Correspondence from Menefee to Whyte (Clerk); Plaintiffs' Brief in Support of Motion for Hearing Before the United States District Judge; Hall v. Board of School Commissioners of Mobile County Order; Major v. Treen Plaintiffs' Motion for Hearing Before the United States District Judge

    BLACDKSHER, MENEFEE & STEIN, R.A. 

ATTORNEYS AT LAW 

405 VAN ANTWERP BUILDING 

Pp. 0. BOX 1051 

MOBILE, ALABAMA 36633 

JAMES U. BLACKSHER TELEPHONE 

LARRY T. MENEFEE January 25 ; 1985 (205) 433-2000 

GREGORY B. STEIN 

WANDA J. COCHRAN 

Ms. Loretta G. Whyte 
Clerk 
United States Courthouse 
for the Fastern District of Louisiana 
Chambers C-151 
500 Camp Street 
New Orleans, Louisiana 70130 

Re: Major v, Treen, C.A. No. 82-1192 Section C(5) 
  

Dear Ms. Whyte: 

Please find enclosed for filing Plaintiffs' Motion for Hearing 
Before the United States District Judge and accompanying brief. 

This matter was heard by a three-judge panel of Judges Collins, 
Cassibry and Politz. I believe Judge Collins was the convening 
judge. The enclosed motion concerns plaintiffs" pending motion 
for an award of attorneys' fees and expenses which I believe to 
be an issue properly resolved by a single judge. It is our 
position, as maintained in the enclosed motion, that any of 
the three judges who heard the trial on the merits could deter- 
mine plaintiffs' claim for attorneys' fees. 

We would appreciate a hearing at the Court's early convenience, 
either at a regular motion docket or by a special setting with 
the Court. Would you please advise me when the enclosed motion 
will be heard. 

Six depositions have been taken and documents have been produced 
concerning plaintiffs' claim for fees and expenses. It is my 
best judgment that approximately 75% of the record has already 
been prepared. I note this in light of plaintiffs' concern 
about the length of time to resolve this issue. Plaintiffs 
have been without any compensation for three years and the 
defendants have refused to acknowledge that any fees are 
reasonable in this case. With reference to the Magistrate,  



Ms, Loretta G. Whyte 
January 25, 1985 
Page Two 

appeal to the trial judge, entry of final judgment and approp- 
riation by the Louisiana Legislature, plaintiffs could easily 
be another year before receiving any payment. This assumes 
there would be no appeal to the Fifth Circuit, 

Best regards. 

Sincerely, 

BLACKSEER, MENEFEE & STEIN, P.A. 

hl fe Chorin, { oe Ai, TREY 

arry f ow 

¢ci: Hon. Robert F. Collins (w/encl.) 
Hon. Fred J, Cassibry (w/encl.) 
Hon. Henry A. Politz (w/encl.) 
Hon. Alma Chasez (w/encl.) 
Patricia N. Bowers, Esq. (w/encl.) 
Lani Guinier, Esq. (w/encl.) 
Stanley Halpin, Esq. (w/encl.) 
William P. Quigley, Esq. (w/encl.) 
Steven Scheckman, Esq. (w/encl.) 
R. James Kellogg, Esq. (w/encl.) 
Armand Derfner, Esq. (w/encl.) 

LTM: pfm 

 



IX THE UNITED STATES DISTRICT COURY FOR THE 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., 

Plaintiffs, 

Civil Action No.82-1192 

Section C 

DAVID CC. TREEN, etc., et al. 

Defendants. 

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR 
HEARING BEFORE THE UNITED STATES DISTRICT JUDGE 

Plaintiffs seek to have their motion for an award of 

attorneys fees and expenses determined initially by one of the 

trial judges who conducted the trial of this case, Plaintiffs 

contend that the case law supports such a decision, that 

reference to the Magistrate will significantly complicate and 

lengthen the proceedings and that this case is of such 

significance, it merits the initial attention of one of the trial 

judges. Plaintiffs contend that the evidence may be presented in 

a fashion that will take no more time, and probably less time of 

the district judge ‘tnan is likely to be taken under the present 

reference to the United States Magistrate. The essential point of  



plaintiffs’ motion is that the evidence will be reviewed by one 

of the trial judges who knows the history of the litigation and 

performance of the attorneys. 

The case law tends to support the proposition that the trial 

Judge should decide fee issues. Throughout the opinion in 

Johnson v. 

the Court of Appeals repeatedly refers to the type of judgment 

that the trial judge will have to exercise in determining a 

reasonable fee. The substantial discretion that is granted to 

the trial judge in this area is, at least in part, because the 

trial judge was able to observe the attorneys, the quality of the 

work product, and the quantity of their work product. 

Furthermore, the experienced trial judge is able to put this in a 

context of the quality of work performed by opposing counsel and 

other attorneys in similar litigation which the experienced trial 

court has been able to observe. 

For example, under Johnson factor no.1l, “the time and labor 

required," the court noted that "(t)he time of two or three 

lawyers in a courtroom or conference when one would do, may 

cbviously be discounted." (488 F.2d at 717) Only the trial judge 

who observed the courtroom and conference work of the attorneys  



can judge reasonableness of their time. Only the trial judge who 

observed the trial and the work performed by the attorneys, the 

kind of effort and defenses raised by the opposing parties can 

make the kind of judgment called for by Johnson. Presenting 

evidence or such matters to a judge who did not observe the case 

will require significantly more time. 

Johnson factor No.2, "the novelty and difficulty of the 

questions," also call upon a judgment by the judge who tried the 

case. Jonson notes that "(clases of first impression generally 

require more time and effort on the attorneys' part," and that 

lawyers "should be appropriately compensated for accepting the 

challenge." (488 F.2d at 718) What was novel law in 1982 may not 

be nearly so novel in 1985 to a judge confronting the issue. 

Only the trial judge who can recall the complicated and 

troublesome issues presented in such legal arguments can fully 

appreciate the novelty of questions. Trying to re-create for the 

Magistrate all of the legal issues and all of the troublesome, 

meritorious and frivolous defenses that were raised three years 

earlier is difficult at best. It certainly will be much more 

time consuming than having the trial judge who actually decided 

the issues determine this factor. 

In Johnson factor No.3, "the skill requisite to perform the 

legal services properly," absolutely requires that the trial 

judge make this determination.  



The trial judge should closely observe the 

attorneys work product, his preparation and his 

general ability before the Court. The trial judge's 

expertise gained from past experience as a lawyer and 

his observation from the bench of lawyers at work 

become highly important in this consideration. 

488 F.2d at 718. Anyone other than the trial judge would be 

severely handicapped in making such a determination. To try to 

reconstruct the trial of the case and show the skill displayed by 

the attorneys during the trial for the Magistrate may simply be 

incapable of proof. This may require that all the pleadings be 

reviewed so that the Magistrate may datermine the quality of 

writing and that the full transcript of the trial be submitted as 

evidence so that the Magistrate may read the eloquence of the 

examination of witnesses. Significantly more time will be 

required if this is not determined by the trial judge. 

Johnson factor No.9, “The experience, reputation and ability 

of the attorneys," also requires an assessment by the trial 

judge. Johnson says that 

(a)n attorney specializing in civil rights cases may 

enjoy a higher rate for his expertise than others, 

provided his ability corresponds with his experience 

... if a young attorney demonstrates the skill and 

ability, he should not be penalized... 

488 F.2d at 719 (emphasis added). The trial judge is certainly 

the one who must determine whether an attorney demonstrated the  



experience level claimed. 

Johnson factor No.8, "the amount involved and the results 

obtained," is a judgment that will be best made by the trial 

judge. The effect of the court's decision, what additional 

relief may have been available and what issues were seriously 

litigated are matters easily recalled by the trial judge. 

Presenting proof on this issue to the Magistrate will require 

significantly more time. 

Il. 

Plaintiffs do not contend that no attorney fee matter may 

ever be referred to a Magistrate for recommendation. Plaintiffs 

do contend that the case law favors the trial judge making the 

determination and that it is especially appropriate in this 

case. To present’ dhis case to the Magistrate on an initial 

racommendation will considerably lengthen the proceedings when 

the parties are put to the burden of essentially re-creating all 

of the trial and pre-trial activities so as to describe for the 

Magistrate why attorneys were needed at various conferences and 

depositions, what role the attorneys played in the trial, what 

issues were being raised and were seriously litigated. 

A11 of the case law overwhelmingly commends that issues 

concerning fees he simplified and expeditiously handled. The  



significantly more difficult evidentiary problems posed by a 

hearing before the Magistrate in this case and the likelihood of 

an appeal to the district judge run counter to strong legal 

precedent. Johnson cautioned: 

We are mindful of the difficult job of the trial 

judge in cases of this kind and that in all probability 

his decision will be totally satisfactory to no one. 

The trial judge is necessarily called upon to 

question the time, expertise and professional work of a 

lawyer which is always difficult and sometimes 

distasteful. But that is the task... 

In cases of this kind, we encourage counsel on 

both sides to utilize their best efforts to 

understandingly, sympathetically, and professionally 

arrive at a settlement as to attorneys’ fees. 

488 F.2d at 720 (emphasis added). 

Consistent with Johnson the Supreme Court has recently 

expressed strong disapproval of protracted litigation. In 

Hensley v. Eckerhart,46l U.$.424. 103 SC+.1933, 76 L.Ed.2d 40 

(1983), the court specifically noted: 

A request for attorneys' fees should not result in 

second major litigation. ldeally, of course, litigants 

will settle the amount of the fee. 

103 §:Ct.at 1941 (Section 111 ({) 

This was reaffirmed recently in Blum v. Stenson, 

1045.0. 1541, 79 L.£Ed.24 89] noted: 

..the district court is expressly empowered to 

exercise discretion in determining whether an award is  



to be made and if so, its reasonableness. The court 
with its intimate knowledge of the litigation has a 
responsibility to encourage agreement. ~~ 

104 S.Ct.at 1550 n.19. Because a hearing before the Magistrate, 

rather than the trial judge, will require significant additional 

evidence to acquaint the court with the history and details of 

the litigation and because there are minimal restrictions on the 

amount of time available to the parties before the Magistrate and 

the scope of discovery this litigation is likely to expand 

significantly. 

111. 

This fee application should be determined initially by the 

trial judge because it is: an issue of substantial ‘importance. 

This Yitigation involves one of the most significant pieces of 

Civilirights Jitigation in recent years in the Eastern District 

of Louisiana. The fee request is for a large amount of money. 

The determination of an award in this case, consistent with the 

congressional purpose of the fee award statutes, will set a 

standard against which most civil rights cases will be measured 

in this judicial district in the coming years. 

 



lV. 

Plaintiffs motion only seeks to have the initial 

determination made by the trial judge. Plaintiffs do not contend 

that the trial judge need hear the evidence live in open court. 

The entire record may be prepared by deposition. Rule 43(e) of 

the Federal Rules of Civil Procedure gives full authority of this 

Court to direct that the record in this case be prepared wholly 

or in part by way of deposition. 

When a motion is based on facts not appearing of 
record the court may hear the matter on affidavits 
presented by the respective parties, but the court may 
direct that the matter be heard wholly or partly on 
oral testimony or deposition. 

Motions for an award of attorneys' fees are regularly 

handled by way of deposition in the Southern District of Alabama. 

A sample scheduling order is attached. 

Alternatively, plaintiffs would suggest that the Court could 

direct that the Magistrate hear the evidence and that a record be 

prepared and that the parties submit briefs to the district judge 

based on the record which the Magistrate compiled. Furthermore, 

plaintiffs would point out that their motion only seeks to have 

any one of the trial judges make the initial determination on 

attorneys fees. Any one of the three trial judges would able to 

make the type of determinations which the case law requires and  



effect the economy of litigant and Court time which plaintiffs 

have urged in this motion. 

As a final and less desirable alternative, plaintiffs 

suggest that the reference to the Magistrate could be modified to 

specify that those Johnson factors which call for the particular 

knowledge of the trial judge, €.49., in particular: factors. i, 2, 

3, 8 and 9 as discussed above be reserved for decision by the 

trial judge. 

Plaintiffs would suggest a brief conference with the Court 

to draft an appropriate order. 

fh 
Respectfully submitted this 24 day of January, 1985. 

BLACKSHER, MENEFEL & STEIN, P.A. 
405 Van Antwerp Bldg. 
P. 0. Box 1051 
Mobile, Alabama 36633 
(205) 433-2000 

WILLIAM P. QUIGLEY 
STEVEN SCHECKMAN 
R. JAMES KELLOGG 
QUIGLEY & SCHECKMAN 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 
(504) 524-0016 

STANLEY HALPIN 
2206 W. St.Mary 
Lafayette, Louisiana 70506 
{318) 367-2207  



LANI GUINIER 
LEGAL DEFENSE FUND 

99 Hudson Street 
16th Floor 
New York, New York 10013 
(212) 219-1900 

ARMAND DERFNER 
5520 33rd Street, N.Y. 
Washington, B.C. 20015 
{202) 244-3151 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 

I hereby certify that on this 95" day of January, 1985, 

a copy of the foregoing PLAINTIFFS' BRIEF IN SUPPORT OF MOTION 

FOR HEARING BEFORE THE UNITED STATES DISTRICT JUDGE was served 

upon the following counsel of record: 

Patricia Bowers, Esq. 

Assistant Attorney General 

234 Loyola Avenue 
New Orleans, Louisiana 70112 

and was properly addressed and deposited in the United States 

Mail, postage prepaid. 

 



IN THE UNITED STATES DISTRICT COURT FOR THE 
  

SOUTHERN DISTRICT OF ALABAMA 
  

SOUTHERN DIVISION 
  

BOBBY HALL, et al., ) 

Plaintiffs, ) 

vs. 3} CIVIL ACTION NO. 79-0117-H 

BOARD OF SCHOOL COMMISSIONERS 
OF MOBILE COUNTY, ALABAMA, ) 
et al. , 

Defendants. 

The following procedure and timetable will govern the 

award of attorneys' fees and costs in this action: 

First, plaintiffs have fourteen (14) days from the date 

of this order to file an appropriate motion with supporting 

affidavits for their award of attorneys' fees and costs. 

Second, defendants have fourteen (14) days thereafter to 

file any objections to plaintiffs' motion, specifically 

addressing defendants' position regarding each of the factors 

enumerated in Johnson v. Georgia Highway Express, 488 F.2d 714 
  

(5th Cir. 1974). Further, defendants are directed to specify 

what they contend to be a reasonable amount of attorneys' fees 

and costs. 

Third, both parties have fourteen (14) days thereafter 

to take depositions in support of their respective positions. 

Fourth, after the time for taking depositions has expired, 

the Court will set a date for the submission of briefs or schedule 

oral argument as the (ourt deems necessary. 

DONE this /JS day of December, 1982. 

AREY 4 SU   
   



IN THE UNITED STATES DISTRICT COURT FOR THE 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., 

Plaintitts, 

Civil Action No0.82-1192 

Section £ 

DAVID.C.-TREEN, etc., et.al. 

Defendants. 

PLAINTIFFS' MOTION FOR HEARING BEFORE 

THE UNITED STATES DISTRICT JUDGE 

Plaintiffs Barbara Major, et al., move the Court to enter an 

order that plaintiffs’ motion for an award of attorneys' fees and 

expenses be determined by a United States District Judge. 

Plaintiffs filed their motion for award of attorneys' fees and 

expenses on or about August 24, 1984, and later the Court 

referred this matter to the United States Magistrate for a 

recommendation. 

As more fully stated in the accompanying brief, plaintiffs 

contend that the reference to the United States Magistrate may 

considerably lengthen the proceedings on attorneys feas because: 

(1) the Magistrate's lack of familiarity with the trial in this  



» * 

IN THE UNITED STATES DISTRICT COURT FOR THE 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., 

Plaintiffs, 

Civil Action No.832-1192 
~ 

Section if 

DAVID CC. TREEN, etc., et al. 

Defendants. 

PLAINTIFFS' MOTION FOR HEARING BEFORE 
THE UNITED STATES DISTRICT JUDGE 

Plaintiffs Barbara Major, et al., move the Court to enter an 

£ 

order that plaintiffs’ motion for an award of attorneys' fees and 

expenses be determined by a United States District Judge. 

Plaintiffs filed their motion for award of attorneys' fees and 

expenses on or about August 24, 1984, and later the Court 

referred this matter to the United States Magistrate for a 

recommendation. 

As more fully stated in the accompanying brief, plaintiffs 

contend that the reference to the United States Magistrate may 

considerably lengthen the proceedings on attorneys' fees because: 

{1) the Magistrate's lack of familiarity with the trial in this  



case requires significant additional factual development; (2) 

erroneously requires the Magistrate to make judgments about 

matters she cannot easily judge; and, (3) will not conserve Court 

time, since the recommendation will likely be appealed to the 

District Judge. Plaintiffs further contend that the case law 

virtually requires that the trial judge make determinations 

concerning certain factors affecting the determination of a 

reasonable fee. Additionally, this is a significant case that 

deserves the attention of the trial judge since it may well set 

the standard against which future civil rights cases will be 

measured in this district. 

Plaintiffs do not suggest that United States District Judge 

needs to hear all of the evidence live in open court. The record 

could be prepared entirely by deposition. Plaintiffs suggest a 

number of alternatives are available which will conserve the 

Court's time. Among those plaintiffs would suggest the following 

Do ssibilities: 

1. With assignment to Judge Collins the Court could either 

(a) limit the time available to each party for presentation to 

their case to one hour, one-half day or one day and require that 

the parties prepare the rest of the record by way of depositions; 

or, (b) have the Magistrate take the evidence and have the 

parties direct their briefs to the District Judge with 

appropriate record citations.  



2. Alternatively, the motion could be determined by either 

of the other two trial Judges who presided at trial utilizing 

techniques described above in either (a) or (b). 

3. The assignment to the United States Magistrate for a 

recommendation could be modified to specify tnat factors 

articulated in Johnson v. Georgia Highway Express, 488 F.2d 714 

(5th Cir.1974) numbered (1) time and labor required, (2) novelty 

and difficulty of the questions, (3) the skill requisite to 

perform the legal services properly, (8) the amount involved and 

the results obtained, and (9) experience, reputation and ability 

of the attorneys need not be addressed by the Magistrate, but 

will be addressed by the District Judge and the parties would 

address a hrief to the Judge on these issues. 

Respectfully submitted this any of January, 1935. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Bldg. 
P.O. Box 105] 
Mobile, Alabama 36633 
(205) 433-2000 

RY 

WILLIAM P. QUIGLEY 
STEVEN SCHECKMAN 
R. JAMES KELLOGG 
QUIGLEY & SCHECKMAN 

631 St. Charles Avenue 
New Orleans, Louisiana 70130 
(504) 524-0016  



STANLEY HALPIN 

2206.4. St.Mary 
Lafayette, Louisiana 70506 

(318) 367-2207 

LANI GUINIER 
LEGAL DEFENSE FUND 

99 Hudson Street 
16th Floor 
New York, New York 10013 
(212) 219-1900 

ARMAND DERFNER 
5520 33rd Street, N.W. 
Washington, D.C. 20015 
{202) 244-3151 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 

1 hereby certify that on this 2¢ day of January, 1935, 

a copy of the foregoing PLAINTIFFS' MOTION FOR HEARING BEFORE 

THE UNITED STATES DISTRICT JUDGE was served upon the following 

counsel of record: 

Patricia Bowers, Esq. 
Assistant Attorney General 
234 Loyola Avenue 
New Orleans, Louisiana 70112 

and was properly addressed and deposited in the United States 

Mail, postage prepaid.