Are Heller's Attorney's Asking for Too Much?
The Washington Post argues Alan Gura and the other attorneys who successfully challenged the D.C. gun ban are asking for too much money in seeking attorneys' fees. The fees sought certainly sound high, but I would be curious how they compare with the fees sought by attorneys in equivalent cases filed within the District of Columbia.
So, naturally, for the Washington Post editorial writers, this request for attorney's fees adds "insult to injury."
For people who respect the language and history of the 2nd Amendment the "insult to injury" is this: the Washington Post and the Left are seeking to weaken the 2nd Amendment and its status as guaranteeing an individual right - even after the landmark Heller decision.
The fees seem appropriate for several reasons. First of all, with a half-million people who reside in Washington, D.C. (not counting commuters), this works out to be $7/person for the enforcement of a basic constitutional right. Second of all, while citizens are not Fortune 500 companies, the fact remains that talented D.C. lawyers get paid for every case they take on, not just for the ones they win. Usually, lawyers in contingency fee cases charge more than their counterparts to offset the expenses from losing cases. (Such cases are part and parcel of civil rights litigation, no matter how carefully chosen, especially with a Court that often splits 5-4, and appeals courts judges that are chosen at random.)
While there were certainly many good arguments made in the Amicus Briefs, it would have been malpractice for Gura to submit a Brief to the Supreme Court that simply says, "I'll rely on all of the arguments which might be made in the Amicus Briefs". He in fact wrote a very clear and compelling Brief, which addressed head on each of the arguments made by D.C. Further, the fees sought are NOT just for the Supreme Court case; before he even got there, he had to: (a) file the Case in the District Court, and deal with all of the arguments there, including standing, ripeness, and the merits; (b) perfect and win the Appeal to the D.C. Circuit, including oral argument and responding to the en banc review; and (c) reply to D.C.'s Petition for Certiorari.
For all you who think the requested fees are "outragious", let me ask to to compare that fee request to what the various P.I. Lawyers requested and received in the SETTLEMENT of Texas, Mississippi and Florida's lawsuit against the Tobacco Companies -- $2.3 Billion -- yes, Billion, with a B, and that is ONLY counting Texas; the Florida legal team took home $3.4 Billion, and Dickie Scuggs (yes, the same Dickie Scruggs currently serving time for attempting to bribe a Judge) took home over $1 Billion for his part on the Mississippi Legal Team. In Illinois, that legal team which obtained a settlement against big Tobacco got over $400 Million, despite never taking a single deposition. Compared to the crooks involved in Asbestos Litigation, Class Action Securities Litigation, and the Tobacco Litigation, Gura and company are mere pikers.
1. Our requested rates are well in-line with the market. We have submitted a great deal of economic and survey data to support our rates. The DOJ's version of the Laffey Matrix is based on obsolete survey data and bad science, which lead to some fairly ridiculous predictions. Under D.C. Circuit law, it rightfully enjoys no special status as any sort of default. If someone thinks our rates are too high, that's a criticism of the market for legal services.
2. The Supreme Court has repeatedly held that exceptional cases warrant fee enhancement. Contingency enhancements are (wrongly) no longer available, but performance/exceptional case enhancements still are.
We're not making this stuff up. But when the abortion lawyers in Guam Society v. Ada, 100 F.3d 691 (9th Cir. 1996), give up their 2.0 multiplier, or when the lawyers for a transsexual police officer with a Title VII claim give up their 1.75 multiplier, Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), we'll reconsider. And by the way, when contingency enhancements were available, a 2.0 multiplier was the D.C. Circuit rule — which was thought to be too low. King v. Palmer, 906 F.2d 762, 767 (D.C. Cir. 1990), reversed, 950 F.2d 771 (D.C. Cir. 1991) (en banc).
[By the way, why aren't contingency fees available in Section 1988 anymore? The statute provides for a "reasonable" fee. In the market, rational people reasonably take higher fees when there is a risk of non-payment. If the idea is to attract lawyers to difficult, contingent civil rights cases, it's not much to offer a contingent payment of the same rates billed to cash-paying clients.]
3. The personal attack on our qualifications and the value of our legal services is beneath the dignity even of the Post's editorial page. Talk about sour grapes! The Post hates the Second Amendment, they think the D.C. Circuit and Supreme Court got the case wrong. Fine. I get it. They lost. Now get over it. What rates are charged by the three firms we defeated? (Read our brief, we have some data). The purpose of Section 1988 is to attract qualified counsel to difficult and unpopular civil rights cases by paying market rates. I'd put up our team against anyone else's — not to mention, our work product and our results. The Post suggests civil rights practice is some lesser relation of the law and only crappy lawyers should be attracted to the field. That view has been emphatically rejected by the courts.
If the city doesn't want to pay civil rights attorneys fee awards, it should stop violating the Constitution. So long as they view the vindication of our fundamental enumerated rights as "injuries," they will continue to pay.
The 2x multiplier is unusual - I know of few attorneys who ask for that. But in my experience, and according to caselaw on fees in general, it is common and presumptively reasonable for a to set hourly rates based on what attorneys of comparable experience, background, reputation, and competence in the jurisdiction command, and to multiply that by the number of hours spent if that number is reasonable. Attorneys typically provide evidence of their qualifications and comparable attorneys' rates in order to set their fees. Courts have a lot of discretion to adjust this but it is wrong for them to simply slash an hourly rate based on their arbitrary perception that another rate is "fair." And if the lawyer has the reputation, educational background, etc comparable to a big firm lawyer (I don't know if that's true here), he should be entitled to big firm rates, since that is the relevant market.
The DC Laffey matrix rates have been approved by some courts. But they fail to accurately implement these principles. The are arbitrary, in two important senses: (1) when they were created, they did not take into account the varying educational backgrounds, reputation, and competence of lawyers, but instead assumed that all lawyers of a particular experience level should command the same rate including the odd and unsupportable assumption that lawyers at any place within each experience band of 1-3 yrs, 4-7 yrs, 8-10 yrs, 11-19 yrs, and 20+ yrs all would command the same rate rather, and (2) the rates have been adjusted annually based on an inflation factor that does not seem to reflect actual changes in legal rates, which have gone up considerably faster than other indices since then.
As for the multiplier, under City of Burlington v Dague the contingent nature of the case can't justify a multiplier (though Adam K says above "It's not as if they took on this case ignorant of the risk that they wouldn't see a dime," that point used to cut the other way, in favor of fees, but doesn't any more). 2x is as high as I've ever seen a request for, and I'm not sure why this case is extraordinary in any way that would warrant it.
But as for the hourly rate, it troubles me that the Post is making a big deal about this. Although I have typically been involved on the plaintiffs' side of environmental cases, which many would say are correlated with a different ideological makeup than Heller, the principles are the same.
Our fee-shifting statutes underpin our citizens' ability to file citizens' suits to hold the governmental bodies to follow the law. And especially without the ability of federal fee-shifting to compensate lawyers for the risk of putting thousands of hours into a losing battle, awarding hourly rates for prevailing plaintiffs' counsel that match comparable private sector salaries is an important part of making those statutes effective.
AFAIK which is the "correct" matrix is disputable, there is some indica (court decisions) that the DOJ matrix is no longer considered valid and the adjusted matrix should be used, but I don't believe fees awarded under the DOJ matrix have been successfully appealed to be replaced with the adjusted matrix on that basis.
This should answer the question about how it compares to other DC fees (it says something that the DC courts have created a formula to calculate CR legislation fees). As for doubling, I didn't find the argument for doubling convincing and were I the judge I would refuse to double the fees although I am inclined give some bonus. Variations from the Laffey matrix rates are not exceptional, but as a rule fees are paid at Laffey rates.
First, look at the hours -- about 3000 for six years of litigation from district court through the Supreme Court against the DC Attorney General's office and small army of lawyers from O'Melveny, Akin Gump, and Covington. That hardly seems excessive.
Next, the hourly rate. As documented in our fee petition, $557 per hour is consistent with rates charged by attorneys of like background and experience here in DC. The Post implies that only "megafirm" lawyers should get that rate but it never explains why. Our credentials are just as good (indeed, Alan and I both worked at "megafirms" and Bob has a Ph.D), and so was our work product. So why shouldn't we get the same rates?
Finally, there's the multiplier. Fee enhancements for "exceptional" results have been approved by the Supreme Court and are not uncommon in other civil rights cases including ones involving police brutality and abortion. To win Heller we had to convince the Supreme Court to overrule nine federal circuit courts and the D.C. Court of Appeals, not to mention fending off the SG's unhelpful attempt to get the entire case remanded. We certainly received tremendous help from various amici -- for which we are immensely grateful -- but it wasn't all sweetness and light. If Heller doesn't constitute an "exceptional result," then it's hard to imagine what would. Reaonable minds can certainly differ over the proper amount of the multiplier (or even whether there should be a multiplier at all), but it hardly seems unreasonable to ask for a big one given the circumstances.
Finally, consider the District's post-Heller behavior: refusing to license semiautomatic handguns, reimposing its silly trigger-lock requirement in slightly altered form, maintaining unnecessarily onerous registration procedures, etc. If the District displayed such brazen recalcitrance in response to some other civil rights ruling -- a few come to mind -- don't you suppose the Post might have been singing a different tune?
By way of comparison: how many million did Scooter Libby's friends pay for his defense team? As of his sentencing hearing in District Court, something north of $5 million, according to the Washington Post.
Here's an interesting sanity-check on the Post's position: would the Post ed board be carping about this level of attorneys' fees if Heller had instead been an equally-groundbreaking affirmation of First Amendment freedom of the press? I think we all know the answer. WaPo's hypocritical position on Heller legal fees is entirely the result of the ed board's disdain for the outcome.
Thank you very much Mr. Gura and Mr. Neily. I should add that as a DC resident and supporter of the Supreme Court's outcome (otherwise a bleeding heart liberal - hey, I gotta be armed when the revolution comes. lol), I disagree with the doubler - but won't cry if you guys get it.
Those hourly rates in particular are quite reasonable and significantly less than senior people at my (very large) firm charge their corporate clients, and I'm sure my firm's rates are not out of line for a firm of its size.
And here's a particularly dumb point in the editorial:
Mr. Gura and his colleagues claim the $557 figure is fair because it reflects the going rate for District lawyers who have the same number of years of experience as they do. But this does not take into account the fact that these lawyers are usually with Washington megafirms that have Fortune 500 companies as clients -- and that even these companies get discounts from those astronomical rates.
So since I have less money than the prevailing lawyer's usual clients, I shouldn't have to pay as much for his attorney's fees? What kind of argument is that?
Is that not correct?
Gura, if I am correct, is a 2-3 person shop, but his legal ability is as good as any megafirm. Just because he does not have all the extra stuff that Skadden might have in their overhead - does not mean that value of his work should be less.
Possibly, but I would check to see whether one may levy punitives against DC. You cannot against the federal government.
A lawyer friend of mine told me when he was in a megafirm he billed at $525/hr. Now he bills south of $300/hr in a 2 man group, yet his takehome is approximately the same because of lower costs. His work is the same to clients, presumably, but I assumed his value might be less because it is harder for get input from specialists in other areas of law that are no longer just down the hall; because he has less ancillary staff to run Lexis searches; etc. Is this discrepancy not true in most cities?
Multipliers are the only way civil rights litigation can be sustained against governments who can outspend most any wronged client. That's before you get into qualified immunity too. The deck is unsurprisingly stacked in the government's favor.
-Gene
(My guess on the first question: nothing from attorney's fees, even though 40 states introduced new legislation in response to the decision, because you lost at the Supreme Court; funding would have been from private, libertarian- and conservative-leaning sources. Hence the need to ask for higher fees in these situations.)
I would think that if one side of the coin is that you get nothing if you lose, the other side would have to be that you get 2x when you win, or else your expenses quickly overwhelm your revenues. But maybe that's just because I took more math classes than law classes.
It helps compensate for the risk involved in a way that incents lawyers to take on those sorts of cases. Whether doubling is the appropriate amount of compensation is a separate matter.
As for the amount of fees spent, I primarily work in construction litigation, and our common cases of average complexity easily chew up $300,000 to $400,000 in legal fees through trial. Though there are problems with this comparison, as a rough measure, I think it's likely that a major constitutional appeal is "worth" 10 times a common construction contract litigation case.
Furthermore, DC knew the risks for attorney's fees going in (just like Heller's attorneys knew they might get goose eggs) so I don't see why any of this is a surprise.
On the WaPo story some commenters mention that DC tried to bankrupt Heller (taking advantage of the disparity between several mega-firms vs a small shop). I have no clue if that's true but if it is then the fees make even more sense.
A real newspaper would have presented some supporting facts. It might be interesting, for example, to compare Mr Gura's bill with Exxon-Mobil's fees for the Baker case. Exxon-Mobil's general counsel would have been delighted to have paid Covington and O'Melveny a mere USD 3.5 million. [The American Lawyers says that Exxon's legal fees were as much as USD 60 million *per year*.]
There are only a handful of "superstar lawyers" at "megafirms" who argue Supreme Court cases for "Fortune 500 companies". They don't discount for arguing a Supreme Court case, they get a premium. If the case is a big case, they get a big premium. If they win they get a big, big premium. A grand an hour for those guys is cheap.
On the other hand, even if Mr Gura doesn't get a penny, he can (if he wants) live very comfortably off the Heller litigation for many years. When those Fortune 500 companies get into litigation over a few billion dollars, they like to be represented by a winner.
Someone asked how one gets hired for pro bono cases like this. Same as uptown: By winning other cases.
[I've seen this from both sides: I'm a partner in a firm that does Supreme Court litigation. I've also been the client (the officer-in-charge at a non-profit) in a case that raised significant constitutional issues. Within a week of filing the suit, I had offers of pro bono representation from lawyers with a total of more than 50 Supreme Court arguments. As one of them said to me, "The free stuff is advertising to Exxon."]
I will say that while it isn't improper to ask for a multiplier and to up your rates to prevailing market, often times these fee motions have a bit of an "opening bid" quality to them and are then cut down by the courts. And transexual police officers aside (Mr. Gura is being a little nasty in choosing his examples of cases where multipliers have been applied), the caselaw confirms that in most cases, a multiplier is not appropriate and the fees actually incurred are reasonable.