judge cote was speaking with the attorneys out the jury had gone for the day and she had said time limits for the trial and after the st she she then she made the following comment which i can drive she said you know she's calculating the time she said so let me get this is found at three hundred and twenty three of the joint appendix so let me give you a calculation of the time so far for the plaintiffs two hours and six minutes for the defendant twenty minutes obviously this was for a variety of reasons partly because the defendant is called on the plaintiff's case which is entirely appropriate and it was a slow moving examination mr libby referring to corps really as far as i'm concerned that is just fine i like the idea that new counsel you know can try cases particularly when you have such an expert counsel at your side it is a wonderful way to learn to try a case  expert counsel on his side was a mirror and but after this court reversed judge coats granted judgment as a matter of law mr lay it wasn't so fine for mr lee to have expert counsel  clinton county and in far bucko this court said because what happened was the plaintiff the district court judge said you know what the highest aurally rate in this district is x it was two hundred and seventy five dollars an hour but it's for discussion purposes it really doesn't matter and she said no no lawyer can go higher we can award a higher we a higher hourly rate and so this court in vacating the decision awarding fee said instead the inclusion in the case of a reasonable airlie fee with the prevailing market rate contemplates case specific inquiry into the prevailing market rates for counsel  similar experience and skill to the fee applicants counsel this may of course include judicial notice of the rates awarded in prior cases and the court's own familiarity with the rates prevailing in this district but determination of the prevailing market rate in the relevant community also requires an evaluation of evidence proffered by the parties that is not what judge coded she latched onto one fact and one fact only which is that judge coat looked at one factor only yes she does get to the degree of success which i'll get to in a nd which and to the exclusion of everything else she ignores every hourly rate that she cites called for a higher hourly rate for mr bennett and a higher hourly rate for mr lay she and she just really surprisingly because she's usually a very careful judge gets it all wrong so it's just it's doesn't make any sense that where attorneys who are recognizes as an experienced civil rights a lawyer with seven years more experience is not entitled to a higher hourly rate because in her view the case was simple and i'd be remiss if i didn't mention that the case was really not that simple what she means by simple it was not a lot of witnesses and a lot of depositions that's one thing but since you know she seems to completes and puts implicit time simplicity and complexity to the case but this was a difficult case which she erred in granting judgment as a matter of law just bear with me please i just need some water the recommendation of an hourly rate for jeff rothman who at the time had years of practice of three hundred and fifty dollars evans in two thousand and nine for two thousand and eight rate you approved an hourly rate of two hundred and seventy five dollars for david rankin who has who has just doing my math thirteen years i'm sorry five years less experience four years less experience than mr bennett but at the time those were rates were based on being a five hundred and fifty dollars based on two thousand and thirteen rates seven years later judge code awards three hundred dollars to mr bennett which is approximately forty five percent less this court can take judicial notice and judge sullivan while a district court judge has noted as have others that rates don't go down they go up over time and so how does judge cope reach this conclusion that case was that the case was simple she focuses on the amount of work that in her view needed to be performed that doesn't go to the hourly rate we've made that goes to the reasonable the hours expended we make clear in our brief that we disagree with this court's decision in lilly but we also recognize that it is the law but the lilly did not supersede the supreme court's  pronouncement in hensley or many of discourse pronouncements that the most significant factor and setting an hourly rate is the degree of success and for judge coat to say public interest litigation i have an active practice is well i'm looking at this decision i'm like why am i going to take on this case it sends a terrible message to the plane to civil rights civil rights bar to allow a decision of such a paltry hourly rate for someone of such experience to stand and there's one other thing i want to talk to just about as far as the hours is concerned i don't think you could get a more suffers from the same thing she says in my opinion three hundred and forty hours plus ten hours for fees i'm sorry i was on mute and i do have one question mr corrine brown the number of hours that the judge thought was appropriate was five hundred and fifty do i have that  right you know what judge i i'm not sure because i just focused on the number of hours for sears been to win which was three hundred and fifty including ten which includes ten hours we're not challenging anything judge coated with respect to paralegal time or associate i  so that three hundred and fifty dollars even if the rate was five hundred dollars an hour the number would still be two hundred and seventy five thousand and four the lawyers number of hours was the same you'd still be within the rate that the total load store the total award that would be i'm sorry did i want make sure i understand your question judge the question basically is suppose we found that the that you're right and that the hourly rate should be higher  think that's significant for a couple of reasons one i think judge would be hard pressed to walk back the numbers that she would that she herself has already awarded but i think it's also in significant that the hours that citi recommended not the early rates but the hours the city recommended represent a more accurate view of the work that needs to be done because while judge code obviously has an immense amount of  bench the city has a unit that just fence police misconduct cases and you sort of have at least one attorney you have a mirror image you know they're doing similar work they know how much work that they're doing to correct yeah and then they bring a attorney on as they always do which makes a ton of sense to have a nd trial lawyer i firmly believe it's crazy to try case by yourself and so yes i think the numbers would be higher if there's a higher hourly rate than what the city recommend obviously what the city recommends and the city's amount of hours but if you think you are correct as a matter of just math that if the rate i really rates go up but the hours remain the same then mr bennett when mr l a macro level this decision sends a terrible message to the civil rights party i hope i've answered your question i think thank you thank you r numbers higher than what the judge approved in this case more recent cases yes i don't think mr lee has a feel word where he awarded five hundred and fifty dollars an hour we cite a number of cases in our brief beginning at the get their beginning act page thirty one and thirty two judge woods in two thousand late two thousand and fifteen recognized that three hundred and fifty dollars was and was a reasonable hourly rate for an attorney with similar experience to mr lee that's five years earlier judge fell into also in two thousand and fifteen would an attorney with only six years of experience that's five less than mr libby and hourly rate of three hundred and seventy five dollars but no i'm virtually certain that there's no such other what i think this was mr lee's st published award an appropriate arrow amount of hours is because i had no involvement with the case my involvement started after the decision i've read the transcripts i think judge koch minimizes the amount of work that's necessary and i recognize that particularly when it deals with the amount of hours expended district court judges understandably so have tremendous discretion less so with the hourly rate because that's something that  we were urged the court to do is vacate and have judge coat utilizing appropriate hours and taking a nother look at how much she cut and to calculate the lodestar again judge code doesn't want to do it again i'm sure just america if you were as a district court judge it's got to be you know one of the least more and the least enjoy things to do as a district court judge is looking over time sheets i guess that's what is that's what law clerks are for the trial lawyer he handled all the evidence jerry issues and it was because of his skill and working hand in hand with mr lee that they got this tremendous result i mean how one hundred and eighteen thousand dollars is not viewed as anything but a tremendous result when you have a client who presented as difficult a case meaning because of who he was and his battles with alcohol it's just mind boggling i hope i answered your question judge accu very much at any yes the answer i would have to say yes at some point early on in the litigation in this is filled out in mr penrose and mr lee's declaration mr bennett was sort of moving well practice and and mr lead became sort of the lead counsel in the sense that he handled discovery disputes but mr bennett never stopped working on the case and then once  once judge koch resolve the summary judgment motion granting it in part she then scheduled you know i guess i don't know if it's scheduled i don't know what the final pretrial conference or conference but at some his personal difficulties succeeding at trial was immensely difficult to judge code exercising their discretion allowed the assisting corporation counsel to cross examine him with his history of alcohol abuse she made great use of that so again i'm so the but the answer to your question is no you can't take you not can you cannot take into account his personal situation but what you can do and what this court in or brazil think the day when he was he was highly agitated highly integrated and yet they were still able to convince the jury and what was a very rational verdict to ward one hundred and eighteen thousand  dollars and they understand i think the undesirability the case while it may mean certain things but i think it it's the degree of success and you if it's a really hard case to win that makes the success even greater and i think that's a that's so the answer your question is yes not because the person is a good or bad person but it makes the likelihood of success as compared to the degree of success that's a critical factor that makes it that much harder may want to follow up on some of these questions i had an event let's hear from mr paul i have just one question do i now put myself on mute i guess that would be useful ok thank you therefore spread between that hourly each of their effective hourly rate would be five hundred and fifty four dollars or two snakes mill argument that either eight hundred and nine dollars an hour or five hundred and fifty four dollars that is not a reasonable hourly rate factual complexity and the limited degree of success of the counsel argues that one hundred and eighteen thousand dollars in compensatory damages was a tremendous result there was an undisputed injury here of a tibial fracture  with an expert witness testified to the sixty day two thousand dollars of medical care that would be necessary to treat it i think i believe he suggested it would require a new replacement so not a tremendous result there was an undisputed injury and they compensated for that there was no conscious pain and suffering awards there were no punitive damages temple acknowledged the district court with a st hand litigation it's particularly well suited to evaluate the amount of time spent on the litigation and here judge code very carefully did back to set the amount of work necessary to achieve the limited bickering in this case to examine the particular hours extended with a view to the specific work product and she found the hours many of the hours duplicative and not necessary she noted that even when not counsel of record both counsel were billing for time on the case and that they met spent many hours consulting with each other in duplicating or viewing to others work and this is in the context of the fact that there were there was a total of ten individuals working on the case of attorneys and five paralegal looking at the litigation as an whole and having experienced from start to finish judge coat in her discretion record that would explain the disparity between the judge's statement that she would not award less than the defendants proposed and the amount that was actually awarded i really regret  to tell you that the answer to that is no and our trial counsel and our appellate counsel many of us scoured the record to try to figure out how that discrepancy occurred whether it was a math mistake or something else  we cannot find anything in the record that indicates but frankly there's no abuse of discretion and plaintiff makes no argument that there is but i apologize that we have no explanation for that discrepancy  no need to apologize i'm comforted actually because my look works and i also didn't step up you know as much work as you did but in a fair amount trying to see you know was there some place where a digit could be misread or a typo or some place where the defendants made some tuck elation that could have been construed as something else but it that we couldn't find anything either the other another question i have  is it a fairly common thing for a paying customer to hire a relatively senior lawyer who costs a fair amount and then to save on fees by having a less expensive associate or junior partner do a lot of the prep work and then the senior partner comes back and serves as principal trial counsel assisted by the junior lawyer isn't that like doesn't happen all the time absolutely here on earth certainly death not unusual arrangement but here i think in the context of watching this litigation from start to finish in the incredible duplication of effort and excessive billing and additional staffing that was added on to this case with three additional attorneys associates to support as well as well as our legal given what judge cote saw as the limited univers agree that if someone handled this case who was a partner at a big law firm and normally charged one thousand five hundred dollars an hour or something tried the case that there has to be a limit to looking at what this particular lawyers degree of experience and normal billing rates might be but is it does that mean that what you do because i've never seen this in our case was that what you do is you figure out like who is the least experienced least expensive lawyer in town who could possibly handle this case and award that hourly rate regardless of the level of experience and skill of the lawyers were actually handled because certainly not your honor but it was proper for the court to consider whether a reasonable paying client would be willing to pay for a case of this nature and the court looked to the prevailing rates in the district of other cases and independence project the southern district awarded four hundred dollars for an experienced civil rights attorney with practiced forty years and had hundred and thirty six dollars civil rights cases so the court was not finding the least expensive the lowest hourly rate that it could possibly award but instead it was looking at but nonetheless concluded and looking at prevailing rates in the district the three hundred dollars an hour was reasonable rate and that was a providence exercising her discretion ok that's all the questions i had thank you thank you judge m thank you first it is baffling to me how how anybody can conclude that seventy eight thousand dollars in medical expenses is not a tremendous degree of success so there was undisputed injuries ok well st the injuries were disputed if you look at the closing arguments of the city and nd if you lose is he doesn't get anything for those undisputed medical injuries if judge coats logic is just lost on me  that's why this case matters there is no civil senior experience civil rights attorney is going to take a case where they know the maximum is going to be three hundred dollars an hour and i this is the problem with lilly when you focus on this the complexity of the case yes it's a factor but it's not it's not the factor because then what happens is you're having to as you're injecting subjective intent as to whether a case is complex or simple or not those go to hours and and it really does just deprive plaintiffs like mr ortiz of their choice of counsel and so it's just not correct and i think judge lynch your point was a good one  concerning about you know why should why should the nature of the constitutional violation drive the law of the plaintiff's right to counsel and i don't mean it in a criminal case obviously you haven't made it last thank you then just just so i'm clear judge judge cote did not look at all the factors she says starting on page twelve of the special appendix the reasonable hourly rate for principle trial counsel in this case can be no more than three hundred dollars there are several considerations st this was a very simple one thousand nine hundred and three action she then doesn't discuss any other factors except that there was wasn't great success why this matters because one of the factors this has articulated an arbor hill about that court should consider is awards and similar cases mr if let's not kid ourselves when mr bennett puts in another fee application his next the application city is going to say three hundred dollars three hundred dollars three hundred dollars that's what judge cote said was reasonable and so then and the district court judges and i'm sure the city is not going to say well they really gave him a blended rate  of five hundred and fifty two dollars or whatever the blended hourly rate is going to look at this case going to see that judge cote awarded him three hundred dollars an hour other civil rights attorneys are going to see that they were three hundred dollars an hour that he got three hundred dollars an hour and they going to say really i'm going to take on a case that is difficult i think that's a better word than complex that's difficult because you know the client poses problems given his history and that's not right to the mr garcia ortiz's of the world thank you if there are any questions thank you very much absent any further questions by my colleagues who reserve decision and w