01-6858.121 April 16, 2012

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALEJANDRO DURAN, et al., )

)

Plaintiffs, )

)

v. ) No. 01 C 6858

)

TOWN OF CICERO, et al., )

)

Defendants. )

MEMORANDUM OPINION

(Rulings on Attorneys’ Fees and Costs Petitions)

Petitions for attorneys’ fees and costs in this civil rights

case have been under advisement awaiting the outcome of the

parties’ appeals. The appeals have now been decided. The

plaintiffs’ verdicts challenged by the Town were all affirmed, and

the cross-appeals by some of the plaintiffs were rejected. Duran 1

v. Town of Cicero, 653 F.3d 632 (7 Cir. 2011). We will now th

address the pending petitions for fees and costs.

BACKGROUND

This is a civil rights action brought pursuant to 42 U.S.C.

§ 1983, alleging federal false arrest, excessive force, and equal

protection violations as well as state-law claims of malicious

prosecution, battery, hate crimes, intentional infliction of

The judgments were vacated and the case was remanded for entry of 1

amended judgments because of what the Court found to be ambiguity in the form of

the judgments. The amended judgments have been entered. 

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emotional distress and spoliation of evidence. The plaintiffs are

78 persons who were present at a baptismal party held at the home

of Alejandro and Maria Concepcion Duran in Cicero, Illinois on

September 2, 2000. The defendants are seventeen Cicero police

officers and the Town itself. 

There were about 100 people at the party, and the Durans

provided food and drink for their guests, including beer and wine. 

At about 9:30 p.m. the Cicero police department received a

telephone call from a neighbor complaining about the party. There

were several visits to the premises by various police officers who

requested that the noise level be reduced. The party guests

initially agreed to lower the volume of the music, but when another

complaint was made, prompting further visits by the officers, the

conversations became heated. Eventually a full-scale riot ensued,

initiated, according to the plaintiffs, by the officers’ unprovoked

use of batons and pepper spray and, according to the officers, by

the unprovoked throwing of bottles and other missiles at the

officers. A rich exchange of foul language and ethnic slurs

resounded throughout the melee.2

Some of the plaintiffs alleged that they were beaten and/or

pepper sprayed in the yard, without cause. Many of the plaintiffs,

including some children, were directed by the officers to go into

the Duran house and remain there. Many of the guests in the house

A more detailed account of the occurrence appears in the opinion of the 2

Court of Appeals, 653 F.3d at 636-37. 

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made federal and state claims alleging that two of the officers,

William Peslak and Robert DeCianni, sprayed the interior of the

house with pepper spray, leaving them gasping for air and causing

them extreme physical discomfort and emotional distress.

The officers arrested seven of the plaintiffs and took them

to the Town police station. Three of the arrested plaintiffs were

not prosecuted, but the four Duran brothers were prosecuted on

charges of battery and obstructing or resisting a police officer. 

The case went to a jury trial, and the Durans were all found not

guilty. 

The basic position of the defendant officers was that they

used no more force than was reasonably necessary to defend

themselves against the violent acts of the Durans and their guests

and to arrest the plaintiffs who were assaulting them. The

defendants Peslak and DeCianni denied that they sprayed the

interior of the house. 

After the complaint was filed, there was a long period of

pretrial discovery, much of it concerned with identification of the

officers who allegedly assaulted the plaintiffs. There were

numerous discovery disputes. Considerable time was spent on the

defendants’ motions for summary judgment, and we granted summary

judgments to a number of individual defendants on various claims. 

We denied the individual defendants’ motions based on their

defenses of qualified immunity, and they took an interlocutory

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appeal. The Seventh Circuit affirmed as to most of the claims,

but reversed the denial of qualified immunity as to four claims and

remanded the case with instructions to enter judgments accordingly. 

Duran v. Sirgedas, 240 F. App’x 104 (7th Cir. 2007).

A six-week jury trial took place in January and February

2008. The jury returned verdicts in favor of some of the

plaintiffs on most of their federal and state-law claims and

verdicts in favor of the defendants on other federal and state-law

claims. The jury found against the group of plaintiffs whose only

claims were that the defendants Peslak and DeCianni had peppersprayed them inside the Duran house. 

The total amount of all judgments against the individuals

and the Town was $4,843,400.00. Of that amount, the Town has paid

$3,073,400.00 plus interest, for a total of $3,163,436.38. The

Town appealed judgments against it totaling $1,770,000, and, as

indicated above, the judgments were affirmed.

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES

The plaintiffs are seeking attorneys’ fees in the amount of

$2,228,017.50 and costs of $157,901.47 as of July 3, 2008. The

plaintiffs’ principal attorney, David A. Cerda, is requesting

$1,131,300, a little over fifty percent of the total. (Parties’

Local Rule 54.3 Joint Statement at 1.) 

Defendants object to both the fees and costs claimed by the

plaintiffs, and the parties have been unable to reach agreement on

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the appropriate amounts. Therefore, they followed the procedure

outlined in Local Rule 54.3 and have filed a Joint Statement

setting forth their positions, as well as extensive briefs and

voluminous exhibits. 

THE CONTINGENT-FEE QUESTION

The plaintiffs’ attorneys claim to have had a forty percent

contingent-fee agreement (or agreements) with the plaintiffs. At

the time the Town’s insurance carrier paid the judgments against

the individual defendants, plaintiffs’ attorneys collected the sum

of $1,040,000 as their claimed forty percent share. Defendants

argue that, having collected this contingent fee, the attorneys are

not entitled to anything more. They point out that under the fee

statute, 42 U.S.C. § 1988, the prevailing civil rights party, not

the lawyer, is eligible for an award of attorneys’ fees. 

Defendants contend that if the attorneys are seeking the award for

the benefit of the clients, that would be appropriate, but if they

are seeking it for themselves, that would be an additional fee to

which they are not entitled. Defendants have repeatedly demanded

a copy of the contingent-fee agreement, and in fact we ordered it

produced. After initially contending that the Town had no right 3

to see the fee agreement, Mr. Cerda, after being ordered to produce

it, stated that it is “missing.” Defendants argue: 

Absent the agreement, we do not know if Plaintiff’s

We say “agreement” rather than “agreements” at this point because the 3

parties have used the singular form in their briefs.

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[sic] counsel is filing this fee petition on behalf

of the Plaintiffs to reimburse them for the fees

they have already paid. Alternatively, we do not

know if Plaintiff’s [sic] counsel is seeking a

double recovery.

(Letter from Defs.’ Counsel to Pls.’ Counsel, July 31, 2008, Ex. C

to Pls.’ Mot. (hereinafter “Defs.’ Letter”) at 2.) 

Mr. Cerda’s failure to produce the contingent-fee agreement

is not the problem that the Town believes it is. “The contingent 4

fee that an attorney earns from his client and the statutory fee

that an attorney recovers from the losing party represent distinct

entitlements.” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632,

640 (7 Cir. 2011). “[D]istrict courts . . . should view these th

fees as distinct and not allow a contingent fee to influence the

determination of the reasonableness of an hourly rate.” Id. at

642. 

THE BASIC LAW CONCERNING § 1988 FEE AWARDS 

Both sides refer repeatedly to the case of Hensley v.

Eckerhart, 461 U.S. 424 (1983), and appropriately so, because it is

the Supreme Court case that provides the rules for determining

appropriate fees in civil rights cases:

The most useful starting point for determining the

amount of a reasonable fee is the number of hours

reasonably expended on the litigation multiplied by

a reasonable hourly rate. This calculation

provides an objective basis on which to make an

initial estimate of the value of a lawyer's

services. The party seeking an award of fees

It relates to a quite different problem, which we will discuss below. 

4

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should submit evidence supporting the hours worked

and rates claimed. Where the documentation of

hours is inadequate, the district court may reduce

the award accordingly. 

The district court also should exclude from this

initial fee calculation hours that were not

reasonably expended. Cases may be overstaffed, and

the skill and experience of lawyers vary widely. 

Counsel or the prevailing party should make a good

faith effort to exclude from a fee request hours

that are excessive, redundant, or otherwise

unnecessary, just as a lawyer in private practice

ethically is obligated to exclude such hours from

his fee submission.

Id. at 433-34 (quotation marks and citation omitted). The specific

issue in Hensley was whether “a partially prevailing plaintiff may

recover an attorney’s fee for legal services on unsuccessful

claims.” Id. at 426. The plaintiffs had brought suit against 

officials at the forensic unit of a Missouri state hospital and

members of the Missouri Mental Health Commission alleging that

patients in the forensic unit were subjected to treatment and

conditions that violated their federal constitutional rights in

regard to six general areas: physical environment; individual

treatment plans; least restrictive environment; visitation,

telephone and mail privileges; seclusion and restraint; and

finally, staffing, which was alleged to be insufficient. Id. at

426-28. After a bench trial, the district court found in favor of

the plaintiffs on the first five general areas, but as to staffing,

found that levels were “minimally adequate” and denied relief as to

that claim. Id. The plaintiffs filed a petition for fees under §

1988, and the parties differed as to whether hours spent on the

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unsuccessful staffing claim should be deducted in determining the

award. The district court sided with the plaintiffs and awarded a

fee based on all hours reasonably expended, without deduction for

time spent on the staffing claim. The Court of Appeals affirmed,

but the Supreme Court reversed and remanded with the following

directions to the district court: 

Where the plaintiff has failed to prevail on a

claim that is distinct in all respects from his

successful claims, the hours spent on the

unsuccessful claim should be excluded in

considering the amount of a reasonable fee. Where

a lawsuit consists of related claims, a plaintiff

who has won substantial relief should not have his

attorney's fee reduced simply because the district

court did not adopt each contention raised. But

where the plaintiff achieved only limited success,

the district court should award only that amount of

fees that is reasonable in relation to the results

obtained.

Id. at 440 (emphasis added). 

EXAMINATION OF MR. CERDA’S TIME CHARGES

Because Mr. Cerda is lead counsel and has billed more than

fifty percent of the hours for which plaintiffs request

compensation, we will begin with an examination of the

documentation he has submitted.

Exhibit A to plaintiffs’ motion for fees and expenses is a

chronological listing of all time charges submitted by the

plaintiffs’ several attorneys. It consists of 143 pages. The 5

time entries are arranged by date, and to the right of each date

Exhibit D is a duplicate of Exhibit A with the Town’s objections noted 5

beside each time entry. 

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appear the initials of the charging attorney (“DAC” for David A.

Cerda), a general description of the work done on that date, and

the total time spent on the work. Where multiple tasks are listed

in an entry, there is never a breakdown as to what portion of the

total time was spent on any of the tasks. 

We will begin with page one of Exhibit A. The first entry

is for 9/6/00, where Mr. Cerda charges 6.9 hours for “consultation

with clients; visit site and take photographs.” The defendants, in

Exhibit D, make the following objection to this entry:

Block-billing entries are vague as to amount of

time spent on each task. Client names are not

identified and indeterminable as to whether the

“client” was a prevailing party.

We believe this objection is not well taken. This was early in the

case, and Mr. Cerda was collecting basic information about a

complicated occurrence involving an extraordinary number of clients

with whom, for the most part, he presumably had had no prior

acquaintance. Inspection of the site was important, as illustrated

by the fact that a large of amount of trial time was spent by both

sides on questions such as who would have been able to see what

from various vantage points. The 6.9 hours seems an appropriate

amount of time, and we have no reason to be skeptical about it. 

Mr. Cerda’s next entry is for 6.4 hours on 9/11/00 and

reads: 

Telephone call to Lopez, Joseph R.; telephone call

to De Leon, John R.; telephone call from De Leon,

John R.; meet with clients. 

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Messrs. Lopez and De Leon were Mr. Cerda’s co-counsel in the case,

and, although the subject matter of the telephone calls is not

indicated, it is quite credible that the attorneys would be

spending a substantial amount of time discussing their

investigation of the facts. Also, “meet with clients” is obviously

appropriate at this early stage of the case. The failure to

specify how much of the 6.4 hours was spent on the telephone calls

and how much time was spent on the meeting with clients and what

was discussed at the meeting is not a problem so shortly after the

occurrence of September 2, 2000, because, whatever the breakdown

was, and whatever was discussed at the meeting, there is no reason

to question the necessity of any of it. 

Similar time entries were made by Mr. Cerda on numerous

dates throughout the rest of September, October, November and

December of 2000. (Ex. A at 1-3.) Most of the entries list

telephone calls without describing what the calls were about. 

Again, however, the calls were mostly to and from co-counsel. The

entries are mostly for 12 or 18 minutes. We think the

documentation is sufficient because it is reasonable to believe

that at this point in the case the calls were necessary and time

was not being wasted. This pattern continued from January 2001

through August 2001. (Ex. A at 3-5.) There is an entry for

8/27/01 claiming 8 hours time for “Review documents and notes and

begin drafting Complaint; teleconference calls w/ Lopez and De

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Leon; complete draft of correspondence.” It is true that we are

unable to tell how much of the 8 hours was spent on drafting, how

much on reviewing documents and notes, and how much on telephone

calls. However, the drafting of the complaint in this case was a

major project in itself, and conferring with co-counsel, who would

share responsibility for it, was necessary. We have no reason to

question the 8 hours. 

The complaint was filed in this court on August 31, 2001. 

By that time, counsel should have had a pretty good knowledge of

the case. It was, after all, almost a year after they had been

retained. While we have been willing to cut them considerable

slack for the period up to the filing of the complaint due to the

large number of plaintiffs and the obvious need for an extensive

investigation, the filing date marks a rational point of departure. 

Counsel who expected to petition the court for fees in the event

their clients prevailed should have started keeping time in a

manner that would enable the court to determine the necessity and

reasonableness of their claimed hours. It was time, in other

words, for counsel to comply with Hensley:

The party seeking an award of fees should submit

evidence supporting the hours worked and rates

claimed. Where the documentation of hours is

inadequate, the district court may reduce the award

accordingly.

461 U.S. at 433. Beginning in September 2001 (Ex. A at 5), Mr.

Cerda has a number of entries claiming 12 minutes of time for

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correspondence with co-counsel, without giving any indication of

the subject matter. Then there is an entry for 9/26/01 that

states:

Trial preparations; Telephone call to Van Sickler, 6

Kim; Telephone call from Van Sickler, Kim;

Telephone call to Van Sickler, Kim; Telephone call

to Lopez, Alejandro; Telephone call to Van Sickler,

Kim; Telephone call from Lopez, Joseph R.

(Ex. A at 5.) Four and a half hours are claimed for this work. 

The entry gives us no idea what was discussed in these

conversations or how long each conversation should reasonably have

taken, assuming it was necessary at all. One way to handle this,

of course, would be to continue assuming that all was well, that

everything claimed was necessary. But that would be ignoring what

Hensley requires a district judge to do. 

On 1/2/02, Mr. Cerda billed 2 hours and 6 minutes for

various telephone calls and preparation of correspondence to

opposing counsel, with no indication of what the calls or

correspondence concerned. (At Mr. Cerda’s requested hourly rate of

$450, that entry totals $945.00.) On 1/4/02, there is a 4.5-hour

charge by Mr. Cerda for the following work: 

Telephone call to Duran, Amada; Telephone call to

De Leon, John R.; Telephone call to Lopez, Joseph

R; conduct legal research; Draft Amended Complaint;

Telephone call to Spevack, Barry A.; Prepare

correspondence to De Leon and Lopez. 

(Ex. A at 7.) There is no indication of what the telephone calls

The “trial preparations” Mr. Cerda would have been engaged in as 6

early as 2001 (the trial was in 2008) are by no means apparent. 

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were about and no indication of what the “legal research”

concerned. The first amended complaint, filed on January 10, 2002,

added plaintiffs and made substantial additions to the allegations

of the original complaint. However, we still should know how much

of the time claimed for January 4 was spent on the amended

complaint, because Mr. Cerda included additional unspecified time

related to the drafting of the amended complaint in his six-hour

block entry of 1/10/02. (Ex. A at 7.) 

Continuing with Mr. Cerda’s charges in Exhibit A, we will

cite further examples of entries that are either undifferentiated

so as to make impossible any determination of the amount of time he

spent on each item of work and/or so vague that we have no way of

telling what he did.

On 1/21/02, there is a 2.5-hour entry for “[c]onduct legal

research.” (Ex. A at 8.) There are numerous entries consisting

mostly of telephone calls with no indication of the subjects

discussed, or for how long, which make the need for such calls

impossible for the court to evaluate. An example is Mr. Cerda’s

5.1 hours for 7/22/02 (for which he seeks $2,295.00). 

Telephone call to Lopez, Joseph R.; Telephone call

to Castellano, Salvatore; Meeting with Breed re

discovery; continue revising interrogatory answers;

Prepare correspondence to Sal; Prepare

correspondence to De Leon; Telephone call from

Seidman, Steven J.; prepare correspondence to

Seidman; Telephone call from Lopez, Joseph R.;

Prepare correspondence to co-counsel; review Minute

Order; Telephone call from Seidman, Steven J.;

Telephone call to Seidman, Steven J.; telephone

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call from Spevack’s office; Prepare correspondence

to Seidman; review fax from Seidman; Review Motion

to Quash; Review correspondence from Geanopoulos;

Telephone call to De Leon, John R.

(Ex. A at 16.) Rather than quoting further entries in 2002 and

2003, we will simply refer to some examples of dates during those

years when Mr. Cerda made time entries of the same kind: 8/5/02--

4.1 hrs.; 8/15/02--4.7 hrs.; 8/19/02--12.9 hrs.; 8/27/02--9.4 hrs.;

2/10/03--4.3 hrs.; 3/21/03--6.8 hrs.; 3/31/03--7.6 hrs.; 4/7/03--

9.3 hrs.; 6/27/03--2.1 hrs.; 10/7/03--5.8 hrs.; 10/31/03--6.7 hrs.;

12/1/03--6.2 hrs.; 12/4/03--7.1 hrs.; 12/18/03--2.3 hrs. (Ex. A at

17-20, 28, 30, 32-33, 38, 44-45, 48, 50-52.)

The fact that Mr. Cerda’s telephone conversations occurred

so frequently with co-counsel, such as Messrs. Lopez and De Leon,

increases the potential for awarding excessive compensation. As we

shall see when we review the time charges of Messrs. Lopez and De

Leon, they are charging for these same telephone calls. If in fact

the calls were unnecessary, and the court were to award the fees

requested, the defendants would be charged triple time for

unnecessary work. 

There are some instances where the “block billing” is not

a problem. In April 2002, there are charges of 7 hours or more for

preparation and presentation of some of the plaintiffs for their

discovery depositions. It is obvious what this work would be, so

it was not necessary to break it down. 

Some of the entries for 2003 and 2004 are satisfactory,

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especially where one item or a number of items that are clearly

interrelated are listed, so that it is not essential to know the

time spent on each. This is true, for instance, where Mr. Cerda

prepares for the deposition of one of his clients, confers with the

client about the deposition, and then attends the deposition with

the client. The total time listed for these related events is

subject to at least some kind of appraisal by the court for its

reasonableness and, of equal importance, it gives the defendant’s

attorneys an opportunity to state why they believe the time is

excessive, based upon their own knowledge of the deposition and the

work they did in connection with it. 

Similarly, entries consisting mostly of telephone calls, not

specifically stating what was discussed, can still pass muster if

the context indicates what the calls must have been about and the

total length of time claimed does not seem excessive in light of

what appears to have been their likely subject. One example is

where the calls occur immediately before a hearing on an important

contested motion. But where the undefined “legal research,”

document review, and telephone calls do not occur in a context that

indicates their purpose, the court has no basis for an informed

opinion as to whether the work was necessary. Moreover, the

defendants are afforded no opportunity to question the need for any

specific work or to challenge the amount of time claimed for it. 

Another consequence of Mr. Cerda’s failure to document the

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time spent on specific tasks is that it makes it impossible for the

court or the defendants to know what time was spent on claims on

which the plaintiffs did not prevail. Only 23 of the 78 plaintiffs

received favorable jury verdicts, against just 6 of the 12

individual defendants. Partial success is the subject dealt with

in Hensley. The Court quoted with approval the following language

from Nadeau v. Helgemoe: 

As for the future, we would not view with sympathy

any claim that a district court abused its

discretion in awarding unreasonably low attorney’s

fees in a suit in which plaintiffs were only

partially successful if counsel’s records do not

provide a proper basis for determining how much

time was spent on particular claims. 

461 U.S. at 437 n.12 (quoting 581 F.2d 275, 279 (1 Cir. 1978), st

abrogated on other grounds by Richardson v. Miller, 279 F.3d 1 (1st

Cir. 2002)).

Defendants point out the predominance of unsuccessful over

successful claims and argue that “the limited success of Plaintiffs

should result in a significant reduction of fees.” (Defs.’ Letter

at 8-11.) Plaintiffs’ response to this argument is that all of the

claims were interrelated in that they involved a common core of

facts and are based on related legal theories. The common core of

facts is “about what happened at the Duran home.” The legal

theories of the prevailing plaintiffs are “related” to those of the

plaintiffs who did not prevail, and the plaintiffs who did not

prevail “were needed as eye witnesses to the event to support the

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claims of prevailing plaintiffs.” (Pls.’ Mot. for Fees at 37.) 

We think the defendants have the better of the argument.

Most of the plaintiffs who did not prevail on any claims were those

who alleged that they were sprayed inside the house. The jury

found in favor of Officers Peslak and DeCianni on those claims.

They were the only defendants most of these plaintiffs sued. The

determination of whether DeCianni and Peslak were guilty of

spraying into the house required a finding by the jury that was

quite separate from the findings they had to make concerning

whether other plaintiffs were being beaten and sprayed in the yard

by entirely different defendants. Granted, the plaintiffs inside

the house were claiming that the spraying constituted excessive

force and violation of various state laws, the same legal theories

asserted by other plaintiffs who complained about events in the

yard, but these “related” legal theories were based on completely

different facts. As for the plaintiffs in the house being

necessary witnesses to what took place in the yard, there were

numerous other party guests who testified to what took place in the

yard, and we have no specific recollection of any of the plaintiffs

inside the house testifying to anything they saw occurring in the

yard. Plaintiffs provide no examples. In any event, the testimony

would have been cumulative.

Plaintiffs assert: 

Other than suggesting that time preparing certain

unsuccessful plaintiffs for deposition and trial,

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defendants have not identified briefs or general

tasks which should be cut from plaintiffs [sic]

time, nor offered their comparable time as a guide

to how much time should be cut.

Id. at 37. Plaintiffs’ counsel do not appear to understand that

the burden of proving what time should not be deducted rests upon

them, not the defendants. 

We have commented on Mr. Cerda’s time entries for the years

2002 and 2003, observing that they are frequently insufficient to

indicate what specific work he was doing, whether the work was

necessary, how long it reasonably should have taken, and whether it

related to unsuccessful claims. We will now undertake a similar

analysis of the years 2004, 2005, 2006 and part of 2007.

The same pattern continues, year after year. Occasional

entries, where a single task is listed, are adequate. For

instance, on 8/13/2004, Mr. Cerda charged one-half hour for “Review

the Town’s Answer to Plaintiffs’ Fourth Amended Complaint.” (Ex.

A at 68.) This appears to be a reasonable amount of time spent on

something that obviously needed to be done. The entry illustrates

the fact that the explanation need not be lengthy; usually just a

few words will do. But the majority of Mr. Cerda’s entries for

these years are insufficient to enable the court or defense counsel

to determine what was done, how long it should have taken and what

it concerned. This is especially true of the multitude of entries

that lump together collections of telephone calls without stating

their subjects. 

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Further examples of adequate entries are some of those

relating to Mr. Cerda’s work on the interlocutory appeal in 2006,

where he lists simply “Work on appeal.” (See, e.g., Ex. A at 84,

4/24/06 & 5/02/06 entries.) The Town’s objection to these entries

is uniform: “Vague and non-descriptive as to the nature of the

task, the subject matter or its necessity.” (Ex. D at 113.) It

appears that Mr. Cerda was the principal author of the plaintiffs’

brief on certain defendants’ appeal of the court’s denial of

qualified immunity. His time entries are general, but the subject

matter of the work is clear enough, and, if the total time he

claims to have spent on the appeal appeared to defendants to be

excessive, they could have pointed that out. They have not done

so.

On July 25, 2007, the court entered an order setting the

case for trial on January 7, 2008 and closing discovery on October

31, 2007. At that point, plaintiffs’ counsel had over five months

to finish discovery and prepare for a complicated trial. Like the

initial period up to the filing of the complaint, this five-month

period right before trial is unlikely to have involved much wasted

time (on either side). The court is therefore inclined to be much

more tolerant of time entries for this period that are lacking in

specificity. The Town continues to complain of block billing and

vague entries that do continue to characterize many, if not most of

the entries during this period, but we are disinclined to make any

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reductions for the entries from July 25, 2007 to January 7, 2008. 

We have the same view of the time entries during the trial,

which began on January 7, 2008 and ended on February 15, 2008. Mr.

Cerda’s time entries for the days on trial typically read “trial

preparations; trial” and claim as much as 20 hours of time per day. 

Defendants continue their “block billing and vague entry”

objections to these entries, but the lack of detail is not

troublesome. We know what Mr. Cerda was doing because, in large

part, we saw him doing it. That he worked long hours before and

after the close of each trial day is no surprise; it is what a

trial lawyer must to do to be successful, and we have no doubt that

he did it. Again, if defendants believed that the total time

claimed was excessive, say, in comparison to the amount of time

spent by defendants’ counsel, that could have been argued.

After trial, there was a busy period of post-trial motions,

research and briefing of the motions, preparation of the

plaintiffs’ bill of costs, and consideration of an appeal. The

court is familiar with most of the work referred to in Mr. Cerda’s

entries during this time in that we considered and ruled on the

post-trial motions. Many of the telephone calls and exchanges of

correspondence were with defense counsel. We are unable to say

that the work was unnecessary or that the claimed time was

excessive. Again, defense counsel, essentially working in parallel

with plaintiffs’ counsel, could attempt to show why the total time

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claimed for the post-trial period was excessive, but they have not

done so.

The last date for which Mr. Cerda claims compensation in the

present fee petition is July 2, 2008. 

We will not make any reduction for the period of July 25,

2007 to July 2, 2008. 

TIME CHARGES OF PLAINTIFFS’ CO-COUNSEL

We now turn to a consideration of the time claimed by Mr.

Cerda’s original co-counsel--Messrs. Joseph Lopez and De Leon--and

Messrs. Mark Parts and Alejandro Lopez, who joined later as

additional counsel. 

It will not be necessary for us to describe these attorneys’

time entries with the same detail we used regarding Mr. Cerda’s

entries because an examination of Exhibit A (the chronological

listing of all entries by all of plaintiffs’ attorneys) shows that

the entries follow the same pattern: block entries with no

indication of the time devoted to the individual tasks; vague

entries, such as “telephone conversations,” with no description of

the subject matter or duration; “review” of unspecified documents;

and research and correspondence, the purpose of which is not

stated. There are the same mitigating factors we found in regard

to some of Mr. Cerda’s entries, as where the context indicates what

must have been the purpose and necessity of the work. With respect

to Messrs. Joseph Lopez and Parts, who rendered necessary legal

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services and participated as trial counsel, we will apply the same

leniency for the same designated time periods as we did for Mr.

Cerda. 

We take a different view of the work claimed by Mr. De Leon. 

He has billed 197.3 hours at a requested rate of $500 per hour,

which comes to $98,650.00, considerably less than the totals

requested by each of the other attorneys. Mr. De Leon’s practice

is primarily criminal defense, and his initial involvement with the

Duran plaintiffs was as co-counsel along with Messrs. Cerda and

Joseph Lopez in the defense of the criminal cases arising out of

the occurrences at the baptismal party. In his affidavit submitted

in support of his fee request, Mr. De Leon states: “I worked on

preparing this case for trial and coordinated the witnesses with

the attorneys on a daily basis. I observed many court proceedings

and offered advice to the attorneys during the trial phase.” 

(Pls.’ Mot., Ex. K ¶ 6.) 

The three attorneys who tried this case for the plaintiffs

have all had extensive trial experience. Mr. Cerda and Mr. Parts

have specialized for many years in the representation of plaintiffs

in § 1983 cases and are familiar with the applicable law. (Pls.’

Mot., Exs. I, M.) Mr. Joseph Lopez is primarily a criminal defense

attorney with an extensive amount of jury trial experience, and he

participated in the preparation and trial of this case. (Pls.’

Mot., Ex. L.) Mr. De Leon’s statement that he “offered advice to

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the attorneys during the trial phase,” without any further

description, does not persuade us that the advice was necessary,

considering the backgrounds of the attorneys who tried the case. 

Similarly, the phrase “coordinat[ing] the witnesses” fails to

inform us about the need for whatever it was Mr. De Leon was doing. 

It also fails to indicate the need for an attorney to do it. The

same is true of his time entries for the pretrial and post-trial

phases of the case. Their frequent vagueness, and failure to

indicate how much time he was spending on particular tasks, leave

us in doubt as to whether his participation in the case was truly

necessary.

Mr. Alejandro A. Lopez is an attorney who had very limited

involvement in this case. He entered this case in late fall 2007,

apparently after we set the January 2008 trial date. Mr. Lopez

states in his affidavit: 

After obtaining my law license in 2003, I expanded

my role with the firm [Jauregui & Associates] by

trying cases before the Illinois Workers

Compensation Commission, taking evidence

depositions and preparing and presenting clients

for their depositions and testimony at trial. 

In the late fall of 2007, I began assisting Mr.

Cerda with trial preparation of plaintiffs and

witnesses in Duran, et al., v. Town of Cicero, et

al. I assisted trial counsel, with my bilingual

speaking abilities, in the trial preparation of the

plaintiffs in the cause of action, providing them

with legal explanations and facilitating their

understanding of the court proceedings. I completed

my work in Duran at the end of the trial. 

(Pls.’ Mot., Ex. P ¶¶ 7-8.) Mr. Alejandro Lopez’s exact role in

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the case is difficult to determine, and the need for his services

to supplement that of the other attorneys, Messrs. Cerda, De Leon,

Parts and Joseph Lopez, has not been shown. Plaintiffs contend in

their motion: 

In this case, Mr. Lopez prepared witnesses for

trial greatly reducing the work of more senior

counsel. Mr. Cerda entrusted Mr. Lopez to prepare

witnesses with little oversight because of Mr.

Lopez’ understanding of the relevance and

importance of the facts of the case as well as the

rules of evidence. Mr. Lopez is bilingual which

obviated the need for interpreters further reducing

the costs of litigating the case. 

(Pls.’ Mot. at 31-32.) It is impossible for this court to believe

that the trial lawyers in this case did not meet and confer with

their witnesses before putting them on the stand, but instead left

it to an associate who had entered the case just a few months

earlier and had not been privy to the work that had been done

during the years the case had been pending. We have given Messrs.

Cerda, Parts and Joseph Lopez full credit for the great number of

hours each of them claim for out-of-court time during the trial

because we assumed that they spent whatever portion of that time

was necessary to confer with their witnesses for the next day. 

Alejandro Lopez is said to have been valued because he speaks

Spanish, but so does Joseph Lopez. Neither Mr. Cerda nor Mr. De 7

Leon states whether they speak Spanish, but neither do they say

Joseph Lopez states: “I assisted counsel in this case with witness 7

preparation of over 40 witnesses and assisted Mark Parts on occasion with

interpretation since I speak Spanish and many of the witnesses spoke only

Spanish.” (Pls.’ Mot., Ex. L ¶ 10.)

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that they do not speak Spanish.8

Plaintiffs’ claim as to Mr. Alejandro Lopez is for 173 hours

at $250 per hour for a total of $43,250.00. (Pls.’ Mot., Ex. A at

143.) Plaintiffs have not shown the necessity of the services

claimed to have been performed by Mr. Alejandro Lopez in addition

to those claimed by Messrs. Cerda, De Leon and Joseph Lopez. 

Therefore, no fees will be allowed for Mr. Alejandro Lopez. 

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ ARGUMENT

REGARDING INSUFFICIENT DOCUMENTATION OF HOURS

In their fee petition, the plaintiffs make two basic

arguments in response to defendants’ objections regarding vagueness 

and block billing. The first is that the various attorneys who

have represented defendants over the life of this case have

submitted the same kind of billing to their clients and have been

paid. (Pls.’ Mot. at 32-36.) Plaintiffs assert: 

Defendants’ contention that plaintiffs’ bills are

not sufficiently detailed and should be cut

globally is offensive because of the double

standard defendants seek to impose on plaintiffs

and, further, because defendants’ counsel billed

twice as many attorney hours to the case. 

(Pls.’ Mot. at 35.) Examples of the billing referred to by

plaintiffs are included in Exhibit R to plaintiffs’ motion, and

some do show vague entries and block billing by the Town’s

attorneys. But the argument is irrelevant. Our task is not to

determine whether bills submitted to the Town were adequately

Mr. De Leon states that he “coordinated the witnesses with the attorneys 8

on a daily basis.” (Pls.’ Mot., Ex. K ¶ 6.)

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documented or whether the Town’s attorneys billed too much time. 

We have enough to do to determine what fees were reasonably and

necessarily earned on behalf of the plaintiffs and therefore

assessable against defendants pursuant to § 1988. Plaintiffs have

cited no case in support of their contention that the format of

bills submitted to defendants should serve as a guide to what

suffices under Hensley, and, of course, there is no such case. 

Plaintiffs’ other argument is that the Seventh Circuit has

indicated in various cases that if “counsel submit bills with the

level of detail that paying clients find satisfactory, a federal

court should not require more.” (Pls.’ Mot. at 32-33 (quoting,

inter alia, In re Synthroid Mktg. Litig., 264 F.3d 712, 722 (7th

Cir. 2001)).) Therefore, according to plaintiffs, since “the level

of detail in plaintiffs’ bill is satisfactory to paying clients

such as the Town of Cicero . . . this Court should not require more

detail nor cut globally plaintiffs’ billable hours for so called

‘block billing’.” (Pls.’ Mot. at 33.) 

We have no problem with the proposition that block billing,

and even vague entries, can suffice under some circumstances. In

this very opinion we have held this kind of documentation to be

adequate when it related to work for reasonable periods on factual

investigation, the interlocutory appeal, trial preparation for this

complicated case, the trial itself, and post-trial motions. The

nature of the work that was required during these periods of time

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was fairly obvious and defendants did not point out any time that

appeared to be excessive. 

Many “paying clients” would not require more documentation

than we have for work whose purpose is obvious. And it is also

true that there are clients who pay bills even when the purpose of

the insufficiently documented work is not apparent and they have no

way of assessing whether the work was necessary or that the time

was reasonable. Various factors account for this fact. Many

clients are simply unsophisticated about fees and do not know that

they are entitled to a more informative breakdown than they receive

from their attorneys. They may wonder about the bill, but having

no knowledge of what they can do about it, they pay it. Another

situation where the paying client will often accept a bill in the

form submitted by plaintiffs’ counsel in this case is where the

lawyer and the client have a long-standing relationship, sometimes

existing for decades. The client is satisfied with the lawyer’s

services, trusts the lawyer to do the right thing, and desires to

maintain the relationship. That kind of client may be unwilling

to risk a breach in the relationship by indicating a distrust of

the bill. 

But aside from the fact that for these and other reasons,

many clients will often pay bills that would never survive a

Hensley analysis, there is a growing trend among sophisticated

clients, such as publically-held corporations, to demand billing

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that specifies exactly what was done and how much time was spent on

each task:

[A]ttorney-client relationships have changed. 

Clients, who thirty years ago were considered quite

docile (paying thousands of dollars for bills

lacking any detail other than as compensation “for

services provided”), have shifted to demanding

detailed accountings as a predicate to payment.

Sophisticated clients now scrutinize legal bills to

ferret out exorbitant charges and to prevent

“padding” through charges for unnecessary work or

exaggerated hourly totals. 

Dennis Curtin & Judith Resnik, Teaching Billing: Metrics of Value

in Law Firms and Law Schools, 54 Stan. L. Rev. 1409, 1412-13 (2002)

(book review). See also Gerald F. Phillips, It’s Not Hourly

Billing, but How It’s Abused That Causes the Poor Image of

Attorneys, 18 No. 3 Prof. Law. 21 (2007). No appellate court has

stated that Hensley is satisfied by a simple trial court finding

that the billing in question is similar to billing that “is

satisfactory to paying clients,” even when the court is unable to

tell whether the time billed was reasonably and necessarily

expended. The Seventh Circuit’s reference to bills “satisfactory”

to paying clients in cases such as Synthroid, 264 F.3d at 722, must

be given a reasonable interpretation, and certainly the Court has

not meant that because a fee petitioner can always cite examples of

clients who pay bills with block billing and vague entries that

render impossible any determination of what was done, the trial

court should automatically approve that kind of billing when

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deciding the petition.9

If it is not already clear, we wish to emphasize that, with

the exceptions we have noted, plaintiffs’ vague entries and block

billing make it impossible for us to fulfill our obligation to

determine what was done, whether it was reasonably necessary, and

whether a reasonable amount of time was spent on it. Other courts

have expressed the same kind of frustration, disallowing time that

is not adequately documented. For instance, in Tomazzoli v.

Sheedy, 804 F.2d 93 (7 Cir. 1986), the Court affirmed the trial

th

court’s reduction of § 1988 fees. The Court stated that many of

the time entries contained only vague descriptions of the legal

research that had been performed and “[f]urther, the total number

of hours attributable to research alone is uncertain; in some

instances [counsel] lists ‘research’ along with other tasks

performed and gives but a single total for the combined work.” Id.

at 98. Other Courts of Appeals have ruled the same way. See,

e.g., Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1234 (10th

Cir. 2000) (to satisfy their burden in applying for attorney’s fees

in federal civil rights actions, “attorneys must keep and produce

meticulous time records which reveal all hours for which

compensation is requested and how those hours were allotted to

specific tasks”) (internal quotation marks and ellipsis omitted);

See United States v. Chase, 281 F.2d 225, 229 (7 Cir. 1960) (“[T]he 9 th

District Courts as well as the Courts of Appeals must follow the decisions and

interpretations of our highest court in spite of any individual predil[e]ctions

that may exist.”). 

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Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir.

2004) (commenting that when time records “lump together multiple

tasks,” it is “impossible to evaluate their reasonableness”). 

In Delgado v. Village of Rosemont, No. 03 C 7050, 2006 WL

3147695 (N.D. Ill. Oct. 31, 2006), another § 1983 excessive force

claim brought by Messrs. Cerda and De Leon, Judge Leinenweber

reduced their requested fees for inadequate documentation:

Specifically, Defendants complain about “blockbilling” and vagueness as to particular tasks’

nature, subject matter, or necessity. The time

entries Plaintiffs have submitted provide little

detail and repeatedly block-bill. While Plaintiffs

argue that their billing is satisfactory, this

court has had no end of trouble attempting to deny

Plaintiffs’ requested attorneys’ fees for clerical

tasks due to the attorneys’ and paralegals’

penchant for block-billing. This Court was unable

to ascertain what hours to attribute to the

malicious prosecution claim and had to adopt the

figure provided by Plaintiffs in their brief.

Additionally, the repeated failure of the attorneys

and paralegals to indicate what telephone calls and

research concerned, even in the most general of

terms, has made it impossible for this Court to

evaluate whether these fees were reasonably

necessary as already noted. As such, this Court is

prepared to make a proportionate reduction of the

fees for insufficient description.

Id. at *7. State courts have dealt with this problem in a similar

fashion. See, e.g., Kaiser v. MEPC Am. Props., Inc., 518 N.E.2d

424, 430 (Ill. App. Ct. 1987) (affirming reduction of $28,228.60

request to $13,729.00) (“[I]t is impossible to determine exactly

what amount of time was expended on each task listed because in

most instances, the time for all work performed by an attorney on

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a given day was aggregated into a single hourly total for that day. 

Consequently, there is no completely objective manner by which to

determine the reasonableness of the charges.”).

We reject the plaintiffs’ attempt to justify their vague

entries and block billing. We will take these deficiencies into

consideration when determining what fees we can allow. 

Defendants have one additional complaint about the

plaintiffs’ billing. They object to what they consider secretarial

or clerical tasks that were billed at attorneys’ rates. Defendants

cite Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th

Cir. 1999), for the proposition that such work is “easily delegable

to non-professional assistance.” (Defs.’ Letter at 4-5.)

The plaintiffs disagree that the items defendants consider

secretarial or clerical are being accurately characterized. And

they reiterate their argument that the defendants’ attorneys billed

at attorneys’ rates for the same kind of work. (Pls.’ Mot. at 40-

43.) What the defendants’ attorneys did is irrelevant. But

whether the work in question was clerical is, in some instances,

debatable. The amount of time involved is small in relation to the

total fees claimed. Defendants contend that plaintiffs’ counsel

seek fees for the following amounts of clerical work: 2.3 hours for

Mr. Lopez; 1.4 hours for Mr. De Leon; and 4 hours for Mr. Parts. 

As for Mr. Cerda, defendants find 12.8 hours of “ascertainable”

clerical tasks, and in addition, 76 different block-billed entries

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as to which the amount of clerical time involved cannot be

ascertained. (Defs.’ Letter at 4.) 

Because our reductions will be based on a percentage of the

total fees claimed, any reduction for clerical work would be so

minuscule as to be indiscernible. Accordingly, we do not find it

worth the time it would require to examine and analyze each of the

alleged clerical entries. 

Because of plaintiffs’ counsel’s deficient documentation--

vague entries, block billing and failure to identify time spent on

unsuccessful claims --we must reduce the amount of time for which 10

plaintiffs would be entitled to compensation had their time records

been kept in the manner required by Hensley. Because the time

records make it impossible to ascertain what specific amounts of

time should be excluded as unnecessary, excessive or devoted to

unsuccessful claims, we will reduce the requested fees by what we

determine to be a reasonable percentage. See Harper v. City of

Chicago Heights, 223 F.3d 593, 605 (7 Cir. 2000) (“[W]hen a fee th

petition is vague or inadequately documented, a district court may

either strike the problematic entries or (in recognition of the

impracticalities of requiring courts to do an item-by-item

accounting) reduce the proposed fee by a reasonable percentage.”). 

Although we have held that the plaintiffs’ time entries during certain 10

time periods are sufficient despite their lack of specificity, that has nothing

to do with the fact that the records they kept are insufficient to indicate what

work they did during those periods on claims which ultimately turned out to be

unsuccessful. 

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A reasonable percentage obviously must be an estimate--our

best approximation of the percentage of the total time claimed that

is not adequately documented as to its necessity or reasonableness

(and not billed during the time periods for which we have held

vague entries and block billing to be excusable). We have given

the time records the necessary “close look,” as directed by Dutchak

v. Central States, Southeast and Southwest Areas Pension Fund, 932

F.2d 591, 597 (7 Cir. 1991). In fact, given the nature of the th

records, we are unaware of what more we could be expected to do. 

Defendants argue for a 75 percent overall reduction. That

would be excessive. Our best estimate is 30 percent, and that is

the percentage we will apply to each of Messrs. Cerda, Lopez and

Parts. Because Mr. De Leon has not made a persuasive case that

his services were actually needed, and we have considerable doubt

about it, we will reduce his hours by a greater percentage, namely,

50 percent. The effect of these reductions is as follows:

Attorney Total

Number

of Hours

Billed

Number of

Hours

Deducted

Number of Hours

Allowed

David A. Cerda 2514 754.2 1759.8

Joseph R. Lopez 612.3 183.7 428.6

Mark Parts 729.1 218.7 510.4

John R. De Leon 197.3 98.7 98.6

Alejandro Lopez 173 173 0

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HOURLY RATES

We will now discuss appropriate hourly rates, which are

“those prevailing in the community for similar services by lawyers

of reasonably comparable skill, experience and reputation.” Blum

v. Stenson, 465 U.S. 886, 895 n.11 (1984). A reasonable hourly

rate is “derived from the market rate for the services rendered.” 

Denius v. Dunlap, 330 F.3d 919, 930 (7 Cir. 2003). th

A threshold issue is whether there will be a single hourly

rate for each attorney for all of the years covered by the billing,

as plaintiffs desire, or a different hourly rate for each of the

nine years, as the defendants suggest. We believe the plaintiffs’

approach is preferable. They point out that they have had to wait

many years for payment of their fees and argue that the use of

hourly market rates for 2008 would be an appropriate way to

compensate for the delay in payment, citing Smith v. Village of

Maywood, 17 F.3d 219, 221 (7 Cir. 1994), and Lightfoot v. Walker, th

826 F.2d 516, 523 (7 Cir. 1987). Plaintiffs’ proposal has the th

advantage of greater simplicity, and we see nothing unfair about

it. Market rates for the year 2008 will be the reference point for

determining the appropriate rates for the plaintiffs’ attorneys. 

In addition, since the “current rates” used in the plaintiffs’ fee

petition are four years old, we will award interest on plaintiffs’

fee award at the annual average of the prime rate, compounded

annually, from July 3, 2008 through the date of our fee award. See

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In re Cont’l Illinois Secs. Litig., 962 F.2d 566, 571 (7th Cir.

1992) (if the district court uses current rates, it must make some

provision for the interval between the “current” period and the

date of the fee award); Dupuy v. McEwen, 648 F. Supp. 2d 1007,

1018-19 (N.D. Ill. 2009). 

Fees in § 1983 cases that are tried to a favorable verdict

are not paid by clients, but by court order, such as the one we

will be entering at the conclusion of this opinion. The cases are,

like this one, handled on a contingent-fee basis. The hourly rates

cited to the court are, in part, hourly rates approved by other

judges who relied in part on the decisions of still other judges. 

The petitioning attorneys often provide affidavits of other

attorneys who state what they or other attorneys have charged in

similar cases and sometimes offer their opinions as to the

appropriate rates for the petitioners. These “third party

affidavits are a better way to prove market rates . . . .” Spegon,

175 F.3d at 556.

In support of his proposed $425 rate, Mr. Parts has

submitted the Declaration of Michael A. Lawson, a (now-retired)

partner in the firm of Skadden, Arps, Slate, Meagher and Flom. 

(Pls.’ Mot., Ex. M.) This declaration is actually a copy of one

that Mr. Lawson submitted in 2005 in a case pending before a

Special Master in the Central District of California. Mr. Parts

spent six years as an associate with the Skadden firm, and Mr.

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Parts’s argument is that the declaration therefore supports the

rate he seeks here. In describing his own work, Mr. Lawson states

that he has “provided advice in the context of financings, crossborder transactions, private investment company matters and merger

and acquisition transactions.” His experience “also includes

advising clients with respect to the structuring and offering of

investment vehicles to pension plans and other institutional

investors . . . .” (Lawson Decl. ¶¶ 3-4.) Attached to the

declaration is a copy of Skadden’s “standard hourly time charge

schedule,” dated September 1, 2005. It shows that the rates for

“partners and of counsel” range from $575 to $835 per hour. The

relevance of Mr. Lawson’s declaration is limited. The kind of work

he does is not the same as federal court trial work in § 1983

cases. We do not mean to say that one kind of work is more

important or difficult than the other, but the fact that it is

radically different work makes us question whether the hourly rates

for one can be taken as a standard for rates in the other. Our

reservation extends to the Skadden hourly rate schedule. We are

unable to tell what rates apply to what types of work. The lowest

rate--$575--exceeds any rate allowed in a § 1983 case in this

court, as far as we are aware. 

Exhibit N to plaintiffs’ motion is the affidavit of Melvin

L. Brooks, a partner with the law firm of Cochran, Cherry, Givens,

Smith & Montgomery, also submitted in support of Mr. Parts’s

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request for fees. Mr. Brooks first worked with Mr. Parts in the

City of Chicago’s Law Department and later recommended that he be

hired by the Cochran firm. The firm “has a significant case load

of civil rights cases, particularly those involving police

misconduct.” Mr. Brooks does not give any examples of courtawarded fees that he or his firm have received. Mr. Brooks does

say in conclusory fashion that he is “aware of the legal market in

our community in this regard” and that he considers Mr. Parts’s

request of $425 per hour to be “very reasonable” and in fact on the

low side. (Pls.’ Mot., Ex. N, Aff. of Melvin L. Brooks ¶ 8.) 

This affidavit is of no help.

Another declaration submitted by Mr. Parts is that of

Matthew J. Piers, an experienced litigator who has tried a number

of civil rights cases and is familiar with “hourly rates charged by

. . . other federal litigators in the Chicago area.” Mr. Piers

handles other types of litigation as well, and we are not clear

whether his statement that his “professional rate for legal

services is $550” applies to the § 1983 cases he handles. Mr.

Piers cites no examples of any § 1983 awards he has received. He

speaks highly of Mr. Parts and opines that Mr. Parts’s requested

rate of $425 is “reasonable, and lower than the rates of many other

attorneys in the Chicago area with [Mr. Parts’s] experience and

expertise.” (Pls.’ Mot., Ex. O, Decl. of Matthew J. Piers ¶ 7.) 

He does not state that the higher rates to which he refers are

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rates received by attorneys doing work comparable to that of Mr.

Parts. The wording of this declaration makes it difficult to

evaluate its weight. 

Mr. Parts’s own affidavit, Exhibit M, refers to his

extensive trial experience, but apparently he has never been

granted a § 1988 fee award, because he cites none. Therefore, it

appears that we will be the first court to fix his appropriate

hourly rate. 

In his affidavit, Mr. Cerda refers to a number of § 1983

cases he has settled for large amounts of money, but these cases

involved no court determination of an hourly rate, and we assume

that he charged his clients the agreed percentage provided for in

his contingent-fee contracts. He cites two cases in which a judge

determined his hourly rate. One is Delgado, where Judge

Leinenweber awarded Mr. Cerda fees at an hourly rate of $375.00. 

(Pls.’ Mot., Ex. I, Aff. of David A. Cerda ¶ 11.) The other case

is Torres-Rivera v. Espada-Cruz, Civ. No. 99-1972CCC, 2007 WL

906176 (D.P.R. Mar. 22, 2007). Mr. Cerda states: “The jury

returned a verdict in excess of $340,000. The undersigned

successfully defended the verdict on appeal. Later, the

undersigned successfully argued in favor of reversing the district

court’s award on [sic] attorney’s fees.” (Cerda Aff. ¶ 9.) Mr.

Cerda omits some important facts. The district court, Judge

Cerezo, criticized him for his vague entries and block billing,

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pointing out that his total fees had been reduced on that account

in Delgado. The court set Mr. Cerda’s hourly rate at $200 (the

prevailing rate in Puerto Rico, see Torres-Rivera v. Espada-Cruz,

Civ. No. 99-1972CCC, 2006 WL 2136640, at *2 (D.P.R. July 27, 2006))

and reduced his fee by 15 percent due to the vague entries and

block billing. Id. at *2-3. 

Mr. Cerda’s statement that he “successfully argued in favor

of reversing the district court’s award on attorney’s fees” is

true, but in a way that does not help him here. In Torres-Rivera

v. O’Neill-Cancel, 524 F.3d 331, 340 (1 Cir. 2008), the Court of st

Appeals affirmed the district court’s 15-percent global reduction

for vague entries and block billing, stating that “the decision to

make the fifteen percent global reduction plainly falls within the

range of reasonableness.” 

The Court of Appeals found, however, that the trial court

had erred in two respects. First, it had apportioned the judgment

equally against the two defendants despite the fact that most of

the time spent on the case was devoted to proving the liability of

one of the defendants. The Court of Appeals held that the trial

court “should as a matter of law have used the ‘time expended’

method of apportionment and calculated the approximate time spent

in litigating against each defendant.” Id. at 339. The second

error was the refusal of the district court to grant a supplemental

motion for fees for prosecution of the fee petition itself and for

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collection efforts. Id. at 340-41. For these reasons, the fee

award was vacated and remanded with directions to apportion the

judgments differently and to determine plaintiffs’ appropriate fees

for the matters presented in the supplemental motion. 

11

Mr. De Leon’s affidavit, Exhibit K, refers to an hourly rate

he charged in a criminal case, but no § 1983 fee awards. (We know,

however, that in Delgado, where he was co-counsel with Mr. Cerda,

Judge Leinenweber awarded him fees at the rate of $425 per hour

($50 more than Mr. Cerda)). 2006 WL 3147695, at *4-5.

Mr. Lopez’s affidavit, Exhibit L, provides an example of his

hourly rates in criminal cases, but this appears to be the first

case in which any court has been called upon to set his hourly rate

in a § 1983 case. 

In addition to these declarations and affidavits, plaintiffs

attach as Exhibit E to their fee petition a 2008 National Law

Journal Survey that lists the hourly billing rates of partners and

associates at the nation’s 250 largest law firms. The survey is of

limited relevance. That partners at Jenner & Block charged from

$525 to $1,000 per hour and those at Winston & Strawn charged from

$400 to $975 per hour is not a basis for awarding the attorneys in

this case any such hourly rates. We cannot tell from the survey

whether the attorneys from these firms that primarily represent

 The district court judge had reduced the hourly rate from $175 to $50 11

for David Breed, Mr. Cerda’s paralegal. 2007 WL 906176 at *2. Apparently, Mr.

Cerda did not appeal this ruling, because it is not mentioned in the Court of

Appeals’s opinion. 

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large corporate clients are doing work that is comparable to the

work done by plaintiffs’ attorneys in this case. It is unlikely

that the attorneys at Jenner & Block and Winston & Strawn who

charge high fees are doing trial work because we know that these

large firms are rarely involved in trials. Plaintiffs maintain

that the rates charged by these firms reflect rates “for Chicago

attorneys engaged in complex federal litigation,” Pls.’ Mot. at 17,

but there is nothing in the survey that indicates the kind of legal

work being performed. Only the rates are listed. 

Plaintiffs do not argue that they should be paid at the top

of the ranges shown in the survey; they are seeking rates of $500

(Messrs. De Leon and Lopez), $450 (Mr. Cerda) and $425 (Mr. Parts). 

Perhaps their point is that the lower rates at the big firms

support their claims. We think that the survey is relevant for

that purpose because we can safely assume that much of the work at

the lower end of the range at these large firms is related in some

way to “litigation,” such as propounding and answering discovery

requests and reviewing voluminous documents. 

Plaintiffs also cite the “Laffey Matrix” and the “Adjusted

Laffey Matrix” as support for the reasonableness of their 12

requested hourly rates. (Pls.’ Mot. at 19-21.) The Matrices are

included as Exhibits F and G. The Laffey Matrix was prepared by

the United States Attorney’s Office for the District of Columbia. 

This Matrix is adjusted to reflect Consumer-Price-Index calculations 12

specific to legal services. (Pls.’ Mot., Ex. G.)

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The Matrices show hourly rates charged by Washington, D.C.-area

attorneys and paralegals of varying years of experience. The

Matrices have been used extensively by judges in the District of

Columbia in fee-shifting cases. We will consider the Matrices,

even though they are not evidence of rates charged by lawyers in

the same “community,” see Blum, 465 U.S. at 895 n.11.

The most significant affidavit submitted by Mr. Cerda in

support of his requested hourly rate is that of Jon Loevy. (Pls.’

Mot., Ex. J.) Mr. Loevy was licensed to practice law in 1994,

served as a law clerk to Judge Shadur, and worked for a short time

at the firm of Sidley & Austin. He started his own firm, along

with this wife and father, in 1997. His practice is “concentrated

primarily in civil rights.” (Loevy Aff. ¶¶ 1-2.)

Mr. Loevy states that “the most recent adjudication of [his]

rate was last year by Judge Lefkow, at $395/hour in Robinson v.

City of Harvey, 2008 WL 4534158 (N.D. Ill. Oct 7, 2008).” (Loevy

Aff. ¶ 4.) He also states: 

This $395/hour figure was representative of the

natural progression of hourly rates. In 2007,

Judge Bucklo awarded me $365/hour in Lopez v. City

of Chicago, Case No. 01 C 1823, a case where I was

not the primary attorney, and earlier in 2008,

Judge Shadur awarded me $375/hour in Dominguez v.

City of Waukegan, Case No. 04 C 2907.

(Loevy Aff. ¶ 5.) Mr. Loevy also points out that, as of the date

of the affidavit, he had a client in a habeas corpus case who was 13

The affidavit is undated, but it was filed with plaintiffs’ motion on 13

February 9, 2010.

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paying him at the hourly rate of $450. (Loevy Aff. ¶ 7.) 

We will return to Mr. Loevy’s affidavit at the conclusion

of this discussion of hourly rates. 

We have addressed everything submitted by plaintiffs in

support of their requested hourly rates. We will now turn to the

defendants’ view of plaintiffs’ requested fees. Defendants have

taken a constructive approach by suggesting what they believe to be

appropriate hourly rates for each of the four attorneys. Their

suggestions are broken down by year, from 2000 through 2008. 

(Defs.’ Letter at 11-17.) As we have indicated, however, we are

adopting an appropriate rate for the year 2008 as the rate for all

years in order to account for the delay in payment.

Mr. Cerda

Defendants suggest a rate of $300 for Mr. Cerda for the

years 2000-2002, $325 for 2003-2004 and $375 for the years 2005-

2008. They rely heavily on fee awards received by Jon Loevy, whom

they describe as “a prominent Chicago civil rights plaintiff’s

attorney.” They also point out that a “fee award of $375.00/hr. is

consistent with the fees awarded to Mr. Cerda in 2006 in Delgado.” 

(Defs.’ Letter at 13.)

Mr. Parts

Defendants point out that Mr. Parts has cited no previous

judicial determination of his proper hourly rate and that he has

failed to provide any evidence that attorneys with “comparable

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experience” have been awarded fees at his requested hourly rate of

$425. Defendants are “unclear as to the extent of Mr. Part[s]’s

experience with federal civil rights claims.” They conclude that

for the work Mr. Parts did in 2007 (when he entered the case) and

2008, his hourly rate should be set at $325. (Defs.’ Letter at 13-

14.)

Mr. De Leon

Defendants object to Mr. De Leon’s requested hourly rate of

$500, pointing out that he is primarily a criminal defense lawyer

and did not participate in the trial (whereas he did in Delgado,

where he was awarded fees at the hourly rate of $425). Defendants

suggest that, for this case, Mr. De Leon’s rate be set at $300 for

2000-2003, $350 for 2004-2006, and $375 for 2007-2008. (Defs.’

Letter at 15.)

Mr. Joseph Lopez

Commenting on the fact that Mr. Lopez has received no fee

awards in federal civil rights cases and arguing that in their

view, the hourly rates Mr. Lopez charges in criminal cases are not

an appropriate guide for his rates here, defendants make the same

suggestion they made regarding Mr. De Leon: $300 for 2000-2003,

$350 for 2004-2006, and $375 for 2007-2008. (Defs.’ Letter at 17.) 

We now return to the affidavit of Jon Loevy. Mr. Loevy is

personally known to the undersigned in that he tried the case of

Johnson v. Guevara, No. 05 CV 1042, before us in June 2009. It was

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a difficult § 1983 case in which the plaintiff claimed that the

defendant police officer had caused his conviction and lengthy

incarceration for a murder the defendant had no reason to believe

he had committed. The case was well tried and could have gone

either way. The jury returned a verdict of $21 million in favor of

Mr. Loevy’s client. We had no occasion to determine his hourly

rate because the case was settled on appeal and no fee petition was

filed. Mr. Loevy has another § 1983 case on our calendar that is

still in discovery.

Mr. Loevy is well known in this district for having obtained

a number of multi-million dollar jury verdicts in § 1983 cases.14

He clearly qualifies for an hourly rate as high as any other

attorney handling § 1983 cases, and probably higher than most. As

stated in Mr. Loevy’s affidavit, in 2008, the year we are concerned

with, Mr. Loevy received fee awards based on hourly rates of $395

and $375 in Robinson v. City of Harvey and Dominguez v. City of

Waukegan, respectively. In 2007, he received an award based on an

hourly rate of $365 in Lopez v. City of Chicago. The hourly rates

fixed for Mr. Loevy in those cases were not as high as the $500,

$450, and $425 rates for 2008 that the four attorneys in this case

are claiming. 

We conclude that the appropriate 2008 hourly rate for

His success continues to the present day; he recently obtained a $25 14

million jury verdict in a § 1983 wrongful-conviction case. See Jeremy Gorner,

$25 Million for Unjust Conviction, Chi. Trib., Jan 25, 2012, § 1, at 11. 

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Messrs. Cerda, Parts and Lopez is $375. We see no basis for

distinguishing among them as to their appropriate rates. All of

them made significant contributions to the partially-successful

result in this case and performed well at the trial. 

If it were not for the fact that the defendants themselves

suggest that Mr. De Leon’s 2008 rate be the same $375, we would fix

his rate substantially below that, based upon the minimal role he

played. However, we doubt that it would be appropriate to award

him a lesser rate than the defendants recommend, so we will set his

rate at $375 per hour. 

Mr. Breed

David A. Breed is a paralegal who worked for Mr. Cerda. He

is also a computer systems administrator and database manager. He

logged a considerable amount of time on this case for the design

and maintenance of a case-management system and electronic

databases. He also performed paralegal work, such as document

review and assistance in preparing for depositions. (Pls.’ Mot.,

Ex. Q, Aff. of David A. Breed.) (Some of the work seems quite akin

to the practice of law, for which Mr. Breed’s academic degrees

would not qualify him.) Plaintiffs request that fees be awarded

for Mr. Breed’s work at an hourly rate of $175 “for paralegal work”

and $245 “for database work.” (Pls.’ Mot. at 32.) They claim

1,916.4 hours at the $175 rate and 14 hours at the $245 rate, for

a total of $338,800.00. (Pls.’ Mot., Ex. A.) Defendants object to

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both hourly rates as unreasonable and regard the 14 hours of

database work as “clerical,” which should be part of Mr. Cerda’s

overhead instead of being billed separately as paralegal work. 

Defendants suggest that fees be awarded for Mr. Breed’s work at an

hourly rate of $100 for 2002-2003 and $125 for 2004-2008, which

would total $227,613.00. (Defs.’ Letter at 17-18.)

Examining the time entries of Mr. Breed, our conclusion is

that most of his activities are appropriately characterized as

paralegal rather than clerical. On the other hand, we agree with

the defendants that $175 an hour is too high a rate. We believe

that Judge Leinenweber was correct in Delgado in finding an

appropriate hourly rate for Mr. Breed to be $125, and that is the

rate we will authorize in this case. It is also the rate that the

defendants suggest for the years 2004-2008. (Defs.’ Letter at 18.) 

However, there is an important proviso regarding Mr. Breed. 

In many instances, his time entries are even more vague than the

ones for which we have reduced the attorneys’ hours. As examples,

we will cite just a few entries from 2002: 

Hrs.

6/26 Con[tin]ue work on interrogatories 5.50 

6/28 Continue work on Interrogatory 8.50 

preparation and meet with Sal 

7/12 Revise interrogatory answers; 7.00 

meet with Sal

7/14 Continue to revise interrogatory 6.00 

answers and get files up to date

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7/15 continue to Revise interrogatory 7.00 

answers and get files up to date

7/16 continue to Revise interrogatory 6.50 

answers and database update

7/22 Review and revise interrogatories 16.10 

with Sal’s information

8/6 Review each plaintiff file for 5.00 

documents and originals and prepare

list

8/17 Prepare for meeting; meet with 9.50 

clients in Cicero; meet with Sal

and dac

(Pls.’ Mot., Ex. A, at 13-16, 18-19.) This type of entry continues

all the way up to the end of the billing period in July 2008. It

is not satisfactory proof of what was done, whether it was

necessary, or whether the amount of time spent was reasonable. The

entry of August 17, 2002 is illustrative of this recurring problem. 

The 9.5 hours billed includes preparation for a meeting with the

clients in Cicero. We have no idea what the preparation consisted

of or how long that task took to complete. The entry does not

state what Mr. Breed did at the meeting or indicate in any way why

his presence was necessary. On that same date, Mr. De Leon charged

3.5 hours for “[m]eeting with clients,” and Mr. Cerda charged 7.6

hours for “[m]eeting with clients in Cicero; Meeting with

assistants.” (Ex. A at 19.) At the requested hourly rates of Mr.

Breed, Mr. De Leon and Mr. Cerda, the requested charges for this

meeting total $6,832.50. (See Ex. A at 20.) 

We will reduce Mr. Breed’s claimed hours by 60 percent. 

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THE FEE AWARD TO PLAINTIFFS

Based on the foregoing analysis, the following fees are

awarded to the plaintiffs: 

No. of

Hours

Claimed

No. of Hours

Allowed After

30% Reduction

Hourly Rate

Allowed

Total Fees

Allowed

David A. Cerda 2514 1759.8 $375.00 $659,925.00

Joseph A. Lopez 612.3 428.6 $375.00 $160,725.00

Mark Parts 729.1 510.4 $375.00 $191,400.00

John De Leon 197.3 98.6 hours

allowed after 

50% reduction 

$375.00 $36,975.00

Alejandro Lopez 173 0 $0 $0

Paralegal

David Breed

1930.4 772.2 hours 

allowed after 

60% reduction 

$125.00 $96,525.00

DEFENDANTS’ JOINT MOTION FOR ATTORNEYS’ FEES

The Town and the individual defendants have filed their own

motion for attorneys’ fees under 42 U.S.C. § 1988, arguing that all

of the plaintiffs’ claims that were unsuccessful were frivolous and

without foundation.

The circumstances under which a prevailing defendant is

entitled to fees under § 1988 are quite limited. The Supreme Court

first announced the law in Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 422 (1978), a Title VII case:

[A] plaintiff should not be assessed his opponent’s

attorney’s fees unless a court finds that his claim

was frivolous, unreasonable, or groundless, or that

the plaintiff continued to litigate after it

clearly became so.

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The Court later adopted the Christiansburg test for § 1983 cases. 

Hughes v. Rowe, 449 U.S. 5, 14 (1980) (“The plaintiffs’ action must

be meritless in the sense that it is groundless or without

foundation. The fact that a plaintiff may ultimately lose his case

is not in itself a sufficient justification for the assessment of

fees.”) 

Various Seventh Circuit decisions have provided additional

guidelines for district courts. A fee award to a successful

defendant is not appropriate where the plaintiff survives (or

should survive) a motion for directed verdict. Soderbeck v.

Burnett Cnty., 752 F.2d 285, 295 (7 Cir. 1985); see also LeBeau th

v. Libbey-Owens-Ford Co., 799 F.2d 1152, 1159 (7 Cir. 1986); Unity th

Ventures v. County of Lake, 894 F.2d 250, 255 (7 Cir. 1990). th

What appears to be an even stronger statement of the

Christiansburg rule is found in Badillo v. Central Steel & Wire

Co., 717 F.2d 1160, 1164 (7 Cir. 1983) (citations omitted): th

[T]he courts have been careful to distinguish

between claims that were ultimately found to be

without merit and those ‘frivolous, unreasonable or

groundless’ claims within the meaning of

Christiansburg. As a result fees that have been

assessed have been limited to situations where

plaintiff’s conduct was abusive, or merely a

disguised effort to harass or embarrass the

defendant.

Badillo was cited with approval in Mustafa v. City of Chicago, 442

F.3d 544, 549 (7 Cir. 2006), for the proposition that “prevailing th

defendants in civil rights cases [are] only entitled to attorneys’

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fees under § 1988 where [the] plaintiff’s goal was to harass or

embarrass the defendant.” 

The jury found against 55 of the 78 plaintiffs who filed

suit. These were the plaintiffs who claimed to have been sprayed

inside the house and a few others who claimed injury as a result of

indirect spraying in the yard. The fact that we found the evidence

sufficient to submit all of these claims to the jury, denying the

defendants’ motions for directed verdicts, would seem a sufficient

reason to deny the defendants’ motion for fees. However, the

defendants argue that there was language in the Court of Appeals’s

opinion on the interlocutory appeal that should have alerted these

plaintiffs to the fact that they lacked evidence to support their

claims. (Defs.’ Mot. at 6-8.) We studied the Court’s opinion

carefully when it was issued, and, had we thought the Court had

indicated that the spraying claims would necessarily fail for a

lack of evidence, or that they were insufficient as a matter of

law, those claims would not have continued in the case. They did

continue, because we thought they presented genuine factual

questions for the jury and in no way could be considered groundless

or frivolous. 

15

The rule that the denial of a directed verdict precludes a later 15

finding that the claim was frivolous makes considerable sense from a practical

standpoint. The defendants are now making detailed factual arguments and have

submitted portions of the trial transcript in support of their fee motion. This

kind of submission would have been appropriate in support of their post-trial

motions, which we considered and denied four years ago. A motion for fees is not

an appropriate vehicle to retry the case. Perhaps the Supreme Court had similar

arguments in mind when it remarked in Hensley that a “request for attorney’s fees

should not result in a second major litigation.” 461 U.S. at 437. 

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Defendants claim fees for the defense of Kassandra Torres’s

failure-to-intervene claim against Officer Michael McMahon. We

granted McMahon’s motion for a directed verdict on this claim at

the close of the plaintiffs’ case on the basis that there had been

no evidence presented to show that McMahon could have done anything

to prevent the plaintiff’s injury. Counsel for plaintiffs did not

argue otherwise. We had previously granted summary judgment on

other failure-to-intervene claims on the same basis, but no summary

judgment motion had been made as to Kassandra Torres, so her claim

was still pending when the case went to trial. However, she did

not testify at trial, nor did any other witness testify concerning

her claim. (Defs.’ Mot. at 8-9.)

The defendants argue that plaintiffs’ counsel should have

known that Kassandra Torres’s claim was in the same category as

those as to which summary judgment had been granted and that

counsel’s proceeding to trial on her claim was therefore in bad

faith. We disagree. It appears that Torres remained in the case

simply because she was overlooked, both by the plaintiffs and the

defendants. No trial time was spent on her claim other than the

few minutes it took to present the unopposed directed verdict

motion. No fees are appropriate for whatever time defendants spent

on Kassandra Torres. 

Defendants also seek fees for the time they spent on the

Duran brothers’ unsuccessful equal protection claims against Walter

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Wirack, the lockup keeper at the police station. (Defs.’ Mot. at

9-11.) We withdrew those claims from the jury because we found the

evidence insufficient to show disparate treatment based on race or

ethnicity. This was a close call, and the equal-protection claims

were not frivolous. As plaintiffs point out, Pls.’ Resp. at 14-16,

the jury found in favor of all seven of the plaintiffs held in Mr.

Wirack’s lockup on their state-law claims for intentional

infliction of emotional distress, awarding punitive as well as

compensatory damages. The emotional-distress and equal-protection

claims were based on the same facts, and there is no reason to

believe that the award would have been greater had the equal

protection claim been included. 

The defendants seek fees with regard to five defendants for

whom we granted summary judgment, Detective Attilio Fiordirosa and

Officers David Richert, Jason Stroud, Scott Harris, and Miguel

Jimenez. (Defs.’ Mot. at 2-4.) We believe there was a reasonable

basis for the claims against each of these defendants for the

reasons set forth in plaintiffs’ response. (Pls.’ Resp. at 5-8.) 

None of these claims can be considered frivolous, and defendants

are not entitled to fees for defending them. 

Finally, the defendants ask for fees in regard to the six

defendants whom the jury found not liable. (Defs.’ Mot. at 4-6.) 

But we denied each of these defendants’ motions for directed

verdicts and held that the evidence was sufficient to submit to the

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jury. No fees will be allowed for the defense of any of these six

officers. 

Aside from the fact that plaintiffs’ unsuccessful claims

were not groundless or frivolous, there is another entirely

independent reason why no fees can be allowed to the defendants: 

they have failed to show what time is attributable to the defense

of any of the plaintiffs’ unsuccessful claims. In fact, the

defendants’ fee request does not even purport to be limited to time

spent defending the plaintiffs’ unsuccessful claims. They seek

fees for every minute spent defending the entire case, both the

unsuccessful and successful claims. Defendants’ motion requests

the “entry of an order awarding Cicero attorneys’ fees in the sum

of $1,740,651.50 and nontaxable expenses in the amount of

$54,430.45 for the time period ending December 27, 2008.” (Defs.’

Mot. at 1.) They have submitted in support of their motion three

volumes of time records measuring 3.25 inches in height. The

records include all time spent on the case by the various attorneys

who have represented the individual defendants and the Town

throughout the course of the litigation. (Small amounts of time

spent on non-litigation matters have been redacted.)

It is difficult to believe that the defendants think they

are entitled to fees for the time they spent defending claims on

which the plaintiffs succeeded. Assuming they know this would be

absurd, perhaps they believe that the court will comb through this

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stack of records and attempt to determine what time was spent on

claims the defendants successfully defended. If we were inclined

to do that--which, of course, we are not--it would be impossible. 

This is because the time entries of all of the defendants’

attorneys are, for the most part, vague and block-billed. Recall

that the plaintiffs’ principal defense of their vague entries and

block billing is that the defendants have done the same thing.16

They certainly have. But the court is no more able to discern from

defendants’ records what time would arguably be compensable than it

was in dealing with plaintiffs’ similar records. 

The joint motion of the defendants for an award of fees is

denied. 

PLAINTIFFS’ COSTS AND EXPENSES

Plaintiffs have filed a First Amended Bill of Costs and a

Supplement to the First Amended Bill of Costs. The two filings

seek a total of $157,901.47. And in their reply, plaintiffs

request an additional $3,500.00 for “Forensic Tape Analysis” and an

additional $3,000.00 for “Professional Audio Labs,” for another

$6,500.00, bringing the total to $164,401.47. (Pls.’ Reply in 17

Support of Bill of Costs at 3.) The Town objects to numerous items

Understandably, in their response to the fee motion, the plaintiffs 16

make no reference to defendant’s time records.

The Town objected to plaintiffs’ original requests of $5,000.00 for 17

“Forensic Tape Analysis” and $11,400.00 for “Professional Audio Labs” as

“completely excessive.” (Pls.’ Reply, Ex. 4, at 5-6.) 

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and contends that plaintiffs should be awarded only $58,236.68.18

Rule 54(d) of the Federal Rules of Civil Procedure provides

that costs other than attorney’s fees should be awarded to the

prevailing party unless “a court order provides otherwise.” Six

categories of taxable costs are listed as recoverable in 28 U.S.C.

§ 1920. Some of the Town’s objections are directed to the fact

that certain of the requested items are not listed in § 1920. 

Plaintiffs point out that even if an item is not proper under §

1920, it may still be compensable as an expense under 42 U.S.C. §

1988. They are correct, see Henry v. Webermeier, 738 F.2d 188, 192

(7 Cir. 1984), and our discussion will cover both possibilities. th

If we find that an item is not allowable either as a taxable cost

under § 1920 or an expense under § 1988, we will disallow it.19

Expert Witness Fees 

The Town objects to a $5,000.00 expert witness fee for Lou

Reiter, pointing out that § 1920 allows only an ordinary witness

fee for experts. The Town also objects to $590.18 paid to Mr.

The Town states in its response, filed on August 8, 2008, that the 18

plaintiffs’ costs should be reduced to $58,036.68. The parties’ Local Rule 54.3

Joint Statement, filed on May 15, 2009, states that defendants’ position is that

only $58,236.68 should be awarded. 

 Plaintiffs note that they are seeking costs and expenses against all 19

defendants found liable, including the individual defendants. The individual

defendants have filed no objections to plaintiffs’ requested costs and expenses,

and the plaintiffs argue that all requested costs and expenses should be assessed

against the individual defendants. (Pls.’ Reply at 1-2.) If no objections had

been filed, plaintiffs might have a point. But we need to rule on the Town’s

objections, and, to the extent the objections are sustained, it would make no

sense to assess the disallowed items against the individual defendants (who

presumably would be indemnified by the Town). Therefore, whatever costs and

expenses are disallowed will be disallowed as to all of the defendants. 

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Reiter for his expenses associated with his deposition and his fee

of $407.95 for his attendance at his deposition. The basis for the

Town’s objection to these expenses is that “[n]one of these costs

were necessary as Lou Reiter did not testify at trial.” (Town’s

Resp. at 3.) The Town also points out that plaintiffs submit no

proof that Mr. Reiter was paid the $5,000.00 fee. 

Plaintiffs reply that Mr. Reiter was retained by them to

testify in support of their Monell claim, and his deposition was

taken at a time when the Town’s liability to pay any judgments

rendered against the individual defendants was still at issue. 

Thereafter, the Town stipulated that it would pay any such

judgments (as it did), so Mr. Reiter’s testimony became

unnecessary. The Town’s objections to Mr. Reiter’s deposition

expenses of $590.18 and $407.95 are overruled. However, there is

a problem with the $5,000.00 expert witness fee. Apparently it has

not been paid, and plaintiffs have submitted nothing to meet their

burden of proving that the entire amount was necessary and

reasonable. The $5,000.00 is disallowed.

The defendants also object to charges of $1,270.17,

$1,245.00 and $801.95 for “Mr. Van Blaircom [sic],” who according

to defendants “was in fact Defendants’ expert, but [] did not

testify at trial.” (Town’s Resp. at 3.) It appears, however, that

plaintiffs are only claiming two charges in relation to Mr. Van

Blaricom--his professional fee and related court-reporter fees. As

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for the professional fee, plaintiffs’ itemized list of “other

costs” contains a $1,270.17 charge in relation to Mr. Van Blaricom.

However, we can locate only one invoice issued by “D.P. Van

Blaricom, Inc.” in plaintiffs’ bill of costs, and it is in the 20

amount of $1,245.00. Plaintiffs represent that Mr. Van Blaricom

was defendants’ Monell expert and that they had to pay his expenses

for his deposition, so we will allow the $1,245.00 as well as the

$801.95 charge for related court-reporter fees because there are

corresponding invoices. We will disallow $25.17 ($1,270.17 -

$1,245.00) to account for the difference between the amount shown

in the invoice and the amount claimed in plaintiffs’ itemized list

of “other costs.” 

Investigation Fees

Plaintiffs have included a $200 charge for unspecified

“investigation” performed by Salvatore Castellano, to which the

Town objects. Plaintiffs have withdrawn this item, so the $200

will be deducted. (Pls.’ Reply at 3.)

Copying/Printing Fees

The Town complains that the $660.00 charged by Prism

Innovative Resources (“Prism”) for making copies of CDs and DVDs

was unnecessary. (Town’s Resp. at 4.) The plaintiffs make an

adequate response, explaining that these copies were made for use

Ruling on these cost and expense items is unusually time consuming 20

because it frequently requires a search of voluminous documents to locate the

items to which the Town objects. Although the documents are paginated, the Town

does not refer to page numbers.

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as trial exhibits. (Pls.’ Reply at 4.) The objection to this

$660.00 is overruled.

The Town also objects to a series of copying charges

totaling $1,550.60 on the basis that there is no explanation of why

the copying was necessary or whether the price per page was

reasonable. The plaintiffs have responded to these objections at

Table 1 of their Reply at 2-3. The responses indicate that the

copies were appropriate and the prices were reasonable, with one

exception. On August 21, 2011, there was a $173.89 charge for

copying videotapes “for the criminal trial of the Duran brothers.” 

This is not an appropriate charge in the civil case, and the

$173.89 will be deducted. 

Compensation of Interpreters

The plaintiffs request $47,922.50 for compensation of

Spanish interpreters, a type of cost expressly recognized by §

1920. The parties disagree about the appropriate amount, arguing

in conclusory terms without much analysis. 

The Town’s entire argument is as follows:

Of the 78 Spanish-speaking plaintiffs that required

the use of an interpreter, either at depositions

and/or at trial, 55 of those plaintiffs did not

recover in this case. As such, we have reduced

this expense by 70% (55/78). The Bill of Costs

must be reduced by $33,545.75. 

(Town’s Resp. at 6.) 

In response, the plaintiffs agree that the “real inquiry is

whether costs were reasonably incurred in the litigation.” (Pls.’

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Reply at 5.) The plaintiffs explain that multiple interpreters

were needed for the trial and contend that the “testimony given

with the aid of interpreters went to present evidence concerning

the core claims of Alejandro and Gonzalo Duran and the other

plaintiffs who did prevail.” (Pls.’ Reply at 5-6.) 

The defendant’s percentage reduction based on the number of

prevailing plaintiffs is flawed. And there is only limited merit

to the plaintiffs’ argument that the testimony offered by

unsuccessful plaintiffs, or about unsuccessful plaintiffs,

bolstered the claims of at least some of the plaintiffs who did

prevail. The problem is that the plaintiffs offer no examples and

our own recollection of the trial testimony given four years ago is

insufficient to supply the missing links. 

Plaintiffs point out that the Town cites no authority, but

neither do the plaintiffs, who seem to assume that it would be

impermissible for the court to award less than the $47,922.50 they

request. However, the court has discretion with regard to costs in

mixed-result cases, based on the “[u]nless ... a court order

provides otherwise” language in Rule 54(d). See Gavoni v. Dobbs

House, Inc., 164 F.3d 1071, (7 Cir. 1999) (affirming denial of th

costs where plaintiffs recovered only nominal amounts relative to

what was sought); In re Corrugated Container Antitrust Litig., 756

F.2d 411, 418 (5 Cir. 1985) (in split-verdict case, the trial th

court acted within its discretion under Rule 54(d) in directing

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each party to bear its own costs); Cornwell Quality Tools Co. v.

CTS Co., 446 F.2d 825, 833 (9 Cir. 1971) (“[T]he district court th

has broad discretion in apportioning and taxing costs where, as

here, neither party completely prevailed.”)

We believe plaintiffs are entitled to recover some of their

costs for interpreters, but the Town is also entitled to some

reduction due to its partial success. Arriving at a precise

percentage reduction based on a rigorous analysis of the evidence

is obviously impossible. The parties have not attempted it, nor

are we able to do it. The best we can do is to make what we regard

as a reasonable estimate of the appropriate percentage reduction. 

The plaintiffs’ costs for interpreters will be reduced by 40

percent, or $19,169.00.

Fees for Service of Summons and Subpoena

Plaintiffs list $1,365.78 for summons and subpoena fees in

their first amended bill of costs. The Town objects that the costs

are not adequately explained and that a prevailing party may not

recover service costs that exceed the fees charged by the United

States Marshals Service. (Town’s Resp. at 6, citing Collins v.

Gorman, 96 F.3d 1057, 1060 (7th Cir. 1996).) The plaintiffs

respond with an explanation at Table 2 of their reply, but they do

not address Collins’s holding that the amount of costs awarded for

process-server fees cannot exceed what the costs would have been

had the Marshals effected service. The Marshals Service charges by

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the hour, and the plaintiffs’ process servers apparently charged

flat fees for each service. We are unable to tell how many hours

were spent on each service. Because plaintiffs have not explained

or broken down their service fees to demonstrate how they compare

to what the Marshals’ fees would have been, we will disallow this

$1,365.78 item. 

Moving Expenses

Plaintiffs request $377.60 in expenses for “moving equipment

to office from Federal Courthouse.” (Pls.’ Supplement at 4.) The

Town describes these expenses as Mr. Cerda’s “costs incurred in

moving his offices” and assert that there is no authority for

allowing such a cost. (Town’s Resp. at 6.) Plaintiffs respond

that “[m]oving expenses were charged for moving the large and heavy

video equipment used at trial, not for moving Mr. Cerda’s office as

the Town asserts.” (Pls.’ Reply at 6.) A credit-card receipt for

$377.60 is attached to an invoice from Midway Moving & Storage,

Inc., the last exhibit to the Supplement to the First Amended Bill

of Costs. It is not a § 1920 item, but we see no reason why it is

not a recoverable expense under § 1988. The moving expense for the

equipment will be allowed.

Costs for Which There Is No Supporting Documentation/Invoices

The Town lists three pages of items for which it says there

is no supporting documentation. (Town’s Resp. at 6-9.) Some of

these items have already been discussed under other categories, so

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there is some duplication. 

The first table, appearing at pages 7-8 of the Town’s

response, sets forth $19,420.61 in costs that are listed in

plaintiffs’ First Amended Bill of Costs and to which the Town

objects. Plaintiffs’ response to these objections is contained at

Table 3 of their reply.

The first item, $173.89, has already been disallowed on the

basis that it concerned the Durans’ criminal case, not the civil

case. The ABC Photocopy charge for $16.35 was for the same purpose

and will therefore also be disallowed. Plaintiffs state that

expenses for $29.90 and $331.80 described as “Copying - David

Breed” were for copying plaintiffs’ appellate brief on the

interlocutory appeal, and those expenses will therefore be allowed. 

An item of $137.80 described as “Sanchez Daniels Hoffman” is

explained by plaintiffs as having been paid by Mr. Cerda to that

law firm for use of the firm’s copying machine to copy plaintiffs’

appellate reply brief. (Mr. Cerda was a tenant of the firm at that

time. The firm did not become involved in this case until later.) 

This item will be allowed. Another “Sanchez Daniels Hoffman” item

for $121.50, for making copies of documents required by the court

in this case, will be allowed. 

Payments of $415.71 and $1,000.00 were made to Prism for

transferring video tapes to DVDs, enhancing a video, and making

clips, all for use at trial. These costs will be allowed. 

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A cost of $2,400.00 is claimed for “Paula Cosgrove - for

jury consultant services.” Plaintiffs’ explanation in Table 3 is

simply that this “cost was paid by David Cerda using his business

account.” This is not a § 1920 item, and we see no reason why the

plaintiffs needed a jury consultant. It is a frill they do not

attempt to justify, and it will be disallowed. 

Payments of $2,000.00 and $1,370.00 to “Liticorp - for

videotaped deps” are explained as partial payments for the

videotaped depositions of defendants or defendants’ witnesses, and

they will be allowed. 

The Town objects to court-reporter fees in the total amount

of $5,263.66 on the basis of inadequate documentation. The entries

provide the name of the court reporter, the name of the witness,

and the amount of the charge. In Table 3, plaintiffs explain each

charge, typically stating that the cost was for the deposition of

a fact witness who was called as a witness at trial or other

transcripts used at trial. Plaintiffs’ reply, of which Table 3 is

a part, was filed on April 2, 2009. The Town did not seek to file

any response to the reply. The explanations in Table 3 seem

adequate; therefore, we will allow these court-reporter fees of

$5,263.66. 

We turn now to the Town’s objections to the costs listed in

plaintiffs’ Supplement to the First Amended Bill of Costs. One

cost to which the Town objects is a $471.00 “other cost,” which was

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not explained in the first version of plaintiffs’ Supplement. 

Plaintiffs now state in Table 3 that it is for “Southwest Airlines

– for travel for witnesses Diego Torres and Kassandra Torres.” 

Plaintiffs explain that this is “for the travel expenses from Texas

for Diego and Kassandra Torres who testified about the incident at

trial.” The receipt from Southwest Airlines for $471.00, which

shows that tickets were issued to Diego and Kassandra Torres, is

attached as an exhibit to plaintiffs’ Supplement. The expense

will be allowed. 

Another objection is lack of supporting documentation or

explanation. (Town’s Resp. at 8-9.) This group of items includes

payments made to court reporters for various transcripts. The

total is $767.10. Plaintiffs’ explanation in Part 2 of Table 3 is

that some of the transcripts (totaling $368.45) pertained to

various hearings in the Duran brothers’ state-court criminal

proceedings used at the trial of this case and that other

transcripts (totaling $398.65) were for use at the trial or in

connection with post-trial motions. The Town also objects to

court-reporter fees “associated with those Plaintiffs that were not

successful at trial, and with those Defendants who prevailed during

both summary judgment and during trial.” (Town’s Resp. at 9-10.) 

The total of these fees is $3,156.44. Plaintiffs’ response appears

at pages 7 and 8 of their reply. They contend that these

transcripts were of depositions of witnesses who were called at

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trial. 

But these explanations do not address defendant’s objection

that we cannot tell whether any of the transcripts related to

claims that were successful as opposed to claims that were not

successful. We believe the appropriate thing to do is to make the

same percentage reduction we did with regard to interpreters’ fees,

namely, 40 percent. Accordingly, the total of $767.10 will be

reduced by $306.84, and the total of $3,156.44 will be reduced by

$1,262.58.

The Town also objects to $406.80 of Viking Printing’s

copying fees; plaintiffs have withdrawn this item. (Pls.’ Reply at

7.) 

Costs Not Associated With This Case

The Town objects to a $44.40 charge for a transcript of a

hearing in another case involving Officer Peslak. Plaintiffs argue

that the charge for the Peslak transcript should be allowed because

it was reasonably incurred to make the argument that Peslak’s prior

criminal conviction should be admitted into evidence. Because it

was offered in support of an ultimately unsuccessful argument, the

transcript (offered only as to Peslak and relevant to no other

parties) is not an allowable cost or expense. The $44.40 charge

will be deducted.

Vague or Excessive Expenditures

The Town’s final challenge is to several of plaintiffs’

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entries that “are vague and/or excessive and thus should either be

denied or drastically reduced.” (Town’s Resp. at 10.) 

The first category is a series of court-reporting charges. 

(Town’s Resp. at 11-12.) Plaintiffs respond at Table 4 of their

reply and provide a satisfactory explanation for each of these

items. (Pls.’ Reply, Ex. 4, at 1-2.) No deduction will be made. 

The Town lists the next category of allegedly vague or

excessive charges as “other costs” at pages 12 and 13 of their

response. The items total $32,212.29 ($25,712.29 that is listed in

defendants’ response, plus $3,500.00 for “Forensic Tape Analysis”

and $3,000.00 for “Professional Audio Labs,” which are added in

plaintiffs’ reply and fall into this category). Plaintiffs’

response is found at pages 4-8 of their Table 4. Many of the

charges are for high-level technical assistance provided to the

plaintiffs in their presentation of evidence at the trial. The

Town believes that the presentation was extravagant and

unnecessary. In presiding over the trial, we thought that this

kind of evidence was helpful to the jury and was not overdone. An

example of the parties’ different points of view appears at page 6

of Table 4 and concerns the fee of Professional Audio Laboratories. 

Plaintiffs’ explanation is convincing. 

There are, however, some deductions we will make from the

$32,212.29. Starting with the $342.00 charge on September 12, 2002

for Liticorp on page 13 of the Town’s objections and running

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through the end of that page, all of the charges are for items

associated with defendants who were completely successful either on

summary judgment or at trial. The plaintiffs argue that these were

reasonable expenses at the time they were incurred, Ex. 4 at 7,

which may be true. But costs depend upon the outcome of the case,

and they are not assessed against a successful party. The sum of

$2,575.35 will deducted for these items.

That concludes the analysis of the Town’s objections to the

items claimed in the plaintiffs’ First Amended Bill of Costs and

their Supplement to the First Amended Bill of Costs. The total

amount of costs and expenses we have disallowed (or that have been

withdrawn) comes to $32,946.16. Subtracting this figure from the

$164,401.47 in costs and expenses claimed by plaintiffs, the net

amount we will allow is $131,455.31. This amount will be taxed

against the Town of Cicero and the individual defendants who were

found liable. 

COSTS SOUGHT BY THE TOWN OF CICERO

The Town has filed two Bills of Costs. The first is its

initial Bill, seeking certain of its costs and expenses incurred in

the district court. The second is its Amended Bill, which seeks

costs in connection with the appeal taken after the trial. 

The Town’s Initial Bill of Costs

The Town seeks $44,047.72 in trial-court costs and expenses.

Its theory as to Rule 54(d) (§ 1920) costs is that, as to 55 of the

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78 plaintiffs, it is the prevailing party. It also argues that it

is entitled to costs under 42 U.S.C. § 1988, citing Hughes, 449 at

15. The Town does not expressly argue that the unsuccessful claims

were frivolous, unreasonable or groundless, but the citation of

Hughes can only mean that this is its theory. 

We will deal first with the Hughes argument. As we have

already held, none of the plaintiffs’ claims that went to trial and

were ultimately unsuccessful were frivolous, unreasonable or

groundless. We do not consider whether expenses properly

attributable to the claims of the few plaintiffs as to whom the

Town was granted summary judgment would be allowable under § 1988

because the Town makes no such argument. Neither has the Town made

any effort to allocate any portion of its expenses to those claims. 

For these reasons, the Town’s suggestion that it is entitled to

recover costs pursuant to § 1988, as opposed to costs pursuant to

Rule 54(d) and § 1920, is rejected.

In fact, most of the items listed on the Town’s Bill of

Costs do not qualify as § 1920 costs. The initial Bill is

unverified and attaches no receipts for the listed expenditures. 

After plaintiffs pointed this out in their response, the Town filed

an unverified reply, to which is attached a number of receipts and

an unverified copy of the court’s official Bill of Costs form

listing its claimed costs, which total $44,047.72. (Town’s Reply,

Ex. B.) 

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We will start with the clearest examples of items that are

not allowable costs under § 1920. The Town lists $18,437.45 for

“Courtroom, Inc. - Jury Consultant.” We disallowed this type of

charge for plaintiffs, even as a § 1988 expense, and it bears no

resemblance to any § 1920 cost. It will be disallowed.

We are unable to match all of the receipts attached to the

Town’s reply with the items listed on “Exhibit B” (the copy of the

court’s official form). However, we will make clear what items we

are allowing, and everything else is to be considered disallowed.

The first attachment to the Town’s reply is a “Fee Rate

Schedule” on the letterhead of Douglas A. French, M.D., showing a

$550.00 charge for Dr. French’s travel expenses and his time in

court. The plaintiffs’ response states that Dr. French “treated

Ignacio Rodriguez” and his “testimony supported [that plaintiff’s]

substantial recovery.” (Pls.’ Resp. at 5.) The Town replies: “Dr.

French was a necessary defense witness at trial to rebut testimony

by certain Plaintiffs . . . .” (Town’s Reply at 4.) The Town’s

explanation does not indicate that this cost should be assessed

against any plaintiff other than Ignacio Rodriguez. But Ignacio

Rodriguez was a prevailing plaintiff and therefore is not subject

to costs. This item is disallowed.

The next attachment is a $315.75 item for the video

deposition of Officer Peslak, who was found liable. The item will

be disallowed. 

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The next two attachments are invoices from court reporters

in the amounts of $63.05 and $653.40 for portions of the trial

transcript. The Town has provided no indication of what issues

these transcripts concerned, and we have no way of knowing whether

they qualify as “fees for printed or electronically recorded

transcripts necessarily obtained for use in the case.” 28 U.S.C.

§ 1920(2) (emphasis added). For all we know, the transcripts were

unnecessary and, in any event, there is no indication that they

related to any successful defense. The charges will be disallowed. 

The next item is an “Expense Form” from one of the Town’s

attorneys indicating a $30.00 subpoena fee paid to Dr. French. The

expense will be disallowed.

Next is another “Expense Form” and canceled checks from the

law firm for trial transcripts. The charge is $550.55. Again,

there is no showing of necessity. The charge will be disallowed. 

Next is a $200.00 “Expense Form” for “Parts for Trial

Model.” This is part of the larger expense incurred by the Town

for the model, and we will postpone discussion of it until we

consider the total costs of the model.

The next item is a $409.90 invoice from LitiCorp Ltd. for

the video depositions of certain defendants, including Officer

Peslak. The plaintiffs point out that Peslak was found liable, but

they make no comment about the other defendants (who were not found

liable). (Pls.’ Resp. at 5.) We will disallow the $75.00 charge

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for Officer Peslak but will allow the remainder of $334.90 for the

depositions of defendants Reichert, Cruz and Lewandowski. 

The next attachment is the four-page $18,437.35 invoice for

“Courtroom Sciences, Inc.,” jury consultants, which we have already

disallowed. 

The next few pages round out the total of $3,400.00 the Town

paid as its one-half share of the cost of the model of the Duran

premises that was used by both sides during the trial. The

plaintiffs argue that this is not recoverable as a § 1920 cost

item, Pls.’ Resp. at 4, but the Town cites the case of Wahl v.

Carrier Manufacturing Co., 511 F.2d 209 (7 Cir. 1975), for the th

proposition that costs for models and charts are allowable. Wahl

does support that view. We think this is a case where the cost of

the model should be allowed. The court and counsel agreed prior to

the trial that a model would be helpful to the jury, and our

prediction was correct. Many, if not most of, the witnesses

stepped down from the stand to explain their testimony by

physically pointing to places on the model where events occurred. 

The jury followed this testimony closely, and we frequently

repositioned the model in relation to the jury box so that the jury

could have the best possible view of it. The model was well-done,

and the charge for it was reasonable. We will allow this $3,400.00

cost pursuant to § 1920 and assess it against those plaintiffs who

went to trial and failed to recover against any defendant. 

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Next is a $196.80 court reporter charge for a transcript of

the trial testimony of Anthony Lewandowski. The Town offers no

explanation as to why this transcript was necessary, and the cost

will be disallowed.

There is an August 2003 list of time records and “costs” for

Edward R. Vrdolyak, Ltd., one of the Town’s attorneys, indicating

at the bottom of the page a total of $2,749.05 in various “costs”

for which no explanations are given. These items will be

disallowed.

Finally, we turn to the items listed on the Town’s Exhibit

B, its Bill of Costs form. It could be that in the foregoing

discussion we have disallowed a portion of some of the amounts

listed on this official form. At the bottom of the form there is

a “SPECIAL NOTE,” which reads “Attach to your bill an itemization

and documentation for requested costs in all categories.” The only

attachment to the form itself lists the $550.00 witness fee to Dr.

French, which we have disallowed, as well as “Other Costs,” which

includes the $3,400.00 for the model and the $18,437.45 for

“Courtroom Inc. - Jury Consultant.” We are not inclined to attempt

a verification of any of the other items listed on Exhibit B--e.g.,

$7,484.92 for “[f]ees for exemplification and copies of papers

necessarily obtained for use in the case”––because the Town’s

submission affords no clue as to how we would go about it.

To summarize, then, we will disallow $23,621.05 of the costs

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for which some documentation is attached to the Town’s reply, as

well as all of the other items listed on Exhibit B, which are not

documented at all. We will allow $3,715.00 (for the video

depositions of certain defendants and the model used during the

trial.) That amount is assessed against the plaintiffs who

proceeded to trial and failed to recover on any claim they made

against any defendant and in favor of each defendant who prevailed

against that plaintiff. 

The Town’s Amended Bill of Costs

The Town’s Amended Bill of Costs seeks the costs it incurred

on the appeal after the trial. The total amount requested is

$14,833.80. The plaintiffs do not object to $833.80 of this amount

($455.00 in fees of the clerk and $378.80 assessed by the Court of

Appeals for reproduction of briefs), but they do object to the

$14,000.00 requested for fees “of the court reporter for all or any

part of the transcript necessarily obtained for use in the case”

(emphasis added). This $14,000.00 charge was a deposit paid to the

court reporter for transcripts of three pre-trial hearings and

transcripts of the entire six-week trial. Plaintiffs’ position is

that the issues involved in the Town’s appeal and plaintiffs’ own

cross-appeal did not require that the Town obtain transcripts of

the entire trial. The first copy of the pre-trial and trial

transcripts ordered by the Town totaled 3,745 pages at $3.65 per

page. Plaintiffs point out that “the issues on appeal did not

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address [the] sufficiency of the evidence supporting a verdict,

conflicting evidence or other fact-intensive bases for appeal.” 

(Pls.’ Resp. to Town’s Post-Appeal Am. Bill of Costs at 2.) This

is true. The sole issue on the Town’s appeal was whether the

wording of the judgments entered by this court was ambiguous as to

whether the prevailing plaintiffs could collect the same amounts

from the Town that they collected from the individual defendants,

thus permitting a double recovery. No one contended that a double

recovery was intended, and the remedy for the ambiguity was simply

to enter amended judgments clarifying the fact that the liability

of the Town and the individuals was joint. The Court of Appeals

vacated the judgments we had entered and ordered that amended

judgments be substituted:

On remand the court should clarify that the damages

the jury assessed against the Town and the

individual officers are not to be aggregated; the

judgment should reflect that the Town is jointly

liable for a single damages award in favor of each

plaintiff who prevailed on a state-law claim. 

653 F.3d at 643. This ruling on the Town’s appeal did not require

the appellate panel to read the entire transcript of the six-week

trial. How much of the transcript the Court read, of course, is

something we do not know. We can only assume that the judges would

not have read more than was necessary to decide the case. The

ambiguity in the judgments was facial rather than something that

appeared only in the light of what had occurred at trial. The

Town’s brief quoted a number of passages from the transcript

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showing quite clearly that this court and the parties had no

intention of providing for a double recovery, and the Court’s

opinion quotes a number of those passages. It was necessary for

the Town to file the portions of the transcript that contained

those passages, but that would have amounted to relatively few

pages. The Town’s insistence that the entire transcript was

necessary cannot be to reconciled with the position it took during

the appeal. In response to the plaintiffs’ discussion of jury

instructions and verdict forms in the brief they filed as appellees

and cross-appellants, the Town stated: 

The issue the Town of Cicero raises on appeal does

not arise from the instructions or the verdict

forms. The issue on appeal pertains solely to the

judgment order the district court entered which did

not provide that the judgments entered against the

Town of Cicero and the individual defendants were

joint.

(Pls.’ Resp. to Town’s Post-Appeal Am. Bill of Costs, Ex. C,

Combined Reply Br. and Resp. to Cross-Appeal by Def.-

Appellant/Cross-Appellee Town of Cicero, at 5.)

The Town offers as an additional justification for the

$14,000 cost an argument that the transcript was also useful in

connection with the issues raised on the cross-appeal. To assess

the merit of that argument, we must look at the cross-appeal and

how the Court of Appeals dealt with it. 

The plaintiffs raised only three issues on their crossappeal. The first had to do with spoliation of evidence. Luis

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Castaneda was a professional videographer hired by the Durans to

record the baptism and party. The plaintiffs argued that the

police had confiscated Castaneda’s camera just before starting to

pepper-spray and assault people in the yard, so that no video

record was made of the police misconduct. The Seventh Circuit

held:

The district court held that the confiscation of

Castaneda’s camera and videotape was not evidence of

spoliation because it did not involve the destruction

of or failure to preserve evidence; at most Castaneda

was prevented from creating what might have become

evidence. This ruling was manifestly correct. . . .

Actionable spoliation thus occurs only when the duty

to preserve existing evidence has been breached. Here,

although the police seized the Castaneda videotape,

they returned it unaltered. That they interrupted

Castaneda’s filming is not evidence of spoliation;

Illinois does not recognize a spoliation claim based

on evidence not yet in existence. 

653 F.3d at 644. The ruling was obviously based on what had

happened at trial, but it was a ruling as a matter of law. Only a

few pages of the transcript would have been necessary to show that

Castaneda’s recording had been stopped before he had recorded

anything that was incriminating to the defendants. A few more

pages would have sufficed for the parties’ arguments and this

court’s ruling on the issue. 

The second issue on plaintiffs’ cross-appeal pertained to

Officer Vitalo. Several plaintiffs brought claims against Vitalo;

those claims included excessive force, battery, hate crimes, and

intentional infliction of emotional distress. Plaintiffs’ evidence

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tended to show that Vitalo was motivated by ethnic animus. The

plaintiffs desired to introduce four complaints from the mid-1990s

“accusing Vitalo of verbally abusing minorities, engaging in

excessive force, committing false arrest, and falsifying police

reports.” 653 F.3d at 644. Plaintiffs contended that these

complaints were admissible under Federal Rule of Evidence 404(b)

“as evidence of Vitalo’s bias, motive and intent to harass and harm

Latinos.” Id. In a pretrial in limine ruling, we excluded this

evidence. During the trial, the plaintiffs moved for

reconsideration of this ruling on the ground that Vitalo had opened

the door by testifying that he never used any racial slur and that

his wife is “half Mexican.” We refused the evidence again on the

basis that “the danger of confusion and of unfair prejudice to the

other defendants would outweigh the probative value as to the

defendant Vitalo.” See id. at 645. The Seventh Circuit upheld the

ruling:

The district court was required to balance the

probative value of the long-ago complaints against

the prejudicial effect of this evidence; we

generally do not second-guess this kind of ruling. 

This was a very complicated case, with many claims,

plaintiffs, and defendants. The introduction of

several old, unrelated misconduct complaints

against a single officer risked creating a sideshow

and sending the trial off track. Furthermore,

because the misconduct complaints involved

allegations of physical and verbal abuse by Vitalo,

there was potential for prejudicial "spillover"

effect on all the defendants. The judge did not

abuse his discretion by maintaining his original

ruling.

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Id. As in the case of the spoliation issue, reference to just a

small portion of the trial transcript was necessary to argue the

issue. That issue was whether we had abused our discretion in

refusing the evidence, and the Court decided the issue by comparing

the probative value of the evidence to the obviously greater unfair

prejudice to Vitalo and the other defendants had the evidence been

received.

The third issue raised by the plaintiffs on their crossappeal had to do with Officer Peslak. He had pleaded guilty to a

criminal indictment in federal court charging him with using

excessive force under color of state law in violation of 18 U.S.C.

§ 242. The crime had occurred in connection with a traffic stop

where he had grabbed the driver by the back of his head and hit his

head forcefully against the car, causing a cut that required five

stitches to close. Peslak received a sentence of five months. 

Peslak’s co-defendant in the case also pleaded guilty and stated in

his plea agreement that Peslak had falsified the police report. 

Id. at 646. We granted Officer Peslak’s motion to exclude this

evidence in an in limine ruling. The plaintiffs raised the issue

again at trial, arguing that the conviction was admissible under

Federal Rule of Evidence 609(a)(2) as a crime of dishonesty. The

Seventh Circuit held that we had properly excluded the evidence

because the crime of excessive force to which Peslak had pleaded

guilty “did not involve acts of dishonesty or false statements.” 

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Id. at 646-47. Also during the trial, the plaintiffs conducted an

examination of Officer Peslak outside the presence of the jury and

asked him whether he had prepared false police reports in

connection with the incident. Peslak’s attorney objected, and we

sustained the objection on the basis that Peslak’s privilege

against self-incrimination was implicated. The plaintiffs argued

on their cross-appeal that this, too, was error, but the Court

rejected the argument, saying “we find no fault with the district

court’s decision to halt this line of inquiry to protect Peslak’s

Fifth Amendment right against self-incrimination.” Id. at 647 n.5.

Like the two other issues raised on plaintiffs’ crossappeal, the Peslak issue required reference to a small portion of

the transcript to determine what evidence was offered and refused;

moreover, the Seventh Circuit’s ruling was made as a matter of law. 

Rule 39(e)(2) of the Federal Rules of Appellate Procedure

provides that transcript costs may be taxable “if needed to

determine the appeal.” The entire 3,745 pages simply were not

needed to determine either the Town’s appeal or the plaintiffs’

cross-appeal. How much of the transcript was truly necessary is

not easy to calculate and must necessarily be an estimate. We

believe that, at most, 1,000 carefully selected pages could be

regarded as necessary to support the Town’s appeal and defense of

the cross-appeal, and we will allow the sum of $3,650.00 (1,000

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pages at $3.65) as the necessary transcript cost. We will also 21

allow the $455.00 fee of the Clerk and the $378.80 in costs as

shown on the Mandate of the Court of Appeals, to which plaintiffs

do not object. 

QUESTIONS REGARDING PAYMENT

The court will need some help from counsel in apportioning

some of the payments we have been discussing. The costs and

expenses awarded to the successful plaintiffs will have to be

prorated among them in proportion to the amounts that were deducted

by counsel from the payments the plaintiffs received from the

individual defendants. Also, the $4,483.80 we have awarded to the 22

Town as its appellate costs will need to be apportioned against the

cross-appellees on an individual basis. 

There is a much more difficult question in regard to the

$1,145,550.00 in attorneys fees we have awarded the plaintiffs. 

The question is, who should receive the money? 

The intent of Congress in enacting 42 U.S.C. § 1988 was to

shift the attorney’s fees of a successful civil rights plaintiff to

the person or persons who violated the plaintiff’s civil rights. 

The court reporter’s invoice also includes an $818.10 charge for a

21

“1st copy.” This does not appear to be a cost “needed to determine the appeal,”

and it is disallowed. 

See Defs.’ Letter at 1 (“On Friday, July 11, 2008, the Individual 22

Defendants satisfied the judgments in full to the successful Plaintiffs. Sarah

Stertz, counsel for Genesis Insurance was present. At this time, Mark Parts

represented to the Plaintiffs in front of Sarah Stertz that 40% plus costs would

be deducted from each Plaintiff’s settlement amount based on their contingency

fee agreement.”) 

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The plaintiff would have the benefit of his or her full recovery,

without having to pay over a portion of it in fees. Venegas, 495

U.S. at 86. Therefore, it is the plaintiff, not his or her

attorneys, who is ordinarily the recipient of the fee award. Id.

at 87-88. But it is not always that simple. The Supreme Court has

also held that the plaintiff may, by contract with the attorney,

agree to pay the attorney a contingent percentage fee and, in

addition, to assign to the attorney the § 1988 fee award. Id. at

86-90; Gisbrecht v. Barnhart, 535 U.S. 789, 806 (2002). Such

contractual arrangements are allowed on the theory that they may be

necessary to ensure that the plaintiffs will be able to retain

competent counsel. The agreement can provide not only for a

contingent fee and the assignment of the statutory award but, in

addition, a flat fee. Pickett, 664 F.3d at 640-41 ($7,500.00 flat

fee). Although the justification for such agreements is that they

may be necessary to provide competent counsel, no case we are aware

of has imposed any requirement that the strength of the plaintiff’s

case be considered. It is an across-the-board rule, applying both

to weak cases and to cases appearing to be so strong that the

plaintiff would have no difficulty finding a competent, experienced

civil rights lawyer to take it on--for example, cases where lateracquired DNA evidence supports a plaintiff’s claim that the police

forced him to confess to a crime he did not commit. The result of

this contract rule is that the prevailing civil rights plaintiff

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does in fact wind up paying his or her own attorney’s fees,

something the statute was intended to avoid. 

In this case, the plaintiffs’ attorneys allege that they had

an agreement with their clients pursuant to which they are to

receive a contingent fee of 40 percent, plus the statutory fee

award. They have already received $1.04 million as their claimed

40 percent share of the judgments paid by the individual defendants

and, if they receive the statutory award in addition, the total

will be $2,185,550.00. This could be a legally permissible

outcome.

There is, however, a problem. We are not satisfied that

there is an enforceable fee agreement or agreements. Recall that

the individual defendants insisted upon seeing the agreement and

Mr. Cerda strongly resisted producing it. The issue arose in

connection with the individual defendants’ consideration of the

time records the plaintiffs had produced in connection with their

fee petition. The defendants wanted to see the contingent-fee

agreement because of their belief that it was relevant to the

amount of fees that might be owing. Mr. Cerda took the position

that the contingent-fee agreement was irrelevant and refused to

produce it. At a hearing on July 23, 2008, Mr. Cerda, in response

to the defendants’ motion to compel, cited Venegas for the

proposition that plaintiffs’ attorneys can be entitled to both a

contingency fee and a statutory award and argued that he had

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disclosed to the defendants that the contingency agreement was for

40 percent. (Tr. of July 23, 2008 at 5.) The following colloquy

then occurred:

THE COURT: Now, do you want to see the

contingency agreement because you doubt Mr. Cerda’s

representation as to the amount of the percentage?

MR. WELCH [representing defendants]: Well.

THE COURT: I am not saying you have to accept

his representation, but tell me if that’s the

reason you want to see the actual paper.

MR. WELCH: Yes, your Honor, that’s among the

reasons.

MR. CERDA: We could file an affidavit.

THE COURT: There is no law that says you have to

accept the other side’s representation.

THE COURT: Let’s read this Venegas case, I will

read it and anything else that might be relevant

and put this over until next week and I will rule.

(Tr. of July 23, 2008 at 5-6.) On July 30, 2008, we addressed the

matter again. We indicated that we thought the contingency

agreement could be relevant and that the defendants were entitled

to see it. The following colloquy ensued:

MR. CERDA: Well, pursuant to Section 1983 and

Section 1988 and we didn’t have an opportunity to

brief this, your Honor, and I did not get Mr.

Welch’s cases until 10:00 this morning.

THE COURT: What is the matter of life or death

about producing the contingency fee agreement?

MR. CERDA: Well, the first argument--

THE COURT: How would either the plaintiff or--

plaintiffs or their attorney be damaged by

producing it? 

MR. CERDA: We had disclosed to the court and to

defense counsel that the contingency fee agreement

for this case provides a 40 percent contingency fee

if the case went to trial, and that’s what

happened.

THE COURT: I asked Mr. Welch last time whether

he doubted that, and he said yes. Now, that’s the

unfortunate situation where one lawyer doesn’t

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believe another and stands before the court and

says that. However, that is characteristic of this

case during the 15 years or so it’s been pending. 

Nobody believes anybody. So it’s really--I won’t

say it’s unique. I have had other cases that are

somewhat like this, but very few. So I don’t think

that one party is bound to accept the

representation of the attorney for the other side. 

They’re entitled to verify it.

MR. WELCH: Thank you, your Honor.

MR. CERDA: We could give them an affidavit, your

Honor, that the contingency fee agreement is 40

percent.

THE COURT: Give them a copy of the actual

document. I am going to order that the plaintiffs

turn over to the defendant--the individual

defendants a copy of their contingency fee

agreement within 7 days.

MR. WELCH: Your Honor, may we ask that it be

turned over today? We have been working diligently

to respond pursuant to your Honor’s direction. By

tomorrow we are supposed to tender our objections.

THE COURT: Any reason you can’t do it?

MR. CERDA: Yes, your Honor.

THE COURT: Why?

MR. CERDA: The original documents are missing,

the original contingency fee agreements are

missing.

THE COURT: Now, you see there’s--already we’ve

got a glitch.

MR. CERDA: However, your Honor, we can represent

to the court again, and I am an officer of the

court and I can sign a sworn affidavit, that we

have a contingency fee agreement with the

plaintiffs that provided for--the original

agreement provided for 40 percent contingency. We

have executed documents with the disbursements

which also contain--may contain attorney-client

privilege, but we set forth the disbursements and

they are the agreement set forth in writing as 40

percent of the contingency fee. 

THE COURT: That is somewhat disquieting that

this comes out at this late date. Our discussions

thus far have proceeded on the assumption that the

document exists, but--

MR. CERDA: There are subsequent writings, your

Honor.

THE COURT: What I will do is enter an order

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today requiring plaintiffs’ attorneys to file a

sworn response to the motion of the individual

defendants for production of the contingency fee

agreement between plaintiffs and their attorneys. 

In the event the fee agreement cannot be located,

the attorneys shall explain its absence and recite

the contents to the best of their recollection, and

that should be done within 7 days. 

(Tr. of July 30, 2008 at 2-5 (emphasis added).) On August 13,

2008, plaintiffs filed a motion for reconsideration of our order of

July 30, again citing Venegas for the proposition that the “terms

of plaintiffs’ contingency fee agreement are not relevant to what

the losing defendants must pay the plaintiffs.” The motion

concluded with a prayer “that this Court vacate its Order requiring

plaintiffs to produce a copy of their contingency fee agreement or

detail its terms and deny defendants’ Motion to Compel.” (Pls.’

Mot. for Recons. at 2-3.) We denied the motion for reconsideration

on August 18. 

On September 2, 2008, the plaintiffs filed a response to the

defendants’ motion to compel. The response is signed by Mr. Cerda. 

It recites that in September 2000 and again in August 2001, Mr.

Cerda, Mr. De Leon and Mr. Joseph R. Lopez met with various of the

plaintiffs at a church in Cicero and had each of the adult

plaintiffs sign individual contingent-fee contracts. Counsel were

assisted by Mr. De Leon’s assistant, Salvatore Castellano. (Pls.’

Resp. ¶¶ 2-3.) Mr. Cerda states that he believes that Mr.

Castellano was assigned the task of copying all of the contracts

and mailing the copies to each of the adult plaintiffs. He also

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believes that the contracts “were gathered into a folder by Mr.

Castellano and maintained with Mr. De Leon’s files.” (Pls.’ Resp.

¶ 4.) 

The response also states: “In February 2008, certain clients

asked for a copy of their contingency fee contract. Apparently,

Mr. Castellano has [sic] not mailed copies of the contingency fee

contracts to plaintiffs in 2000 and 2001. Mr. Castellano was

terminated from Mr. De Leon’s employment in 2004.” (Pls.’ Resp. ¶

5.) 

Neither Mr. Cerda nor Mr. Lopez maintained copies of the

contracts, and they believed that Mr. De Leon maintained the

originals. In 2004, Mr. Cerda’s assistant, Mr. Breed, “updated the

Duran folders and index” and “does not recall ever seeing the Duran

contingency fee agreements.” (Pls.’ Resp. ¶ 6.) Paragraph 7 of

the response states: 

At this time, Plaintiffs’ counsel believes that the

folder containing the original contingency fee

agreements was misplaced by Mr. Castellano.

It is not clear who is included in the term “Plaintiffs’ counsel.” 

Paragraph 9 of the response states:

Mr. Cerda believes that the operative terms of the

Duran contract are substantially similar to the

terms of the next case handled jointly by Mr. Cerda

and Mr. De Leon. 

This was the first case Messrs. Cerda and De Leon worked on

together. The response quotes language from the contract they used

in their next case, which provided for a contingent fee of 33.33

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percent for amounts recovered prior to the filing of a complaint,

40 percent for amounts recovered after filing, and, in addition,

that the “[a]ttorneys will be entitled to receive and recover all

attorneys’ fees and costs awarded by the court” and that the client

would reimburse “all costs and expenses reasonably necessary to the

performance of [the attorneys’] services.” (Pls.’ Resp. ¶ 9.) 

Attached to the response are the identically-worded

affidavits of Messrs. De Leon, Cerda and Breed. They state:

The statements in Plaintiffs’ Response to

Defendants’ Motion to Compel attributed to me are

true and correct to the best of my knowledge.

(Pls.’ Resp., Ex. A.)

Meanwhile, on August 27, 2008, the individual defendants had

filed a motion for sanctions against plaintiffs’ counsel pursuant

to 28 U.S.C. § 1927, claiming that he had unreasonably multiplied

the proceedings by failing to state at the outset that written

copies of the contingent-fee agreement were missing. 

On September 9, 2008, we entered an order directing the

plaintiffs to file by September 23, 2008 affidavits from six

different plaintiffs regarding their contingency-fee agreements.

On September 23, 2008, Mr. Cerda filed the affidavits of ten

plaintiffs. Each affidavit consists of two identically-worded 23

paragraphs: 

 Joel Uribe, Ana Maria Duran, Heriberto Uribe, Armando Duran, Ignacio 23

Rodriguez, Silvia Pineda, Adolfo Duran, Javier Rodriguez, Maria O. Duran, and

Alejandro Duran.

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1. I am one of the plaintiffs in Duran v. Town of

Cicero. Since September of 2000, I have been

represented by attorneys John R. De Leon, Joseph R.

Lopez, and David Cerda. More recently, I have also

been represented by attorney Mark Parts.

2. I have always agreed that my attorneys should

be entitled to any and all attorneys’ fees awarded

pursuant to 42 U.S.C. § 1983, and my attorneys are

and have always been authorized to seek recovery of

these fees. These fees, after all, are paid by the

defendants to my attorneys. I have never asked my

attorneys to limit their fees to the forty-percent

(40%) contingency fee they are also entitled to

under my contingency fee agreement with them. 

(Pls.’ Affs., Ex. A.) 

This is the evidence the attorneys have submitted to support

their claim that they have contingent-fee agreements with the

plaintiffs. The evidence was submitted in connection with motions

to compel and for sanctions filed by the individual defendants, not

by the Town of Cicero. However, the matter of the agreement is 24

also relevant to the dispute between the plaintiffs and the Town

concerning plaintiffs’ attorneys’ fees. As we will explain, we

need to deal with the contingent-fee question in order to determine

the proper recipient of the fees we are ordering the Town to pay. 

And because the Town will be making the payment, it has a right to

be heard on the question. 

So, what difference does it make whether there were written

contingent-fee agreements? It is critical to whether the alleged

agreements are enforceable. Contingent-fee agreements are

regulated by the Rules of Professional Conduct applicable to

The sanctions motion is still pending. 24

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attorneys. Rule 1.5 of the version of the Illinois Rules of

Professional Conduct in effect in 2000 and 2001 reads in pertinent

part as follows: 

(c) A fee may be contingent on the outcome of the

matter for which the service is rendered, except in a

matter in which a contingent fee is prohibited by

paragraph (d) or other law. A contingent fee

agreement shall be in writing and shall state the

method by which the fee is to be determined, including

the percentage or percentages that shall accrue to the

lawyer in the event of settlement, trial or appeal,

litigation and other expenses to be deducted from the

recovery, and whether such expenses are to be deducted

before or after the contingent fee is calculated. 

Upon conclusion of a contingent fee matter, the lawyer

shall provide the client with a written statement

stating the outcome of the matter and, if there is a

recovery, showing the remittance to the client and the

method of its determination.

. . . 

(f) . . . [A] lawyer shall not divide a fee for legal

services with another lawyer who is not in the same

firm, unless the client consents to employment of the

other lawyer by signing a writing which discloses:

 (1) that a division of fees will be made;

 (2) the basis upon which the division will be

made, including the economic benefit to be received by

the other lawyer as a result of the division; and

(3) the responsibility to be assumed by the other

lawyer for performance of the legal services in

question.

. . .

(h) The total fee of the lawyers shall be reasonable.

These Rules of Professional Conduct have the force of law. See In

re Vrdolyak, 560 N.E.2d 840, 845 (Ill. 1990) (citation omitted):

In 1980, this court embarked on a new course when

it formally adopted the Code. The Code established

an organized scheme for regulating professional

conduct. The Code also enunciated mandatory,

minimum rules to which attorneys are expected to

conform. In re Cheronis (1986), 114 Ill.2d 527,

535, 104 Ill. Dec. 225, 502 N.E.2d 722 (“It is a

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paramount obligation of each member of the bar to

study the Code and abide by its terms and

principles”).

. . .

As an exercise of this court’s inherent power over

the bar and as rules of court, the Code operates

with the force of law. Accordingly, the Code, as a

binding body of disciplinary rules, has, sub

silentio, overruled prior judicial decisions which

conflict with its mandates and proscriptions.

In Kaplan v. Pavalon & Gifford, 12 F.3d 87 (1993), the Seventh

Circuit dealt with a fee-sharing agreement that was not in a

writing signed by the client. The Court noted that in its earlier

decision in Cross v. American Country Ins. Co., 875 F.2d 625 (7th

Cir. 1989), it had held that a contingency-fee agreement was

enforceable even though it was not signed by the client and did not

indicate when expenses would be deducted, “thereby failing to meet

the requirements of Rule 2-106(c)(2) [of the Illinois Code of

Professional Responsibility]. A necessary predicate of our

decision was a finding that, under Illinois law, the Code of

Professional Responsibility is not binding on the courts.” Id. at

90. The Court continued: 

In 1990, following our decision in Cross, the

Illinois Supreme Court changed or clarified its

position regarding the binding effect of the Code

of Professional Responsibility. In In re Vrdolyak,

the court made it clear that the Code is now

binding on the courts as a matter of law.

. . .

Recognizing that this change in Illinois law

undermined the premise on which Cross was decided,

the district court in this case held that Rule 2-

107 is binding on the courts and thus “dictates the

conditions under which fee-sharing agreements will

be tolerated under law.” The district court found

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that the oral fee-sharing agreement violated

Illinois public policy, as expressed by Rule 2-107.

We agree with the district court that Cross can no

longer be considered a valid reflection of Illinois

law.

Id. at 90-91 (citation omitted); see also Woods v. Southwest

Airlines Co., 523 F. Supp. 2d 812, 824 (N.D. Ill. 2007) (Kocoras,

J.) (“Fee arrangements that violate Rule 1.5 cannot be enforced .

. . .”); In re Spak, 719 N.E.2d 747, 754-55 (Ill. 1999) (“The

writing requirement of Rule 1.5(c) contains no exception. . . . We

therefore hold that respondent is guilty of misconduct for failing

to reduce a contingent fee to writing in violation of Rule

1.5(c).”) 

It seems clear that if the alleged contingent-fee agreements

in this case do not comply with Rule 1.5 of the Rules of

Professional Conduct, they cannot be enforced. If there is no

enforceable contingency agreement, a number of questions arise. 

What about the 40 percent that the plaintiffs’ attorneys deducted

from the judgments collected by each of the successful plaintiffs? 

Would those amounts have to be refunded to the plaintiffs? If so,

could this be accomplished by having the Town pay the attorneys’

fees awarded in this case directly to those plaintiffs, with the

plaintiffs’ attorneys being responsible to refund to them the

amount by which the 40 percent exceeds the fee award? Would this

court have the authority to order such a refund? 

There is a separate question as to Mr. Parts. Because he

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did not enter the case until 2007, no one claims that his name was

included in any written fee agreement. We do not see how he could

claim any fee in addition to the § 1988 award. 

The enforceability of the alleged contingent-fee agreements

is something the parties have not briefed. (The Town simply argued

that as a matter of law, the plaintiffs’ attorneys could not

collect both a contingent fee and the statutory fee award, an

argument we rejected.) At the conclusion of this opinion we will

set a briefing schedule. Instead of asking the “plaintiffs” to

address the issue, we will give the plaintiffs’ attorneys an

opportunity to address it. It would seem that on this particular

issue, the plaintiffs and their attorneys may now be adverse to

each other. (This raises the additional question of whether the

plaintiffs should have separate counsel and, if so, how that

counsel would be paid.) 

Before closing, we will indicate to counsel some of the

questions we think are pertinent: 

1. Why did Mr. Cerda delay so long in disclosing that the

alleged written contracts are “missing?” Was this a lack of candor

that affects the credibility of his claim that they ever existed?

2. How likely is it that Mr. De Leon’s assistant, Salvatore

Castellano, would have “misplaced” the folder containing the

original contingency-fee agreements? No one actually says he did. 

Mr. Cerda merely says that plaintiffs’ counsel “believes” that he

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did. Is this mere speculation? There is no affidavit from Mr.

Castellano, and apparently no one has even interviewed him or

attempted to interview him. And what does “misplaced” mean? Would

Mr. De Leon’s assistant have put the agreements in a place in the

office where they could not be found? Does it make sense that Mr.

Castellano, purportedly having been instructed to mail copies of

the originals to each of the plaintiffs, would somehow have thrown

them out? 

3. What is the significance of the affidavits of Messrs.

De Leon, Cerda and Breed that are attached to the response to the

motion to compel? The affidavits merely say that the statements

in the response “attributed to [the affiant] are true and correct

to the best of [his] knowledge.” The response contains no

statements by any of these three affiants that adds anything to

counsel’s “belief” that the agreements were misplaced by Mr.

Castellano. 

4. What weight is to be given the affidavits of the ten

plaintiffs? Obviously prepared by counsel, they read like legal

arguments. Explaining why they “always agreed” that the attorneys

would be entitled to any fees awarded by the court, the affiants

state that “[t]hese fees, after all, are paid by the defendants to

my attorneys.” There is reason to doubt whether these affiants

understood what they were signing. It is, of course, true that

statutory fee awards are “paid by the defendants,” but this has

Case: 1:01-cv-06858 Document #: 742 Filed: 04/16/12 Page 94 of 96 PageID #:11390
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nothing whatsoever to do with who receives them. In the absence of

an agreement to the contrary, the fees would be paid to the

plaintiffs, not the attorneys. 

We realize that it would be improper to reduce the

plaintiffs’ lodestar fee award under § 1988 based on the existence

of a contingent-fee agreement. The § 1988 award is to be based

upon the the attorneys’ appropriate market rates for the services

rendered, quite aside from any contingent fee they that may have

contracted for with the clients. Pickett, 664 F.3d at 640-45. 

However, this requirement that the lodestar be determined apart

from any consideration of a contingent fee does not insulate the

contingent fee itself from judicial scrutiny: 

We recognize that this fee agreement, which highly

compensates Rossiello by requiring Pickett to turn

over three types of fees, may unfairly take

advantage of Pickett. Although the Supreme Court

has recognized that a plaintiff has the freedom “to

become contractually and personally bound to pay an

attorney a percentage of the recovery,” Venegas,

495 U.S. at 88, 110 S. Ct. 1679, this particular

contract seems to exact too high of a cost on an

unsophisticated party seeking to vindicate her

civil rights. We question whether Pickett

understood the steep compensation arrangement that

she agreed to. Our suspicions are bolstered by

Rossiello’s apparent disregard for proper “billing

judgment,” as required by Hensley, 461 U.S. at 437,

103 S. Ct. 1933, evidenced by his request for hours

spent on losing claims and hours spent while

suspended from legal practice. Thus, we emphasize

that, even though a court cannot exercise its

supervisory authority to prevent a windfall by

reducing an otherwise reasonable lodestar, a court

may exercise this authority by scrutinizing a

suspect contingent fee agreement, see Rosquist v.

Soo Line R.R., 692 F.2d 1107, 1111 (7th Cir. 1982).

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Id. at 644 n.5 (emphasis added). 

We ask that the plaintiffs’ attorneys file a memorandum in

support of their claim that they have enforceable contingent-fee

agreements by May 14, 2012. The Town may respond by June 11, 2012,

and the plaintiffs’ attorneys may reply by July 2, 2012. 

CONCLUSION

The final determination as to whom the Town of Cicero will

be required to make payments in this case is stayed until the court

has considered the briefs we have requested. 

DATED: April 16, 2012

ENTER: ______________________________________________

John F. Grady, United States District Judge

Case: 1:01-cv-06858 Document #: 742 Filed: 04/16/12 Page 96 of 96 PageID #:11392