Correspondence between Guinier to Hurtwitz; Deposition and Errata Sheet of Lani Guinier

    NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

December 28, 1984 

Ms. Jackie Hurwitz 
Stewart, Poe & Oglesby, Inc. 
2116 Bancroft Place, N.W. 

Washington, D. C. 20008 

RE: Major v. Treen 
  

Dear Ms. Hurwitz: 

I enclose your office copy of my deposition 
with an executed certificate and errata 
sheet. I trust you will send a copy of the 
filed deposition to Mr. Menefee. 

rs 

y A 
] 

Guinier 

Enclosures 

cc: Larry Menefee, Esq. 

Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 

was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget  



Major v. Treen 
  

Deposition of Lani Guinier, November 29, 1984 

Errata Sheet 
  

lines 10-12. Put period in proper place; correct 
punctuation: because the Justice Department's 
position in Busbee versus Smith was the same 
position as that of the black plaintiff intervenors. 
In Major versus Treen, the Justice Department's 
position was the same as the defendant state. 

  

  

line 17 correct spelling 
uncontrovertably 

lines 4-6. Correct typo 
was not enforcing a Section 5. ("a" should be 
taken out.) 

lines 15 and 16 

other instances were vigorously investigating 
and enforcing Section 5 in cases involving 
intentional discrimination. (Add underlined 
phrase.) 

  

  

line 8. correct typo: 
But, since it was a Section 5 case, it was a very 
different kind of case. 

line 12, correct spelling: Laughlin McDonald 

line 12, correct grammer: So the situation in which the 
Legal Defense Fund 

line 16, correct spelling: Gingles versus Edmisten. 
  

line 16, correct typo: 
reflect specialized effort, to reflect the 
experience of the 

 



line 14-17 Correct syntax 
this case. The fact that the issues were of 
first impression since the Voting Rights Act 
was passed in June of 1982, and the fact that? 
during the time in which we were preparing N 
the litigation and during whichtthe case was 
tried, there were no other 

line 18 Correct typo 

the plaintiffs representing the class of black 
voters bears (Delete "s".) 

line 12 Correct capitalization of case name 
- White 

line 15 

has been an integral part of all dilution litigation, 
and, 

 



REPORTING SERVICES 

STEWART, POE & OGLESBY, INC. 

COMPUTER-AIDED TRANSCRIPTION 2126 BANCROFT PLACE, NW. SERVING WASHINGTON, D.C. 

LITIGATION SUPPORT SERVICES WASHINGTON, D.C. 20008 MARYLAND AND VIRGINIA FOR 

[] OVER SIXTY YEARS. 

JAMES G. OGLESBY, PRESIDENT (202) 265-3827 

  

December 13, 1984 

Lani Guinier, Esquire 

NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street 

New York, New York 10013 

RE: Barbara Major, et al. v. David C. Treen, etc., et al., U.S. District Court 

for the Eastern District of Louisiana, Civil Action No. 82-1192, 

Deposition of Lani Guinier, November 29, 1984. 

  

Dear Ms. Guinier: 

Enclosed is our office copy of your deposition, taken in the matter 

referenced above. Please review your testimony, but do not make any marks on 

the office copy. Instead, write down any corrections on a separate sheet of 

paper (errata sheet) noting the page and line number of each correction, and 

your reasons for requesting the change. 

After you have read the transcript, you should execute the certificate of 
deponent page (the second to the last page). You must then return our office 

copy, together with your signed certificate of deponent page, and your errata 

sheet, if any. You should return these materials to us within thirty days. 

When we have received these materials from you, we will pramptly file the 

original transcript (court copy) with the appropriate court, agency, or attor- 
ney. The court copy will include the executed certificate of deponent page 
and errata sheet, if you have sent them. If we have not received our office 

copy from you in time, the court copy may be filed without your signature and 

without your corrections. 

Please do not hesitate to call us if you have any questions concerning 

these procedures. Thank you for your cooperation. 

Sincerely yours, 

Recipient Comsel: FOR STEWART, POE & OGLESBY 

Kendall L. Vick, Esquire < 4 ; 
Jackie Hurwi 

Larry T. Menefee, Esquire  



  

  

  

112914.1 UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., 

Plaintiffs, $e A 

& pg cig Sein 
I © 3% 

< Tig 
OQ 

Q 
Wo. 

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

Defendants. 

> or washingeon, D.C. 
> 24 BZ 

Thursday, November 

DEPOSITION OF: <2 

LQ Lao > XV 
SANT GUINIER, ESQUIRE 

a witness, called for examination by counsel for the 

Defendants, David C. Treen, etc., et al., pursuant to 

notice and agreement of counsel, in the offices of NAACP 

Legal Defense and Educational Fund, 806 Fifteenth Street, 

Suite 940, Washington, D.C. 20005, beginning at 

approximately 10:55 o'clock, a.m., before SALLY V. WEEKS, a 

Notary Public in and for the District of Columbia, when 

were present on behalf of the respective parties: 

  

STEWART, POE & OGLESBY, INC. - (202) 265-3827    



    
  ® 

APPEARANCE OF COUNSEL 

For the Plaintiffs: 

BLACKSHER, MENEFEE & STEIN, P.A. 

BY LARRY T. MENEFEE, ESQUIRE 

405 Van Antwerp Building 

P.O. Box. 1051 

Mobile, Alabama 36601 

For the Defendants: 

KENDALL L. VICK, ESQUIRE 

State of Louisiana 

Department of Justice 

234 Loyola Building 

Seventh Floor 

New Orleans, Louisiana 70112 

Also Present: 

Armand Derfner, Esquire 

I NDE ZX 

WITNESS: EXAMINATION BY: 

LANI GUINIER MR. VICK 

NO EXHIBITS     
  

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  . 

PROCEEDINGS 

MR. VICK: In response to Mrs. Bower's motion to 

produce, you may produce and we will dispose of that. 

MR. MENEFEE: We are responding today to 

Paragraph 1, which requests copies of all retainer 

agreements and other types of written fee arrangements with 

plaintiffs. And in response to that, we have none. 

Paragraph 9 requests your current resume. That 

has been produced as part of the motion for award of 

attorneys' fees and expenses. 

Paragraph 10 requests copies of all records which 

summarize billed hours by day, week or month, et cetera. 

There are no such documents. 

Paragraph 11, copies of all statements from 

expert witnesses and we have no such statements from expert 

witnesses. 

I think it is probably reflected in the resume, 

I'm not sure, but as to Paragraph 8, requests copies of 

articles and published papers. There is only one that is a 

published work and we will give you the citation. If you 

have difficulty obtaining that, we will be glad to help you 

get a copy. 

  

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Lani, would you tell us where this article is 

published. 

THE WITNESS: It is listed in the affidavit, and 

it is a chapter in a book Minority Vote Dilution edited by 
  

Chandler Davidson. 

MR. MENEFEE: Published by Howard University 
  

THE WITNESS: Right, 1984. 

MR. MENEFEE: That's all. 

MR. VICK: Thank you. 

EXAMINATION BY COUNSEL FOR THE DEFENDANTS 

BY MR. VICK: 

Q. The other day, Stan Halpin and I had a meeting 

prior to the deposition and, among other things, Stanley 

told me that the defendants, particularly Feldman and 

Cutcher, never understood the theory of the plaintiffs’ 

case, your case. Would you agree with that? 

A. I would say that they certainly had difficulty in 

responding to the substance of our case and spent a lot of 

time attempting to defend their side with issues that 

forced the plaintiffs to engage in a lot of extraneous 

activity. 

  

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Q. All right. Stanley also said that the, in line 

with your response, that the defendants had conducted this 

case as gorilla warfare and they took a lot of pot shots, 

particularly at you, I guess you might even say cheap shots, 

in their motion to disqualify you and so on. Would you 

agree with that? 

MR. MENEFEE: Ken, I don't know whether it is 

essential to your question. I don't remember some of that 

phraseology being used by Stan. 

MR. VICK: I'm paraphrasing. 

MR. MENEFEE: Okay. 

MR. VICK: I will get to what Stan said on the 

record in a moment. 

BY MR. VICK: 

Q. But in any event, would you have characterize 

this case in the conduct by the defendants as gorilla 

warfare? 

A. I'm not sure what Stan meant or what you mean by 

that, so I am reluctant to -- 

Qe That's fair enough. And in conclusion, Stan said 

that in his opinion that Feldman's only concern was Treen's 

reputation and that Treen not be seen in a bad light. 

  

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Would you agree with that? 

A. I would not agree that that was his only concern. 

I would agree that it was a primary concern. 

Q. Now, I am reluctant to call us nominal defendants, 

since we were the defendants I suppose, but the Department 

of Justice attorneys who were experienced in this area of 

law and familiar with this case and others never had any 

doubt about the outcome. And when I say the Department of 

Justice attorneys, I mean me and others, some who are still 

with us and some who are gone. Did you ever have any doubt 

about the outcome of this case? 

A. I certainly did. 

Qs Do you mind explaining in a narrative fashion or 

however you like, why. 

A. When we were first talking about litigating the 

legality of Act 20, many people felt that we should not 

bring the lawsuit to challenge the congressional district. 

They felt that there was a lot of evidence that showed 

retrogression between 1980 and 1970 in the state house and 

the state Senate districts and they thought that a lawsuit 

on those two issues alone would be more fruitful. And I 

was probably the only one at the time who felt that we had 

  

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any chance of prevailing on a lawsuit challenging the 

congressional districts. 

Although I was not confident that we would 

prevail, I felt that we at least had a chance because of 

the extensive work that I was then engaged in in attempting 

to change Section 2 of the Voting Rights Act. This was in 

December of 1981. We still had many months to look forward 

to in the Senate, which was not going to be as hospitable a 

forum as the House had been in toils of amending the Voting 

Rights Acts. 

So, it was based primavily on my hope that the 

Voting Rights Act would, in fact, be amended and that would 

provide us with a tool for challenging the congressional 

district on a results theory. But at the time that we were 

first involved in litigating and strategizing and 

discovering information about the congressional districts, 

I did not have any sense that we would definitely prevail. 

Q. Now the reason I ask you that is because 

obviously your years in the Department of Justice as a 

special assistant to the assistant attorney general in 

charge obviously gave you a great deal of insight or 

knowledge, wouldn't it have, or didn't it? 

  

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A. When you say insight or knowledge, could you 

explain what you mean. 

Q. I am talking about the world of political legal 

insider information. There is, I think, a well-recognized 

group of lawyers who specialize in this area, either in the 

government or out of the government, and they normally I 

think communicate rather regularly with one another. And 

surely your friends, the remaining people in the Department 

of Justice, and I assume there are many, would have given 

you some tip that this was a very shaky preclearence. 

A. Well, I think you are asking several different 

questions and there are also some assumptions in your 

question. 

DQ. Well, why don't you handle it any way you like. 

A. Okay. In terms of the fact of preclearance, the 

matter was precleared after we had initially filed the 

lawsuit. So you are asking, I guess, about a second 

question, which is once the preclearance had in fact been 

obtained by the state from the Department of Justice in 

Washington, what was my sense of the likelihood of success. 

At that point it went down because most people, 

including several very respected voting rights experts, 

  

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such as Steve Suitts of the Southern Regional Council, 

specifically told me that there had never been a case won 

where the Justice Department had precleared the particular 

change in question. So he felt that we were pursuing a 

long shot at best once the Justice Department had precleared. 

He is in Atlanta? 

That's right. 

Does that complete your answer more or less? 

Yes. 

See, the question is that Suitts is in Atlanta, 

he had to know of the existence of the ongoing litigation 

in Busbee versus Smith and therefore I would assume you 
  

knew what had happened in Busbee versus Smith or, if you 
  

like, the congressional reapportionment of Atlanta. 

A. Right, I'm familiar with the case. 

Q. I had hoped you would be. Therefore, in light of 

that case and the conduct of justice in that case, it 

seemed to me that this was almost the reverse, that is 

Major versus Treen was almost the reverse of Busbee versus 
    

Smith. Would you not agree? 

A. I guess I don't know what you mean by reverse, 

but I would certainly agree that the Justice Department 

  

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10 

took a very different position in Busbee versus Smith than 
  

it did in Major versus Treen. 
  

Q. You have the metropolitan area of Atlanta, black 

population split between two congressional districts, clear 

case of dilution, preclearance denial, suit filed by 

Georgia in the District of Columbia, and the results before 

you went to trial and after the preclearance in Major 

versus Treen. It must have made you feel very good. 
  

A. Well, I would say just the opposite, in fact, 

because the Justice Department's position in Busbee versus 
  

Smith was the same position as that of the black plaintiff 

intervenors in Major versus Treen. The Justice 
  

Department's position was the same as the defendant state. 

So, in one case you had the resources of the 

Department of Justice being used to aid the black 

plaintiffs, that is in the Busbee case. In Major you had 

the resources of the department being used to aid the 

plaintiffs' opponents, the State of Louisiana. 
- 

Q. Well, there was no actual aid in Major versus 
  

Treen, there was no direct aid to the defendants other than 

the preclearance surely? 

A. Well, that was substantial aid because the 

  

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defendants relied on that preclearance. 

Q. All right. Fair enough. But once you got into 

the trial itself and Judge Politz just blithely brushed 

that aside, the preclearance aside, you must have then 

recognized that you had a winner. 

A. I don't recall at any point in the trial that 

Judge Politz blithely Brushed aside the preclearance. At 

the beginning of the trial, he said that they would 

consider the matter on its merits, but that was after we 

had filed a motion to get the court to determine the 

relevance of the preclearance in advance, number one, to 

determine how much discovery and how much time we would 

have to spend on that issue. 

And then number two, he allowed the defendants to 

discuss the preclearance and there was never any question 

that a major portion of the defense was that the Section 5 

preclearance, in their words, uncontroverably established 

the absence of discriminatory purpose and effect. 

Q» That is the Justice Department's memorandum 

concerning the preclearance? 

A. No, that is the defense's interpretation of the 

Justice Department's preclearance. 

  

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Q. Fair enough. I am sorry I didn't bring the 

transcript because I used it the other day. Maybe I can 

reconstruct it. You were cross-examining Treen? 

aA. That's right. 

Q. And you started to get into the preclearance 

question and what meetings he had had with Reynolds, the 

Assistant Attorney General in charge of the Civil Rights 

Division. You were starting to get into, obviously, the 

political aspects of this case, which I think everybody 

understood. Feldman objected. There was an exchange 

between yourself, colloquy of some sort between yourself 

and the Bench and Feldman. And at that point, Judge Politz 

said the preclearance is merely a fact which we will take 

into consideration along with a lot of other facts in this 

case, so don't dwell on it. He said sohething £0 that 

effect. I think I am doing justice to the exchange, but 

maybe you recall it. 

A. I recall it, yes. 

Q. Fine. So what I am saying is that once the court 

had indicated that to you, surely you must have breathed a 

sigh of relief and figured that victory was Sue beyond the 

horizon? 

  

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13 

A. I would agree that we breathed a sigh of relief, 

but I did not feel that victory was just around the corner. 

Q. All right. Have you read the preclieazance denial 

in Busbee versus Smith by Reynolds? 
  

A. No. I have read the court opinion. 

Q. All right. What is fascinating to anyone that is 

a student in this area is that there are almost the obverse 

and reverse of the same coin. 1c is the same case, only 

different sides. The Justice Department has come to an 

entirely different conclusion on almost an identical set of 

facts. You were not aware of that? 

A. Well, I was aware of the Busbee versus Smith 
  

litigation. I just did not read the letter that the 

Assistant Attorney General sent. 

OQ. No, I appreciate that. To what extent did Busbee 

play any part in your thinking, then, about the condudt of 

this case, most certainly insofar as your ultimately 

prevailing? 

A. Well, I guess there are several answers to that. 

Number one, the fact that the Attorney General 

was aggressively litigating the Busbee case on behalf of 

the black plaintiffs gave his office greater credibility as 

  

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far as enforcing Section 5; and, therefore, made our job 

even more difficult because we were attempting to show that 

when he precleared the Act 20 in Major versus Treen that he 
  

was not enforcing a Section 5. So it enhanced his 

credibility in a way that we construed it to be to our 

detriment.   Secondly, Busbee versus Smith was a Section 5 
  

In 
No 

not involve the questions that we had to 

t Section 2. It was a case in which they had 

idence from the legislators. The court had 

a number of the legislators were racists and 

characterization in its opinion, so that the 

NA ty, 

3 rnd HR came a bench mark in some ways that suggested 

ce Department and the Attorney General in 

other instances were vigorously investigating and enforcing 

Section 5. 

But in terms of Major versus Treen we did not 
  

have that experience at all, so the Busbee litigation 

really did not play -- in fact, as I recall, the only 

occasion in which we cited the Busbee case in our post 

trial memorandum was in response to one of the defendant's 

arguments that politics and not race was the primary       
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far as enforcing Section 5; and, therefore, made our job 

even more difficult because we were attempting to show that 

when he precleared the Act 20 in Major versus Treen that he 
  

was not enforcing a Section 5. So it enhanced his 

credibility in a way that we construed it to be to our 

detriment. 

Secondly, Busbee versus Smith was a Section 5 
  

case. It did not involve the questions that we had to 

establish under Section 2. It was a case in which they had 

smoking gun evidence from the legislators. The court had 

concluded that a number of the legislators were racists and 

included that characterization in its opinion, so that the 

Busbee case became a bench mark in some ways that suggested 

that the Justice Department and the Attorney General in 

other instances were vigorously investigating and enforcing 

Section 5. 

But in terms of Major versus Treen we did not 
  

have that experience at all, so the Busbee litigation 

really did not play -- in fact, as I recall, the only 

occasion in which we cited the Busbee case in our post 

trial memorandum was in response to one of the defendant's 

arguments that politics and not race was the primary 

  

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15 

motivating factor in the enactment of Act 20 and therefore 

it was perfectly legal. That was a question that we had to 

respond to. 

And I believe there was some language in the 

Busbee opinion that talked about the idea that if you are 

attempting to protect white incumbents that that may not be 

a sufficient defense where there are questions of race 

involved. But it was a very different kinds of case. 

Q. Wouldn't you agree that it was clear from the 

outcome in Busbee that no three-judge federal panel was 

going to allow a large urban concentration of blacks to be 

split? 

A. No, I didn't come to that conclusion at all. As 

I said, Busbee was under a different part of the Voting 

Rights Act. It was litigated in Washington, D.C. It had 

the assistance of the Justice Department and not the 

opposition. And in fact there were other cases, Upham 

versus Seamon in which the question of splitting a large 
  

concentration of urban blacks to make a congressional 

district was resolved in many different ways, depending on 

the date of the litigation. So, I did not feel that there 

was only one way that this case could be resolved. 

  

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Qs Let's get back to your friends that remained in 

the Civil Rights Division of the Justice Department, 

particularly in the Voting Rights Section, which you most 

certainly worked rather closely with when you were there. 

And I assume there were friends still left there whom you 

chatted with from time to time? 

A. The person I would say that I chatted with in the 

sense of being friendly with was my former secretary, who 

had absolutely nothing to do with this particular case. 

But she is the only one that I would put in that category. 

0. Then you had no pipe line to the Voting Rights 

Section or even to the Civil Rights Division to know what 

their thinking was? 

At what point are we talking of? 

After the preclearance. 

After the preclearance, it was clear to us, based 

on some preliminary conversations that Bill Quigley, cone of 

my colleagues, had had with some of the Justice Department 

attorneys that this had been a fairly controversial 

preclearance from the point of view of the staff. But 

since the ultimate authority for preclearing rested with 

Mr. Reynolds and since there was no way to review or to 

  

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17 

appeal his decision, I had absolutely no pipe line to those 

in positions of authority in the Civil Rights Division or 

the Justice Department. 

After you left the Justice Department -- 

Could I just add one other thing? 

Sure. 

That part of what we had to do in this case was 

to file a number of Freedom of Information Act requests and 

to proceed with depositions and subpoenas in an effort to 

get the information that we did get, so it was not easy to 

obtain the information that we did get. 

Qs After you left the Justice Department, you joined 

the Legal Defense Fund? 

A, That's right. 

Q. And prior to that, you had been law clerk and 

those were salaried positions? The law clerk, of course, 

was a salaried position? 

As was the position as a referee in juvenile 

All right. And therefore you have never had any 

private practice? 

A. No. 

  

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Q. If I am not mistaken, the fee application 

requests the same fee for you as it does for Stanley Halpin, 

does it not, or am I mistaken? 

MR. MENEFEE: Yes. 

BY MR. VICK: 

Q. I would have no difficulty characterizing Stanley's 

background as an expert since I have known him for 20 years 

and I have known what he has done. Do you put yourself in 

the same category with Stanley? 

A. I certainly have not been out of law school and 

practicing for 20 years. And I would say that in some 

areas of voting rights litigation Stanley has unique 

expertise, but that in other areas of voting rights 

litigation my experience exceeded his. 

Q. Well, what we have got here is six, I believe, 

excluding Armand, experts in this area. Who was the trial 

attorney? 

A. There were three trial lawyers, Jim Kellogg, 
- 

myself and Stanley. 

Q, And you all participated equally, or you had job 

assignments? 

A. There were areas of specialization, for example, 

  

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Stanley was responsible primarily for the development of 

the racially polarized voting analysis and for a lot of the 

statistical analysis based on his background. And Jim 

Kellogg was responsible for developing the legislative 

history of Act 20 based on his particular experience. So, 

we divided up the work, but we also shared the work. 

Q. Now, one of the questions I asked Stanley that he 

didn't really respond to, or if he did, it was somewhat 

vague. I have to read the deposition. After all of his 

experience and, indeed your experience in Louisiana, why 

was it necessary to put on the proof of the history of 

racial discrimination in the State of Louisiana. Zimmer 

versus McKeitchen and some of the other cases proved this. 
  

I mean, I am not suggesting that Feldman should have 

stipulated. I am not suggesting that, but surely you could 

have made an offer of proof to the court and thereby saved 

a good deal of time, couldn't you have? 

A. I don't think the testimony regarding the history 

of discrimination in Louisiana took more than two hours of 

the trial. Mr. Feldman did not stipulate to it so that it 

was necessary to prove and, in fact, in other oases in 

which I have represented plaintiffs, we have had to do 

  

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exactly the same thing. This was not unusal. 

Q. Well, I'm sorry, then, Stanley intimated that it 

may have taken longer than just two hours. That's my 

recollection. Now, he may have, I don't recall exactly, 

but I thought that he said it took about a third of the 

plaintiffs' case. 

A. Well, he may have been including within the term 

history of discrimination some of the socioeconomic and 

other lingering effects of that history. 

Q. Then it would be your testimony that the bulk of 

the plaintiffs's work was proving the discriminatory intent 

of Act 20 and the discriminatory effect? 

A. to. 

De What would it be then? The bulk of the plaintiff's 

case was spent doing what? 

A. Proving that Act 20 had a discriminatory result 

that violated Section 2 of the Voting Rights Act as amended. 

Q. Mow, after the amendment by the Congress, that's 

all you needed to prove, if you had overcome the hurdle of 

the history of racial discrimination, correct? 

A. After the amendment, that's all we thought we 

needed to prove, but there wasn't any case saying that that 

  

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we could rely on. 

MR. VICK: All right. That's sufficient for the 

moment. Thank you. 

EXAMINATION BY COUNSEL FOR THE PLAINTIFFS 

BY MR. MEMNEFEE: 

Q. Ms. Guinier, first let me ask you, are you the 

one and the same Lani Guinier featured in the current issue 

of Esquire magazine? 

A. Yes. 

Q. Would you describe the work you did concerning 

the amendment to Section 2 of the Voting Rights Act? 

A, Well, I was the principal representative from the 

Legal Defense Fund to the leadership conference on civil 

rights which was organizing and coordinating the effort to 

extend and amend the Voting Rights Act. 

I was involved in drafting bills, in helping to 

prepare testimony of witnesses, in researching the law, in 

providing information to members of Congress and to 

senators and to their aides, in reviewing proposed 

amendments and researching the potential effect of 

different language. And I would say overall Ela I spent 

over a year of my life working ten- and twelve-hour days on 

  

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the extension effort. 

Q. There were certainly other lawyers involved in 

this effort with you, such as Mr. Derfner, to an extent; is 

that correct? 

A. That's correct. 

Q. How many other lawyers in the United States would 

be approximately as intimately involved with an effort to 

pass the amendment to Section 2 of the Voting Rights Act as 

yourself? 

A. Perhaps four and maybe five. 

Q. Can you name those? 

A. Armand Derfner, Frank Parker, Laughlin MacDonald 

and Joaquin Avila. 

Q. Ms. Guinier, would you tell me something of the 

experience that you and the Legal Defense Fund have had 

attracting private attorneys to take on representation of 

plaintiffs in voting rights litigation? 

A. This has been a big problem for the Legal Defense 

Fund because the cases are time consuming and expensive. 

For example, in this case, I had originally proposed a 

budget to the Legal Defense Fund that I had to almost 

double before the end of the case because of the amount of 

  

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expert testimony that was required, the amount of money 

that was required to produce the exhibits for the court. 

And it is very difficult to find private attorneys who can 

sustain a private practice while engaged in expensive and 

time consuming litigation of this nature. 

In addition, the area of voting rights is a very 

specialized area. There are not many attorneys in the 

country who know anything about it and the statutory scheme 

is so complicated that it intimidates many private 

practitioners from learning the law. So at one point, in 

fact, the Legal Defense Fund had a conference in an effort 

to recruit additional cooperating attorneys in the area of 

voting rights. And as a result of that conference, we were 

able to find a few more lawyers who were willing to take on 

the cases but not as many as we had anticipated. 

Qs Have you been successful in attracting pELoLHBYS 

from what I would characterize as main line established law 

firms, that is who have regular fee-paying clients to take 

on plaintiffs' representations of civil rights cases on a 

regular basis? 

A. No, in fact I don't know of a single law firm 

that meets your description that is working with us on a 

  

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regular basis on voting rights litigation. 

Q. Is experience necessary for an attorney to handle 

this type of litigation? Could a young lawyer, first or 

second year out of law school, conduct this type of 

litigation? 

A. No, not in my opinion. I think the statute is 

complicated and it is not a statute that is studied in law 

school, so the only way a lawyer could become more 

experienced in the voting rights area would be to 

apprentice himself or herself to a more experienced lawyer 

and work on a few cases. 

Q. Would you describe briefly the historical efforts 

that LDF has made to develop and attract a Civil Rights Bar, 

if you would, around the country? What have been some of 

the efforts in the past? 

A. Originally the Legal Defense Fund was so 

desperate to find local lawyers willing to handle civil 

rights cases that it started an internship program where it 

recruited lawyers right out of law school to come and work 

at the Fund for a year or two and then it helped to 

subsidize their practice for the first five Senet, 

providing them with a library and with some financial 

  

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compensation on a yearly basis. And as a result of that 

effort, we did develop a network of cooperating attorneys. 

Two things, however, have happened to make that 

effort less successful now. First of all, we no longer 

have the internship program because we no longer can afford 

the internship program. And secondly, the lawyers who 

developed a relationship with the Legal Defense Fund as 

result of the internship program and who have been in 

practice for a long time have, in many instances, moved 

to more lucrative careers in the judiciary, in academia 

by associating with large commercial practices. 

So the situation which the Legal Defense Fund 

finds itself now is something that I would describe as 

almost of crisis proportions. 

Q. Have ghe various attorney fee award statutes 

associated with civil rights statutes, such as with Title 

VII on the Voting Rights Act or Section 1988, been 

successful in attracting competent, experienced counsel in 

a stable Civil Rights Bar? 

A. No. The delay in payment, even with the 

understanding that if you prevail you will be in a 

situation to present a claim for attorney's fee,     
    

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discourages most private practitioners from engaging in 

civil rights litigation. 

Q. Ms. Guinier, the plaintiffs are requesting 

compensation for approximately 2400 hours of time in this 

litigation. Do you have an opinion whether that total 

amount of time appears reasonable to you for handling this 

litigation? 

A. Yes, that time seems very reasonable for a 

state-wide reapportionment case, particularly a case such 

  

as Major versus Treen, which was one of the first cases to 

interpret both the constitutionality of Section 2 and the 
CN wr 

standards for applying Section 2. i 

In fact, I have been engage “= 

reapportionment cases in which lawyer 

have spent substantially more time thi< 4 

Jingles versus Edmonston case, for ex 
  

lawyers have spent over 3500 hours in 

litigation. 

Q. You mentioned that you were lobbying or working 

with the passage of the amended Section 2, that would have 

been during the winter of 1981-1982 and into the spring of 

1982. Did you bill any of that time to the Major versus 
  

  

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discourages most private practitioners from engaging in 

civil rights litigation. 

Q. Ms. Guinier, the plaintiffs are requesting 

compensation for approximately 2400 hours of time in this 

litigation. Do you have an opinion whether that total 

amount of time appears reasonable to you for handling this 

litigation? 

A. Yes, that time seems very reasonable for a 

state-wide reapportionment case, particularly a case such 

  

as Major versus Treen, which was one of the first cases to 

interpret both the constitutionality of Section 2 and the 

standards for applying Section 2.   
In fact, I have been engaged in other state-wide 

reapportionment cases in which lawyers for the plaintiffs 

have spent substantially more time than 2400 hours. In the 

Jingles versus Edmonston case, for example, the plaintiffs’ 
  

lawyers have spent over 3500 hours in that Section 2 

litigation. 

Q. You mentioned that you were lobbying or working 

with the passage of the amended Section 2, that would have 

been during the winter of 1981-1982 and into the spring of 

1982. Did you bill any of that time to the Major versus 
      

  

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Treen litigation? 

No, I did not bill the State of North Carolina 

of that time. 

Or Louisiana? 

Excuse me, the State of Louisiana. 

Was the passage of Section 2 an important and 

integral part of the effort concerning the congressional 

reapportionment of Louisiana? 

A. Yes. In fact I would say that the passage of 

Section 2 was our life line as far as prevailing in this 

particular case. 

Q. And to your knowledge, is it customary work for 

lawyers to represent clients before congressional 

committees and in lobbying efforts to see that their clients’ 

interests are recognized by Congress? 

A. In my experience, yes, it is customary that they 

not only represent their clients but that they get 

compensated for the time that they spend in legislative 

advocacy. 

Q. And in all of your time around Capitol Hill, have 

you seen these privately-retained lawyers s2vshains their 

clients' interest?     
  

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A. Yes. 

Q. Are you aware of any significant stipulations of 

facts that you were able to enter into with the defendants 

in this case? 

A. No. 

Q. Did the conduct of the defendants' case in this 

litigation in any way short circuit or help lessen the 

amount of time that would be involved in proving the 

various Zimmer factors, for example? 

A. Mo. In fact, I would say that the positions 

taken by the defendants caused us to spend additional time 

in responding to numerous arguments that they put forward 

to the court. 

Q. You have requested, Plaintiffs have requested for 

you, however you care to phrase that, a noncontingent 

hourly rate at $160 per hour. What knowledge do you have 

to justify such a rate for a person of your experience? 

A. The rate of $160 an hour is based on both 

published and unpublished sources that reflect the market 

rate for attorneys practicing in New York, who are out of 

law school approximately the same amount of time with the 

same type of experience that I have. 
. 

  

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29 

It is based on conversations that I have had with 

some of my contemporaries from law school who are now 

partners in some of the major New York law firms. And it 

reflects a very low estimate of the market rate that 

currently prevails in New York for attorneys out of law 

school ten years. 

In fact, the range that I am familiar with of 

billing rates for attorneys with comparable experience is 

$150 an hour to $210 an hour. And the figure of $150 an 

hour will be going up to $165 an hour as of January, 1985. 

In addition, the rates that the New York lawyers 

charge their clients, which I have just alluded to, are 

simply the floor that is used and the rates are enhanced to 

reflect specialized effort to reflect experience of the 

particular lawyer involved. 

And finally, the law firms often build in a 

premium to their bills, to the final bills that they submit 

to their clients, that reflect the complexity of the 

litigation, the difficulty of the litigation, the delay in 

payment, the contingency factor, whether the lawyer had to 

go out on a limb to represent the client and whether the 

lawyer was pursuing novel legal issues. 

  

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So the $160 an hour rate is, in my opinion, a 

very modest reflection of New York rates currently 

prevailing. 

Q. We have asked that the court award an enhancement 

of that noncontingent rate. What factors in this case and 

your work in this case, in your opinion, justify an 

enhancement of the noncontingent hourly rate? 

A. The fact that when we started the litigation 

everyone told us that we were going to lose, that we were 

assuming a great deal of risk in taking on this litigation 

because it turned out to be much more costly than we had 

originally anticipated and we have yet to be reimbursed for 

any of the time or monies that were reasonably expended 

this case. The fact that the issues of first impres 

since the Voting Rights Act was passed in June of 19 

the time during which we were preparing the litigatic 

during which the case was tried, there were no other 

three-judge court opinions that dealt with, I should say 

three-judge court, or Court of Appeals or Supreme Court 

opinions that dealt with the legal issues that we were 

applying. 

So I would summarize by saying the complexity of 

  

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So the $160 an hour rate is, in my opinion, a 

very modest reflection of New York rates currently 

prevailing. 

Q. We have asked that the court award an enhancement 

of that noncontingent rate. What factors in this case and 

your work in this case, in your opinion, justify an 

enhancement of the noncontingent hourly rate? 

A. The fact that when we started the litigation 

everyone told us that we were going to lose, that we were 

assuming a great deal of risk in taking on this litigation 

because it turned out to be much more costly than we had 

originally anticipated and we have yet to be reimbursed for 

any of the time or monies that were reasonably expended in 

this case. The fact that the issues of first impression 

since the Voting Rights Act was passed in June of 1982 and 

the time during which we were preparing the litigation and 

during which the case was tried, there were no other 

three-judge court opinions that dealt with, I should say 

three-judge court, or Court of Appeals or Supreme Court 

opinions that dealt with the legal issues that we were 

applying. 

So I would summarize by saying the complexity of 

  

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31 

the litigation, the time consuming nature of the litigation, 

that fact that we assumed the case on a contingent basis 

against the advice of many other experts were factors that 

justified an enhancement. 

0. That would be an effective hourly rate of $320 

per hour if the court grants our motion. Would, in your 

opinion, that be adequate to attract private attorneys into 

this area of practice and to represent plaintiffs in voting 

rights litigation? 

A. It would certainly be an incentive, but I do not 

believe that it would be adequate because of the delay in 

payment factor. 

Q. In relation to Mr. Vick's questions concerning 

Busbee versus Smith, isn't it true that the whole burden of 
  

proof in going forward changes in a Section 5 case as 

opposed to a Section 2 case? 

A. Yes, that's absolutely true. In a Section 2 case, 

the plaintiffs representing the class of black voters bears 

the burden of proof. And in a Section 5 case, the 

jurisdiction that is making a change that will affect the 

rights of the black plaintiffs bears the Susie of proof. 

Q. In fact, did I understand you to testify on 

  

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direct that you relied on the Busbee case virtually, or to 

little or no extent at all, in your post trial memorandum 

and proposed findings? 

A. That's correct. 

Q. What is the significance of Major versus Treen in 
  

terms of its precedent, what has proven to be significant? 

A, Major versus Treen has proven to be a seminal 
  

decision cited by almost every court that I am familiar 

with that has reviewed a claim for relief based on Section 

2. It was one of the first, if not the first, case in 

which the court found that Section 2 was constitutional and 

it has been widely cited for that proposition. 

It is also the first three-judge court case that 

held under the new Section 2 that plaintiffs could proceed 

despite Section 5 preclearance from the Department of 

Justice. And that particular issue is a very important 

issue for minority voters where the Justice Department 

cannot be relied upon to enforce the provisions of the 

Voting Rights Act. 

Q. You had a very well-respected opposing counsel 

and now federal judge, Mr. Feldman. Do you have any idea 

whether he appreciated the significance of this litigation? 

  

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A. It is my understanding that Mr. Feldman concedes 

the complexity and difficulty of this litigation. In fact, 

I understand that on his application to be a federal judge, 

he listed Major versus Treen as one of the ten most 
  

important cases that he had litigated in his career as a 

practicing lawyer. And I believe, in fact, that he listed 

Major versus Treen as first in that list. 
  

Q. Another area that I understood some of the direct 

examination to be focused towards would be the proof of a 

history of discrimination and a historical context. Is 

that an integral part of a Section 2 case under the Zimmer 

white factors as well as the so-called straight Bolden 

case? 

A. It is an integral part of a Section 2 case. It 

has been an integral part of both dilution litigation and, 

in fact, the Senate report, which describes in detail the 

relevant factors that plaintiffs should try to prove in a 

Section 2 case, lists the history of discrimination as one 

of the seven most important factors. And I believe it 

lists it as either the first or second factor. 

MR. MENEFEE: That's all I have, thank you. 

MR. VICK: I just have one question in conclusion. 

  

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EXAMINATION BY COUNSEL FOR THE DEFENDANT 

BY MR. VICK: 

Q. In spite of the nay sayers who you consulted with, 

these experts and others that you consulted with, that said 

that this was a difficult case and perhaps impossible to 

win, you were confident that you could win it surely? 

A. I was hopeful that I could win it and I was 

certainly prepared to put in the necessary time to do 

whatever I could to effectively represent my clients and to 

ultimately prevail. 

Q. All right. Now, Stanley said in answer to that 

question, or phrased very closely to the question I asked 

you, that once you had put on your case that he thought 

that you had it won. Would you agree with that? 

A. I wouldn't say that once we had put on our case, 

I felt that we had it won. I felt we had done a good job 

when we put on our case. And I felt that our case was 

assisted in some ways by the defendants' case when they put 

oh their case. But I was still concerned, I think, about 

two things; one, that we were before a three-judge court in 

an issue that had not been resolved, so that we were in 

some ways testing new legal theories and pushing the law. 

  

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35 

And secondly, I was particularly concerned about 

the prospect of appeal which, in fact, the State of 

Louisiana indicated that they would pursue even if we did 

win the case in the District Court. And, indeed, after the 

three-judge court decision came down, they did file a 

notice of appeal. 

Q. Which we subsequently abandoned? 

A. That's true. 

MR. VICK: All right. I think that's sufficient. 

I think it is somewhat ironic that some of your unknown 

opponents; namely, me, were perhaps more optimistic than 

you. 

THE WITNESS: Well, I am sorry that you were not 

representing the State of Louisiana. 

MR. VICK: Thank you. 

(Thereupon, at 11:39 p.m., the taking of the 

deposition was concluded). 

  

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112914.1 

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CERTIFICATE OF DEPONENT 

I hereby certify that I have read the foregoing Pages 3 

through 35, of my deposition testimony taken in.this 

proceeding and with the exception of changes and/or 

corrections, if any, find them to be a true and correct 

Ne ol b 
Oar vu hn 

LANI GUINIER, ESQUIRE 

transcription thereof. 

  

(22 [sy 
’ DATE 
  

CERTIFICATE OF NOTARY PUBLIC 

77 Ek 
Subscribed and sworn to before me this the ol 7 

  

day of A deonter 
  

(ot   
Fomagt BOLIC TH AND FOR 

i ; Ph 
My commission explres: 

TH A. REED Eo H Don 

Cuniflsd in Wes sor County( 
Coianiission Ei ‘March 30, 19.44 

  

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