verdict finding that two sheriff's deputies committed excessive force and also that their sheriff ratified their conduct after the jury rendered its virt decision the district court granted a motion for judgment as a matter of law as to the with the background counsel that we're here talking about a reduction in your fees correct well we're talking about the fact that the district court took away the middel liability and then decided that i'll give you plenty of time to get to that what we're really a very important piece and one of the reasons we pursued if i can refine it this way your original request was for nine hundred fifty thousand dollars i actually believe it was more on the order of eight hundred approximately fifty thousand dollars eight or nine in the district court that amount was reduced to four hundred fifty thousand proximately yes and do i understand correctly correct me if i'm wrong there's no dispute about that reduction well your honor part of that reduction was based on mon el speaking about attorney's fees part of the decision to reduce the fees was based on a determination that there was not complete success i think the judge used the term limited  goal of the case of what it vindicated and why this is socially valuable work so we can avoid menow and to look at mel we have to look ratification on the subject of ratification the jury was instructed using the elements of this circuit's model instruction nine point seven in finding that sheriff smith ratified the deputy's conduct the jury necessarily found you take her deposition in the deposition of we did not nor nor can i say that we would have been permitted to by the county and then there wasn't any you never got a affairs file you don't have an internal we have no idea what it was that she complained about what was investigated all we have is a letter saying it's not sustained or exonerated as against the office well your honor i would disagree with the  notion that we don't have any indication of what she complained about because the the evidence i don't see why did you did you ask for the internal affairs i believe we got some of the portion but we also have her testimony we have the facts of that she made the complaint from the hospital after being treated for a cut to her face the bruises to her body i would say that's part of the problem i'm having  is there was very little actually introduced at trial i mean there may have been extensive discovery here but this was what up to witness trial which your honor i think is to the credit  recognized we had what we needed to get the jury and we rested well if you've got a mono claim against the county and the sheriff is the final policymaker with regard to a determination of use of force claims i'm somewhat surprised that the sheriff the position was never even taken and that you didn't introduce whatever it was that you got from internal affairs so we'd have some inkling as to what it was that you complain about well i guess your honor i think we do have an inkling we have the fact that she was not what evidence was presented at trial it was we're not here in summary judgment right the evidence presented at trial was the outrageous conduct of the officers that was videotaped there were video yes your honor she didn't say at trial what she complained about internal affairs not specifically but that is the issue right and i believe the jury could have reasonably under the circumstances is kind of a leap that your honor i don't think it's a leap if you're beat up you go to the hospital to be treated for your injuries you call internal affairs and then the other side the county doesn't come in to say well this is actually what she complained about but i thought her complaint was racial profiling that the only reason the officer stopped her in the first place was that she was asian female she there were several things that i think admittedly several things that went wrong with that stop however i think the critical piece here is that it was videotaped the videotape begins with the officer swearing at the motorist and if in turn yet but there's no indication that she heard that well just have i thought it was rude but yeah so so here's what i'm getting at you have a video recording of an officer swearing at a motorist twice pulling her over under at least disputable circumstances engaging in what a jury unanimously found to be excessive force under these circumstances if internal affairs is reviewing that all they need to do is put the tape in the recorder and press play and see what happened except for that their review would depend on her complaint and we don't know what her complaint is so that's the big problem we don't know what was ratified allegedly by the sheriff well so we know that the death tell us what was exactly it was excessive force it was the use of force which the sheriff found to be proper we understand that we understand what the jury found i think we're struggling with is proof of ratification or proof of gratification then we're not we're looking at something slightly different we're just looking at the latter that's that's the only piece of evidence that was before the jury to  of well so if we're talking about what was the subject of the i investigation i think again i think there was enough there where if the deputy isn't interviewed we know deputy force was an interview so all they would have had to go on and it can you point me in the letter of july twenty ninth two thousand and fifteen how i can determine from looking at that letter what it was that internal affairs investigation there they are approving the way that this was handled they are told that was not my question point me to the language in the letter that will answer my question as to what it was that internal affairs investigation what typewritten name of lori smith sheriff by sergeant paul mcallister of internal affair that's you know i mean you know and i know enough about ranks and police departments to know that sergeants are kind of down conclusion that sergeant mcallister apparently reached as reflected in this line if we say yes that she ratified it sheriff ratified we don't know what the sheriff ratified and that's the issue for me and that's why the greater context is so important because it's what happened it's the fact that it was recorded it's a fact we know some kind of i investigate in allegedly took place and if if they see what was recorded which we i think is a reasonable inference if we if they see what's recorded that came to their attention and they approved it they approve the way they say this letter says  we approve this letter constitutes a complete and thorough approval of the actions of the sheriff's deputies in this circumstance i would analogize this in medicine they call it an incidental finding whatever they're looking at if i actually conducted an investigation if they actually looked at what happened they would say maybe she complained about one thing but hey we've got two officers who engaged in x i think we understand your  that point before you run out of time tell us what your complaint is about the reduction of the fees down to three hundred fifty thousand do i have that right that's correct your honor and you can begin by telling me yes or no did you really have five the lawyers waiting around for the jury verdict i don't know that we had five lawyers and there i was there there were nine questions from the jury is a very active jury were the five lawyers from your firm there your honor i would want to be careful about recalling the number zero one three the trial team was there the trial team trial teams how many three lawyers multiple places to reduce the lodestar based on simplicity of the case and then after the fact of a dish no reduction this is where we get the eighty five thousand dollar reduction and a piece of that is due to simplicity of the case and you run any risk of us reducing them further no because for a while for one thing i appreciate that your honor that's near and dear to my heart but for one of the question we're not we're not going to lose men now again so to the extent the judge reduced our you know fees because we didn't get all of our causes of action that's not going to happen and then in addition to that with the eighty five or so thousand that were reduced  that again was because of the double counting so what we would ask is that if the lodestar be restored and not reduced because of the alleged simplicity of the case or increase it on the other end as to the eighty five thousand i have to tell you what bothers me about this case is that at least as it was tried this case is about as simple as it gets the arresting officer and the plaintiff in a video and you spent almost a million dollars litigate this case well your honor what's what's so complex about this claim that it required a million dollars to investigate and prosecute again it p m k depositions we took the expert depositions we successfully kept their expert out of the case that would have been another expert or another witness testifying again nine jury questions  the case was reopened for closing argument well a lot of motion practice a lot of dealing with subpoenas so that i mean it gets a little bit the complexity question i think do you want to save some time for rebuttal i would thank you thank you  morning your honour's may it please the court i'm michael shear very and i am the attorney representing the appellee santa clara county couple of factual things to clear up chang's lawyers deposed investigation was deposed by plaintiff's counsel there were two other p m k deputies depositions with respect to county policies and county discipline they also  deposed the involved arresting officers deputy forrest and deputy strickland if you're going to allege that sheriff smith ratified an unconstitutional act you need more evidence than testimony from the plaintiff that she made some complaint to internal affairs and a vague letter that she received if there was a writing signed by sheriff smith exonerating the deputy's use of force or even specifics from chang at trial as to what she complained about the specifics of her complaint who she complained about we might be in a different place but they made a tactical decision at trial not to ask those questions of their client who did you complain to what did you complain about who did you complain about what did they do to you those are all very simple questions that they chose not investigation when she received the letter which was page one fifty nine of the of the excerpts the letter doesn't have deputy forest's name on it deputy strickland's name isn't on it and it doesn't reference excessive force or any topic that was specifically investigated chang herself admitted at trial that the letter doesn't even say who was exonerated and contrary to the  set forth in their brief there is nothing in the letter that forest was exonerated for using excessive force when the off the signatory of the letter the sergeant she was deposed you told us that r sergeant mcallister signed the letter did in her deposition did she say what she was investigating when offered a trial is that it was i do not recall in her she was on the amended witness list which is that s t r thirty seven there we had a joint witness list start to mcallister was on that list again the plaintiff made the decision white did the lodestar reduce the nine hundred seventy to four thirty five i believe then he looked at the overall success on the merits he looked at the issue that they didn't prove to his satisfaction that they bypassed other work or that there was other work that they they couldn't do there and then thing that i've read his decision we obviously there's one thing in the curtain if i'm wrong that he did not mention and that's the difficulty in proving this kind of case well specific facts but i've been doing this for twenty two years and we've probably really have several hundred excessive force cases go on sometimes we send them back sometimes we affirm the grant of summary judgment but and occasionally i talk with the district judges after the cases of gone back to the cops always win i would say ninety five percent of the time the cops w because those juries get jurors get in the jury room and they say these guys are out to protect us why should we whack them so why not include in the conclusion about the type of fees how difficult these cases or to prove in some ways sort of resilience if you will for the fact that you take on for every loser you have maybe you get one two and winners the difficult to these cases how difficult they are to win and how infrequently plainest do we know that is not expressed in his  nine and that is a consideration i believe in the eighty versus c h p which was a district court case two thousand and thirteen w l six one nine nine five seven seven judge ilson wrote that opinion in both of those cases courts recognize especially in the c h p case that the plaintiff had an uphill battle in those cases and recognized the difficulty that that they had to persevered and also took into account the roadblocks that for lack of a better term the defense counsel posed in those cases but we didn't have that in this case your honor we didn't file a motion to dismiss we didn't file a motion for summary judgment we didn't raise qualified immunity we didn't even have a discovery motion i think you've answered my question about was what was or was not included in his  in damages that initial bad language it's unclear whether she heard it or not but from the moment they approached the car in their entire dealings don't hit me again or i will have to take you into custody she hits him again don't kick me don't bite me i'm astounded they were able to win there's nothing in the fico accumulation that talks about how difficult this case was to win again your honor there is nothing in the feet calculation that talks about how kate how difficult should there be well i wasn't as confident going into roughly placed her up against the hood of the side of the vehicle roughly and took her to her car so you know this is this was a case that needed to be tried this is a case that both sides tried but judge white's opinion really focused on the simplicity of the case and that has and that the entire event for the most part was and not really your honor i mean it's a it's a simple you know our position is that the judge did not abuse its his discretion when he when he reduced the lodestar from four hundred thirty five thousand to three hundred fifty thousand which we think for a forty thousand dollar verdict is is quite adequate and it and it's not so low that it would discourage lawyers from taking these kinds of cases but on the other hand it curbs the or discourages the inefficiencies that judge white took into account in reducing the nine hundred seventy thousand that they originally requested and that took into account all of the trial work and then the fees on fees for the various motions and costs so that's all i've really got on that your honor ok unless the pain unless anybody has any further questions well i think thank you answer questions thank you thank you your honour's difficulty of winning should be considered by the district court and it should have been considered here judge hawkins is absolutely correct these are difficult cases the public as a general proposition will believe the officers and yes we had the video but the video obviously reasonable minds may differ over what the video says or what the video shows we think the video the live testimony when it's taken together  clearly these acts took place and an aspect of the medellin i haven't given up on the mel liability yet an aspect of that is no one talked to deputy forrest and after  this all transpired at trial that the forest testified when i asked paraphrasing whether he was a little rough with dr chang he said my conduct was absolutely acceptable and that is consistent with a the policy was that spoken by deputy forrest on trial before you ran out of time let me ask you a question that can either be answered with a yes or no and that's all i want in your fee application and your motion for attorneys  appealing about leaving out the parse well thank you your honor the other aspect of this and looking at the circumstances i think the judge commented on the fact that there was no other evidence  that deputy forrest was a problem for the department and the judge had excluded the evidence said he was a problem several years before this incident i think about seven years before this incident that he had arrested a woman fitting the description of dr chang and we ended up resolving our firm ended up resolving that case for a settlement of three hundred thousand dollars and we learned that deputy forrest was not reprimanded he was not trained further in any way i thought the issue there was whether there was a misidentification it wasn't wanted proof so he rest of the wrong person went into our office and arrested won't be retrying that issue it's more along the lines of when the court is saying there's a failure of evidence and we're you know blue in the face saying that there is evidence we just can give it to the jury well the question is is there relevant admissible evidence not that was kept out versus evidence at this court to determine was not relevant and was overly prejudicial i understand your honor ok thank you both very much like a thank you very nice job and he returned for the day