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. e du/thir dc ir c uit_1996/96UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 95-1613

__________

MARTIN O. WASHINGTON,

v.

PHILADELPHIA COUNTY COURT OF COMMON PLE AS

Martin Washingto n, Appel lant

__________

On Appeal from the United States District Court for the Eastern District of Pennsylvan ia (D.C. Civ. No. 92-3637)

__________

Submitted Under Third Circuit LAR 34.1( a) Monday, March 11, 1996

Before: NYGAARD, SAROKIN, and ALDISERT, Circuit Judges

__________

(Opinion filed July 9, 1996)

David Rudovsky Kairys, Rudovsky, Kal man & Epstein 924 Cherry Street, Su ite 500 Philadelphia, PA 1910 7

Alan B. Epstein Jablon, Epstein, Wolf & Drucker The Bellevue, Ninth F loor

Broad and Walnut Stre ets Philadelphia, PA 1910 2

Attorneys for Appella nt

A. Taylor Williams
Administrative Office of PA Courts 1515 Market Street, S uite 1414 Philadelphia, PA 1910 2

Attorney for Appellee____________________

OPINION OF THE COURT

____________________

SAROKIN, Circuit Judge: Appellant filed various claims against his for mer employer alleging racial discrimination and retaliatory hara ssment and discharge as a result of his pursuit of discriminat ion claims in agency proceedings. He eventually prevailed on the retaliation claim, though not on the claim of pre-retaliation d iscrimination. At the conclusion of the proceedings, Appellant pet itioned for attorneys' fees, and his request was reduced by the district court by more than eighty percent. He now appeals the reduction

of the fee award.

I. Facts and procedural posture

On June 22, 1992, Martin Washington filed an a ction in the
United States District Court for the Eastern Distri ct of Pennsylvania against his former employer, the Phila delphia County Court of Common Pleas (the "County Court" or the "C ourt"). Mr. Washington's nine-count complaint alleged racially discriminatory acts with respect to employment under both federal and state statutes; retaliatory harassment and discharge afte r he filed an
administrative claim of racial discrimination with the Equal Employment Opportunity Commission and the Pennsylva nia Human Rights Commission, under both federal and state sta tutes; civil rights violations under federal and state statutes; violation of Pennsylvania's public policy and common law; and br each of contract of employment.
Five of the nine counts were dismissed on summ ary judgment in June 1993. The case eventually went to trial in November 1993. At the conclusion of the trial, the jury fou nd that the County Court did not discriminate against Mr. Washi ngton on the basis of race. The jury did find, however, that th e Court had unlawfully retaliated against Mr. Washington for fi ling his administrative claims, and awarded him compensatory damages of $25,000. After the jury verdict, the district cour t granted a post-trial Motion for Judgment as a Matter of Law t o the County Court setting aside the jury verdict. Mr. Washington appealed to this Court. We rev ersed the district court's order granting the post-trial moti on, and reinstated the jury verdict. Washington v. Philade lphia County Court of Common Pleas, 47 F.3d 1163 (3d Cir. 1995) [table]. On remand, judgment was entered for Mr. Washington on the verdict. At the conclusion of these proceedings, Mr. Wa shington's lead attorney, Alan B. Epstein, filed a Petition fo r Attorneys' Fees claiming that Mr. Washington was the "prevaili ng party" and seeking a total award of $175,987.50 in attorneys' fees for himself and two colleagues at the firm of Jablon, E pstein, Wolfand Drucker. Mr. Washington also sought fees of $3 060 for

Lanier B. Williams, his attorney in the administrat ive proceedings, as well as $7973.87 in plaintiff costs . Plaintiff's Petition for Attorneys' Fees and Reimbursement of C osts of Litigation, Washington v. Philadelphia County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 3, 1995) [here inafter Petition] (JA 12). The County Court challenged, in ter alia, the sum requested for Mr. Epstein and his colleagues, a sserting that both the hourly fees and hours requested were exces sive. Objections of Defendant, Court of Common Pleas of P hiladelphia County to Plaintiff's Petition for Attorneys' Fees and Reimbursement for Costs of Litigation, Washington v . Philadelphia County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 28, 1995). On June 30, 1995, the district court entered a memorandum and order on the fee request. Washington v. Philad elphia County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Jun e 30, 1995) (mem.) [hereinafter Memorandum]. The court decreas ed the number of hours allowable by one half, finding Mr. Epstein 's claim "excessive and unreasonable," id., typescript at 8, and by an additional fifty percent because Mr. Washington "ha rdly won a decisive victory in this case." Id. The court, ho wever, did not extend the fifty-percent reduction to hours claimed in preparation of the fee petition. Regarding the hourly rates sought by Mr. Epste in and his colleagues, the district court deemed it "impossibl e to consider [them] as bona fide hourly rates." Id., typescript at 11. Instead, the court concluded that "a reasonable hou rly rate for [Alan B.] Epstein is $175 per hour. A reasonable r ate for [Thomas D.] Rapp is $100 per hour. A reasonable ra te for [Nancy] Abrams is $85 per hour." Id., typescript at 12. Based on its various assessments, the court ca lculated the amount of the award for Mr. Epstein and his colleag ues at $30,389.63, roughly seventeen percent of Mr. Epstei n's request. Id., typescript at 13. In addition, the court disa llowed any fee for Mr. Williams, "who unsuccessfully represented W ashington at his PHRC hearing," id., and awarded $7973.97 for pl aintiff

costs. Id. Mr. Washington is now appealing the district c ourt's order reducing the counsel fees. He argues that:
The district court erred as a matter of law in its reduction of the hourly rate for plaintiff's c ounsel and in its reduction of the compensable hours reasonably expended by counsel in this litigat ion. On both issues the district court applied erroneo us legal standards; further, on the compensable hours i ssue, the court made clearly erroneous factual determina tions. Brief of Appellant at 12.

II. Jurisdiction

This action was commenced pursuant to the Civi l Rights Act of 1964, as amended, 42 U.S.C.  2000e et seq. The district court had jurisdiction pursuant to 42 U.S.C.  2000e-5(f)(3) and28 U.S.C.  1331 and 1343. Plaintiff's various state claims

were properly before the district court pursuant to the doctrine of supplemental jurisdiction as codified at 28 U.S. C.  1367(a).
The district court issued a final order on Pla intiff's petition for attorneys' fees on June 30, 1995. We have jurisdiction over an appeal from this order pursuan t to 28 U.S.C.
 1291.

III. Analysis

We review the reasonableness of an award of at torney's fees for an abuse of discretion. Rose v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990). The question of what st andards to apply in calculating an award of attorneys' fees is a legal question, and therefore we exercise plenary review over this issue. Keenan v. City of Philadelphia, 983 F.2d 45 9, 472 (3d Cir. 1992). The matter of an attorney's marketplace billin g rate is a factual question which is subject to a clearly erro neous standard of review. Student Public Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1442 (3d Cir. 1988) (c iting Black Grievance Committee v. Philadelphia Electric Co., 8 02 F.2d 648, 652 (3d Cir. 1986) (citation omitted), vacated on o ther grounds, 483 U.S. 1015 (1987)). More generally, the appellate court may not upset a trial cour t's
exercise of discretion on the basis of a visce ral disagreement with the lower court's decision. Similarly, the appellate court may not reverse where the trial court employs correct standards and procedures, and makes findings of fact not cle arly erroneous. In sum, "[i]f the district court h ad applied the correct criteria to the facts of t he case, then, it is fair to say that we will defer to its
exercise of discretion." Northeast Women's Center v. McMonagle, 889 F.2d 466 , 475 (3d Cir. 1989) (quoting Lindy Bros. Builders, Inc. of Philad elphia v. American Radiator & Standard Sanitary Corp., 540 F. 2d 102 (3d Cir. 1976) (in banc) (citation omitted)), cert. den ied, 494 U.S. 1068 (1990).

A. The law of the lodestar

The Supreme Court has held that "[t]he most us eful starting point for determining the amount of a reasonable fe e is the number of hours reasonably expended on the litigati on multiplied by a reasonable hourly rate." Hensley v. Eckerhart , 461 U.S. 424, 433 (1983); see also Rode, 892 F.2d at 1183 (s ame). The result of this computation is called the lodestar. The lodestar is strongly presumed to yield a reasonable fee. Ci ty of Burlington v. Dague, 505 U.S. 557 (1992). In this instance, the district court rejected Plaintiff's claims with regard to both the billing rates of his attorneys and the numbers of hours reasonably expended on the lit igation. We
review each element in turn.B. The billing rates

The general rule is that a reasonable hourly r ate is calculated according to the prevailing market rates in the community. Blum v. Stenson, 465 U.S. 886, 895-96 n .11 (1984); Student Public Interest Research Group, Inc., 842 F .2d at 1448 (adopting the community market rule). The prevaili ng party bears the burden of establishing by way of satisfactory e vidence, "in addition to [the] attorney's own affidavits," Blum, 465 U.S. at 895 n.11, that the requested hourly rates meet this standard. In the instant matter, counsel Alan Epstein so ught hourly fees of $250 and $275 for himself; fees of $140 and $165 per hour for an associate, Thomas D. Rapp; and fees of $140 and $150 per hour for another associate, Nancy Abrams. Petition , typescript at 10. In support of the request, the lawyers subm itted numerous documents, including a "Verification" (in effect, a n affidavit) from Mr. Epstein for the fees cited, affidavits fro m various Philadelphia lawyers practicing in employment discr imination cases suggesting fees comparable to Mr. Epstein's, and billing
statements in the case. As the district court accurately noted, "[t]he issue of determining the reasonable hourly rate for an attor ney, and the specific issue of determining a reasonable rate for Epstein and
his associates are not unchartered waters in the di strict," Memorandum, typescript at 9. On two earlier occasi ons, the district court had considered similar requests from Mr. Epstein. Griffiths v. Cigna Corp., No. CIV. A. 91-2356 (E.D. Pa. Oct. 6, 1994) (VanArtsdalen, J.) (Memorandum and Order); Ol iver v. Bell Atlantic Corp., No. CIV. A. 92-751 (E.D. Pa. June 3 0, 1994) (Robreno, J.) (Order Memorandum). In both cases, t he court rejected Mr. Epstein's claim and lowered his fee fr om the requested $250 an hour to a "reasonable hourly rate " of $175 per hour. Griffiths, 1994 WL 543501, *2; Oliver, 1994 WL 315815, **4-5. It is worth noting that the court's determi nation in Oliver was based on Judge VanArtsdalen's analysis i n Griffiths. The court in the instant case rejected Mr. Eps tein's request

as well and concluded: I will follow the rulings made by Judge VanArt sdalen in Griffith [sic] and Judge Robreno in Oliver. I find that a reasonable rate for Epstein is $175 per hour. A reasonable rate for Rapp is $100 per hour. A reasonable rate for Abrams is $85 per hour. Memorandum, typescript at 2. Those rulings, however, are no longer valid. This Court recently vacated the district court's decision in G riffiths on the very issue of hourly rates. Griffiths v. Cigna Corp., Nos. 94-2090 & 94-2091 (3d Cir. Nov. 30, 1995) (unpublis hed). In rejecting the district court's determination, we ex plained: As the prevailing party, Griffiths had th e burden of demonstrating "the community billing rate c harged by attorneys of equivalent skill and experience p erforming work of similar complexity." See PIRG, 842 F. 2d at
1450. We find that he did sustain that burden as toMr. Epstein's requested rate of $250 per hour, by

submitting the affidavits of Harold Goodman, A lica Ballard, and Lorrie McKinley, attorneys in the Philadelphia area who represent plaintiffs in civil rights litigation. These affidavits stated tha t Mr. Epstein's requested hourly rate of $250 was re asonable and within the range of prevailing rates charg ed by Philadelphia attorneys with Mr. Epstein's skil l and experience. The opposition submitted by CIGNA failed to rebut plaintiff's submissions on this point , both
because CIGNA's affidavits focused on the mark et rates of defense attorneys, and because CIGNA did no t otherwise effectively challenge the content of plaintiff's affidavits.

Where, as here, the plaintiff has met his prima facie burden under the "community market rate" lodestar test, and the opposing party has not produced contradictory evidence, the district court may not exercise its discretion to adjust the requeste d rate downward. Accordingly, we will vacate the att orneys' fee award with respect to the hourly rate allo wed for Mr. Epstein's services, and direct that his se rvices be compensated at the $250 rate that plaintiff's uncontroverted proofs established.

By contrast, plaintiff did not meet his p rima facie burden of proof with respect to the rate s of plaintiff's other attorneys, Mr. Rapp and Ms. Adams. Specifically, Griffiths failed to demonstrate that the requested rates were the prevailing rates in t he community. In the absence of such a showing, the
district court must exercise its discretion in fixing a reasonable hourly rate. This court cannot say that $100 and $85 per hour are unreasonable, and ac cordingly
the district court's award based on these rate s will be
affirmed. Id., typescript at 14-16. Our reasoning in Griffiths applies with equal strength in the instant matter. (It is worth noting that the s ame attorneys filed affidavits in support of Mr. Epstein's claim, and the district court even noted that Ms. Ballard "apparen tly filed an identical affidavit before Judge VanArtsdalen in th e Griffith[sic] case."). See also Black Grievance Committee, 802 F .2d at 652-53 (district court is not free to disregard att orney's affidavit when the other party "filed no affidavit and offered no testimony contesting the accuracy of [the attorney' s] statement with respect to charges by comparable practitioners "); Cunningham v. City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1 985) (no
material issue of fact when affidavit is uncontradi cted), vacatedon other grounds, 478 U.S. 1015 (1986). Therefore, we vacate and remand to the distric t court to reconsider the appropriate hourly fee for Mr. Epste in's services in light of Griffiths, and we affirm the district c ourt'sreduction of Mr. Rapp's and Ms. Adams's hourly fees

.

C. The number of hours

In support of the petition, Mr. Epstein submit ted forty pages of itemized records specifying the date when the work was performed, the attorney performing the work, the na ture of the work (e.g., "Prepare complaint," "Conference with A lan Epstein regarding liability issues"), the amount of time sp ent and the hourly rate charged for that particular task. JA 9 0-129. The district court dramatically reduced the ho urs allowed. First, in spite of the documentation submitted by M r. Epstein,
the district court found that the hours set forth w ere "not properly documented." Memorandum, typescript at 5. As the court explained, [i]t would be fair to say that most of the ent ries are vague and identified only by non-descriptive s tatements such as "research", "review", "prepare", "lett er to", and "conference with." Descriptions such as t his do not suffice in establishing the reasonableness of a fee petition. Id. (citation omitted). Second, the court found that "many of the bill able hours requested are redundant, unnecessary or excessive." Id. The court gave various examples of what it considered e xcessive, including that "Epstein, an experienced litigator, claims 69.6 hours for unspecified 'trial preparation', an amoun t of time approximately twice as long as the trial itself." Id., typescript at 6. Third, the court found that "requesting that t his Court approve an expenditure of over $175,000 in fees to obtain a $25,000 verdict is nonsensical." Id., typescript a t 7. On the basis of these concerns, and following the lead of Judge Robreno in Oliver, the district court decreas ed the number of hours to be billed by one-half "on the grounds t hat they are excessive and unreasonable." Id., typescript at 8. In addition, the court decreased the hours by another fifty perc ent on the basis that "Washington hardly won a decisive victor y in this case." Id. The court pointed out that five of Mr. Washington's nine claims were dismissed on summary judgment, tha t he did not prevail on "his primary claim," racial discriminati on, and that the jury had awarded him far less than the $661,756 .02 in damages and $103,000 in lost wages he initially sought. Id

. 1. Specificity
We first review the district court's conclusio n that Mr. Epstein did not adequately document the hours claim ed. Attorneys seeking compensation must document the hours for wh ich payment is sought "with sufficient specificity." Keenan, 983 F.2d at 472. More specifically, our jurisprudence has establishe d that "[a] fee petition is required to be specific enough to a llow the
district court 'to determine if the hours claimed a re unreasonable for the work performed.'" Id. at 473 (citing Rode, 892 F.2d at 1190 (citation omitted)). It is an est ablished proposition of law that "[w]here the documentation of hours isinadequate, the district court may reduce the award accordingly."

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Th is proposition, however, only begs the question of wha t constitutes adequate documentation. In answering this question, we do not operate in a legal vacuum. On several occasions, this Court has consi dered the proper degree of specificity required of a party se eking attorneys' fees. In particular, we recently undert ook such a review in Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990). We explained that specificity should only be requir ed to the extent necessary for the district court "to determi ne if the hours claimed are unreasonable for the work perform ed." Id. at 1190 (citing Pawlak v. Greenawalt, 713 F.2d 972, 97 8 (3d Cir. 1983), cert. denied sub nom. International Broth. o f Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Pawlak, 464 U.S. 1042 (1984)). Specifically, a fee petition should include "some fairly def inite
information as to the hours devoted to various general activities, e.g., pretrial discovery, settleme nt negotiations, and the hours spent by various c lasses of attorneys, e.g., senior partners, junior partn ers, associates." However, "it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specifi c attainments of each attorney." Rode, 892 F.2d at 1190 (citing Lindy Bros. Builders , Inc. of Philadelphia, 487 F.2d at 167).
Because we found that the district court had a pplied too exacting a standard in reducing hours for lack of s pecificity, we vacated its determination. The party seeking couns el fees had
submitted various documents as evidence of the hour s spent on the case, including a "computer-generated chronological list of the tasks performed and the time devoted to those tasks by the two attorneys, the paralegal and the law clerk who work ed on the
case." Id. at 1189. The district court found faul t with the presentation of the records in simple chronological order, but we rejected the court's imposition of a requirement th at records be kept by task -- e.g., for each motion, issue or par t of the case.
Id. at 1189-90. The district court also found that the list did not "provide[] adequate and specific descriptions o f services and
the time devoted to those services." Id. at 1190. In fact, [e]ach entry provided the general nature of th e activity and the subject matter of the activit y where possible, e.g., T (Dusman); CF (client); R (re appeals), the date the activity took place and the amount of time worked on the activity.

Id. at 1191. We concluded that the submissions in support o f the petition "provided enough information as to what hours were devoted to various activities and by whom for the district cou rt to
determine if the claimed fees are reasonable." Rod e, 892 F.2d at
1191. We recently reaffirmed our Rode holding, notin g that the Court in Rode "found sufficient specificity where t he computer-generated time sheet provided 'the date the activit y took

place.'" Keenan v. City of Philadelphia, 983 F.2d 459, 473 (3d Cir. 1992). In Keenan, we found that "computer-gen erated summaries of time spent by each attorney and parale gal met the

standards of Rode." Id. The computerized lists submitted by Mr. Epstei n and his colleagues clearly meet the standards that we found satisfactory in Rode and Keenan. Therefore, as we did in Rode, we find that the district court applied erroneous legal standard s when it concluded that the hours were not properly document ed.
2. Excess
We now turn our attention to the district cour t's conclusion
that the hours are "excessive and unreasonable." M emorandum, typescript at 8. The court gave seven separate exa mples of the alleged "outrageousness" of Mr. Epstein's claim, ha ving to do with hours claimed for the review of an entry of ap pearance filed by the County Court's counsel, discovery planning, research on a motion to compel filed by the Court, review of the Court's motion for summary judgment and preparation of the respons e, trial preparation, review of trial tapes, and preparation of post-trial motions. The court found that "[t]hese figures are not merely excessive, they border on the outrageous." Id., ty pescript at 7. Mr. Epstein challenges the court's conclusions regarding these various examples. In the first instance, the court deemed as "redundant, unnecessary or excessive" 5.5 hours for research on a motion to compel filed by the County Court. M emorandum, typescript at 6. The motion was apparently to comp el Mr. Washington to submit to an examination by a psychol ogist and, according to Mr. Epstein, certainly required the nu mber of hours
claimed: Plaintiff filed an answer and an eight-page me morandum of law. The trial court does not explain why 5.5 hours is excessive on this less than ordinary discov ery issue. To the contrary, research and drafting of these papers would likely take a lawyer the 5.5 hour s claimed. Brief of Appellant at 24. The second example given by the district court to which Mr. Epstein objects is time amounting to 158.2 hours sp ent in preparing for and litigating the County Court's mot ion for summary judgment. Mr. Epstein justifies the number of hours on the length of the County Court's motion, the number of issues it raised, the voluminous record and the length of his reply
memorandum. Id. at 24-25. Third, the court stated that "Epstein, an expe rienced litigator, claims 69.9 hours for unspecified 'trial preparation', an amount of time approximately twice as long as th e trial itself ($17,400)." Memorandum, typescript at 6. Mr. Epst ein argues in response that "this ratio is quite reasonable and t hat experienced and successful trial lawyers spend subs tantially more time in preparation than they do in the courtroom." Brief of Appellant at 25. Fourth, the court stated that "Epstein claims 26.1 hours in reviewing tapes of the trial for the preparation of post-trialmotions, an amount of time almost as long as a minu te-by-minute

replay of the entire trial, from voir dire to verdi ct ($6,525)." Memorandum, typescript at 6. Here again, Mr. Epste in offers a detailed explanation for the time: The motion for judgment as a matter of law was based on the argument that there was insufficient evide nce to support the jury's verdict. To properly respo nd to this motion, plaintiff was obligated to marsha ll every fact and every piece of evidence that a reason able jury could have relied upon to reach its verdict. This in turn required a detailed and exact review of a ll of the testimony in the case to assemble the relevant evidence that supported the verdict. Brief of Appellant at 26. Finally, Mr. Epstein challenges findings by th e district court regarding "some very minor categories" on the ground that
"each is reasonable." Id. at 27. Our task is not to determine whether, sitting as a court of first instance, we would have reached the same conc lusion as the district court did. Rather, we only review the cou rt's finding that the hours claimed by Mr. Epstein are "excessiv e and unreasonable" for clear error. While Mr. Epstein o ffers persuasive arguments to support the hours he and hi s colleagues spent on the various parts of the trial, we conclud e that these arguments fall short of satisfying our exacting sta ndard of
review and therefore conclude that the district cou rt's conclusion is not clearly erroneous. 3. Proportionality The district court stated that "[b]y any stand ard, requesting that this Court approve an expenditure o f $175,000 in fees to obtain a $25,000 verdict is nonsensical." Memorandum, typescript at 7. Mr. Epstein challenges this state ment on the ground that the court's position violates Third Cir cuit law against proportionality analysis to determine the r easonableness of counsel fees. Brief of Appellant at 29. It is true that this Court has expressed serio us concerns with the practice of limiting an award of attorney' s fees to maintain proportionality between the fees and the a mount of damages awarded. See, e.g., Cunningham v. City of McKeesport, 807 F.2d 49, 52-54 (3d Cir. 1986), cert. denied, 48 1 U.S. 1049 (1987); Northeast Women's Center v. McMonagle, 889 F.2d 466, 474- 75 (3d Cir. 1989), cert. denied, 494 U.S. 1068 (199 0). However, before considering the legal propriety of the distr ict court conducting a proportionality analysis, we must firs t determine the significance of the court's statement. This st atement, standing alone, is somewhat ambiguous. On the one hand, it can certainly be read, as Mr. Epstein does, as suggesti ng that the
district court was concerned with the ratio between the damages awarded Mr. Washington and the fees sought by Mr. E pstein and his colleagues, and that it cut down the fees according ly. The statement could, on the other hand, reflect the cou rt's opinion that Mr. Epstein failed to exercise "billing judgme nt." SeeHensley v. Eckerhart, 461 U.S. 424, 437 (1983) ("The applicant should exercise 'billing judgment' with respect to hoursworked").

There is some support for this alternative rea ding. The court's statement came directly after its conclusio n that the figures presented by Mr. Epstein "are not merely ex cessive, they border on the outrageous." Memorandum at 7. After making this finding, the court went on to explain: If they were actually sent to a client who was expected to pay for them, the bill would possible [sic] result in that client either going bankrupt or, at a minimum, finding a new attorney. By any standard, requ esting that this Court approve an expenditure of over $175,000 in fees to obtain a $25,000 verdict is nonsens ical."

Id.
The court then cited the court's conclusion in Oliverregarding the same issue that "the petition tendered by plaintiff's counsel is woefully deficient of the bi lling judgment that should have animated its preparation." Id. (c iting Oliver v. Bell, No. CIV. A. 92-751 (E.D. Pa. June 30, 1994 ) (Order Memorandum)). Nonetheless, in light of the district court's earlier comment, made while discussing the history of the c ase, that "[h]aving won a verdict of $25,000, Washington's at torney . . . now asks that attorneys' fees be approved in excess of seven times the amount of that award, $175,987.50," Memor andum at 3, we find the interpretation suggested by Mr. Epstein pe rsuasive, and conclude that the district court did consider propo rtionality as a factor in its analysis. The two comments taken t ogether seem
no accident. We now turn to the legal propriety of the cour t's action. Our review of the jurisprudence commences with the edicts of the United States Supreme Court on the issue at hand. The preeminent case on the subject is City of Riverside v. Rivera, 477 U.S. 561 (1986). City of Riverside, however, offers no clea r direction. Based on an analogy with private tort actions, the municipalitypetitioner in that case had suggested that attorney 's fees in civil rights lawsuits "should be proportionate to t he amount of damages a plaintiff recovers." Id. at 573 (Brennan , J., plurality). Justice Brennan, writing for a plurali ty of four, rejected the analogy, noting that [u]nlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil a nd constitutional rights that cannot be valued so lely in monetary terms. . . . Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benef its that are not reflected in nominal or relatively sma ll damages awards. Id. at 574 (citation omitted) (emphasis added). In other words, the monetary amount awarded to the plaintiff

would not be an accurate measure of the success ach ieved by the attorneys in the case, and therefore attorney's fee s assessed in proportion to the damage award would not adequately compensate the attorneys for their labor, which the plurality compared to that of a "private attorney general." Id. at 575 ( citationomitted). The plurality concluded that "[a] rule o f

proportionality would make it difficult, if not imp ossible, for individuals with meritorious civil rights claims bu t relatively small potential damages to obtain redress from the courts," id.at 578, and for this reason rejected such a rule. Justice Powell concurred in the judgment, beca use he saw no basis to reject the district court's detailed findi ngs of fact. But the emphasis of his concurrence was markedly di fferent from that of the plurality opinion: Where recovery of private damages is the purpo se of a civil rights litigation, a district court, in fixing fees, is obligated to give primary considerati on to the amount of damages awarded as compared to the a mount sought. In some civil rights cases, however, the court may consider the vindication of constitutional rights in addition to the amount of damages recovered

. Id. at 585 (Powell, J., concurring in the judgment) . In a footnote that received substantial attention, the J ustice added, "[i]t probably will be the rare case in which an aw ard of privatedamages can be said to benefit the public interest to an ex tent that would justify the disproportionality between d amages and
fees reflected in this case." Id. at 586 n.3. Fin ally, thenJustice Rehnquist dissented, joined by three other Justices, including Chief Justice Burger, who also wrote a se parate
dissent. Shortly after the Supreme Court issued its opi nion, this Court tackled the difficult task of sorting through City of Riverside's muddled outcome in Cunningham v. City o f McKeesport, 807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987) [hereinafter Cunningham II]. After noting that "th e Supreme Court plurality rejected a proportionality rule," i d. at 52, we considered what import to give to Justice Powell's concurrence: . . . Justice Powell's opinion might be r ead to suggest that disproportionality justifies a ne gative multiplier.

We refrain from inferring such a view fro m City of Riverside, however. First, this interpretatio n represents at most the view of a lone Justice and was not endorsed by any of the other eight. . . . Second,
we have doubts about Justice Powell's statemen t that only the rare case justifies disproportionate fee awards. The facts of City of Riverside seem s imilar to

those of a number of  1983 cases that we have seen. . . . Finally, we consider application of Justi ce Powell's reasoning problematic. The opinion s ets out no method or standards by which a court might calculate the public interest served by a case, evaluate that interest in light of a disproportionality betw een damages and fees, and eventually settle upon a particular negative multiplier. In the absenc e of an explicit mandate, we are reluctant to begin th e difficult task of developing standards by whic h we might incorporate proportionality principles i nto theattorney's fee calculus.

Cunningham II, 807 F.2d at 53-54 (footnote omitted) ; see alsoNortheast Women's Center, 889 F.2d at 474-75 (noting that the "Supreme Court in City of Riverside [rejected] the proportionality rule in the civil rights context.")

. For the reasons articulated by the plurality i n City of Riverside and by this Court in Cunningham II, we h old today that a court may not diminish counsel fees in a section 1983 action to maintain some ratio between the fees and the damage s awarded. This is not to say that the amount of damages is ir relevant to the calculation of counsel fees. To the contrary, we recently recognized that "the amount of the compensatory dam ages award may be taken into account when awarding attorneys' fees to a civil rights plaintiff." Abrams v. Lightolier, 50 F.3d 1 204, 1222 (3d Cir. 1995). But as the context of our statement in Abrams makes clear, the reason why the damage amount is relevant is not because of some ratio that the court ought to maint ain between damages and counsel fees. Rather, the reason has t o do with the settled principle, which we discuss hereinafter, th at counsel fees should only be awarded to the extent that the litigant was successful. The amount of damages awarded, when co mpared with the amount of damages requested, may be one measure of how successful the plaintiff was in his or her action, and therefore "may be taken into account when awarding attorneys' fees to a civil rights plaintiff." Id. The County Court attempts to refute Mr. Epstei n's arguments on two grounds. First, it argues that the district court did notapply a "strict proportionality test": "[h]ad the lower cou rt followed the strict 'proportionality' rule discusse d in Abrams,
the court would not have awarded fees in excess of the damage award." Brief of Appellee at 23. By a "strict pro portionality test," the County Court apparently refers to a rule whereby counsel fees cannot exceed the amount of damages aw arded. This Court clearly rejected such a test in Abrams, 50 F. 3d at 1222 ("there is no rule that the fees award may be no la rger than the damages award") (citing Hensley v. Eckerhart, 461 U .S. 424 (1983)), and it is clear that the district court di d not apply such a test. Today we embrace the broader proposit ion that the district court cannot adjust counsel fees to mainta in a certain ratio between the fees and damages -- to insure, fo r instance,
that fees not exceed three times the amount of dama ges. That is just the type of analysis into which the district c ourt seems to
have entered. The second argument advanced by the County Cou rt is that even if the district court did conduct a proportion ality analysis (albeit not what it calls a "strict" one), it did s o correctly. In support of this proposition, the County Court su ggests that "[u]nder Hensley, the district court is required to consider 'the relationship between the extent of success and the amount of the fee award.'" Brief of Appellee at 23 (quoting Hens ley, 461 U.S. at 438). But Hensley does not stand for the propos ition that the court should adjust counsel fees to reflect a certa in ratio between fees and damage awards; rather, it stands f or the proposition, which we discussed in an earlier parag raph, that theamount awarded in counsel fees should reflect the e xtent to which

the litigant was successful. See Hensley, 461 U.S. at 440 ("A reduced fee award is appropriate if the relief, how ever significant, is limited in comparison to the scope of the litigation as a whole.") (emphasis added). It is clear that the district court, in the di sputed statement, concluded that it was "nonsensical" to a ward fees of $175,000 for a judgment of 25,000 because the reque st was disproportionate with what the court considered a m ore appropriate ratio. (Indeed, the court turned to th e "success" analysis substantially later in its opinion.) We h old that the court's consideration of the proportionality of the damages to the fee award was legal error. Therefore, as this legal error
affected the district court's determination to "dec rease the hours by one-half on the grounds that they are exce ssive and unreasonable," Memorandum at 8, we must remand to t he district court for it to make only such part of that reducti on as was not due to proportionality. Above, we also concluded t hat we must remand this same determination so that any reductio n due to specificity can also be eradicated.

4. Success Finally, the district court diminished Mr. Eps tein's counsel fees by another fifty percent on the basis that "Wa shington hardly won a decisive victory in this case." Memor andum, typescript at 8. As the court explained, Five of Washington's nine claims did not survi ve a summary judgment motion. At the time of trial
, Washington requested a total of $661,756.02 in damages, a figure which did not include mental anguish, punitive damages, and prejudgment interest, and also di d not include the $103,000 Washington claimed in los t wages. The jury ruled against his primary claim, raci al discrimination, and awarded him what amounted to a nominal recovery of $25,000 on his retaliation claim.

Id. In addition, the district court did not apply the reduction to the time spent in preparation of the fee petitio n, but fully disallowed time claimed for preparation of a motion to amend the judgment to this Court which was denied. Id., type script at 9. Mr. Epstein contends that the court's analysis is based on a "clear error of law" because "by persuading the jur y to find for the plaintiff on the racial retaliation claim, plai ntiff prevailed on a central theory of his case." Brief of Appellant at 30. Mr. Epstein further argues that the initial claim of racial discrimination "was so clearly related to th e winning claim, that as a matter of law, there can be no red uction of fees for the work done since the time was necessarily sp ent on both issues." Id. at 30-31. As he explains, [A]ll of the evidence that was produced regard ing the race discrimination claim was necessary in the litigation of the retaliation claim. The reta liation was undertaken to punish plaintiff for his ass ertion of race discrimination, and to properly show to t he jury the nature of the retaliation, the full contex t,including the alleged race discrimination, had to be

proven. Id. at 32. Finally, Mr. Epstein argues that "the fact tha t the jury awarded $25,000 is not a proper basis for reducing the hours or the lodestar on the theory that the result was not a good one for the plaintiff." Id. We are unconvinced by Mr. Epstein's arguments. It is well
established that "the court can reduce the hours cl aimed by the number of hours 'spent litigating claims on which t he party did not succeed and that were "distinct in all respects from" claims on which the party did succeed.'" Rode, 892 F.2d a t 1183 (quoting Institutionalized Juveniles v. Secretary o f Public Welfare, 758 F.2d 897, 919 (3d Cir. 1985) (quoting Hensley, 461 U.S. at 440)). Notwithstanding Mr. Epstein's conte ntions, we
conclude that the district court did not commit err or when it reduced Mr. Epstein's fees for his failure to preva il on one of his two central claims, that of discrimination. In addition, the alleged relatedness between the two general claims is too tenuous to support a finding of error. Therefore, we concl ude that the
court was well within its broad discretion when it discounted the fees by fifty percent for partial lack of success.

IV. Conclusion

In light of the foregoing, we will vacate the district court's award of attorneys' fees and remand for fur ther consideration consistent with this opinion. In par ticular, we
will vacate the district court's assessment of Mr. Epstein's hourly rate, and remand for a new calculation in ac cordance with this opinion; in addition, we will vacate the distr ict court's reduction of the number of hours by one half for th eir being "unreasonable and excessive," and direct the court to consider anew whether that reduction is warranted in light o f our
decision. Washington v. Philadelphia County Court of Common P leas, No. 95-
1613

ALDISERT, Circuit Judge, Concurring and Dissenting. Following our seminal attorneys' fees cases in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sani tary Corp. (Lindy I) , 487 F.2d 161 (3d Cir. 1973), and Lindy Bros. Builders, Inc. v. American Radiator & Standard Sani tary Corp. (Lindy II), 540 F.2d 102 (3d Cir. 1976) (in banc), this court carefully articulated the standard of review in att orney's fees

cases: [A]n award of reasonable attorneys' fees is wi thin the
district court's discretion. Thus our standar d of
review is a narrow one. We can find an abuse of discretion if no reasonable man would adopt th e district court's view. If reasonable men coul d differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial c ourt abused its discretion. We may also find an a buse ofdiscretion when the trial court uses improper standards

or procedures in determining fees, or if it do es not properly identify the criteria used for such
determination. Silberman v. Bogle, 683 F.2d 62, 64-65 (3d Cir. 198 2) (quotations and citations omitted); see also Deisler v. McCorma ck Aggregates Co., 54 F.3d 1074, 1087 (3d Cir. 1995). What divid es this panel
is not the selection of this standard of review as the governing legal precept; here, there are no competing precept s. SeeMajority typescript at 6 ("We review the reasonableness of a n award of attorney's fees for an abuse of discretion .") (citation omitted). In agreement on the controlling major pr emise, then, we differ only as to what it means. Such interpret ation, however, implicates questions of both legal philoso phy and jurisprudence. At bottom, this case is about whether an appel late court appreciates the allocation of competence between tr ial courts and reviewing courts. To be sure, statements of defere nce by appellate courts to district judges appear in this court's dispositions. See, e.g., Majority typescript at 6. But quoting a standard of review and respecting it are differen t matters. See, e.g., Majority typescript at 11-13, 17-25. We must be vigilant of this court's increasing proclivity to d eny substituting its judgment for that of the district court, but then to proceed with the tack that it expressly ren ounces. In this regard I am reminded of Byron's account of Jul ia: "And whispering 'I will ne'er consent' -- consented." B yron, Don Juan, Canto I, St. 117 (quoted in R. Aldisert, The Judicial Process 717 (2d ed. 1996)).

I. I first indicate those portions of the majorit y's opinion of which I am in accord. I agree that the district co urt did not clearly err in finding that the hours claimed by Mr . Epstein were "excessive and unreasonable." Majority typescript at 17. I also agree "that the district court was well within its broad discretion when it discounted the fees by fifty per cent for partial lack of success." Majority typescript at 27

. Further, I agree that in light of the district court's reliance on the district court opinion, subsequentl y reversed by Griffiths v. Signa Corp., Nos. 94-2090 and 94-2091 (3d Cir. Nov. 30, 1995) (unpublished), we should remand for recon sideration of the attorney's reasonable hourly rate. Thus, I con cur in the

remand order. Upon careful examination of the attorneys' tim e sheets, seeA91-A129,
I too have trouble with the district court's conclu sion that "[m]any of the hours set forth in the fee peti tion are not properly documented." Dist. Ct. Op. at 5. Indeed, I agree with the majority's reading of Rode v. Dellarciprete, 89 2 F.2d 1177 (3d Cir. 1990), which held that billing records suc h as those at
issue here need not document "the exact number of m inutes spent nor the precise activity to which each hour was dev oted nor the specific attainments of each attorney." Id. at 119 0 (quotation and citation omitted); see Keenan v. City of Philad elphia, 983F.2d 459, 473 (3d Cir. 1992); see also Majority typ escript at 13-

15. However, the statement of the district court giving rise to this discussion of specificity, reprinted in the ma rgin, appears in a single paragraph of a much larger disc ussion under the heading "HOURS REASONABLY EXPENDED". That sect ion of the district court opinion contained an independent alt ernative justification for reducing the number of hours -- " that many of the billable hours requested are redundant, unneces sary or excessive." Dist. Ct. Op. at 5. The majority has no quarrel with this alternative basis. See Majority typescri pt at 17 ("[W]e only review the court's finding that the hou rs claimed by Mr. Epstein are 'excessive and unreasonable' for cl ear error. While Mr. Epstein offers persuasive arguments to su pport the hours he and his colleagues spent on the various pa rts of the trial, we conclude that these arguments fall short of satisfying our exacting standard of review and therefore concl ude that the district court's conclusion is not clearly erroneou s."). Thus, although the majority remand based on the District Court's criticism of the specificity of the documentation, in light of the alternative justification for reducing the numb er of hours, I dissent from the remand order based on specificity.

II. I turn next to the majority's contention that the district court "diminish[ed] counsel fees ... to maintain so me ratio between the fees and damages awarded." Majority ty pescript at 22. For the reasons that follow, I do not agree th at the district court impermissibly considered the proport ionality of the damages in diminishing the requested fee.
I turn first to the statement of the district court upon which the majority premise their reasoning. The di strict court stated that "requesting that this Court approve an expenditure of $175,000 in fees to obtain a $25,000 verdict is non sensical." Dist. Ct. Op. at 7. To be sure, this court has expressed serious c oncerns with the practice of limiting an award of attorneys' fee s to maintain proportionality between the fees and the amount of damages awarded. See, e.g., Cunningham v. City of McKeespo rt, 807 F.2d 49, 53-54 (3d Cir. 1986), cert. denied, 481 U.S. 10 49 (1987); Northeast Women's Center v. McMonagle, 889 F.2d 466 , 474-75 (3d Cir. 1989), cert. denied, 494 U.S. 1068 (1990). Al though the district court's statements, in and of themselves, have the potential of being interpreted as implying that the district court improperly reduced the fees to maintain propo rtionality, we
must consider the context in which the district cou rt made them.
The district court offered the "nonsensical" d escription after concluding that the fees submitted by Appella nt "are not merely excessive, they border on the outrageous." Dist. Ct. Op. at 7. The district court explained that: If the[se figures] were actually sent to a cli ent who was expected to pay for them, the bill would p ossibl[y] result in that client obviously going bankrupt or, at a minimum, finding a new attorney. Dist. Ct. Op. at 7. Accordingly, taken in context, the districtcourt's statement also reflects a determination tha t Appellant

failed to exercise "billing judgment." See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) ("The applicant should exe rcise 'billing judgment' with respect to the hours worked."). Ind eed, after making these statements, the district court added t hat "the petition tendered by plaintiff's counsel is woefull y deficient of the billing judgment that should have animated its preparation." Dist. Ct. Op. at 7 (citing Oliver v. Bell, No. CIV. A. 92-751 (E.D. Pa. June 30, 1994) (Order Memorandum)). The majority agree that alternate inferences c an be drawn from the ambiguous statement of the district court. See Majority typescript at 18 ("The statement could, on the othe r hand, reflect the court's opinion that Mr. Epstein failed to exercise 'billing judgment.' There is some support for this alternative reading..."). Yet, given two reasonable interpreta tions of an ambiguous statement, the majority reject one reason able interpretation, in favor of another reasonable inte rpretation. This a reviewing court may not do. Indeed, "[i]f r easonable people could differ as to the propriety of the acti on taken by the trial court, then it cannot be said that the tr ial court abused its discretion." Deisler, 54 F.3d at 1087 ( quotation and citation omitted). Moreover, even using the majority's preferred reasonable interpretation of the district court's statement, t he majority do not identify how the district court deployed the fo rbidden ratio. And indeed, even after the reductions, the fee awar ded by the district court still exceeded the damages by a rati o of 1.216 to 1 ($30,389.63 to $25,000.00). This hardly bespeaks a rigid mathematical calculation by the district court. Furthermore, the majority construct an unworka ble -- if not implausible -- schemata for determining attorneys' fees. They condemn any relationship between fees and recovery, while making it clear that the relationship between fees and rec overy remains extremely relevant in considering the plaintiff's s uccess. SeeMajority typescript at 23; see also Lindy I, 487 F.2d at 168 ("In evaluating the quality of an attorney's work in a c ase, the
district court should consider ... the amount of re covery obtained."). Although the majority purport to anno unce a new rule of law that forbids consideration of proportio nality between the damage award and attorneys' fees, the currency value of this initial public offering is seriously discounted by recognizing that at least three clear exceptions inhere in it: one, in measuring success, see Abrams v. Lightolier, 50 F.3 d 1204 (3d Cir. 1995); Majority typescript at 22; two, when co nsidering billing judgment, Hensley v. Eckerhart, 461 U.S. 42 4 (1983); and three, as recounted above, in evaluating the qualit y of an attorney's work. Thus, the majority's new offspring is born wit h at least three bar sinisters on its escutcheon, and staggeri ng through its uneasy fledgling steps, will no doubt cause confusi on within district courts and, most assuredly, will generate litigation. Especially troubling here is that the majority fail even to disclose where or how the district court employed a proportionality ratio. To borrow from Lord Devlin, "I confessthat I approach the investigation of this legal pro position with

a prejudice in favour of the idea that there may be a flaw in the argument somewhere." St. John Shipping Corp. v. Jo seph Rank, 1 Q.B. 267, 282 (1957). Accordingly, I dissent in al l respects from the majority's conclusion on proportionality.

III. I do not come as a stranger to attorney fee ju risprudence in this court. Twenty years ago, I authored the in ba nc opinion in Lindy II, wherein I stated the views of our court a t that time: We find it necessary also to observe that we d id not and do not intend that a district court, in se tting an attorneys' fee, become enmeshed in a meticulou s analysis of every detailed facet of the profes sional representation. It was not and is not our int ention that the inquiry into the adequacy of the fee assume massive proportions, perhaps even dwarfing the case in
chief. Once the district court determines the reasonable hourly rates to be applied, for exa mple, it need not conduct a minute evaluation of each p hase or category of counsel's work. Lindy II, 540 F.2d at 116.
Whatever had been the intention of the full co urt in 1976, the history of the past decades demonstrates that o ur district judges today have "become enmeshed in a meticulous analysis of every detailed facet of the professional representa tion," as evidenced by the opinions in this case. So also th is court has become enmeshed. Perhaps the time has arrived for us to have the full court revisit basic concepts of our attorn eys' fees jurisprudence in order to furnish clearer guidance, and hopefully, minimize the atrocious fulmination of th ese cases, here and in the district court. Drawing from my personal experience of almost 30 years on this court, and my current practice of sitting in t hree or four circuits each year, I beg indulgence to permit a pe rsonal expression of what troubles me in examining pertine nt cases. Appellate courts seem to have lost respect for the narrow review encompassed in reviewing an exercise of discretion. Either because they have a hunger to get involved in the a ction, or because they disagree viscerally with fees set by t he district courts, appellate judges introduce a devious device to broaden appellate review: new standards or criteria for dis trict courts to follow meticulously. What has emerged is what Holmes called "Delusi ve exactness [,] a source of fallacy throughout the law." In th is practice, newly created "standards and criteria" wag the tail of genuine exercise of discretion. And to argue against this, as I do, is to inveigh against Mom and Apple pie because everyb ody knows that "standards and criteria" are good for you. As inde ed they are in most circumstances, but not if they destroy the exe rcise of
discretion. These standards and criteria create an environment where an appeal is taken every time a district judg e fails to kiss the book or to genuflect properly. Most importantly, appeals challenging deviatio ns from thesestandards and criteria arrive in the appellate cour t with a

fundamental difference: the standard of review is n ot a limited
review of exercise of discretion or the more restri cted clear error, but plenary. See Keenan v. City of Philadel phia, 983 F.2d 459, 472 (3d Cir. 1992) (the question of what stand ards to apply in calculating an award of attorney's fees is a leg al question subject to plenary review). Thus, instead of playi ng a limited role in the determination of attorneys' fees in lim ited review of discretion, the appellate courts, like the proverbi al camel, have not only stuck their noses under the district court s' tent, but they are fully inside ranging around in turf that p roperly belongs to the district courts. Almost 40 years ago a youthful Charles Alan Wr ight, America's premier federal courts expert, now presid ent of the American Law Institute, wrote a very perceptive law review article entitled The Doubtful Omniscience of Appell ate Courts in which he decried the development in "which trial courts [are] losing most of their power [and] the appellate cour ts have drawn unto themselves practically all the power of the ju dicial system." Professor Wright noted: The principal consequences of broadening appel late review are two. Such a course impairs the con fidence of litigants and the public in the decisions o f the trial courts, and it multiplies the number of appeals.... Every time a trial judge is revers ed, every time the belief is reiterated that appellate c ourts are better qualified than trial judges to decide w hat justice requires, the confidence of litigants and the public in the trial courts will be further imp aired. Under any feasible or conceivable system, our trial courts must always have the last word in the g reat bulk
of cases. I doubt whether there will be much satisfaction with the judgments of trial court s among a public which is educated to believe that only appellate judges are trustworthy ministers of justice. I associate fully with Professor Wright's obse rvations and find his commentary apropos and germane to current attorneys' fees jurisprudence. I believe that we should retur n to the basic concepts of discretionary review we set forth in Li ndy II: "If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said th at the trial court abused its discretion," 540 F.2d at 115, and cease the manufacturing of "standards and procedures" in orde r to bring
about an abuse of discretion as a matter of law bec ause the district courts failed, directly or indirectly, to cross every "t" and dot every "i" to the satisfaction of an app ellate judge. We should free the district courts in attorneys fee s cases from the solemn high mass ritual as is now required in t he reception of guilty plea under Criminal Rule 11, or the judic iary's nit picking version of the USGA rules of golf---Sentenc ing Guidelines. As Professor Wright comments, "If tria l judges are carefully selected, as in the federal system, it is hard to think of any reason why they are more likely to make erro rs of judgment than are appellate judges."Indeed, there are several reasons why district judges are

much more capable of exercising broad discretion. They are on the scene. They smell the smoke of battle. Indeed , Professor Maurice Rosenberg has identified four reasons that support vesting discretion in trial courts. The first thre e are lesser

reasons:

One is the plain urge to economize on judicial energies. Appeal courts would be swamped to the point of capsizing if every ruling by a t rial judge could be presented for appellate re view.

* * *

A second reason is maintaining morale. A trial judge ... would have an oppressive sense that appellate Big Brothers [and Sisters] were ever watching, peering over the trial bench, w aiting for the harried and hurried trial judge t o lapse into mortal fallibility.

The third reason is ... finality. The more reverse-proof the trial judge's rulings, the less likely the losing party is to test them o n appeal and the sooner the first adjudication bec omes accepted and the dispute tranquilized. Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 660-61 (1971). Then follows what he calls the most pointed and helpful reason:

[T]he superiority of his [or her] nether positi on. It is not that he [or she] knows more tha n his [or her] loftier [brothers and sisters]; rath er [the trial judge] sees more and senses more. In the dialogue between the appellate judges and the trial judge, the former often seem to be saying:
"You were there. We do not think we woul d have done what you did, but we were not presen t and we may be unaware of significant matters, fo r the record does not adequately convey to us a ll that went on at the trial. Therefore, we defer to you." Id. at 663. So long as the jurisprudence has confe rred discretionary power in the district courts, we shou ld respect it.
We should not construct obstacles to its use in the form of artificial standards and criteria, the breach of wh ich we deem an abuse of discretion as a matter of law, thereby cre ating a philosophical oxymoron by savaging traditional noti ons of discretionary powers. It is for the foregoing reasons that I dissent from the majority approach, except in those areas set forth above, in
which I concur.