has no need to educate himself anew for each case.
Plaintiffs established that prison and jail litigation is a 

specialty requiring special knowledge, skills, and expertise. 
Knowles Test. Tr. 80-82. See Stewart v. Rhodes, 656 F.2d 1216,

court's own findings about Winter establish both that he has the

1221 (6th Cir. 1981) (court affirms award of $90/hr. although it

39/ Recognition of an attorney's special skill in determining 
his rate obviates the problem of the hourly rate approach 
lamented by Judge Vance, that it "equates professional services 
to those of laborers and mechanics." Foster, supra, 577 F.2d at 337 n.1. The rate should recognize the market's value of a 
lawyer capable of that "flash of brilliance" or possessing 
unique knowledge or skills. Id.

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exceeds fees in locality because it reflects counsel's 
special skill in prison litigation). They established that 
only two private groups on the East Coast have that expertise,
LDF and the National Prison Project in Washington. Tr. 82.
The Justice Department has similar expertise, Tr. 117, but 
the judge declined Blacksher's request to bring them into 
the litigation. Tr. 193-94. The judge was under the 
impression that Mr. Knowles in Tuscaloosa could have provided 
that same expertise more cheaply. R. 1157, n.9. He was 
wrong. When Bass was involved, during the early years of 
the litigation, Knowles had not, by his own admission, 
amassed the impressive expertise he now enjoys. Tr. 94-95.
During the years Winter was involved in the case, Knowles 
was at the Prison Project in Washington, D.C. Tr. 77-78.
His rate during this period was $95. See Ramos, supra, dis­
cussed at n.5. Thus, the answer to the only "pertinent" ques­
tion, "whether services of like quality are truly available 
in the locality," Chrapliwy, supra, 670 F.2d at 769, is: "No."

The rates counsel requested were well in line with the 
customary fees in New York. Tr. 118-19, 155-56; Bradford v.
Blum, 507 F.Supp. 526 (S.D.N.Y. 1981). In Bradford, the 
court found that New York rates were $75/hour for attorneys 
with less than two years experience, $90 for those with more 
than two years, and $125 for those with as much as 12 years.

40/ This points out the additional unfairness of valuing Winter's services at the Mobile rates where, the judge thought, the 
cutoff was five years of experience. R. 1162. In fact, the 
testimony showed that Mobile firms used varying cutoffs depend­
ing on the individual and the firm. Tr. 236-37. In any case, 
Winter's services were in fact valued in the market based on his 
having more than two years of experience. Brandford, supra.

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Bass had 18 years and Winter 4 years of experience in prison
41/litigation; rates of $130 and $95—  were clearly 

justified. The court awarded rate of $70 was plain error.

IV. THE COURT'S WHOLESALE, PERCENTAGE REDUCTIONS IN
COUNSEL'S HOURS AND EXPENSES WERE UNWARRANTED; TO THE 
EXTENT THAT ANY DEDUCTIONS SHOULD HAVE BEEN MADE, THE 

COURT'S WERE CLEARLY EXCESSIVE AND ARBITRARY______
Counsel for plaintiffs documented 1347.75 hours,

compared to the 1593.89 plus hours the defendants spent.
Despite plaintiffs' greater efficiency, see McPherson v.
School District #186, 465 F.Supp. 749 (S.D.Ill. 1978), the
court docked Blacksher and Winter more than 1 out of every 7 

, 42/hours worked, Broome 2 out of every 5.
The court justified the 15% reductions for Winter and 

Blacksher based on what it claimed was excessive time spent 
by the LDF lawyer educating local counsel. It identified no 
specific items other than presence at depositions, R. 1157; -> 
this was the only such item raised by the defendants at the

41/ In light of Bradford, the $95 rate was, if anything, 
too low. Bradford awarded $90/hour for work done in 1979 
and 1980. Winter asked $95 for work in 1981. Moreover, 
Bradford points out the irrationality of the award in this 
case. The lawyer awarded $90/hour in Bradford, Richard 0. 
Berner, was a classmate of Winter's. They served on law 
review together. Mr. Berner clerked in the district court 
at the same time Winter clerked in the circuit court. Both 
pursued civil rights practices: Winter at LDF, Berner with
a small firm. Yet Berner is receiving awards of $90 for work done three years ago, while Winter's request of $95 for 
1981 was slashed to $70.
42/ This 15% was after other specific deductions. Winter's 
expenses were also reduced by 15%. R. 1157, 1164.

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hearing. The 40% reduction in Broome's time was allegedly 
based on the fact that his work was unnecessary since he was 
able to rely on the work done by Blacksher and Winter. No 
unnecessary items were identified by either the court or the 
defendants.

In both cases, the rulings must be reversed. The court's 
first ruling was based on an erroneous consideration. It 
particularly relied on testimony that when a lawyer who 
accepts representation for a contingent fee associates other 
counsel, the percentage of the award that he charges the 
client is not increased. But this analogy is inapt. Section 
1988 contingent fees are "entirely unrelated to the 'contingent 
fee' arrangements that are typical in plaintiffs' tort 
representation." Copeland, supra, 641 F.2d at 893. Cf.
Gibbs v. Town of Frisco City, 626 F.2d 1218, 1221 (5th Cir. 
1980). In tort cases, the fees are not proportional to the 
effort; they normally exceed it, resulting in effective 
hourly rates of $200/hour. Tr. 58. Under §1988, fees only 
reflect the hours spent. Moreover, since the court did not 
indicate what it was disallowing, there is no basis upon 
which this court can review either of these determinations. 
Watkins, supra, 632 F.2d at 567. The failure to identify the 
items denies plaintiffs' counsel the elementary requirements 
of notice and opportunity to be heard; they cannot respond 
or explain.

In fact, the court may have failed to identify these 
hours because the undisputed evidence was that counsel

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took considerable steps to avoid duplication. Early on, 
Blacksher sought to bring in the Justice Department so that 
their work would not have to be duplicated; the judge 
declined. Broome intervened for the very purpose of prevent­
ing duplication. Moreover, the record is undisputed that 
counsel divided tasks to avoid duplication. The LDF lawyer 
handled all briefs —  a review of counsel's affidavits will 
show that they did not even spend time sharing drafts. See 
R. 937-63, 986-1018. He similarly prepared and presented all 
the experts. R. 986 et seq. Blacksher coordinated the case 
at the local level, conducted documentary discovery, review­
ed extensive jail files, and prepared inmate witnesses. R.
937 et seq. Broome handled no experts and wrote no briefs, 
his main function was to identify and prepare inmate witnes­
ses. Tr. 230. To the extent that the court was correct and 
he was able to rely on the work done by Blacksher and 
Winter, this is reflected in the fac.t that his total time 
was only about 40% of that spent by Blacksher or Winter.

At the conclusion of its opinion, the court referred to 
three specific items objected to by the defendants: excessive 
hours on the complaint, time spent in the consolidation 
effort, and duplication at depositions. The court claimed 
that it had factored these into the 15%. In fact, none of 
these justify the 15% reductions.

Blacksher spent 43 hours on the complaint in 1973, 3 more 
hours thereafter. It was undisputed that this represented 
time spent interviewing inmates and researching information

-50-



about the MCJ. Tr. 190. Surely, one week's worth of factual 
investigation before undertaking a large institutional case 
is not excessive.

The consolidation effort was not a maneuver by the 
plaintiffs that failed; it was done by joint motion of all 
the parties. R. 136. Moreover, the judge granted it to 
convenience the defendants. R. 136-37. There is no reason 
to dock counsel for the effort expended to convenience 
defendants; defendants' counsel were paid for their work on 
the consolidation. Nor was there any excessive time attribu­
table to plaintiffs. About half the time during this period 
was spent preparing the case for trial, taking depositions. 
Plaintiffs sought to preserve this work; but the court would 
not bring the Justice Department into the action. Finally, 
and most importantly, any excessive hours on the consolidation 
effort cannot be charged to Winter or Blacksher. The

v,

consolidation long predated Winter's involvement. Blacksher 
billed only 8 hours during this period. R. 940-41.

There were two sets of depositions with dual attendance.
The first occurred during the consolidation phase and 
involved 12 hours. The court did not deduct any time from 
Stein and Brown, the two lawyers involved.’ The second set 
was the deposition of plaintiffs' experts, 14.5 hours 
altogether.

The court erred in deducting these hours. First, civil 
rights counsel, no less than others, are required to exercise

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independent professional judgment on behalf of the client. 
ABA CODE OF PROFESSIONAL RESPONSIBILITY, Canon 5. Blacksher 
testified that he felt that, as a class representative, he 
had a responsibility to be present; he would do it next 
time even if not compensated. It ill behooves the court to 
second-guess this professional judgment. Second, plaintiffs 
adduced testimony of seasoned prison litigators that this is 
normal practice in these complex cases. Third: the best 
evidence of whether this time was reasonable is what all the 
parties did: Defendants had three lawyers, two for the 
county, at the same depositions. Jones v. Federated Dept. 
Stores, supra, 527 F. Supp. at 920. See also Selzer v. 
Berkowitz, 477 F. Supp 688, 690 (E.D.N.Y. 1979).

The judge specifically noted Winter's time at the 
depositions as duplicative. R. 1157. Yet it was he who 
prepared these witnesses to be deposed and presented their 
testimony at trial. Tr. 148-50. Here, again, the judge 
reasoned that Knowles could have been engaged to do it for 
less. In fact, Knowles was in Washington during this time, 
charging hourly rates comparable to Winter. Tr. 156.

In making the wholesale deductions of 15 and 40%, the
/

judge relied on dicta in Tasby v. Estes, supra, 651 F.2d at 
289. Plaintiffs do not assert that there could have been no 
duplication of effort. Nor do they question that the court 
has the power to correct for it. But Tasby suggested 
the deduction of some small percentage. T̂d_. While parties

-52-



engaging in "representational overkill" may be penalized
accordingly, ixJ. at n. 1, nothing of that dimension could
conceivably be shown here. The court engaged in its own form
of overkill, deducting 212 unidentified hours for items of
alleged duplication that total, maybe, 20 to 60 hours. See
n. 7, supra. The deduction of Winter's time for coming to
the depositions of the experts he presented, the deductions
from Blacksher and Winter for time spent by others on the
consolidation, the reliance on availability of other counsel
who was in fact not available, and the indefensible 40%
deduction from Broome all bespeak arbitrariness. It is as
if, having first determined what an appropriate award should
be, "the court proceeded to 'justify' the award it had

4 3 /decided upon...." Morrow, supra, 642 F.2d at 824.—

V. THE COURT ERRED IN NOT HOLDING THE DEFENDANTS JOINTLY 
 AND SEVERALLY LIABLE______________________

Although the court's apportionment of the award 
was sound, it erred in not holding the defendants jointly 
and severally liable. In Allen v. Terminal Transport Co., Inc., 
486 F. Supp. 1195, 1102-03 (N.D.Ga. 1980), relied on by the 
court below, the court apportioned the award of counsel 
fees, two thirds against the employer and the remaining

4_3/ At the conclusion of the hearing the court mentioned a 
figure of $100,000. Tr. 268. After the hearing plaintiffs' 
counsel supplemented their affidavits to include hours 
expended since the motion was filed. These hours raised 
their claim to $195,000. The court awarded $103,000.

-53-



third against the union. Nevertheless, it held both defendants 
jointly and severally liable. Id. This court affirmed.
United States v. Terminal Transport Co., Inc., 653 F.2d 
1016, 1020 (5th Cir. 1981). Similarly, this court affirmed a 
joint and several award in Miller v. Carson, 563 F.2d 741,
754 (5th Cir. 1977).

Making the award joint and several furthers the remedial 
purposes of the Act. The Act was not intended to punish 
losing defendants proportional to their liability, but to 
recompense plaintiffs for their fees and expenses. Joint 
and several liability not only makes payment more likely, it 
avoids additional loss to plaintiffs due to delay while the 
defendants squabble over who should pay which portion. Cf. 
Parker v. Lewis, supra, 670 F.2d at 250. Civil rights 
plaintiffs, no less than tort victims, are entitled to 
prompt compensation.

CONCLUSION
This court must direct the lower courts in the proper 

application and weighting of the Johnson factors. It must 
provide a uniform and objective method of assessing these 
factors and arriving at fees which reasonably approximate 
what is necessary in the legal marketplace to attract 
competent counsel to civil rights litigation. A failure to 
do so will only contribute to the proliferation of appeals 
of counsel fee awards in this circuit. More importantly, 
without additional guidance from this court, the very 
purpose of the Act will be defeated.

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For the foregoing reasons, this court should direct 
the award of the fees requested by plaintiffs, plus a fee 
for the work done on this appeal.

Respectfully submitted,

JACK GREENBERG
JAMES M. NABRIT, IIISTEVEN L. WINTER
Suite 2030
10 Columbus Circle
New York, New York 10019
JAMES U. BLACKSHER 
LARRY T. MENEFEE 
405 Van Antwerp Building 
P.O. Box 1051 
Mobile, Alabama 36601
Counsel for Plaintiffs- 
Cross-Appellants
DAVID P. BROOME 
P.O. Box 2125 
Mobile, Alabama 36601
Counsel for Plaintiffs- 
Intervenors-Cross-Appellants

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APPENDIX A

Letter from Hon. Robert P. Aguilar, United 
States District Judge for the Northern District 
of California (May 3, 1982)



U n it e d  St a t e s  D is t r ic t  C o u r t
Northern  D istr ict  of Ca l if o r n ia  

San F r a n c is c o . Ca l if o r n ia  94102

C HAM BERS OF 415 -336—1727
R O B E R T  P. AG U I LA R

UNITED STATES D ISTRICT JUDGE May 3, 1982

NAACP Legal Defense Fund 
12 Geary Street
San Francisco, California 94108 
Dear Lawyers:

I am writing in the hope that you will be able to assist 
in the task of appointing counsel for a class of prisoners who 
have brought a civil rights action in this Court. Enclosed 
is an order which has been entered in the case of Benton v. 
Rushen, C-80-3130 RPA. The lawsuit challenges certain conditions 
of confinement that exist in security housing units in the 
California state prison system.

By the order, the complaint has been dismissed with leave 
to amend. I believe that the claims as to the use of chemical 
substances (i.e., mace and tear gas) and shotguns in the 
security housing units are especially compelling and appropriate 
for district court litigation. As this action would best 
proceed as a class action, appointment of counsel is critical 
to continued litigation of the case.

The Inmate Legal Services project of the Santa Clara County 
Bar Association referred me to you as an organization who might 
either be interested in serving as counsel for this case, or who 
might be able to recommend another who would be interested in so 
serving. If prosecution of this action is successful, attorney's 
fees may be awarded pursuant to 42 U.S.C. § 1988. Any assistance 
you can give to the Court would be greatly appreciated. If you 
have any question, please feel free to contact my law clerk, 
Barbara Cray, at 415/556-1729.

Thank you for your assistance in this matter.
Sincerely

Enclosure



1

R O B E R T  P. A G U IL A R  
U n it e d  s t a t e s  D i s tr ic t  J udge  

U n it e d  S tates  C o u r t h o u s e  
S an  Fr a n c i s c o , C a l i f o r n i a  94102

O F F I C I A L  B U S I N E S S

NAACP Legal Defense Fund
12 Geary Street
San Francisco, CA 94108



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the 
foregoing Brief of Plaintiffs-Cross-Appellant and Plaintiffs- 
Intervenors-Cross-Appellants by mailing the same to W. Scears 
Barnes, Jr., Post Office Box 851, Alexander City, Alabama 
35010; Thomas R. McAlpine, 101 South Union Street,
Montgomery, Alabama 36104; James C. Wood, 1010 Van Antwerp 
Building, Mobile, Alabama 36602; and Roderick P. Stout,
Suite 3210, First National Bank Building, Mobile, Alabama
36602

This Jjfoay of May, 1982,

STEVEN L. WINTER