honors mr lee except in a whole sixty eight offer that said that he was accepting ten thousand and one dollars plus reasonable tourney's fees expenses and cost to the date of this offer the language isn't  a discussion that the that was left on the table and i think that we offered it alternately the number was seven thousand dollars apart or so and i think that's correct yes your honor we offered some amount and he i think that was a reflective of our attorney is ours i think that the parties got together they negotiated until a point where there were several thousand dollars apart and at that point play had an option he could have either gone to the court saw further feel sought sort of a resolution or they could have continued negotiating the only operation of the sixty eight though is that it cut off any well that's exactly what we do in any case we negotiate the attorney's fees after that point the rule sixty eight offer settled the case and left the reasonable attorney's fees and we were reasonable as a district court found as a matter in this case we were offer and it cuts off fees on fees that means that what the plaintiff's attorney can then do and is can go to court just like he did here and seek judicial resolution of the finnegan of the fee amount of the reasonable tourney fee up to the date of the offer and the court can then assist if the parties are unable to come to a resolution if they're operating in good faith that's what happened here they operate in good faith they come to the table and they're unable to set the amount the court can assess what the fees that were crude up until the date of the offer and award them that's exactly the right and i'm not saying you acted in bad faith but i'm saying what he's supposed to do when you submit a bill for thirty thousand dollars in the city says will only give you but i think that exactly what the ultimate number they got to before they went to the court was higher than that i think that that was the entry so just that that smacks of unreasonable perhaps once they saw the amount they got down to a closer number but more to the point that puts the same that puts the litigant in the same shoes as everyone who didn't get in the american system which is they b their own costs for the feel of occasion with the rule sixty eight offer of judgment gave mr louis well mr nine hundred eighty eight fees were cut off as did the offer mr lee accepted ten thousand dollars and one settlement in it is as part of that he waived any fees that would accrue after the data that offer and that was that was a right that belongs to him the supreme court said it merican in evidence that the court that the the civil right litigant owns those fees and he is allowed to negotiate those away in order to secure a more favorable settlement and that's what he did he took an offer for ten thousand and one dollars for this garden variety case and fees up until the day of the offer maybe perhaps thirty twenty to thirty thousand dollars worth whatever were in but that cut thousand and attorney's fees and then mr austin filed his attorney's fee application seeking more than that the court cut him down significantly and raise the number and planted a number right roughly in the middle and that's what a district court is but the question though is that as a legal matter that small section that little sliver fees on fees is not available is as part of the reasonable attorney's fee because that little amount was waived in the offer of judgment so competent attorneys like mr rahman to take these kind of cases and that's surfeit that purpose is served mr osman took this kind of case and has paid a compensated for all of the cost that he incurred in front bringing the case the question is w litigate but for the feeling again over over over the amount of fee that he would get up to the the corrupted i believe he would but i think the point is that the the small amount of money that we're talking about for the feel of a geisha and whether the city is bound by the offer of judgment which is a contract which is also entered with the court to act in good faith and to be reasonable and that's what the city was a reasonable i mean to be clear it's not that we think it's inappropriate and the big difference here is that what we're saying is that there's an abuse was part of that but what mr osmond's across the pond case is a complaint about the exercise of discretion something that's reviewed for an abuse of discretion what we're saying is that there was a legal error one that's reviewed to know about reading these contractual terms which clearly state the fees and fees are cut off and superimposing on top of it and a public policy concern appropriate in this context because rule sixty eight doesn't work in them without rules exist doesn't work in the civil rights litigation context if you don't allow the contract to be read as it as it has been as steiner case and  that works in this or kind of all of the law that's right whether to work fees and fees in this kind of a situation that's right and it is an error of law to allow the courts that have gone against us on this what they've done is they've ignored the terms the clear terms of the agreement and then they have said in equity that's what the court below here that said in equity it makes sense for me to nonetheless impose fees on fees but not only a few reasons we said in our brief that equity doesn't support that it's not support of a public policy to inject uncertainty into a settlement process which the supreme court has said in the process that applies in these kind of caught in this context but it's also it's unfair to everybody involved when what they've done is they've come to an agreement about what about how to resolve this case and then after the fact had the district court allow it enter a judgment contract issue right that's right i mean and that's why it's so inappropriate for the district courts to be changing the language of the contract to reflect a public policy concern that they've injected into it that i don't actually think is borne out by hundred eight whenever there are reasonable fees that are going to be determined and they have to be determined through a fee application there are fees on fees that are awarded i would not be specified in the contract it's not in the contract it's not in the offer the offer could read fees up to up to the present and any fees incurred in preparing for the application but it didn't the offer could have been phrased in a number of different ways but the way that it was phrased tracked the framework of section nine hundred eighty eight and implicit in that framework is that if there is going to be a fee application that's necessary in order to get the fees remember the  have to be reasonable just as the underlying fees have to be reasonable if the defendants through their intransigence make it impossible for an attorney to get the reasonable underlying fees and it becomes necessary thereby for the attorney to make the fee application then if the attorney does not get the fees on fees then the attorney is not able to get the underlying reasonable fees because they've been diluted with all of the  court not look to subjective bad faith vs good faith but look at this objectively as judge ronnie was mentioning if the attorney gets more through for the underlying fees through the fear location  then it was ipso facto necessary to bring the fee application and in that circumstance fees and fees should be awarded because without bringing the fee application the attorney could not have gotten the underlying fees that were owed to know that i'm on my own if i have to litigate this based on the language of the offer just know you're on i think the language of the offer and the only reasonable way to read it is a new one has to read a contract in the context in which the con the contract is made and this contract was made in the context of nine hundred eighty eight in the civil rights case tracking the language of section nine hundred eighty eight it says in the in the in the offer to the date of this offer how do you get around that because says reasonable fees to the date of the offer and if if one has to have those fees be done looted through a subsequent she application then one is not getting one's reasonable fees to the date of the offer one is getting  reasonable i know you're arguing that it wasn't but if we found that what the judge did in terms of reducing the hourly rate and and so forth and ten percent reduction was reasonable then that then you've got your reasonable fees up to the date of this offer haven't you well that's a separate issue which again but i mean the moment but you're saying somehow that that reasonable that in order to get reasonable attorneys   explanation set aside for a moment the rating issue if it the supreme court has said in produce v kenny a that there is a strong presumption that the lodestar represents the only reasonable fee so in order to get the reasonable fee you have to get it based upon a load store analysis now if it becomes necessary through the defendant's intransigence to or even if it's not bad faith but they just offer less th then one eventual a gets through a fee application but one does not get paid for the work on the fia application one is getting an artificially reduced amount for the underlying fees because it has been diluted through the unpaid work on the fee application and there's cases that have been cited in our briefs that state that fee should not be diluted in that way and that defendant should not be permitted  lurking here which is so you get this offer of judgment from your clients is ten thousand one dollars us i'll take it and then you say well gee but the offer doesn't let me get paid for any litigation of my reasonable there are always inherent tensions between attorneys and with regard to fees with her god text accepting any settlement offer whether it be under the rule sixty eight context or just a regular settlement offer but the reason why will sixty eight is such a powerful arrow in the defendant's quiver and why they make it so often early in the case it's because it cuts off costs including attorneys fees from the date of the offer so the and his attorney his or her attorney engage in when a rule sixty and offer is made is is there a reason both likelihood that if we go to trial and win that we're not going to be this offer and that is really the fundamental  consideration and whether or not you're interested kili diverge from those of your clients all the other words you know you clients is the ten thousand dollars i think is far i think it's a good settlement but you're worried you know i'm going to fight me over the thirty thousand dollars facts of the case are such that we might win a trial but not be the offer in that circumstance a good lawyer would recommend to the client that he accept the offer not only for his own interest but for the client's interest because the with them have to pay the defendant's costs from that point forward which if it's early in the case involves all manner of deposition costs and can wind up with a pyrrhic victory so that that ethical concern i think is really not that's not a predominating factor in the consideration if i can have just a minute to address the cross appeal issue  found that i had comparable experience and qualifications with the most experienced civil rights practitioners practicing in new york and that my qualifications and experience supported an hourly rate near the top of the range which was five hundred fifty to seven hundred dollars per hour in cases he cited from two thousand and eight through two thousand and fifteen the only reason that he reduced my hourly rate was based upon what he perceived as the relative simplicity and short duration of the case  lodestar because they already included in the lone star calculation being fully reflected in the number of hours recorded by council thus while the district court may not adjust the lodestar based on these factors it may use them to determine the reasonable number of hours the case requires this part of the district court reasoning in reducing the rate was that some of the hours were spent doing ministerial stuff like photocopying the ministerial is a separate issue  that reduction based upon that my argument on that is to the extent and i've only with regard to that aspect of arbor hill that would which judge walker of course offered we i challenge only it only on the most narrow grounds that aspect of arbor hill that would allow a court to evaluate the complexity of the case and setting the rate beyond that however the part of arbor hill that would look to how the actual market works my argument with regard to the ministerial claims is somewhat practitioners bill clients for whatever they have to do because it's an opportunity cost it doesn't matter if i'm writing a brief or arguing  argument or if i'm preparing a courtesy copy it's still hours i can spend on something else and it's also whined within the legal work that has to be done doing it also sometimes prevent screw  ups that that can be quite problematic and sometimes can't be fixed and it also can save time because sometimes it's just easier to do something oneself rather than delegating it trying to explain how to have it be done right include but are not limited to the johnson factors and then you multiply that by the hourly rate you get the lodestar and then at that point you can go up and down on the lodestar with enhancements and haircuts but you can't produce makes clear do that on air on things that are already also i think with the just very briefly on the on that haircut to be clear the district courts a magistrate judge is a very good under understanding when it is appropriate when it's not appropriate to use their discretion to cut into an attorney's hourly overall lodestar for a haircut when there's administrative amounts build so service a process the courts say maybe sometimes it's something that's more difficult to explain and delegate sometimes it's not but that's what the district court does and the distributor exercised its discretion it should get deference on that but unlike in the fees on fees it was an error of law and i think that there were a few points to clarify on that here i think counsel suggest that you could separate the reasonable attorney fee into two separate categories the underlying attorney fees and then the fees on fee and somehow the fee on fee would dilute or cut into the on trial an attorney fee is no these are two separate promises within that contractual language that contractually we can't support it because section nine hundred eighty eight which is the basis of the fee defines a reasonable attorney fee and that's from there that fees and fees as a part it's a it's all part and parcel of that same reasonable attorney fee and that reasonable tourney fee is cut off as of the date of that offered so i don't think that there's in the language to support the reading that counsel suggests i also want to clarify it just really quickly the actual numbers because i was a little bit confused at the earlier when the city's ultimate offer was fifteen thousand dollars and council ultimately asked for thirty five and in his fee application the court cut it down to twenty putting aside the fee on fee point so it's apples apples it's not that the court raise the amount that the city asked for that the city offered some very significant amount or that or this kind of landed right in the middle which is exactly what the district court's able to do so well illustrates how the producer factor poster do the arbor hole factors are meant to work that sliver of that was attributable to fee and fees though was error because it wasn't permitted and it