next case this morning is robert cady jr versus the borough of  action and on the johnson's factors in the court the supreme court was clear that the johnson factor so much no matter no longer matter it's all on the lodestar which is the hourly rate times the number of hours so it's clear that the johnson factors which the court used to reduce the the petition was erroneous based on the purdue case the second thing would be the  e sixty eight judgment it was not equivalent to what mr t achieved at trial he actually received a jury verdict form that he can take to any employer anything any time he has to go and his questioned about the fact that what happened to you back when you were at the power of done more and you were suspended we all read about it what happened back there we what was his ultimate judgment the value is forty seven forty seven thousand and the offer judgment was sixty thousand that's the end of the matter on the sea and that's where the court error money isn't everything an expression in civil rights cases because the fact that those are our most precious rights and to be been vacated and the jury of your own peers find that your rights were violated that is so important but that's all that happened in front of that jury where you got that verdict was to to calculate the compensatory the dollar value of the alleged act that's all that was that that verdict was for it wasn't the liability right because it's all correct a perimeter and that's right the rule yes but the rule of the the rule sixty eight after was no liability no damages there was a condition on it and that's what's in permissible but the case law seems to suggest that well maybe the circuit hasn't spoken that that that is one of the only sort of except stress exceptions you can have is you can make a condition on that would mission a liability this is i disagree only because of the fact that what would rule sixty eight they would be bigger than they should be they should be small and only certain if you can get jury actually awarding that these people violated this individual's right and they owe this amount of money so when this person goes onto his next job he will have this and can use that to say i did nothing wrong i was wrong can we talk about the sixty four point one and the smith case where there was the prior case where liz smith in the crash and who are allocated sixty four point one according to the district court opinion yes in this smith case can you walk us through how you think you're entitled to that sixty four point one year well my thoughts are that was the time i submit it in smith the court made a decision which was not appealed by i'm opposed in counsel that said sixty four g determination that sixty four point one was related to the matter so what is a in the reflected in our record because we we have only this record to the ok tell us how we would know that sixty four point one was reflected in the time sheets in front of district or indian and before us to that you look at the decision that was issued by the judge which is on lax as smith versus borough it specifically says sixty four one and the same  filings that i filed in d i filed them again so it's consistent and sixty four were allotted in that that appendix sixty four point one were allotted to d c so how couldn't i get sixty four one because the fact the court  decision a final issue i should say maybe an issue because and i would say it's already been determined you already said that i can't get sixty four point one because that's according to d c so why shouldn't i when i do have the d and i interaction between the sixty four point one that's overlapping and the other aspects of your feet petition and he requires an independent analysis has he no because of the fact that sixty four point one was already determined by that same district judge that those were attributed to d with that with the district judge of knowing when you came before the under five petition that when you did your time calculations a portion of your total was or included the sixty four point one here judge as the additional time after the smith case that goes to dion lee how would the district court been able to engineer this because the same filing was filed in both cases and i was you know prances sixty four point one i wasn't granted i was down i that and smith saying those times are clearly related to days that would exhibit a is in our in our record or exhibit and i will i think that's just so my time but  time there's two different time sheets well the first one is related only to de and then i filed the other one which was the same violence related to d and smith when i after that trial was great was three seventy five was the max i only requested three hundred there was absolutely no act the day of it's included in the record from the defendant stating any other rate so therefore by default the district court should have given me my rate of three hundred dollars can a court consider other vishal findings andriy for like attorney like type of case like geographic area like subject matter basically what historically i've been received in the past things change people get more experience they do different things that may make their rate go higher in this case the going rate is for ten mr dealers asking for four ten so one of my nature which i pad twenty six twenty eight trials at this point i still can't even get the three hundred which was the going rate way back when and if a rich rate that should be that i should get my rate i would bring my at the ends and then sell why three hundred is the rate that's good i think it was the way any case says that it's an issue of fact if someone challenges it in this case there was no not one affidavit challenge so where do you come up with a two hundred fifty which is just generalized what i should get versus what was in the record in the defendant's averred you had no evidence that you've ever been paid three hundred dollars an hour i have my affidavit that i was that my clients agreed to pay me three hundred dollars an hour i don't see what the greed didn't didn't the defendants put in that you've never been able to show you actually been paid by a client three hundred dollars an hour when you take contingencies unfortunately that is not you know you don't get an hourly rates you are be able to show but i filed six affidavits that sat in three of those gentlemen in the other case that i was able to file they all got three hundred dollars an hour similar due process situation there's no reason why i shouldn't get the three hundred dollars when the going rate is three hundred dollars so i did not it was only not only me i also had the three affidavits from the prior case as isn't why can't the trial judge particularly with the same judges take judicial notice of the record you know in another case in which the same councils involved well because of the fact is that a different time and so it wouldn't be relative to whatever happened in that case and certainly in a situation like this i am never going to no matter how many trials i try no matter how many degrees i get because i have a masters  law it doesn't change the fact that i'm viewed based on history at a lower rate than the gentleman who tried just first case and he was able to secure three hundred dollars now didn't didn't d's case run from july two thousand and five and til and cunningham and even the black grievance it's all you have to have affidavits that's how this is all determined on the record affidavit because the fact it would be it it's not fair if you can just  maybe you don't like me for whatever reason and you give me a lower rate versus you know you know my affidavit show that this is the going rate did you appeal that to fifty rate for  thank you miss paula was running rape i think it's always important to remember the standard that this court has to review that the result most of the rape and it's an abuse of discretion standard judge computer in his opinion delineated what the law was  a i think all those criteria have to be met it has to be the same attorney the same type of case a contemporaneous event and a panel of this court in the kerry case which judge peter cited to in his opinion again i think it's appropriate to consider that and so you don't take issue with the judge the district court here rejecting the case is your you cited your client cited and citing his own notion of cases to set a rate higher than the rate you advocate  that's actually a perfect example of how the trial court judge was using his discretion to render what was a reasonable rate he took the plaintiff's admissions arguing for a field ward of three hundred dollars an hour he took consider the defendant's evidence of record arguing for a fee of two hundred fifteen dollars an hour he looked at the pendant lee cases with gang contemporaneous same counsel same type of cases in which two hundred fifty dollars an hour had been rewarded and two hundred twenty five dollars an hour had been awarded and that two hundred twenty five dollars award was affirmed by this court in weighing all of those things together he came to the conclusion that two hundred fifty dollars was the reason two hundred fifty an hour w reasonable award in this case i believe that is within his discretion to do i don't believe it is appropriate for a if there's authority to overturn that decision in less there's clearly reasonable moving from the rape again backwards addressing the argument as it went before in the smith case the sixty four put four point one hours there i think the difficulty with that is counsel argues and i understand the the problem is we can't there's been nothing to show and we can presume that the fish eats for smith carried over exactly the smith and the same smith in the matters as did the fee sheets for d i know when i'm working on cases and i had there's multiple parties or there's companion cases sometimes you transcribe something to one one the client matter and not to the other so absent a showing and i counsel had an opportunity to show that  absent showing that those our those exact hours considered by judge bureau were somehow not attributable to the then i think his finding on that was cracked as well and again that is an abuse of discretion standard  on the rule sixty eight author of judgment the offer judgment was made in a timely fashion it was made for more than fourteen days before the initial trial the initial second trial was scheduled and was vindicated on this as your honor pointed out this second trial was soley on the calculation of damages and really comparing apples to apples offer of judgment with sixty thousand dollars plus an ability to push petition the court for costs and the ultimate verdict was forty seven thousand dollars and ability to petition the court for costs sixty thousand plus costs more than forty seven thousand plus costs this wasn't a situation where there was a request for equitable relief had there be and again i think what i mean again the court that the standard there is abuse of destruction of use of discretion but we start with the loadstar which is obviously reasonable hours times a reasonable rate that's the starting point and i think the case law is clear henslee case relied upon by the court even purdue case that was cited by the at our argument that the do we endorse that sort of reduction when the district court did not give what one might consider a fulsome explanation of why that was appropriate well again i think it was within the district court's discretion the district court did opinion the fact that the ultimate recovery in this case was recovery on one plane out of five planes and it was in all to make a recovery for forty seven thousand and forty forty seven forty seven thousand five hundred dollars but doesn't it doesn't the fact to hours is representative time specifically attribute that is clearly identify that specifically attributable to an unsuccessful so then we we take that out to get the lodestar we gets the lodestar under the primary consideration is degree of success and the four on successful claims in this case were not based on the same nucleus of operative fact they were the successful was specifically attributable on the time sheets for so you're saying i think that because there he believed there was more time i'm saying because the degree of success when you get to when you got to the end the ultimate of wards of the plaintiff was forty seven thousand five hundred dollars to consider the ultimate degree of success so which is what that which is so i guess that's a way of saying the judge can sort of equitably reduce or increase the fear ward as long as there's not sort of a mathematical precision of well you the problem obviously with doing that is you can't say well you were one six six that's also i'm just going to cut everything wholesale and said left a trial court's discretion the judge exercise that discretion and it's important to remember also the point of allowing attorneys in these type of cases the intent is to encourage and entice having counsel to take these types of cases it's not to produce a winfall to counsel  ultimate award of attorneys that's right what's your view as to the extent to which the district court may consider the johnson factors in reducing the lodestar again i think that they can't that the johnson factors can be considered i don't think case was not something novel for attorney pollock is very experienced in this type of case that did not present a particular regular rigorous or novel issue of law and those were off allender johnson  somebody who had lesser experience so overall experience in that regard we've got packard into the hourly rate i don't think that that overall experience gets factored in the johnson model it's simply a specified this this particular case is not a does not present a novel or particularly rigorous exercise for counsel who is highly skilled in that i imagine she would have something to say about how much it took because in this case go up and now from this court back to this recording and i ever under penalty of perjury where i declared a penalty of perjury that attorney pollock was awarded two hundred fifty dollars per hour in those cases in those cases and the time frame of the verdict it's whatever the going rate is it's not based on a historical billing rate of that plaintiff's counsel got where using a contemporary and presupposing contemporaneous contemporaneity between the years less experience than the gets three hundred hundred saying i an attorney who files an affidavit of your request on your behalf saying what the market rate is that's competent evidence in determining  award but what a district judge in the same district involving some were cases involving some more of the same lawyers adjudicates b or a market rate that doesn't count it doesn't count because of the fact it's lower than it should be you can never increase and the reason why we shouldn't look at historical because in this case the court faulted me that i didn't have this didn't have that with this time i can bring in more evidence more evidence showing that you know i should get the three hundred rate because that is the rate that you just gave to someone you know how how do you distinguish the fact that you just gave that to a gentleman who has this is his first trial he's had six years less experience than me but yet i cannot achieve that same rate that you have just given him and that the three lawyers that you paid for that case their total hourly rate was nine hundred what if i were the district court had the that there were these other parents with the other cases where the rate was higher it would and i still have not unfortunately been successful to get this pay the same as my colleagues i have gotten affidavits from other people saying cindy can you we can attest to them but just has not then successful and to me what