and also i was wish to thank you for the defendants do and you're taking these cases thank you very much issue here is to enforcing that in green that agreement is there as i understand this rez redwood is not claiming entitle me to a contingent he that's correct  capps the costs that will or were recovered go to reimburse miss redwood's litigation expenses mr capps i think they one hundred dollars of the five thousand he said he would pay but there's no issue about about seeking to enforce t contract this is not one of those cases where there's a settlement like a class action settlement where there's a settlement in the court awards fees and then the lawyer takes money from the name plaintiffs that's not what happen conclusion that because of these perceived ethical violations miss redwood should not receive any fee at all we take issue with the fact that this case was referred to chief judge reagan  in a district court and on this court are generalists and that you can't pick and the court can't pick and the defendants can't pick and we're not saying they did which judge particular matters go to it would have been very simple for congress to say if we get an expert in medical malpractise sitting as a district judge all medical malpractise cases should go to that district judge if we get an expert in police matters all police case you should go to a district judge we get a judge who's an expert in antitrust matters every antitrust case you've got a bad shot that isn't the way our system works we rely on random assignment mr flaxman there was no objection to this referral in the district court was there that's correct you've argued no objection was needed be on the theory that this is jurisdictional that does it also i think you've also though acknowledged that the chief judge or at least the for example a motion for recusal could be referred to another judge and why would that not be jurisdiction in a similar jurisdictional problem that's not a necessity i can decide my own recusal motion well if you feel that it would not be served the appearance of justice to decide and to reach usual motion you should not sit on that you settling cases and that's why he should decide the case is no rule and i'll tell you i'm sure some of those concerns are just i'm not sure how rigidly rule bound the practice is but you raise a serious concern well  does doesn't want to adopt that we can just caution district judges to have a rule before they transfer motions from one to another like in the northern district if i could ask you what it was like to northern district of illinois and as a rule the absent necessity as there would be in a recusal motion or else there would be if the judge became ill and wasn't sitting for two years while he or she was recovering then it would be the whole case would be transferred to the other judge and the judge could decide if you're taking on a substantial aspect in the federal judiciary and with regard to your ability to do things that aren't particularly written as rules or orders you know if if somebody had been able to cite a case other than this case where one judge had referred a motion to another judge because the budget you speak to cuellar expertise in that matter of we would not be raising that argument judges referring at settlement and i mean that's what settlement saumur to but that's not permissible unless there's consent of the party to engage in x party communications that's in the code if you just saw responsibility i wish you would call it something else i think it's when we talk to one side and you call up the attorney and you say you know you should settle you're going to lose a trial the judge is going to rule against you on feed you're being stupid at that sort of thing i think he said motion he committed he should have said no fees can i ask you just a few things about that point mr flaxman let's focus on where the money and i was i was troubled by ms withdraw the request for forty percent of the damages no snow at that that's that's i think that's mystery in the here and she never wanted the forty percent she always agreed that that goes if she took the forty percent she can satisfy that lean the lean was for twenty something dollars such a thousand dollars let me back up a little bit because there's a in this kind of a case there's a huge risk for the courts to basically judge by hindsight particularly in evaluating these these these fears remains that have to be entered into up front and i'd like to get your perspective if i could on how one deals with the uncertainty i kind of categorize that you can you have cases that are going to be in successfully for a plaintiff early without a whole lot of hours in them and that take years with lots and lots of hours right yes you do this for a living you know how to deal with with these kinds of problems and i'd like  just explain these problems to us how you protect yourself and your client in those situations in which you know there could be a quick settlement for a lot of money and very little fee very very little lawyer time there can be very little money and a lot of lawyer time or maybe a lot of both or very little of both but you do that well the way some will use deal with that is to say we're only going to take civil rights cases where there's death or catastrophic injury we're not going to take a case like mr capps case this we can't make any money in that we got to what we've got to find a solution for cases like this though well if there is no solution because what happens and i see this every day is we do work we spend money we're getting ready for trial and we have fifty thousand dollars in time the defendants offer fifteen thousand dollars to settle everything including feeding the prices i want to settle and  we say you know i think you get more but will bite or eat our fees we're not going to will take the hit in this case because we'll make it up another case or we were a factor in the risk of loss and wasting more time doing the case but in this case there wasn't the settlement offer that the client want to take mr katz that i want indication i want the jury to tell these cops they were wrong to tase me they were wrong to stand by i want to judgment against and i want them to p out of their own pocket which you achieve to some to some degree with the punitive damage award that the defendants if they really wanted a kept their fee exposure could have made an offer a judgment under rule sixty eight which fourteen days before trial which they never did in this case i mean the reality is is that even what congress what what some people thought congress intended back in one thousand nine hundred seventy six with the fee act hasn't really come to if the warriors willing to back off of that contingent fee in the event of a lot of hours of statutory doesn't that deal with the uncertainty up front only in the cases that involve death a catastrophic injury if i have a case where there's thirty seven hundred dollars in special injuries we're going to get a lot of money from the jury especially as as chief judge reagan said it would show use juries like cops especially in federal court especially outside of even more so out of the northern district than in the northern district the police help people who sit on juries they don't stop and frisk and harass and beat them up so it's a very difficult distance to  to try to do civil rights cases especially like miss redwood does who she's willing to take a very modest case that nobody else would take and take it to trial and spend money in motels and he said louis that the judge says well you can't get because i don't know you just up in your car and so i don't know what he said but but he would not give her the compensation for the hotel room i'm running out of time but i don't want to cut off questioning so i thank you thank you it please the court assistant attorney general sara hunger on behalf of the state defendants the district court here did not abuse its impression in terms of the referral to judge reagan was some appropriate action for in the ordinary course yes of course we would want the same judge to preside over both but that does not mean that it's an abuse of just gresham to use the judge's inherent authority to refer the fee petition where the judge thought that was necessary and i would also note here that chief judge reagan held an extensive hearing on the matter he also read as you said in the hearing and you know the record he read the entirety of the fee petition and he allowed counsel from both sides to speak on it and at the time of the referral no one objected to it you know they exploded and i you know what i think is the bulwark of the federal system is the random you know there is the random assignment of cases but where there where there is an assignment that goes outside of the normal course the normal initial assignment of cases that does fall to the chief judge and here it was chief judge reagan who assigned those matters and you see that you know if you look at the the southern district of illinois website you know there are administrative order where by certain cases are reassigned to different judges here however you know it was a referral and the judge rosen stangl in her inherent authority referred it to chief judge reagan and no one objected at the time and i think that's very important because everything was out in the open during the hearing chief judge reagan stated that he had the interest in the attorneys fees at the hearing and he also stated you know for looking at what he did in a more charitable angle he then went on to explain that he's also had section one thousand nine hundred three cases excessive force cases so one could look at that and saying the first attorney to get up after that and she did not of jack's she did not file a motion after the hearing i think that's a very important here you know in the ordinary course of course we would want the same judge to preside over the trial and the will did not state it on the record why she referred the case to judge wright and we have judge reagan's perspective as he said at the hearing but unfortunately we just do not know and i know as much as  here about wide judge rosen stengel elected to do that and it's simply not in the record i would note though that in the robinson case that was also a situation where the fee petition was heard by a different judge than the judge overseeing the trial and that was affirmed by this court so it's not unprecedented to do that even if it is not you know in the ordinary course now let me ask you one more question  case i think he was talking about the jury verdicts not inclusive of the attorneys fees of course of an attorney goes all the way through a trial they are going to have a significant amount of fees but that's separate from what the case is valued at in terms of what the client will get and here it was only thirty seven hundred dollars in terms of the medical bills and other special damages so in order to get it up to a six figure or you know actually asked for three point six million dollars that would be a substantial amount of punitive damages that would have to be assessed and i think it was not an abuse of discretion for judge reagan to conclude that that was an overvaluation of the case well how about the two hundred thousand dollar offer just before trial which was not a r sixty eight offer would not have involved any admission or a finding of liability right that's correct so that two hundred thousand offer was actually less than what turned out to be the value of the caesarean it was it was more than the jury for acts so know what it was much less than the jury verdict plus reasonable fees up to that time i would say that and without an admission i would say that it was comparable two hundred thousand compared to t fifteen plus thirty two thousand dollars you're in the same ballpark and it wasn't as though it was you know a sixty thousand dollars last year but you're talking about two hundred versus about two fifty yes but the offer was less and did not involve any admission of liability which was obviously very important to mr captured during it was and it is a distinct question though you know of course the plaintiff has the right to go to trial it is a separate question though whether the attorneys should be paid for that time under the  yes when they're ok when the last offer before trial is not a rule sixty eight offer and it is less valuable than the result of the trial yes if you look at the at the mariah t case that says that substantial settlement offers prior to trial even if they are not able sixty eight offers can cut off fees and in the context of the rest of it and what's the authority for doing that the authority for doing that is that it would have been more to thought well i think because we have the fear agreement and the record we do you know in their reply brief they say that miss redwood would have asked for that entire two hundred thousand dollars for herself which i think  is what you're describing is the typical defendants attempt to drive a wedge between plaintiff and their counsel it's available the structural lousy to do it but the system also has to have defenses in place against it and one of the defenses is in the way that those kinds of offers wind up being handled where the lawyer has a right at that point  you've got a rule sixty eight is a powerful tool if you're willing to admit liability and i don't see why you should get the benefit of that without actually going through the process well this court has held that it is available and in the it may be relevant but there also are lines of there are other lines of cases that call that reasoning into question and we've got to make it make the system work the way we intended to work what i think those other lines of cases so that if you have an offer that is does not satisfy the rule sixty eight provisions that it doesn't necessarily cut off so it's actually i think consistent the morality case with for example the cole case i would also note though that there was a post trial offer of three dollars this is after a trial that is after trial so it would have also included it was under rule sixty eight see how it was made are is the number three hundred thousand anywhere in your br dealing with attorneys fees after a verdict for why ability and damages i cannot i can just set it up with made following trial and even if it's not construed as a rule sixty eight offer the admission of  settlement offers that were going back and forth this report did say that it did not consider it and its decision which is why we did maybe we shouldn't either we did not focus on it but it was there since we were talking about the two hundred thousand i want to make you aware of that as well  comparison to the three point six million dollar demand when you look at the fact that she submitted a an eight hundred thousand dollars fee petition you have to take all of this into account you know i'd also like to clarify a little bit about the contingent fee award and what the case law says about it the supreme court has certainly felt that it is acceptable for attorneys to enter into a contingent fee agreement and civil rights cases because you do not know how the case will unfold as your honour's were just guessing earlier i would note though that in the supreme court case been a guest there was a mechanism by which attorneys can protect themselves and also have ha there was there was a provision in that for your dream and whereby anything recovered under the statutory fee would count dollar for dollar against the contingency so that is one example of it there is another way of doing it which would be that you know if a certain amount of fees have been awarded then the attorney is not going to seek the forty percent so we're not arguing that that that would not have been available to miss redwood and said the district judge here used it as one data point and kind of this broader scheme of how the case was litigated and how it is read what placed her peculiarly interests above those of her client  mr caps and i think he looked at the thought of them and offers as one example of those i think he also looked at all the motions that she filed which did not help his case out the overvaluation i don't use and all of that i understand i understand but the accusation little don't those are reasons to criticize a lawyer to reduce a fiord it's very hard for me to see how this kind of significant victory would warrant no ward at all so he didn't he didn't make five you know distinct you get five distinct reasons for it all of which are supported by case law you know the state is not commenting and has no position on the letter that he filed for us that is a separate issue from us but with respect to whether or not fees are warranted he did make numerous factual findings which were based upon the decisions of this court and the supreme court and for that reason and if you know the abuse of discretion standard does kick and you know simply because this panel might not have resolved it in the same way that he appeal operated in the way that she judge reagan assumed they operated he also you know stated with respect to the referral his special interests no objection there and i think that is within the district court's discretion and who held the hearing you know if the court disagrees with respect to the re man we would ask that they go to judge rosen stangl and ask her to put her reasons on the record if the court finds that necessary although we do believe that that was within her inherent authority to do so and that would theory that it was unreasonable to exclude to refuse the pretrial settlement offers which were much less than the verdict plus a reasonable fee it was the ultimate award that mr katz got of the thirty two thousand and no it does not say that it has to be more of course it is stronger evidence if the settlement offers more but there's also a very serious risk of if if turning down a settlement offer before trial as a basis for denying fees altogether there and when you prevail then there's a fear of serious risk of undermining of an already fragile system for civil rights of course there are but it  know the district court did base it on this court's decisions and this was not you know something that was taken from nowhere and dead base it on several of this court's decisions which are binding on the district court and he did are just so rights cases say you agree to assign to me any attorneys feel bored that's made by the court you agree not to settle that on your own as as the supreme court said you can do some lawyers say anything that's awarded in fees is a credit choice the percentage of the recovery you agree to pay me other will you say i want that over the forty percent that you agreed to pay me that was what close you for the court an need to approve that and there's a disagreement in the community about what's right and what's fair and this is also the first time that anybody seen a post trial will sixty eight motion a ten minute recess the court will be in recess for ten minutes