West Virginia University Hospitals v. Casey Brief Amici Curiae in Support of Petitioner

    No. 89-994

In The
Supreme Court of The United States 

October Term, 1989

West Virginia  University  H ospitals, Inc .,

v.

R obert  Casey , et ai.,

Petitioner,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Third Circuit

BRIEF OF LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 
LAW, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL 

LIBERTIES UNION OF ILLINOIS, MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND AND PUERTO RICAN LEGAL 

DEFENSE AND EDUCATION FUND, INC. AS AMICI CURIAE IN 
SUPPORT OF PETITIONER

Sid n e y  S. R o s d e it c h e r  
(Counsel of Record)
St e v e n  F a s m a n  
Pa u l , W e is s , R if k in d ,

W h a r t o n  &  G a r r is o n  
1285 Avenue of the Americas 
New York, New York 10019-6064
(212) 373-3000

A n t o n ia  H e r n a n d e z  
E . R ic h a r d  L a r s o n  
M e x ic a n  A m e r ic a n  L e g a l  

D e f e n s e  & E d u c a t io n a l  F u n d  
634 South Spring Street 
Los Angeles, California 90014
(213) 629-2512

R u b e n  F r a n c o  
President & General Counsel 

A r t h u r  A. B a e r  
P u e r t o  R ic a n  L e g a l  D e f e n s e  & 

E d u c a t io n  F u n d , In c .
99 Hudson Street, 14th Fir.
New York, New York 10013 
(212) 219-3360

R o b e r t  F . M u l l e n  
D a v id  S. T a t e l  

Co-Chairmen
N o r m a n  R e d u c h , Trustee 
B a r b a r a  R . Ar n w in e  
R o b e r t  B. M c d u f f  
L a w y e r s ’ C o m m it t e e  F o r  

C iv il  R ig h t s  u n d e r  L a w  
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

St e v e n  R . Sh a p ir o  
A m e r ic a n  C iv il  L ib e r t ie s  

U n io n  F o u n d a t io n  
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

H a r v e y  G r o s sm a n  
R o g e r  B a l d w in  F o u n d a t io n  

o f  T h e  A m e r ic a n  C iv il  
L ib e r t ie s  U n io n , In c .

20 East Jackson Boulevard 
Chicago, Illinois 60604 
(312) 427-7330

Attorneys for Amici Curiae



TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................ii

INTEREST OF AMICI CURIAE ...........................................   1

SUMMARY OF ARGUM ENT.......................................................  4

ARGUM ENT.......................................................................   6

I. ONLY THE ALLOWANCE OF EXPERT
FEES WILL GUARANTEE THE FULLY 
COMPENSATORY FEE REQUIRED BY 
SECTION 1988 ............................     6

II. CONGRESS ENACTED THE FEE PROVISION 
OF SECTION 1988 IN ORDER TO OVERTURN 
ALYESKA AND INCORPORATE EXISTING 
CASE LAW UNDER WHICH EXPERT FEES
HAD BEEN G RA N TED ............................................... 12

III. CRAWFORD FITTING IS
INAPPLICABLE TO THIS CASE .............................. 15

Page

CONCLUSION 17



CASES Page(s)

Ake v. Oklahoma, 470 U.S. 68 (1985)................. .............................  7

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)....................................................................  8

Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240 (1975) .................  5, 12, 13, 15

Beb chick v. Public Utils. Comm’n, 318 F.2d 187
(D.C. Cir.), cert, denied, 373 U.S. 913 (1963)......................... 13

Blanchard v. Bergeron, 109 S. Ct. 939 (1989)...................... 9, 11

Blum v. Stenson, 465 U.S. 886 (1984) .............................................  15

Bradley v. School Bd., 53 F.R.D. 28
(E.D. Va. 1971), rev’d, 472 F.2d 318
(4th Cir. 1972), vacated, 416 U.S. 696 (1974) ......................... 13

Brown v. Board ofEduc., 347 U.S. 483 (1954)..............................  8, 9

Cannon v. University o f Chicago,
441 U.S. 677 (1979) ............. .................................................. 14

Carey v. Piphus, 435 U.S. 247 (1978).................................................  8

Church of the Holy Trinity v. United States,
143 U.S. 457 (1892) ................................................................  12

Cobbs v. Grenada County, No. WC84-136-S-0
(N.D. Miss. Sept. 13, 1989)....................................................... 8

Connor v. Winter, 519 F. Supp. 1337
(S.D. Miss. 1981) ......................................................................  3

Copeland v. School Bd., 464 F.2d 932 (4th Cir. 1972) ...................  13

TABLE OF AUTHORITIES

-  ii -



Craig v. Boren, 429 U.S. 190 (1976) .......................... .....................  8

Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437 (1987)......................... 5, 15, 16

Davis v. County o f Los Angeles,
8 E.P.D. (CCH) 11 9444 (C.D. Cal. 1974)......................... 14, 15

Denny v. Westfield State College,
880 F.2d 1465 (1st Cir. 1989) .................................................  16

Estelle v. Gamble, 429 U.S. 97 (1976)............. ................................. 8

Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974)..........................  13

Friedrich v. City o f Chicago, 888 F.2d 511 
(7th Cir. 1989), petition for cert, filed,
58 U.S.L.W. 3505 (U.S. Jan. 29, 1990)
(No. 89-1230) ........................................................  2, 6, 7, 14, 16

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..............................  8

Hanrahan v. Hampton, 446 U.S. 754 (1980)...................................  14

Hensley v. Eckerhart, 461 U.S. 424 (1983) ....................... 6, 11, 13, 15

Hughes v. Rowe, 449 U.S. 5 (1980) .................................................  14

Independent Federation of Flight Attendants
v. Zipes, 109 S. Ct. 2732 (1989) .............................................  12

Jones v. Wittenberg, 330 F. Supp. 707
(N.D. Ohio 1971), affd, 456 F.2d 854
(6th Cir. 1972) .........................................................................  13

Jordan v. Allain, 619 F. Supp. 98
(N.D. Miss. 1985) ...................................................................... 3

La Raza Unida v. Volpe, 57 F.R.D. 94
(N.D. Cal. 1972) .......................................................................  13

Page(s)

-  iii -



Major v. Treen, 700 F. Supp. 1422 (E.D. La. 1988)....................... 4, 8

Martin v. Mabus, Nos. J84-0708(B) and
J85-0960(B) (S.D. Miss. Feb. 27, 1990)................................  3, 9

Missouri v. Jenkins, 109 S. Ct. 2463 (1989)........................  4, 6, 10, 16

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968)..................................................................  12

O ’Connor v. Donaldson, 422 U.S. 563 (1975) ..................................  8

Pennsylvania v. Delaware Valley Citizens’ Council,
483 U.S. 711 (1987)..................................................................  11

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983)..............................  8

Rios v. Enterprise Ass’n Steamfitters Local 638,
400 F. Supp. 993 (S.D.N.Y. 1975), affd,
542 F,2d 579 (2d Cir. 1976)............... .....................................  14

Sabala v. Western Gillette, Inc.,
371 F. Supp. 385 (S.D. Tex. 1974), 
remanded in relevant part, 516 F.2d 1251 
(5th Cir. 1975), vacated on other grounds,
431 U.S. 951 (1977)..................................................................  13

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.),
affd, 409 U.S. 942 (1972) ....................................................... 13

Swann v. Charlotte-Mecklenburg Bd. o f Educ.,
66 F.R.D. 483 (W.D.N.C. 1975) ........................................ 14, 15

Tennessee v. Gamer, 471 U.S. 1 (1985).............................................  8

Thomberry v. Delta Air Lines, Inc.,
676 F.2d 1240 (9th Cir. 1982),
vacated on other grounds, 461 U.S. 952 (1983)......................... 8

Page(s)

-  iv -



Thornburg v. Gingles, 478 U.S. 30 (1986) ....................................7, 9

United States v. Nobles, 422 U.S. 225 (1975) ....................................  7

Wallace v. House, 377 F. Supp. 1192
(W.D. La. 1974), vacated in relevant part,
515 F.2d 619 (5th Cir. 1975), vacated,
425 U.S. 947 (1976)..................................................................  13

Welsch v. Likins, 68 F.R.D. 589 (D. Minn.),
affd, 525 F.2d 987 (8th Cir. 1975) ..........................................  73

West Virginia University Hospitals, Inc.
v. Casey, 885 F.2d 11 (3d Cir. 1989)........................................ 16

Wolfv. Frank, A ll F.2d 467 (5th Cir.),
cert, denied, 414 U.S. 975 (1973) ...........................................  13

Wright v. McMann, Nos. 66-CV-77, 67-CV-174 
(N.D.N.Y. Aug. 19, 1970), affd in part, 
rev’d in part on other grounds, 460 F.2d 126 
(2d Cir.), cert, denied, 409 U.S. 885 (1972) ..........................  13

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

U.S. Const. Amend. VIII ..................................................................  8

20 U.S.C. § 1617 (Supp. IV 1974) ...................................................  14

Title IX of Public Law 92-318,
20 U.S.C. § 1681 et seq...............................................................6

28 U.S.C. § 1821.........................................................................  I5’ 16

28 U.S.C. § 1920 .........................................................................  15> 16

Voting Rights Act § 402, 42 U.S.C. § 1973/(e) .......................... 3, 14

42 U.S.C. § 1981........................................... ................................6> 15

Page(s)

-  V -



42 U.S.C. § 1982 .................................................................................  6

42 U.S.C. § 1983 .................................................................................  6

42 U.S.C. § 1985 .................................................................................  6

42 U.S.C. § 1986 .................................................................................  6

Civil Rights Attorney’s Fees Awards Act
of 1976, 42 U.S.C. § 1988 ............................................... passim

Title II of the Civil Rights Act of 1964,
42 U.S.C. § 2000a-3(b).........................................................3, 14

Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2000d et seq............................................................. 6

Title VII of the Civil Rights Act of 1964 § 706(k),
42 U.S.C. § 2000e-5(k).......................... ....................... 3, 12, 14

Title VII of the Civil Rights Act of 1964 ..............................  8, 14, 15

Fed. R. Civ. P. 54(d) .............................................................. 5, 15, 16

MISCELLANEOUS

Awarding o f Attorneys’ Fees: Hearings Before 
the Subcomm. on Courts, Civil Liberties & 
the Admin, o f Justice o f the House Comm, on 
the Judiciary, 94th Cong., 1st Sess. (1975)..............................  10

122 Cong. Rec. H12,154 (daily ed. Oct. 1, 1976) ......................... 13

122 Cong. Rec. H12,155 (daily ed. Oct. 1, 1976)........................... 13

122 Cong. Rec. H12,160 (daily ed. Oct. 1, 1976) .............................6

122 Cong. Rec. S16,252 (daily ed. Sept. 21, 1976) ....................... 13

Page(s)

-  vi -



Page(s)

The Effect o f Legal Fees on the Adequacy of
Representation: Hearings Before the Suhcomm. 
on Representation of Citizen Interests o f the 
Senate Comm, on the Judiciary, 93rd Cong.,
1st Sess. (1973) ........................................................................ 10

H.R. 15460 (1976) ...........................................................................  H

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976)...........  9, 10, 11, 14

Schwab & Eisenberg, Explaining Constitutional 
Tort Litigation: The Influence of the 
Attorneys Fees Statute and the Government 
as Defendant, 73 Cornell L. Rev. 719 (1988) .......................... 9

S. 2278(1975) ...................................................................................  14

S. Rep. No. 1011, 94th Cong., 2d Sess., 
reprinted in 1976 U.S. Code Cong. &
Admin. News 5908 ................................................... 9, 11, 14, 15

Using Experts in Civil Cases (M. Kraft 2d ed. 1982)......................... 7

— vii —



No. 89-994

In  Th e
Supreme Court of The United States 

OCTOBER TERM, 1989

W e s t  V ir g in ia  U n iv e r s it y  H o s p it a l s , in c .,
Petitioner,

v.

ROBERT CASEY, et al„
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Third Circuit

BRIEF OF LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, AMERICAN CIVIL LIBERTIES UNION, AMERI­

CAN CIVIL LIBERTIES UNION OF ILLINOIS, 
MEXICAN AMERICAN LEGAL DEFENSE AND 

EDUCATIONAL FUND AND PUERTO RICAN LEGAL 
DEFENSE AND EDUCATION FUND, INC. AS AMICI CURIAE IN 

SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE V

The question presented by this case — whether fees paid to ex­
perts are included within the attorney’s fee recoverable under 42 
U.S.C. § 1988 — is of vital importance to each of the amici.

1/ The parties have consented to the filing of this brief. Letters of consent are on file
with the Clerk of the Court.



The Lawyers’ Committee for Civil Rights Under Law is a non­
profit organization established in 1963 at the request of the President 
of the United States to involve leading members of the bar throughout 
the country in a national effort to insure civil rights to all Americans. 
The Committee has, over the past 27years, maintained a full-time staff 
and enlisted the services of thousands of members of the private bar in 
order to address the legal problems of minorities and the poor in vot­
ing, education, employment, housing, municipal services, the admini­
stration of justice and law enforcement.

The American Civil Liberties Union (the “ACLU”) is a nation­
wide, nonprofit, nonpartisan organization with over 275,000 members 
dedicated to the principles of liberty and equality enshrined in our 
Constitution and civil rights laws. In furtherance of those principles, 
the ACLU is involved in thousands of civil rights and civil liberties 
cases across the country. Some of these cases are handled by staff 
counsel; others by volunteer lawyers.

The ACLU of Illinois is a statewide affiliate of the national or­
ganization with its own active docket. Its lawyers represent plaintiffs in 
Friedrich v. City o f Chicago, 888 F.2d 511 (7th Cir. 1989), petition for cert, 
filed, 58 U.S.L.W. 3505 (U.S. Jan. 29,1990) (No. 89-1230), another case 
raising the issue of expert fee awards under 42 U.S.C. § 1988.

The Mexican American Legal Defense and Educational Fund is 
a national civil rights organization founded in 1967. Its principal objec­
tive is to secure, through litigation and education, the civil rights of 
Hispanics in the United States.

The Puerto Rican Legal Defense and Education Fund, Inc. was 
founded in 1972. It seeks to insure the equal protection of the laws and 
to protect the civil rights of Puerto Ricans and other Latino Ameri­
cans.

These organizations, and the lawyers who work with them, em­
ploy and typically bear the cost of experts needed for the effective pres­
entation of civil rights cases. Moreover, the impact of this case is even

2 -



broader than first appears, because the decision by the Court in this 
litigation may affect the interpretation of other, similarly-worded civil 
rights fee-shifting provisions — including those in Titles II and VII of 
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b), 2000e-5(k); and 
the Voting Rights Act, 42 U.S.C. § 1973/(e).

The full-time legal staffs of these organizations, as well as many 
of the firms volunteering their efforts on their behalf, often incur thou­
sands or tens of thousands of dollars of expenses employing experts — 
including statisticians, demographers, sociologists, physicians, psy­
chiatrists, economists, testing specialists, and others — in order to 
identify and combat discrimination and violations of constitutional 
and statutory rights. These experts help the lawyers collect the perti­
nent facts, shape the theories underlying the claims and formulate trial 
strategy. If necessary or appropriate, these experts also help the law­
yers present the facts in a meaningful way by testifying at trial. In sum, 
experts are an integral and often necessary part of most civil rights liti­
gation teams.

The clients represented by amici and private lawyers assisting 
them are generally indigent or of modest means and, therefore, can no 
more afford to pay the cost of experts than any of the other costs of 
litigation. Hence, expert fees are frequently an out-of-pocket expendi­
ture of these attorneys.

The strain on the funds of these organizations due to the costs of 
experts is substantial. For example, the Lawyers’ Committee alone has 
spent hundreds of thousands of dollars in expert fees in pending cases. 
See, e.g., Martin v. Mahus, Nos. J84-0708(B) and J85-0960(B) (S.D. 
Miss. Feb. 27, 1990) (denying $78,395.57 in expert fees). Expert fees 
generally equal 15-20% of the total amount of attorneys’ fees awarded 
in successful Committee cases, see, e.g., Martin v. Mabus, supra', Jordan 
v. Attain, 619 F. Supp. 98 (N.D. Miss. 1985); Connor v. Winter, 519 F. 
Supp. 1337 (S.D. Miss. 1981), and represent a significant part of the 
Committee’s budget.

-  3 -



When expert fees are denied, the result can effectively nullify any 
attorney’s fee award. Major v. Treen, 700 F. Supp. 1422 (E.D. La. 1988), 
a voting rights case in which plaintiffs successfully obtained 
declaratory and injunctive relief, but in which no damages were 
sought, is a good illustration. The court there granted prevailing plain­
tiffs $23,428.17 in attorneys’ fees (including $7,308.97 for reimburse­
ment of costs) for the main litigation for the services of Steven Scheck- 
man, a lawyer practicing in a two-person firm, but denied a request for 
$23,675 in expert fees he incurred, holding that expert fees were not 
compensable in such cases. Hence, notwithstanding Section 1988’s 
guarantee of a “fully compensatory fee,” this successful lawyer suf­
fered a net loss of $7,555.80.

Amici are deeply concerned that, unless expert fees are recover­
able under Section 1988, the objectives of that Section and perhaps 
other similar civil rights fee-shifting statutes will be frustrated and the 
ability of amici to represent and induce others to represent plaintiffs 
with meritorious civil rights claims will be severely impaired.

SUMMARY OF ARGUMENT

This Court recently made clear that a “reasonable attorney’s fee” 
under Section 1988 is not limited to fees for work personally per­
formed by an attorney, but refers “to a reasonable fee for the work 
product of an attorney.” Missouri v. Jenkins, 109 S. Ct. 2463, 2470 
(1989). The costs of experts — who play a vital role in assisting lawyers 
effectively to prepare and present claims in civil rights litigation — are 
surely as much an integral part of the attorney’s work product as the 
costs of paralegals, secretaries, messengers, librarians, janitors and 
other expenditures which the Court in Jenkins viewed as indisputably 
recoverable as part of an “attorney’s fee.”

This Court has emphasized that, in enacting Section 1988, Con­
gress intended to guarantee a “fully compensatory fee” because only 
such a fee would provide the necessary incentive to prosecute claims 
that vindicate the public interest in the enforcement of civil rights. The 
fees of experts are expenses often borne by attorneys handling civil

-  4 -



rights cases on behalf of needy clients. Unless the very substantial 
costs of experts may be recovered as part of a Section 1988 fee applica­
tion, attorneys will not be able to collect a fully compensatory fee and 
may either provide ineffective representation by dispensing with ex­
perts essential to adequate preparation or presentation or decline alto­
gether to undertake civil rights litigation on behalf of the poor and dis­
possessed.

Section 1988 was specifically intended to overcome the detrimen­
tal effects which the Court’s decision in Alyeska Pipeline Service Co. v. 
Wilderness Society, 421 U.S. 240 (1975), might have had on civil rights 
litigation. The legislative history shows that, in enacting the fee provi­
sion, Congress intended to restore the vitality of pre-Alyeska cases, in 
many of which successful civil rights litigants sought and obtained re­
imbursement for expert fees. The legislative history also shows that, in 
enacting Section 1988, Congress deliberately copied the language of 
other civil rights fee-shifting provisions in order to embrace the judi­
cial interpretation of those provisions. Many of the lower court cases 
construing those provisions specifically read “attorney’s fee” to en­
compass expenditures for experts. The decision below, which held that 
expert fees are not recoverable under Section 1988, is an unreasonable 
limitation of that Section and sharply at odds with the intent of Con­
gress.

The court below wrongly concluded that the question presented 
here was controlled by Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 
U.S. 437(1987). That case, which delineated the scope of costs recover­
able under Rule 54(d) of the Federal Rules of Civil Procedure, has no 
bearing on the question of whether the provision for an attorney’s fee 
in Section 1988 permits the recovery of expert fees.

-  5 -



ARGUMENT

I

ONLY THE ALLOWANCE OF EXPERT 
FEES WILL GUARANTEE THE FULLY 

COMPENSATORY FEE REQUIRED BY SECTION 1988

Congress enacted the fee provision of Section 1988 to insure that 
prevailing civil rights plaintiffs would receive a “fully compensatory 
fee.” Missouri v. Jenkins, 109 S. Ct. 2463,2470 (1989); Hensley v. Ecker- 
hart, 461 U.S. 424,435 (1983). 2/ This fee must compensate not only for 
the time charges of the attorney, but also for all elements comprising 
“the work product of an attorney” used to vindicate the injury to civil 
rights, including the efforts of all persons “whose labor contributes to 
the work product for which an attorney bills her client.” Missouri v. 
Jenkins, 109 S. Ct. at 2470. For example, in acknowledging that parale­
gal costs are within the scope of Section 1988, this Court held that a 
“reasonable attorney’s fee” must take account of “secretaries, messen­
gers, librarians, janitors, and others . . . ; and it must also take account 
of other expenses and profit.” Id. 3/

The work of experts contributes as significantly to the work prod­
uct of lawyers in civil rights litigation as the activities enumerated by 
the Court in Jenkins. See Friedrich v. City o f Chicago, 888 F.2d 511, 
514-15 (7th Cir. 1989) (analogizing from Jenkins and concluding that 
expert fees are recoverable), petition for cert, filed, 58 U.S.L.W. 3505 
(U.S. Jan. 29,1990) (No. 89-1230). Moreover, regardless of the billing

2/ 42 U.S.C § 1988 provides in pertinent part: “In any action or proceeding to en­
force a provision of sections 1981,1982,1983,1985, and 1986 of this title, title IX of Pub­
lic Law 92-318 [20 U.S.C. 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 
U.S.C. 2000d et seq.], 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.”

3/ The same point was made by a sponsor of the bill that became the fee provision of
Section 1988: “[T]he phrase ‘attorney’s fee’ would include the values of the legal serv­
ices provided by counsel, including all incidental and necessary expenses incurred in fur­
nishing effective and competent representation.” 122 Cong. Rec. H 12,160 (daily ed. Oct. 1, 
1976) (remarks of Rep. Drinan) (emphasis added).

6 -



mechanics, the cost of the expert is as much an expense of hiring a law­
yer as the cost of paralegals in the lawyer’s employ.

It is the lawyer who decides that an expert is needed for the 
proper presentation of the case and who usually selects the expert. 
Thereafter, the lawyer employs the expert to advise her, to interpret 
data and to help the lawyer devise trial strategy. The lawyer and the 
expert also work together to prepare any testimony the expert gives at 
trial. 4/ As Judge Posner said, in affirming a decision that expert fees 
are recoverable under Section 1988:

Experts are not only hired to testify; sometimes they are hired, 
also or instead, to educate counsel in a technical matter ger­
mane to the suit. The time so spent by the expert is a substitute 
for lawyer time, just as paralegal time is, for if prohibited (or 
deterred by the cost) from hiring an expert the lawyer would 
attempt to educate himself about the expert’s area of expertise.
To forbid the shifting of the expert’s fee would encourage un­
derspecialization and inefficient trial preparation, just as to 
forbid shifting the cost of paralegals would encourage lawyers 
to do paralegals’ work.

Friedrich, 888 F.2d at 514. There is no need to look further than the 
opinions of this Court over more than three decades for confirmation 
of the importance attached to expert testimony in civil rights cases. 5/ 
In fact, the ultimate effect of many opinions of this Court is to require

4/ See generally Using Experts in Civil Cases (M. Kraft 2d ed. 1982); see also Ake v. 
Oklahoma, 470 U.S. 68, 80-82 (1985) (recognizing importance of multiple roles played 
by psychiatrist in criminal insanity proceedings). This Court has recognized the impor­
tant role played by investigators in forming the “work product” of the attorney. United 
States v. Nobles, 422 U.S. 225, 237-39 (1975) (investigator’s reports protected from dis­
covery under the work product doctrine). Experts clearly play an even more substantial 
role than investigators.

5/ See, e.g., Thornburg v. Gingles, 478 U.S. 30, 52 (1986) (“The investigation con­
ducted by the District Court into the question of racial bloc voting. . .  relied principally

(Continued)

-  7 -



expert testimony in order for civil rights litigants to prevail in certain 
types of cases.e/

Unless expert fees are included within the fees recoverable under 
Section 1988, fee awards will not be “fully compensatory” because any 
award for an attorney’s fee will be offset, in whole or in part, by expen­
ditures for experts. For example, as noted above, in Majorv. Treen, 700 
F. Supp. 1422 (E.D. La. 1988), the costs of experts exceeded by 
$7,555.80 the net $16,119.20 attorney’s fee recovered for the work of 
plaintiff lawyer Scheckman. Similarly, in Cobbs v. Grenada County, 
No. WC84-136-S-0 (N.D. Miss. Sept. 13,1989), the court granted pre­
vailing civil rights plaintiffs $12,000 in attorneys’ fees but denied a re­
quest for $7,500 in expert fees incurred, holding that expert fees are not 
compensable. The offset is likely to be substantial, because the fees 
reasonably charged by experts in civil rights cases reflect the value of 
their specialized knowledge and skills. See, e.g., Ramos v. Lamm, 713 
F.2d 546, 559 (10th Cir. 1983) (affirming award of $20,219.70 in expert 
fees in prison conditions case); Thomberryv. Delta Air Lines, Inc., 676 
F.2d 1240, 1245 (9th Cir. 1982) ($83,918 in expenses primarily for “ex­
pert computer witnesses” found “essential” to proof of Title VII

(Continued)
on statistical evidence presented by [plaintiffs’] expert witnesses . .  . . ”); Tennessee v. 
Gamer, 471 U.S. 1, 10-11 & n.10 (1985) (finding civil rights violation by relying on, 
among other things, affidavit of expert on police procedure); Griggs v. Duke Power Co., 
401 U.S. 424 (1971) (employment discrimination m aybe proven using statistical meth­
ods demonstrating disparate impact); Brown v. BoardofEduc., 347 U.S. 483,494 & n .l l  
(1954) (relying on psychological and sociological evidence of impact of “separate but 
equal” facilities).

6/ See, e.g., Carey v. Piphus, 435 U.S. 247,263-64 (1978) (mental and emotional dis­
tress arising out of due process violation not compensable absent objective proof of ac­
tual injury); Craig v. Boren, 429 U.S. 190 (1976) (statistical studies may show sex discrimi­
nation); Estelle v. Gamble, 429 U.S. 97 (1976) (prisoner may prove Eighth Amendment 
violation with evidence of deliberate indifference to medical needs); Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975) (testing specialists may show employment tests to be 
improperly discriminatory); Griggs, supra; cf. O ’Connor v. Donaldson, 422 U.S. 563 
(1975) (claim for failure of mental health institution to release patient, such as 
Donaldson, might be proven with expert testimony).



case), vacated on other grounds, 461 U.S. 952 (1983); Martin v. Mabus, 
Nos. J84-0708(B) and J85-0960(B) (S.D. Miss. Feb. 27, 1990) (denying 
$78,395.57 in expert fees in voting rights case as non-recoverable; ex­
pert fees not paid equaled 18% of recovered attorneys’ fees).

Moreover, Congress was particularly concerned about needy 
civil rights plaintiffs who lack the resources to pay for the costs of legal 
representation.7/ At the same time, some of the most significant civil 
rights cases seek only equitable or declaratory relief, leaving no mone­
tary award from which expert fees can be reimbursed.8/ Hence, unless 
Section 1988 permits recovery of expert fees, the civil rights lawyer 
often is faced with a Hobson’s choice: Forego use of the expert (which 
may require the lawyer to abandon the entire case), or bear the cost 
herself. This choice is especially difficult because the typical civil rights 
practitioner is, contrary to popular misconceptions, a small, local firm 
that, like public-interest, nonprofit organizations such as amici, does 
not have extensive resources to devote to paying experts. See 
Schwab & Eisenberg, Explaining Constitutional Tort Litigation: The 
Influence of the Attorneys Fees Statute and the Government as Defen­
dant, 73 Cornell L. Rev. 719, 768-69 (1988). Money expended on ex­
perts, of course, is unavailable to support other civil rights litigation 
that civil rights lawyers would otherwise undertake.

Civil rights lawyers have emphasized the burdens imposed by ex­
pert fees as part of the more general economic obstacles to effective 
legal representation in civil rights cases. At Senate hearings held in 
1973 to consider the effects of legal fees on citizen access to lawyers and 
the courts, one lawyer testified:

7/ S. Rep. No. 1011,94th Cong., 2d Sess. [“Senate Report”] 2 (“In many cases arising 
under our civil rights laws, the citizen who must sue to enforce the law has little or no 
money with which to hire a lawyer.”), reprinted in 1976 U.S. Code Cong. & Admin. News 
5908,5910; H.R. Rep. No. 1558,94th Cong., 2d Sess. [“House Report”] 1(1976) (“a vast 
majority of the victims of civil rights violations cannot afford legal counsel”).

8/ See, e.g., Thomburgv. Gingles, supra;Brown v. BoardofEduc., supra; cf. Blanchard 
v. Bergeron, 109 S. Ct. 939, 945 (1989) (refusing to limit § 1988 attorney’s fee based on 
damages proven at trial).

-  9 -



Now, when a public interest law firm is involved, or when 
a group of citizens or even an individual citizen decides to take 
on a big case and to present the views of the other side in a big 
case . . . there is simply no money up front.. . . [Tjhere is very 
little money for such essential things as, for example, expert 
witnesses. And so what I found . . . was that I did not have any 
money at all to pay any expert anything. . . .

As a result, the public interest lawyer must pare off very 
important issues — that might even be winning issues — sim­
ply because they are either too technical or too big, or require 
too much expenditure of money.

The Effect o f Legal Fees on the Adequacy of Representation: Hearings 
Before the Subcomm. on Representation of Citizen Interests o f the Senate 
Comm, on the Judiciary, 93rd Cong., 1st Sess. 832-34 (1973) (statement 
of Dennis Flannery); see also id. at 799, 812, 816 (statements of other 
witnesses); id. at 1108,1127, 1128 (statement of Senator Tunney, who 
sponsored a bill which became § 1988).9/

In short, the refusal to award expert fees will deny lawyers a “fully 
compensatory fee,” thereby diminishing the incentive provided by Sec­
tion 1988. As this Court observed, without a fully compensatory fee, 
“the prospect of . . . hardship [induced by the failure to compensate] 
could well deter otherwise willing attorneys from accepting complex 
civil rights cases that might offer great benefit to society at large; this 
result would work to defeat Congress’ purpose in enacting § 1988 of 
‘encourag(ing) the enforcement of federal law through lawsuits filed by 
private persons.’” Missouri v. Jenkins, 109 S. Ct. at 2469 n.6 (quoting

9/ A representative of the Lawyers’ Committee testified similarly before the House
of Representatives. Awarding o f Attorneys’ Fees: Hearings Before the Subcomm. on 
Courts, Civil Liberties & the Admin, o f Justice o f the House Comm, on the Judiciary, 94th 
Cong., 1st Sess. 89,100 (1975) (some cases “cannot be brought” because, inter alia, pri­
vate attorneys for plaintiffs cannot “afford the technical assistance of expert witnesses”); 
see also House Report at 2-3 (same).

-  10 -



Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711, 737 
(1987) (Blackmun, J., dissenting)). 10/

Even in eases in which there is a monetary recovery from which 
the lawyer could obtain reimbursement for expert fees she advanced, 
civil rights plaintiffs would be left with a reduced recovery, thereby di­
minishing their incentive to initiate civil rights litigation.

The legislative history of the Civil Rights Attorney’s Fees Awards 
Act of 1976 (codified at 42 U.S.C. § 1988) reveals that Congress was as 
concerned about the need to insure that potential plaintiffs have the 
incentive to bring meritorious civil rights claims as it was about the 
need to insure that lawyers would prosecute them:

The effective enforcement of Federal civil rights statutes 
depends largely on the efforts of private citizens. Although 
some agencies of the United States have civil rights responsi­
bilities, their authority and resources are limited. In many in­
stances where these laws are violated, it is necessary for the 
citizen to initiate court action to correct the illegality. Unless 
the judicial remedy is full and complete, it will remain a meaning­
less right. Because a vast majority of the victims of civil rights 
violations cannot afford legal counsel, they are unable to pre­
sent their cases to the courts. In authorizing an award of rea­
sonable attorney’s fees, H.R. 15460 is designed to give such 
persons effective access to the judicial process where their 
grievances can be resolved according to law.

H.R. Rep. No. 1558, 94th Cong., 2d Sess. [“House Report”] 1 (1976) 
(emphasis added). 11/

10/ See also Hensley v. Eckerhart, 461 U.S. 424,429 (1983) (“The purpose of § 1988 is 
to ensure ‘effective access to the judicial process’ for persons with civil rights griev­
ances.”) (quoting House Report at 1); Blanchard v. Bergeron, 109 S. Ct. 939, 945 (1989) 
(same).

11/ See also Senate Report at 2 (“If private citizens are to be able to assert their civil 
rights, and if those who violate the Nation’s fundamental laws are not to proceed with 
impunity, then citizens must have the opportunity to recover what it costs them to vindicate 
these rights in court.”) (emphasis added).

-  11 -



This Court has made the same point about the purpose of the 
identically-worded fee provision of Title VII of the Civil Rights Act of 
1964:

the central purpose of § 7Q6(k) is to vindicate the national pol­
icy against wrongful discrimination by encouraging victims to 
make the wrongdoers pay at law — assuring that the incentive 
to such suits will not be reduced by the prospect of attorney’s 
fees that consume the recovery.

Independent Federation of Flight Attendants v. Zipes, 109 S. Ct. 2732, 
2736 (1989) (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 
400, 401-02 (1968)). In sum, the cost of experts is a necessary and im­
portant part of the cost of effective legal representation in civil rights 
litigation and falls directly within the concerns which Congress sought 
to address when it enacted the attorney’s fee provision of Section 1988. 
Section 1988, therefore, should be read to include compensation for 
expert fees in order to assure a “fully compensatory fee” and maintain 
the incentive to prosecute meritorious civil rights claims.

II

CONGRESS ENACTED THE FEE PROVISION OF 
SECTION 1988 IN ORDER TO OVERTURN ALYESKA AND 

INCORPORATE EXISTING CASE LAW UNDER WHICH 
EXPERT FEES HAD BEEN GRANTED

The historical background to Section 1988 is also persuasive evi­
dence that Congress used the phrase “attorney’s fee” as a shorthand 
for all expenditures, including expert fees, needed for effective legal 
representation in civil rights cases. As this Court has said, a reliable 
“guide to the meaning of a statute is found in the evil which it is de­
signed to remedy; and for this the court properly looks at contempora­
neous events, the situation as it existed, and as it was pressed upon the 
attention of the legislative body.” Church of the Holy Trinity v. United 
States, 143 U.S. 457, 463 (1892).

Prior to this Court’s decision in Alyeska Pipeline Service Co. v. 
Wilderness Society, 421 U.S. 240 (1975), numerous courts in cases

-  12 -



brought under civil rights statutes without express fee-shifting provi­
sions granted compensation for the charges of experts, along with ex­
penditures for legal representation, as part of costs. These courts rec­
ognized that such compensation achieved equity in civil rights cases 
and gave an appropriate incentive to “private attorneys general” to 
vindicate their statutory and constitutional rights. 12/ Alyeska held that 
an attorney’s fee was not recoverable in civil rights cases because 
courts did not have this equitable discretion and, except as provided in 
statutes enumerating recoverable costs, could not award any of the ex­
penses of litigation in civil rights cases. In passing the Civil Rights At­
torney’s Fees Awards Act of 1976 (codified at 42 U.S.C. § 1988), Con­
gress specifically undertook to overrule Alyeska and restore the incen­
tives guaranteed by prior case law. Hensley v. Eckerhart, 461 U.S. 424, 
429 (1983); 122 Cong. Rec. S16,252 (daily ed. Sept. 21, 1976); id. at 
H12,154, H12,155 (Oct. 1, 1976). Accordingly, courts applying Sec­
tion 1988 should have the same power to award expert fees that they 
had prior to Alyeska.

Further, Congress made clear its intention that the fee provision 
of Section 1988 be construed in the same way as the identical language

12/ See, e.g., Fairley v. Patterson, 493 F.2d 598, 606 n . l l  (5th Cir. 1974); Welsch v. 
Likins, 68 F.R.D. 589, 596-97 (D. Minn.), affd, 525 F.2d 987 (8th Cir. 1975); Wallace v. 
House, 377 F. Supp. 1192,1206-07 (W.D. La. 1974), vacated in relevant part for reconsid­
eration in light o f Alyeska, 515 F.2d 619,638 (5th Cir. 1975), vacated, 425 U.S. 947 (1976); 
Sabala v. Western Gillette, Inc., 371F. Supp. 385, 394 (S.D. Tex. 1974), remanded in rele­
vant part for reconsideration in light o f Alyeska, 516 F.2d 1251, 1267-69 (5th Cir. 1975), 
vacated on other grounds, 431 U.S. 951(1977); Sims v.Amos, 340 F. Supp. 691,695 & n .ll  
(N.D. Ala.), affd, 409 U.S. 942 (1972); Jones v. Wittenberg, 330 F. Supp. 707, 722 (N.D. 
Ohio 1971), affd, 456 F.2d 854 (6th Cir. 1972); Bradley v. School B d , 53 F.R.D. 28. 44 
(E.D. Va. 1971), rev’d, 472 F.2d 318 (4th Cir. 1972), vacated, 416 U.S. 696 (1974); Wright v. 
McMann, Nos. 66-CV-77, 67-CV-174 (N.D.N.Y. Aug. 19,1970), noted in Wallace, 377 
F. Supp. at 1207, a ffd  in part, rev’d in part on other grounds, 460 F.2d 126 (2d Cir.), cert, 
denied, 409 U.S. 885 (1972); see also Copeland v. School Bd., 464 F.2d 932, 934 (4th Cir. 
1972) (decision to award expert witness fees within discretion of trial court); cf. Wolfv. 
Frank, 477 F.2d 467,480 (5th Cir.) (expert fees awardable since private litigation furthers 
goals of securities laws), cert, denied, 414 U.S. 975 (1973); Bebchick v. Public Utils. 
Comm 'n, 318 F.2d 187,204 (D.C. Cir.) (same result in public transport case), cert, denied, 
373 U.S. 913 (1963); La Roza Unida v. Volpe, 57 F.R.D. 94, 102 (N.D. Cal. 1972) (same 
result in highways case).

-  13 -



of the fee provisions of other civil rights statutes had been construed by 
the federal courts.

S. 2278 follows the language of Titles II and VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k), 
and section 402 of the Voting Rights Act Amendments of 1975,
42 U.S.C. § 1973/(e). . . .  It is intended that the standards for 
awarding fees be generally the same as under the fee provisions 
of the 1964 Civil Rights Act.

S. Rep. No. 1011, 94th Cong., 2d Sess. 2, 4, reprinted in 1976 U.S. Code 
Cong. & Admin. News 5908,5910,5912; see also Hanrahan v. Hampton, 
446 U.S. 754, 758 n.4 (1980); House Report at 5, 6 (“Because other stat­
utes follow [the approach of § 1988], the courts are familiar with [the 
terms used] and in fact have reviewed, examined, and interpreted them 
at some length.”). 13/

Congress explicitly incorporated and endorsed the prior case law 
construing these other fee provisions so as to give the phrase “reason­
able attorney’s fee” meaning without need to resort to item-by-item 
delineation of reimbursable expenditures. The prior decisions inter­
preting these statutes, 14/ including two cases specifically cited in the

13/ Because Congress adopted existing statutes and accepted those statutes’ judicial 
glosses in crafting Section 1988, it is not appropriate to resort solely or primarily to a 
textual analysis of Section 1988 when seeking its meaning. Cannon v. University o f Chi­
cago, 441 U.S. 677,694-98 (1979); cf. Hughes v. Rowe, 449 U.S. 5 (1980) (adopting differ­
ing recovery standards for plaintiffs and defendants under § 1988, despite language 
which grants fees to “prevailing party’’).

Similarly, the fact that some later fee-shifting statutes and some fee-shifting stat­
utes in unrelated areas of the law make specific reference to expert witness fees has no 
bearing on the proper interpretation of Section 1988. See Friedrich v. City o f Chicago, 888 
F.2d 511,517 (7th Cir, 1989), petition for cert, filed, 58 U.S.L.W. 3505 (U.S. Jan. 29,1990) 
(No. 89-1230).

14/ Rios v. Enterprise Ass'n Steamfitters Local 638, 400 F. Supp. 993, 997 (S.D.N. Y. 
1975) (Title VII), affd, 542 F.2d 579 (2d Cir. 1976); Davis v. County o f  Los Angeles, 8 
E.P.D. (CCH) 11 9444 (C.D. Cal. 1974) (same); see also Swann v. Charlotte-Mecklenburg 
Bd. ofEduc., 66 F.R.D. 483 (W.D.N.C. 1975) (expert fees recovered pursuant to identi­
cally-worded 20 U.S.C. § 1617).

-  14 -



Senate Report, 15/ allow recovery of expert fees. This Court has previ­
ously considered these two cases as authoritative sources on the con­
struction of Section 1988. See, e.g., Blum v. Stenson, 465 U.S. 886, 
893-94 (1984); Hensley v. Eckerchart, 461 U.S. at 431.

It is thus plain that Congress specifically intended Section 1988 
to restore the equitable principles of pre-AIyeska decisions —■ many of 
which applied these principles to award expert fees. The language cho­
sen by Congress also was designed to encompass lower court decisions 
interpreting identically-worded provisions of other fee-shifting civil 
rights statutes, including decisions that awarded recovery of expert 
fees in order to maintain the incentive needed to encourage effective 
enforcement of civil rights.

Ill

CRAWFORD FITTING IS 
INAPPLICABLE TO THIS CASE

The court below felt constrained to deny petitioner expert fees in 
excess of $30 per day because of this Court’s opinion in Crawford Fit­
ting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987). The decision below, 
we submit, was based on a fundamental misreading both of the reach 
of the Crawford Fitting opinion and of the policies that give force to 
Section 1988.

The only question addressed in Crawford Fitting was whether 
Rule 54(d) of the Federal Rules of Civil Procedure afforded federal 
courts discretion to award as costs expert witness fees in excess of the 
witness fees specifically enumerated in 28 U.S.C. §§ 1821 and 1920.482 
U.S. at 439, 441-42. The parties in that case relied entirely on Rule 
54(d) and did not seek recovery under any other provision of law. 18/

15/ Senate Report at 6 (citing with approval Davis and Swann).

16/ Crawford Fitting was an antitrust case; its companion case was brought pursuant 
to Title VII and 42 U.S.C. § 1981. Although both sets of statutes have provisions relat­
ing to the shifting of litigation expenses, the cases as presented to the Court concerned 
only Rule 54(d). See 482 U.S. at 439; id. at 446 n .l (Marshall, J., dissenting).

-  15 -



The Court’s opinion, therefore, never construes any other statute and, 
in particular, never addresses the question presented here: Whether 
expert fees are recoverable under Section 1988, a statute passed spe­
cifically to overcome the limitations of Rule 54(d). See id. at 445 
(Blackmun, J., concurring); id. at 446 n.l (Marshall, J., dissenting).

The opinion of the Court in Crawford Fitting does assert: “We 
hold that absent explicit statutory or contractual authorization for the 
taxation of the expenses of a litigant’s witness as costs, federal courts 
are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.” 
482 U.S. at 445. The court below apparently read this Court’s reference 
to “explicit” authorization to mean that expert fees are not recoverable 
under Section 1988 unless that statute “expressly” .refers to expert fees. 
885 F.2d at 34. But references to “explicit” and “expressly” merely beg 
the question, which is whether the phrase “attorney’s fee” as used in 
the context of Section 1988 includes expenditures for experts. The com­
mon sense reading of “attorney’s fee” mandated by this Court in 
Jenkins and the noble and generous spirit encapsulated by Section 
1988 compel the conclusion that expert fees — costs so frequently 
borne by, and invariably incurred in aid of, civil rights lawyers — are 
included within the “attorney’s fee” recoverable under that Section.

Finally, the Court’s statement of its holding in Crawford Fitting is 
directed solely to “the expenses of a litigant’s witness.” 482 U.S. at 445 
(emphasis added). Even if Section 1988 were not read to override any 
limitation imposed by Sections 1821 and 1920, Crawford Fitting has no 
bearing on the many out-of-court services performed by experts for 
which much of the compensation under Section 1988 is sought. See 
Friedrich, 888 F.2d at 515; see also Denny v. Westfield State College, 880 
F.2d 1465, 1474 (1st Cir. 1989) (Breyer, J., concurring).

/  - : -4-  16



CONCLUSION

The cost of experts is a substantial and often necessary part of the 
costs of an attorney’s work product in civil rights litigation. A refusal to 
award such fees to a successful litigant is inconsistent with the “fully 
compensatory fee” guaranteed by Section 1988 and the purpose of that 
Section to encourage vigorous enforcement of civil rights.

For the reasons set forth above, the order of the court of appeals 
concerning expert fees should be reversed.

Respectfully submitted,

Sidney  S. Rosdeitcher  
(Counsel of Record)
Steven  Fasman
Paul , Weiss, R ifkind , Wharton  & Garrison  
1285 Avenue of the Americas 
New York, New York 10019-6064 
(212) 373-3000

R obert F. Mullen 
David S. Tatel 

Co-Chairmen
Norm an  Redlich , Trustee 
Barbara  R. Arnwine 
R obert B. McDUFF 
Law yers’ Com m ittee for  

Civil  R ights Under  Law 
1400 Eye Street, N.W.
Washington, D.C. 20005 
(202) 371-1212

-  17 -



Steven  R. Shapiro  
Am erican  Civil Liberties Union  

Foundation  
132 West 43rd Street 
New York, New York 10036
(212) 944-9800

Harvey  Grossman 
R oger  Baldwin Foundation  of 

Th e  Am erican  Civil  Liberties 
Union , Inc.

20 East Jackson Boulevard 
Chicago, Illinois 60604 
(312) 427-7330

Antonia  H ernandez 
E. R ichard  Larson 
Mexican Am erican  Legal Defense 

and Educational  F und 
634 South Spring Street 
Los Angeles, California 90014
(213) 629-2512

Ruben Franco

President and General Counsel 
Arth u r  A. Baer 
Pu erto  R ican Legal  Defense & 

Education  Fund , Inc.
99 Hudson Street, 14th Fir.
New York, New York 10013 
(212) 219-3360

Attorneys for Amici Curiae

April 12, 1990

-  18 -



.