today because of the fact that the defendants made a fatal error in opposing a few petition they did not file any affidavits of showing that the market rates were two hundred twenty five dollars an hour arguments and operate well i don't know that are all that clear haven't we said that if there is an objection challenging the reasonable ness you know there's there's no need for an affidavit and bell versus united princeton you can make it in a free if you don't have to include an affidavit bellis quite know your honor only because if you go a little further in that opinion briefs are not evidence of the facts asserted well that's if the objector wants to raise a factual issue as to the billing rate as such not generally as to the reasonable this is not no you know i think our case law is all over the lot and the district court may have done ok job by finding something that seemed reasonable i don't know i mean on the one hand your client didn't didn't offer what is a market rate in the community she had an affidavit of her own rate and one other person's whose experience was the same so did she did she meet her burden of showing a comparable reasonable market rate in the community which is clearly the  absolutely by submitting an affidavit attesting to the hourly rate that lawyer bills supported by someone who is does the same work comparable work in this court looks at the comparable legal services which is the land case so but the person had much more experience don't you have to find a compared to someone in the community who has the same experience of you when you say ok i get three hundred this person gets to ninety this person gets three twenty we've all been practicing the same amount of time i mean it puts a big burden on plaintiff but doesn't the case law require that now because of the fact i had this same experience as attorney taylor we do the same work in the last four years who has tried the majority of civil rights cases in the middle district for scranton i would argue it with it's me not attorney taylor but so the district refined dealers here it's wasn't in the district court was wrong there because this this court in washington specifically said that marketplace billing is a factual question which leads back to your earlier question and the court had no discretion to lower the requested rate unless the other side provided affidavits showing that the radius to twenty five there was i submitted in my reply brief that a male lawyer who is only been practicing six years lower than me was able to get three hundred dollars why should i not be able to get the same rate having practiced twelve years and i'm having more experience more trials more case filings do the district  decide this case using the right procedure now they made legal error based on what the you say the right procedure is in which case the ports ok well i'll go to athens ok quote this case presents an unusual situation unlikely to reoccur and that the port authority failed altogether to challenge the request a great had the port authority medics obligation to contest that rate in a timely manner and might well have been able to did you say you did absolutely where is it in the district court's opinion that says that i didn't establish that it was all based on length of service which this of course my point is that the district court used the wrong procedure  not at least acknowledging what you had submitted in the form of your affidavit in the affidavit of the other counsel to establish at least what your position was my thoughts on the matter is that would say you showed that your rates are in line with those prevailing in the community for similar services by lawyers reasonably comparable skill experience and reputation by offering one other comparative or this court has never  the that there is comparable skill experience and reputation and that's a very interesting point i'm glad you brought that up because the fact that in lanny this court says quote a current market rate is exactly that a reasonable rate based on the currently prevailing rates in the community for comparable legal services it doesn't say comparable legal services with x amount of years well the but the supreme court has said reasonably comparable skill experience and reputation so i'm just i'm just quoting supreme court and there's only a handful of us that do civil rights case in the straight and wilkes barre area there is unfortunately here in philadelphia many people who do this type of work that are very skilled as alice ballard you know carmen matosi but we don't have that in scranton books very unfortunately so manners on both sides are little bit fuzzy of the what you have to do and also what the defendant has to do i mean we do have law that says you know if the defendant objects then you know the judge has to decide and you know what's the judge supposed to do ask for more more evidence from you or look at the rate you got before the rate you're asking for now and come up with something that in her discretion you know seems fair given what she's got before her i mean it at some point  judges are should be permitted to you know find the right rate based on what's before them and yes what's before them there was no affidavit it's into question a hourly rate you specifically said in lanny that historical rates are not what you judge and actually say we conclude that the district courts use our store gold graduated scale to calculate  did state that and it's not an abuse of discretion so i don't have a hard battle because bank thankfully to the case law that supports my position which is hourly rate is something that we give no standard was applied here because of the fact it has to be based on the record and the record the only affidavits that were in was the three hundred and my colleague who charges higher than me three seventy five we do the same work we do comparable work ask you about that that's that's where you supplement it later you told us that right it was mailed exactly the same experiences you when you got more yes he yes he got my question i mean there was that sent to us in the first instance this record never got to consider that it was the district and it was the same judge ok so that wasn't part of the record of no it was not because it just was an opinion issued and i stumbled upon it and to my shock if i can't do it after if i can't get the rate of three hundred after twelve years of experience how can someone with only six years if you're looking just on experience to me i think if you're really good at six years out you should get the top dog rate win because you're good when i can provide a factual basis well i would disagree with that because that was the one nine hundred ninety two case lanny which is night was just two thousand and one by this circuit specifically said historical rates are not how you should assess the factual issue of whether what the hourly rate is but i'm i have to go back and look at what i thought that was a more generalized rather than me so civic lawyers rate in a case that broad case you absolutely and unfortunately i wasn't successful your honor you had the case you know be it as it may i'm here because this one is clean perfect for your presentation because the fact that hourly rate the district court cannot use its discretion to lower it if the judge had given you to seventy five it probably wouldn't be here kind of close enough you know did she have to give you three hundred dollars absolutely because that's what the record shows in why should a man if three seventy five but yet a woman can't get less than three hundred when you do the same work i don't think that was the issue was it man versus woman is that  raised before us and before the district where that's a they're very different issue well i but what's a radiologist engine between the experience levels which is what district courts do look at this you look at this and it's not apples and it's apples and oranges i mean we just record judge i make those judgments all the time and you're telling me that even though it's different i have to say apples apples you have to say apples why you can say apple oranges but to say apples oranges they have to file a affidavit which they did not do in this case and because of that because in mcdonald this court state we also relied on the fact that statutory fee litigation is adhir so adversarial litigation and as such there's no need for the district court to reduce a fee on its own initiative so it just looks on their own initiative that you're talking your prima cases were to sue a sponsor a raising by the district court and that is absolutely correct this defendant had been silent and just done nothing that judge remember would not have had the authority to do something but here they objected they said wait a minute to fifteen art we'll hear from you know murdoch i don't think you jumped right she jumped right in this is a defendant's request was it was too hot didn't and i jumped right this second part as opposed to valuate in the first part well she does say the district court does say in its opinion at page four it it talks about the positions put forward by plaintiff's counsel relative to her years of practice her years in human resources and the comparative evaluation with that of the affidavit of attorney diller who was submitted in support of that so in that sort dovetails with what i was going to say next which is essentially and i think each of your honor's have pointed out it already that the initial burden is on the plaintiffs on the plaintiff and plaintiff's counsel to present sufficient enough evidence of a reasonable market yet market rate for what the hourly rate should be unless and until the plaintiff carries that burden and this court has repeatedly encountered such situations where that has not been done and until plaintiff counsel or plaintiff carries that burden than the defendant and the court for that matter need not go forward or difficult to phone to determine exactly what the district where did she said i have this evidence of a reasonable market rate she seemed to be satisfied that that what had been presented had to do with a market rate didn't find fault with the plaintiff for failing to pr that she took it and then just pulled out of the air the two hundred twenty five i don't think she pulled it out of thin air first what's the bait what's the basis for the two twenty a couple of things  the standard is that there has to be a showing of comparable skill in the community and this court has said one of the things that the court must consider or should consider is the experience and skill as compared to lawyers with similar experience and similar to how different were they very different attorney diller would which was the only other affidavit offered in support of the great request had fifteen years more experience had tried fifteen years more more i had tried proximately ninety cases i think it may have been eighty six at the time the affidavit was submitted in more than that the lowman matter where in two thousand and eight which was at the time contemporaneous with with with the case that is presently before the court had already established  that would is appropriate in the community not just for lawyers of similar skill and experience as pointless counsel but for plaintiff's counsel how do we how do we you know look at this though without standard is in the middle district first and foremost i think the court has properly noted before that that matter was never raised in the court below so i'm not sure that is of what she raised in a reply i got i mean it's there it is it's there i don't think i think the issue of gender is is not based in fact or upon the record i believe it's forget gender let's say it was another woman in time who got is that yes doubt whether we have you know reasonable market rates or i mean it seems like something's going on here that maybe nobody's really looking at what lawyers really get or maybe there's a disparity and we need to figure this out well first of all there were two sets of lawyers in todd one that actually was trial counsel and one that had previously served up to the point of trial and then took over on appeal i have the benefit of knowing that because we represent the county and todd so you paid that bill to not get one of the firms involved in that had considerably more experience they were a firm of  i think a father and two sons and the principal in that firm has considerable experience in civil rights litigation in addition to that  you have to look at the lewis case cited by the district court in that case they established a reasonable market rate and i think it was raised somewhere during the plaintiff's argument about how do we determine what the appropriate rate is for somebody of considerable skill there was a lawyer in lewis that had my belief thirty six years of experience since  had had tried and in the court had found it was highly highly skilled not just skilled but highly skilled and he only got three hundred dollars an hour here and with no that the district court did the only thing that it could do it weighed what was put in front of her and made the determination based upon the standards that this course says that this court has set out time and time again that before you get to the issue of what the defendant has to do in opposition to a fee petition or a reasonable rate that the burden has to be carried and i think that's essentially and it may not be crystal clear in the opinion but i think that's essentially what the district court was saying look you came to me you asked me for a rate and then you offer me a rate or an affidavit of somebody that is totally uncool in an comparable when the standard is it must be one parent significance of you folks not filing oppose the request for a reasonable rate by affidavit earlier by brief we didn't just make that up we followed what this court has said time and time again in addition to that if you look at if you look at the united states supreme court's decision in black  regions there's some guidance there as well in that first of all let's distinguish one from this case in the sense that in that case the the level of experience was not what was being contested in that case there was a reduction in the hourly rate but issue wasn't the same as what's here here is a comparison of what the relative level of experience was  but the court does go on to say and not only in that case but in others that that it reiterates the fact that it is plaintiff who has to get over that initial burden before the defendant has to come forward with affidavits or anything cases is that the rates are set by court order it's not like a client is charging someone and therefore in the market get x dollars because they're necessarily the civil rights cases so it's almost like you know what one court says becomes the market until someone else is something else and you never sure exactly what record was before the judge and then times like a moving target  think i'm not saying i disagree with you your honor but the truth of the matter is the parameters one with that within which we operate are cast upon us and so we deal with what it is so it may be at some point somebody much smarter than i will come down with a much more delineated method of calculating that but until then this is what we have and this is what judge rambo had and that's what she did and was completely that the billing rate has some significance so doesn't i'm sorry doesn't one's billing rate have some significance to the ultimate decision even though in these cases it's a fee shifting by court the part of what mr pollock or any other applicant needs to show is what their normal billing rate is for this type of work i know would have what has to be shown as it is that it's reasonable in the marketplace exacts not that necessarily if i had to say that my normal billing rate is eight hundred dollars an hour correct that i don't think the court should be then say all that you know if if that's what he normally charges and that's what he gets the question is is it reasonable when you consider not only what my level of experience is or my level of of success or or nonsuccess in cases of these types as compared to the community it with  which we practice are you saying the billing one's normal billing rate has no relevance i'm not saying it has none i'm saying it's it would it may have none when you consider the other factors in the community it could have none it could have some it's impossible to say in the case that before you your honor it has absolutely no really know why she picked that number well i'm not sure that all being the reasonable rate where we're to that number she says at page three of her opinion she talks about the lewis case in which in which a lawyer from the harrisburg community was given three hundred dollars an hour she evaluated that matter she looked at the lowman case also at page three of the opinion  achieved the three hundred dollar threshold who was highly skilled she also took a look at the lemon case which involved plaintiff counsel she went on at page four to consider but plaintiff's arguments regarding her own skill level with all due respect what more was she to do that's exactly she was it she is charged with considering the evidence of record not making generalized determinations under this court's precedents and she did not do that she considered the evidence of record that was put before her it's not up to her to it's up to the district court to to make the record it's up to the plaintiff and so if there was a failing here  it lies with the plaintiff not with the defendant aside from aside from an attorney's resume is a factor as well the judge's own perception of how skilled the lawyer was for the court other words the district judge watched the entire trial and i guess assessed in her own mind how how skilled each attorney was that a factor i don't think know that it would be a factor in determining the the hourly rate obviously under the johnson and the the other twelve factors that that exist we had as your as you know from reviewing the record we had made other objections at the time at the district court to the relative success of plaintiff's claims for a further reduction of the amount that was awarded i think in that regard the court not any further questions your honor i think not thank you the district judge in this case did not oversee the trial we had trial in scranton and then the case was transferred to judge rambles so she did not ever experience me and the court room or what not but it still wouldn't matter even if she did because of the fact that the hourly rate always goes back to the affidavits and in specifically randell you wrote and readily whereas here  the plaintiff has met his prime with a ship burden under the community market rate lodestar test and the opposing party has not produced contrary evidence contradictory evidence the district may not exercise its discretion to adjust the requests to great downward from here they did point to the fact that you've got a much lower rate in another case so that contradictory evidence of not no it's not because in order to have it you have to do it affidavit and i think that's the cleanest way the district court can resolve these issues unless there's going to be a community survey and says you know educational motives in other courts if not for the hourly rate because of the fact it's based on  and i would never be able to get above to fifteen to twenty five if we looked at what i made two thousand and three what i was awarded it's certainly with each year that passes which each day that passes one gets more experience and i did do the appropriate thing file my affidavit which went unopposed and might be owing rate is three hundred dollars all of my clients sign a fee agreement that says that that reasonable and they're ok with that certainly in order for the court to lower it to twenty five there is there is no affidavit that says all the market rate is to twenty five and that's what i think it was necessary in order for the court to do what it did in this case and  the inexperience as counsel has said with me versus attorney taylor read both do the same comparable work we both do civil rights work which is more  strenuous and what not but we both do it we should get the same pay i have twelve years at this point over twelve and i have a masters in law in trial advocacy how does that not ever come into play i have or certificate from gerry spence his trial lawyers college i don't know what more i could get in the next ten years that i'm practicing that would ever get me to a point where the court would recognize that three hundred dollars that you give to a man with six years less experience is what you should give