The Volokh Conspiracy

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Volokh Conspiracy

Lawyers' "Billing Judgment … Demonstrates an Extraordinary Dedication to Containment of Cost …"

"... and renews this court's faith in conscientious billing practices."


Not something you hear often. First, the legal backstory, from Chief Judge Frances M Tydingco-Gatewood (D. Guam) in Davis v. Guam:

This is a civil rights action that deals with the topic of self-determination of the political status of the island and who should have the right to vote on a referendum concerning such. Plaintiff—a white, non-Chamorro, male and resident of Guam—was prohibited from registering to vote on the referendum. This court determined the prohibition was a violation of the Fifteenth Amendment's prohibition of racial discrimination in voting and the Fourteenth Amendment's Equal Protection Clause. Because there was a clear violation of the Fifteenth and Fourteenth Amendments, the court found it unnecessary to address the statutory arguments presented by Plaintiff.

After plaintiff's substantive win (which is on appeal), plaintiff sought attorney fees under statutes that authorize such fee awards to prevailing voting rights plaintiffs and to prevailing § 1983 civil rights plaintiffs more broadly; here was the judge's summary:

This case has not been an easy one for counsel to represent. Due to the highly political nature of the case, it was almost impossible for Plaintiff to find local counsel. This was demonstrated by Plaintiff when he and Adams contacted a total of 37 attorneys, all of whom declined representation for various reasons—some defended the plebiscite; others feared for their safety and property if they took on the case; and many were afraid that public officials and judges would view them less favorable if they were associated in preventing the plebiscite. This court itself witnessed firsthand the emotions running high in its courtroom and outside of the courthouse as members of the public demonstrated their constitutionally protected right to protest. For local counsel Mun Su Park to take on the case when no one else would is commendable.

With a few exceptions as noted above, the court finds that the requested fees are reasonable and certainly, there is no "padding" of billable hours by counsel. Counsel themselves did not bill for all the work performed in this case. For example, J. Christian Adams of the Election Law Center did not bill for at least 73 hours of work. In addition, Adams billed in real time, instead of billing by every tenth or fifteenth of the hour, which is rare for this court to see. Michael E. Rosman and his team from the Center for Individual Rights did not bill for approximately 210 hours. Douglas R. Cox and his team from the law firm of Gibson, Dunn and Crutcher billed for only $ 215,489.75, a more than 50% discount from the full billable amount of $ 468,368.23. Park himself billed for a little over two weeks' worth of work for a case that lasted for over five years. Reasonable billing judgments were exercised by all of Plaintiff's counsel. The court also notes that counsel could have asked for a lodestar upward adjustment but declined to do so.

In sum, in this sensitive and highly political-in-nature case, Plaintiff's billing judgment—both for attorneys' fees and costs—demonstrates an extra ordinary dedication to containment of cost and renews this court's faith in conscientious billing practices.

Disclosure: I've known Michael Rosman for about 20 years, and I'm an occasional advisor to the Center for Individual Rights.