Fee Petitioner Shows How a Successful Fee Request Should Be Structured.
In Jochimsen v. County of Los Angeles, Case No. B223518 (2d Dist., Div. 1 June 23, 2011) (unpublished), plaintiff narrowed an excessive police force case down to one civil rights claim, won a difficult jury verdict of $35,000, and then won attorney’s fees of $311,218.26 (out of a requested $406,821.26, or a 23.5% reduction after fee petitioners recommended a 20% reduction). The unhappy County (who was likely funding the litigation as well as being one of the named defendants) appealed. The result was affirmed in a well-written opinion by Justice Johnson of the Second District, Division 1.
The fee petition proceeding was quite contentious, with lots of papers/objections filed with the lower court, and the trial judge was not pleased with the approximate $60,000 spent on the fee motion alone. However, the fee petitioners did provide the lower court with a good roadmap of how to successfully obtain a large award. Here is what we picked up from what was done below as tips for a good fee petition:
*Convincing the court that the reasonableness of hourly rates did not singularly have to be based on factually similar excessive force cases (although this certainly is a factor that can and should be used if available);
*Showing that the case was hard fought and expenses driven up by the defense moves in the case;
*Submitting affidavits of the party and other attorneys to demonstrate requested rates are in line with prevailing fees in the local community for similarly skilled attorneys–showing that the market for excessive force, contingency fee attorneys is one commanding higher rates up to $750 per hour (Schwarz v. Secretary of Health & Human, 73 F.3d 895, 908 (9th Cir. 1995));
*Using rate determinations in other cases, particularly those setting rates for prior award to plaintiff’s attorneys, as useful evidence bearing on selection of the prevailing market rate (United Steel Workers of America v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990); Margolin v. Regional Planning Com., 134 Cal.App.3d 999, 1005 (1982));
*Using a fee expert who made annual survey in civil rights cases and whose methodology had been affirmatively cited in other decisions;
*Showing that there was no “double counting” of lodestar factors, especially in a case where no multiplier was sought;
*Demonstrating that plaintiff’s case was a tough one such that a relatively small verdict was a successful result, given that civil rights fee awards do not have to be proportional to the eventual merits award (Harman v. City and County of San Francisco, 158 Cal.App.4th 407, 419 (2007)); and
*Stipulating to a 20% reduction for inefficiencies and duplication, which was pretty closely adhered to by the lower court as the ultimate 23.5% reduction.
BLOG UNDERVIEW–Plaintiff’s civil rights fee expert, who was found persuasive by both the lower and appellate court in this one, was Los Angeles civil rights attorney Carol Sobel.