Next case this morning is Robert K. D. Jr. versus the borough of Dunmore Ronaszivas, Mrs. Powdery angle, his Thank you. Ms. Pollock. Thank you, Your Honor. May it please the court. My name is Cynthia Pollock and I represent the appellant Robert D. Jr. I reserve three minutes for rebuttal. What I would like to first talk about is the load star, which this circuit piring the air back in 1973 is now the land of the law in a sense of that is what the petitions are evaluated on
. In this case, the load star was reduced based on a double deduction. On the Johnson's factors, the Supreme Court was clear that the Johnson factors no longer matter. It's all the load star, which is the hourly rate times the number of hours. So it's clear that the Johnson factors, which the court used to reduce the petition was erroneous based on the Purdue case. The second thing would be the rule 68 offer of judgment. It was not equivalent to what Mr. D achieved at trial. He actually received a jury verdict form that he can take to any employer any time he asked to go and is questioned about the fact that what happened to you back when you were at the Bureau of Dunmore and you were suspended. We all read about it. What happened back there? What was his ultimate judgment, the value of that? 47,000. And the offer of judgment was? 60,000. That's the end of the matter on that
. Seeing that's where the court erred. Money is in everything, especially in civil rights cases because the fact that those are our most precious rights. And to be vindicated in a jury of your own peers, find that your rights were violated. That is so important. But that's all that happened in front of that jury where you got that verdict was to calculate the compensatory, the dollar value of the alleged act. That's all that was that verdict was for. It wasn't the liability, right? Because it's all a cardiac remittor and the rule, yes, but the rule of the 68 offer was no liability, no damages. There was a condition on it. And that's what's impermecible. But the case law seems to suggest that maybe this circuit hasn't spoken. That is one of the only sort of express exceptions you can have is you can make a condition on no admission to liability. Correct? This, I disagree only because of the fact that but would rule a 68, they would be bigger than they should be
. They should be small and only certain cases. But you could get a judgment entered against your never admit liability. It's a deep, the same goal. I agree. However, this isn't a, I broke my arm and all it is is money. Civil rights cases have a larger principle. This verdict was the jury actually awarding that these people violated this individual's right and they owe this amount of money. So when this person goes on to his next job, he will have this and can use that to say, I did nothing wrong, I was wronged. Can we talk about the 64.1 and the Smith case where there was the prior case where it was Smith and D and the court allocated 64.1 according to the district court opinion. Yes
. In the Smith case, can you walk us through how you think you're in touch with that 64.1 here? Well, my thoughts are that was the time I submitted in Smith. The court made a decision which was not appealed by a opposing counsel that said 64 goes to the team member. How would we recount? We look at your exhibit A, your exhibit T and you have, there's like handwriting that says 64.1 Smith. Yes. If you go back to the decision that the judge made and Smith, he specifically made the determination that 64.1 was related to the D matter. So what does A and B reflect in our record? Because we have only this record to examine. Okay. So tell us how we would know that 64.1 was reflected in the time sheets in front of the district court in D and then before us today
. You look at the decision that was issued by the judge which is on Lexus. Smith versus Burrow it specifically says 64.1 and the same fileings that I filed in D, I filed them again so it's consistent and 64 were allotted in that appendix. 64.1 were allotted to D. So how could I get 64.1 because of the fact the court all Because maybe the judge in D in its independent evaluation of the time sheets saw it differently. It was the same judge. So you're saying it was Resuducada? Yes because it's a final decision, a final issue I should say, maybe an issue conclusion I would say it's already been determined. You already said that's I can't get 64.1 because that's according to D. So why shouldn't I when I do have the D and I am successful why should I get that 64
.1 that you already determined I was owed but didn't give it to me in the Smith case because it overlapped. Well, but are you saying then that the trial judge could have awarded you only 64.1 for D but nothing more? No. Only for that overlap of time which I followed what was already done. This is all I'm allowed for this overlap of time that the court has already determined based on the Smith decision. But the overlap decision and Smith sheds the light on the interaction between the 64.1 that's overlapping and the other aspects of your fee petition and D. That requires an independent analysis doesn't it? No because of the fact that 64.1 was already determined by that same district judge that those were attributed to D. With that with the district judge have known when you came before him indeed under fee petition that when you did your time calculations, a portion of your total was or included the 64.1 he or judges the additional time after the Smith case that goes to D only. How would the district court been able to engineer this through because the same filing was filed in both cases
. And I was granted 64.1 I wasn't granted I was denied that Smith saying those times are clearly related to D. Is that what exhibit A is in our record? Exhibit A I think that's just all my time but see there's different time there's two different time sheets. Well the first one is related only to D. And then I filed the other one which was the same file is related to D and Smith. After that trial was concluded and I filed my fee petition. But I'll answer my question that's what I was trying to figure out is what A is and what B is. And the last point I want to make is the hourly rate which is in this case there was all the affidavits that were filed were the rate was 375 was the max I only requested 300 there was absolutely no affidavits included in the record from the defendant stating any other rate. So therefore by default the district court should have given me my rate of $300. Why can't a court consider other judicial findings on rate for like attorney like type of case like geographic area like subject matter. Why isn't that possible? Well this I'm circuit decision in cutting him states if you're going to challenge that hourly rate you have to have an affidavit. And that makes sense why because if I have to file that why would I even have to file affidavit is if it's basically what historically I've been received in the past things change people get more experience
. They do different things that may make their rate go higher. In this case the going rate is 410 Mr. Dillers asking for 410 someone of my nature which I've had 20 28 trials at this point I still can't even get the 300 which was the going rate way back when and is a rate rate that should be awarded. So if the defendant had put an affidavit in and the the affiant said I was counsel in this other case I know the district judge set rate X for this case rate X for that case and he put it in the affidavit would that have been. Procedurally the appropriate way to go and so the problem here from your point of view is a procedural problem where that that would have been titled me to a hearing to prove to the court that I. That I should get my rate I would bring my at the end and then tell why 300 is the rate that's good I think it was the landing case says that it's an issue of fact if someone challenges it in this case there was no not one affidavit challenge so where do you come up with it a 250 which is just generalized what I should get versus what was in the record. Didn't the defendant's a ver that you had no evidence to you ever been paid 300 dollars an hour I have my affidavit that I was that my clients agree to pay me 300 dollars an hour I didn't say what they agreed to pay didn't they defendants put in that you've never. Been able to show that you actually been paid by a client 300 dollars an hour well when you take contingencies fees unfortunately that is not you know you don't get an hourly rates you. Or be able to show but I filed six affidavits that said in three of those gentlemen in the other case that I was able to file they all got 300 dollars an hour similar due process situation there's no reason why I shouldn't get the 300 dollars when the going rate is 300 dollars so I did not it was only not only me I also had the three affidavits from the prior case as well as an affidavit from someone attesting that Cindy's worth 300 dollars. Basically was Jonathan comets his affidavit asserted that and instead of filing affidavits saying no the going rate is 250 here and scrant will expere area they just a verdict and argument and that's not appropriate the district court. They need record at they need record evidence pardon you're saying they an a vermin isn't enough they need record absolutely but why to judge short this question why isn't. Why can't the trial judge particularly when it's the same judge take judicial notice of the record in another case in which the same council's involved
. Well because of the fact is at a different time and so it wouldn't be relative to whatever happened in that case and certainly in a situation like this I am never going to no matter how many trials I try no matter how many degrees I get because I have a master's and. Law it doesn't change the fact that I'm viewed based on history at a lower rate than a gentleman who tried his first case and he was able to secure 300 dollars now didn't didn't these case run from July 2005 until September of 2010. It ran all the way still running now eight years and it started July 2005 correct and in supinski judge Caputo granted a rate of 250 an hour correct correct and that ran from March 2006 to February 2012 so there is contemporary and there is there not. But that is not the record evidence that this court has required you have to do an affidavit and the you know they didn't do an affidavit why would I have to do affidavits if they don't have to do counter affidavits it doesn't make any sense. Historical rates aren't appropriate and especially in a situation where you will judge Caputo had given you 400 dollars an hour you wouldn't have to do an affidavit either you could just say your honor you gave me 400 dollars an hour in in. In supinski and I want it in this case right are you suggesting you would have had to do an affidavit I would have to do an affidavit absolutely because this case law and cunning him and even the black grievance it's all you have to have affidavits that's how this is all determined on the record. I'm not sure if you can just say you don't like me for whatever reason and you give me a lower rate versus you know my affidavits show that this is the going rate. Did you appeal the 250 rate from in supinski? I yeah I across appeal and what it what it is. It's a result your honor. It wasn't decided by our court. Through your mediation program. It was resolved
. Yes. Okay. Thank you. Thank you Ms. Pollock. Ms. Brennan. May I please the court. My name is Erin Brennan and I'm here representing the borough of Dunmore in this matter. If I may I'm going to kind of start where attorney pilot left off and address her issues. On the issue of the reasonableness of the rate I think it's always important to remember the standard that this court has to review that the reasonableness of the rate and it's an abusive discretion standard. Judge Caputo in his opinion delineated what the law was that apply he recognized that there's a burden shifting analysis that applies. He recognized that the plaintiff has to establish a premium fashion case. That's why the plaintiff's council has to submit affidavits. That's part of the burden of establishing the premium fashion case. Once that premium fashion case is established then it's incumbent upon the defendant to produce evidence of record as you stated that is contradictory or shows the rate is that reasonable. In this case Dunmore borough did that by citing to three cases I believe the Gwenaire case, the Lomon case and the Smith case. They're all comparable cases. They were all tried by the same council around the same period. They all awarded an attorney fee of $215 an hour. All of those cases may occur between the rulings in the more between 2009 and 2011 were all affirmed by this court. So it's your position that it's appropriate to consider rate set if you have like circumstances. From your point of view the way you can present that to the court is simply by citing it in a brief. You don't need to put it in an evidentiary document correct your honor
. He recognized that the plaintiff has to establish a premium fashion case. That's why the plaintiff's council has to submit affidavits. That's part of the burden of establishing the premium fashion case. Once that premium fashion case is established then it's incumbent upon the defendant to produce evidence of record as you stated that is contradictory or shows the rate is that reasonable. In this case Dunmore borough did that by citing to three cases I believe the Gwenaire case, the Lomon case and the Smith case. They're all comparable cases. They were all tried by the same council around the same period. They all awarded an attorney fee of $215 an hour. All of those cases may occur between the rulings in the more between 2009 and 2011 were all affirmed by this court. So it's your position that it's appropriate to consider rate set if you have like circumstances. From your point of view the way you can present that to the court is simply by citing it in a brief. You don't need to put it in an evidentiary document correct your honor. I recognize that it is not I don't advocate that I think all those criteria have to be met. It has to be the same attorney the same type of case it can separate as event. And a panel of this court in the carry case which Judge Peter cited to in his opinion recognized on the fee on the appeal on the fee issue in that case that defendants had in the case below properly provided evidence record by citation to the same Lomon case. So again I think it's appropriate to consider that and so you don't take issue with the judge the district court here rejecting the cases you are you cited your client cited and citing his own collection of cases to set a rate higher than the rate you advocated. I think that's actually a perfect example of how the trial court judge was using his discretion to render what was a reasonable rate. He took the plaintiff submissions arguing for a fee award of $300 an hour. He took he considered the defendant's evidence of record arguing for a fee of $215 an hour. He looked independently at cases which we again contemporaneous same counsel same type of cases in which $250 an hour had been rewarded and $225 an hour had been awarded. And that $225 award was affirmed by this court in weighing all of those things together. He came to the conclusion that $250 was the reason 250 an hour was the reasonable award in this case. I believe that is within his discretion to do. I don't believe it is appropriate to that there's authority to overturn that decision unless there's clearly aronious decision making by the judge
. I recognize that it is not I don't advocate that I think all those criteria have to be met. It has to be the same attorney the same type of case it can separate as event. And a panel of this court in the carry case which Judge Peter cited to in his opinion recognized on the fee on the appeal on the fee issue in that case that defendants had in the case below properly provided evidence record by citation to the same Lomon case. So again I think it's appropriate to consider that and so you don't take issue with the judge the district court here rejecting the cases you are you cited your client cited and citing his own collection of cases to set a rate higher than the rate you advocated. I think that's actually a perfect example of how the trial court judge was using his discretion to render what was a reasonable rate. He took the plaintiff submissions arguing for a fee award of $300 an hour. He took he considered the defendant's evidence of record arguing for a fee of $215 an hour. He looked independently at cases which we again contemporaneous same counsel same type of cases in which $250 an hour had been rewarded and $225 an hour had been awarded. And that $225 award was affirmed by this court in weighing all of those things together. He came to the conclusion that $250 was the reason 250 an hour was the reasonable award in this case. I believe that is within his discretion to do. I don't believe it is appropriate to that there's authority to overturn that decision unless there's clearly aronious decision making by the judge. And that this court can find that no reasonable person when viewing that compilation evidence would find would could not find the $250 an hour was reasonable. Moving from the rate again backwards addressing the argument as it went before in the Smith case the 61.4.1 hours there. I think the difficulty with that is counsel argues and I understand the argument look and Smith the court said there were 64.1 hours that were attributable to both the mutual benefit of both Smith and D or just attributable to D that were carried on the Smith Smith fee sheets. The problem is we can't there's been nothing to show them we can't presume that the fee sheets for Smith carried over exactly the Smith and D same Smith and D matters as did the fee sheets for D. I know when I'm working on cases and I had there's multiple parties or there's companion cases sometimes you transcribe something to one one client matter and not to the other. So absent is showing and and counsel had an opportunity to show that at the time of a recovery library absent is showing that those hours those exact hours considered by judge computer were somehow not attributable to D. Then I think his finding on that was correct as well and again that is an abuse of discretion standard. On the rule 68 offer of judgment. The offer of judgment was made in a timely fashion it was made for more than 14 days before the initial trial the initial second trial was scheduled and it did contain a condition of no admission of liability but that was just part of the offer
. And that this court can find that no reasonable person when viewing that compilation evidence would find would could not find the $250 an hour was reasonable. Moving from the rate again backwards addressing the argument as it went before in the Smith case the 61.4.1 hours there. I think the difficulty with that is counsel argues and I understand the argument look and Smith the court said there were 64.1 hours that were attributable to both the mutual benefit of both Smith and D or just attributable to D that were carried on the Smith Smith fee sheets. The problem is we can't there's been nothing to show them we can't presume that the fee sheets for Smith carried over exactly the Smith and D same Smith and D matters as did the fee sheets for D. I know when I'm working on cases and I had there's multiple parties or there's companion cases sometimes you transcribe something to one one client matter and not to the other. So absent is showing and and counsel had an opportunity to show that at the time of a recovery library absent is showing that those hours those exact hours considered by judge computer were somehow not attributable to D. Then I think his finding on that was correct as well and again that is an abuse of discretion standard. On the rule 68 offer of judgment. The offer of judgment was made in a timely fashion it was made for more than 14 days before the initial trial the initial second trial was scheduled and it did contain a condition of no admission of liability but that was just part of the offer. Your allowed have that condition in there plane if did not need have to accept it and in fact plane if did not accept it and I don't I don't understand the argument I don't think the argument holds weight that will now Mr. D can say to any potential future employee will look I was vindicated on this as your honor pointed out the second trial was solely on the calculation of damages. And really comparing apples to apples offer judgment was $60,000 plus an ability to petition the court for costs and the ultimate verdict was $47,000 plus an ability to petition the court for cost. $60,000 plus cost is more than $47,000 plus cost. This wasn't a situation where there was a request for equitable relief had there been a request for equitable relief and plenty of received it perhaps then that would weigh differently in the balance. And the final matter is what D has termed as the double deduction and again I think what I mean again the the standard there is abuse of abuse of discretion but we start with the load star which is obviously reasonable hours times the reasonable rate that's the starting point. And I think the case law is clear the handsley case relied upon by the court even the Purdue case that was cited by D at argument that the load star isn't always going to be sufficient in and of itself. Sorry, let's agree with that but okay, but this is a large reduction. It's more than a 50% reduction. How do we endorse that sort of reduction when the district court did not give what one might consider a full some explanation of why that was appropriate? Well again I think it was within the district court's discretion the district court did articulate in its opinion that look handsley did doesn't give any clear criteria as to how you get to a reduction when it's necessary and the district court considered specifically in its opinion. The fact that the ultimate recovery in this case was recovery on one claim out of five claims and it was an ultimate recovery for 47,000 for 47,000, $500. But doesn't doesn't the fact that there was recovery on one claim wasn't that already taken to account on the district court reduced the fee award by 18
. Your allowed have that condition in there plane if did not need have to accept it and in fact plane if did not accept it and I don't I don't understand the argument I don't think the argument holds weight that will now Mr. D can say to any potential future employee will look I was vindicated on this as your honor pointed out the second trial was solely on the calculation of damages. And really comparing apples to apples offer judgment was $60,000 plus an ability to petition the court for costs and the ultimate verdict was $47,000 plus an ability to petition the court for cost. $60,000 plus cost is more than $47,000 plus cost. This wasn't a situation where there was a request for equitable relief had there been a request for equitable relief and plenty of received it perhaps then that would weigh differently in the balance. And the final matter is what D has termed as the double deduction and again I think what I mean again the the standard there is abuse of abuse of discretion but we start with the load star which is obviously reasonable hours times the reasonable rate that's the starting point. And I think the case law is clear the handsley case relied upon by the court even the Purdue case that was cited by D at argument that the load star isn't always going to be sufficient in and of itself. Sorry, let's agree with that but okay, but this is a large reduction. It's more than a 50% reduction. How do we endorse that sort of reduction when the district court did not give what one might consider a full some explanation of why that was appropriate? Well again I think it was within the district court's discretion the district court did articulate in its opinion that look handsley did doesn't give any clear criteria as to how you get to a reduction when it's necessary and the district court considered specifically in its opinion. The fact that the ultimate recovery in this case was recovery on one claim out of five claims and it was an ultimate recovery for 47,000 for 47,000, $500. But doesn't doesn't the fact that there was recovery on one claim wasn't that already taken to account on the district court reduced the fee award by 18.1 hours and isn't that a double count? No, I don't think that is a double count is I think that that the reduction of the 18.1 hours is representative time specifically that is clearly identified as specifically attributed to both an unsuccessful claim. So then we take that out to get to the load star when we get to the load star under handsley one of the primary consideration is degree of success and the four unsuccessful claims in this case were not based on the same nucleus of operative fact they were the successful claim was related to Mr. D's procedural due process claim relative to his eight day paid suspension for more. The other four claims a stigma class claim and state law claims for invasion of privacy etc were related to the publication and the newspaper of that suspension so they're they're different underlying fact. So the judge wrapped it. So I think that the bill by 18.1 hours to reflect that lack of success on those claims. I think that 18.1 hours that was specifically attributable on the time sheets for you're saying that that because it. He believed there was more time. I'm saying because the degree of success when you get to when you got to the end the ultimate award to the plane of the forty seven thousand five hundred dollars the fee request was two hundred thirty thousand approximately
.1 hours and isn't that a double count? No, I don't think that is a double count is I think that that the reduction of the 18.1 hours is representative time specifically that is clearly identified as specifically attributed to both an unsuccessful claim. So then we take that out to get to the load star when we get to the load star under handsley one of the primary consideration is degree of success and the four unsuccessful claims in this case were not based on the same nucleus of operative fact they were the successful claim was related to Mr. D's procedural due process claim relative to his eight day paid suspension for more. The other four claims a stigma class claim and state law claims for invasion of privacy etc were related to the publication and the newspaper of that suspension so they're they're different underlying fact. So the judge wrapped it. So I think that the bill by 18.1 hours to reflect that lack of success on those claims. I think that 18.1 hours that was specifically attributable on the time sheets for you're saying that that because it. He believed there was more time. I'm saying because the degree of success when you get to when you got to the end the ultimate award to the plane of the forty seven thousand five hundred dollars the fee request was two hundred thirty thousand approximately. The load star was hundred and twenty three thousand approximately I believe. So you said there isn't a law that you shouldn't be looking at the proportionality between the recovery and the fee. Or are you saying that that's an appropriate consideration. I'm sorry that there's a proportionality between the load star I'm sorry the fee award and the recovery. You're not allowed to there shouldn't we shouldn't be considering proportionality right. I don't and the judge didn't have portion anything but I think it is appropriate to consider the ultimate degree of success. Okay. So which is what which is so I guess that's a way of saying the judge can sort of equitably reduce or increase the fee award as long as there's not sort of a mathematical precision of well you succeeded on twenty percent of your case. So I'll give you 20% of the fees. Is that where we are? Yeah, I mean that's pretty close to where we are and I think a part of the mathematical precision is you know I can't. Although I believe in I I'm a late commer to this this case so I was not involved at the trial level but I'm if my recall starts me correctly. The argument was by defendants was for a specific apportionment of claims and the district court didn't do that
. The load star was hundred and twenty three thousand approximately I believe. So you said there isn't a law that you shouldn't be looking at the proportionality between the recovery and the fee. Or are you saying that that's an appropriate consideration. I'm sorry that there's a proportionality between the load star I'm sorry the fee award and the recovery. You're not allowed to there shouldn't we shouldn't be considering proportionality right. I don't and the judge didn't have portion anything but I think it is appropriate to consider the ultimate degree of success. Okay. So which is what which is so I guess that's a way of saying the judge can sort of equitably reduce or increase the fee award as long as there's not sort of a mathematical precision of well you succeeded on twenty percent of your case. So I'll give you 20% of the fees. Is that where we are? Yeah, I mean that's pretty close to where we are and I think a part of the mathematical precision is you know I can't. Although I believe in I I'm a late commer to this this case so I was not involved at the trial level but I'm if my recall starts me correctly. The argument was by defendants was for a specific apportionment of claims and the district court didn't do that. The problem obviously with doing that you can't say well you were one six successful so I'm just going to cut everything wholesale instead left to the trial courts discretion the judge exercise that discretion. And it's important to remember also the point of allowing attorney fees and these type of cases the intent is to encourage an entice. Providence, Providence Council to take these types of cases it's not to produce a windfall to council in the ultimate award of attorney fees. This is what's your view as to the extent to which the district court may consider the Johnson factors in reducing the load star again I think that they can that the Johnson factors can be considered I don't think that. I think judge repeater relied primarily on the degree of success he acknowledged in his opinion kind of an I think in paragraph laid out in his opinion that the this type of case was not something novel for attorney policy is very experienced in this type of case did not present a particularly regular rigorous or novel issue of law and those would all fall under Johnson. But wouldn't the fact that it was a novel for this lawyer get factored into what our early rate was and would not be a double count. I I mean I don't think so in that. Her counsel's overall experience would get count would get factored into the determination of an hourly rate. For example, juxtaposed to attorney Barry dealer who had substantially more experience or to somebody who had lesser experience so overall experience in that regard would get that factored into the hourly rate. I don't think that that overall experience gets factored in the Johnson level it's simply a specified this this particular case is not a does not present a novel or particularly rigorous exercise for counsel who's highly skilled in that type of case. Imagine she would have something to say about how much it took because in this case go up and down from this court back to the district court. Yes, yes, I imagine but I will leave you with that I think this the standard here as abusive discretion is a high standard and I I don't think that there's anything in record that is clearly aronious in judge for you to find and therefore I respectfully ask that this court from the decision
. The problem obviously with doing that you can't say well you were one six successful so I'm just going to cut everything wholesale instead left to the trial courts discretion the judge exercise that discretion. And it's important to remember also the point of allowing attorney fees and these type of cases the intent is to encourage an entice. Providence, Providence Council to take these types of cases it's not to produce a windfall to council in the ultimate award of attorney fees. This is what's your view as to the extent to which the district court may consider the Johnson factors in reducing the load star again I think that they can that the Johnson factors can be considered I don't think that. I think judge repeater relied primarily on the degree of success he acknowledged in his opinion kind of an I think in paragraph laid out in his opinion that the this type of case was not something novel for attorney policy is very experienced in this type of case did not present a particularly regular rigorous or novel issue of law and those would all fall under Johnson. But wouldn't the fact that it was a novel for this lawyer get factored into what our early rate was and would not be a double count. I I mean I don't think so in that. Her counsel's overall experience would get count would get factored into the determination of an hourly rate. For example, juxtaposed to attorney Barry dealer who had substantially more experience or to somebody who had lesser experience so overall experience in that regard would get that factored into the hourly rate. I don't think that that overall experience gets factored in the Johnson level it's simply a specified this this particular case is not a does not present a novel or particularly rigorous exercise for counsel who's highly skilled in that type of case. Imagine she would have something to say about how much it took because in this case go up and down from this court back to the district court. Yes, yes, I imagine but I will leave you with that I think this the standard here as abusive discretion is a high standard and I I don't think that there's anything in record that is clearly aronious in judge for you to find and therefore I respectfully ask that this court from the decision. Thank you, Mr. Brennan. Rebuttal Ms. Pollard. It's a preliminary review. It is not abusive discretion that you're Washington case versus Philadelphia County Court of Common please 1996. There is no discretion when it comes to the hourly rate. It's what's ever in the record. What if Ms. Brennan or her predecessor counsel submitted an affidavit that said simply I was counsel in Smith and the other two cases and I have heard under penalty of purgary or I declare an appellary that attorney Pollock was awarded $250 per hour in those cases. In those cases span the time frame from 2005 to 2012 if an affidavit like that of counsel have been submitted that simply recounted what had happened in those cases then then where will we be? Because it's not the market rate at the time of the verdict. It's whatever the going rate is
. Thank you, Mr. Brennan. Rebuttal Ms. Pollard. It's a preliminary review. It is not abusive discretion that you're Washington case versus Philadelphia County Court of Common please 1996. There is no discretion when it comes to the hourly rate. It's what's ever in the record. What if Ms. Brennan or her predecessor counsel submitted an affidavit that said simply I was counsel in Smith and the other two cases and I have heard under penalty of purgary or I declare an appellary that attorney Pollock was awarded $250 per hour in those cases. In those cases span the time frame from 2005 to 2012 if an affidavit like that of counsel have been submitted that simply recounted what had happened in those cases then then where will we be? Because it's not the market rate at the time of the verdict. It's whatever the going rate is. It's not based on a historical billing rate of that plaintiffs counsel got. I'm using a contemporary I'm presupposing contemporary contemporary anity between among the cases. It still is not. If they had submitted an affidavit. You have to and I would not credit that because the fact it's not an affidavit of the market. What's the market paying? The market's paying as I said someone with six years less experience with the me gets 300. So you're saying an attorney who falls an affidavit at your request on your behalf saying what the market rate is that's competent evidence in determining a fee award but what a district judge in the same district involving similar cases involving similar or the same lawyers adjudicates to be a market rate that doesn't count. It doesn't count because of the fact if it is lower than it should be you can ever increase. And the reason why we shouldn't look at historical because in this case the court falsed me that I didn't have this didn't have that. Well this time I can bring in more evidence more evidence showing that you know I should get the 300 rate because that is the rate that you just gave to someone. You know how how do you distinguish the fact that you just gave that to a gentleman who has this is his first trial he's had six years less experience than me but yet I cannot achieve that same rate that you have just given him in that the three lawyers that you paid for that case their total hourly rate was 900. What if they were with a district court had the that there were these other parents with the other cases where the rate was higher they were to 325 to an attorney who has exactly your pedigree just not you but you exactly your pedigree same geographic wouldn't you be embracing those and bring those cases to the court's attention
. Well I have shown what people have gotten paid and I still have not unfortunately been successful to get this paid the same as my colleagues I have gotten half a day but from other people saying Cindy's can you can attest to them but just has not been successful and to me what more can I ask and I just want to talk about the can I just want about the first amendment press communication. I'll stop there it wasn't raised initially so we we understand the argument from the base thank you miss Paul. Thank you to council and the court will take the matter under advisement