Washington v. Phila Cty Ct

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

7-9-1996

Washington v. Phila Cty Ct

Precedential or Non-Precedential:

Docket 95-1613

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 95-1613

__________

MARTIN O. WASHINGTON,

v.

PHILADELPHIA COUNTY COURT OF COMMON PLEAS

Martin Washington,

Appellant

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 92-3637)

__________

Submitted Under Third Circuit LAR 34.1(a)

Monday, March 11, 1996

Before: NYGAARD, SAROKIN,

and ALDISERT, Circuit Judges

__________

(Opinion filed July 9, 1996)

David Rudovsky

Kairys, Rudovsky, Kalman & Epstein

924 Cherry Street, Suite 500

Philadelphia, PA 19107

Alan B. Epstein

Jablon, Epstein, Wolf & Drucker

The Bellevue, Ninth Floor

Broad and Walnut Streets

Philadelphia, PA 19102

Attorneys for Appellant

A. Taylor Williams

Administrative Office of PA Courts

1515 Market Street, Suite 1414

Philadelphia, PA 19102

Attorney for Appellee

____________________

OPINION OF THE COURT

____________________

SAROKIN, Circuit Judge:

Appellant filed various claims against his former employer

alleging racial discrimination and retaliatory harassment and

discharge as a result of his pursuit of discrimination claims in

agency proceedings. He eventually prevailed on the retaliation

claim, though not on the claim of pre-retaliation discrimination.

At the conclusion of the proceedings, Appellant petitioned for

attorneys' fees, and his request was reduced by the district

court by more than eighty percent. He now appeals the reduction

of the fee award.

I. Facts and procedural posture

On June 22, 1992, Martin Washington filed an action in the

United States District Court for the Eastern District of

Pennsylvania against his former employer, the Philadelphia County

Court of Common Pleas (the "County Court" or the "Court"). Mr.

Washington's nine-count complaint alleged racially discriminatory

acts with respect to employment under both federal and state

statutes; retaliatory harassment and discharge after he filed an

administrative claim of racial discrimination with the Equal

Employment Opportunity Commission and the Pennsylvania Human

Rights Commission, under both federal and state statutes; civil

rights violations under federal and state statutes; violation of

Pennsylvania's public policy and common law; and breach of

contract of employment.

Five of the nine counts were dismissed on summary judgment

in June 1993. The case eventually went to trial in November

1993. At the conclusion of the trial, the jury found that the

County Court did not discriminate against Mr. Washington on the

basis of race. The jury did find, however, that the Court had

unlawfully retaliated against Mr. Washington for filing his

administrative claims, and awarded him compensatory damages of

$25,000. After the jury verdict, the district court granted a

post-trial Motion for Judgment as a Matter of Law to the County

Court setting aside the jury verdict.

Mr. Washington appealed to this Court. We reversed the

district court's order granting the post-trial motion, and

reinstated the jury verdict. Washington v. Philadelphia County

Court of Common Pleas, 47 F.3d 1163 (3d Cir. 1995) [table]. On

remand, judgment was entered for Mr. Washington on the verdict.

At the conclusion of these proceedings, Mr. Washington's

lead attorney, Alan B. Epstein, filed a Petition for Attorneys'

Fees claiming that Mr. Washington was the "prevailing party" and

seeking a total award of $175,987.50 in attorneys' fees for

himself and two colleagues at the firm of Jablon, Epstein, Wolf

and Drucker. Mr. Washington also sought fees of $3060 for

Lanier B. Williams, his attorney in the administrative

proceedings, as well as $7973.87 in plaintiff costs. Plaintiff's

Petition for Attorneys' Fees and Reimbursement of Costs of

Litigation, Washington v. Philadelphia County Court of Common

Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 3, 1995) [hereinafter

Petition] (JA 12). The County Court challenged, inter alia, the

sum requested for Mr. Epstein and his colleagues, asserting that

both the hourly fees and hours requested were excessive.

Objections of Defendant, Court of Common Pleas of Philadelphia

County to Plaintiff's Petition for Attorneys' Fees and

Reimbursement for Costs of Litigation, Washington v. Philadelphia

County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 28,

1995).

On June 30, 1995, the district court entered a memorandum

and order on the fee request. Washington v. Philadelphia County

Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. June 30, 1995)

(mem.) [hereinafter Memorandum]. The court decreased the number

of hours allowable by one half, finding Mr. Epstein's claim

"excessive and unreasonable," id., typescript at 8, and by an

additional fifty percent because Mr. Washington "hardly won a

decisive victory in this case." Id. The court, however, did not

extend the fifty-percent reduction to hours claimed in

preparation of the fee petition.

Regarding the hourly rates sought by Mr. Epstein and his

colleagues, the district court deemed it "impossible to consider

[them] as bona fide hourly rates." Id., typescript at 11.

Instead, the court concluded that "a reasonable hourly rate for

[Alan B.] Epstein is $175 per hour. A reasonable rate for

[Thomas D.] Rapp is $100 per hour. A reasonable rate for [Nancy]

Abrams is $85 per hour." Id., typescript at 12.

Based on its various assessments, the court calculated the

amount of the award for Mr. Epstein and his colleagues at

$30,389.63, roughly seventeen percent of Mr. Epstein's request.

Id., typescript at 13. In addition, the court disallowed any fee

for Mr. Williams, "who unsuccessfully represented Washington at

his PHRC hearing," id., and awarded $7973.97 for plaintiff

costs. Id.

Mr. Washington is now appealing the district court's order

reducing the counsel fees. He argues that:

The district court erred as a matter of law in its

reduction of the hourly rate for plaintiff's counsel

and in its reduction of the compensable hours

reasonably expended by counsel in this litigation. On

both issues the district court applied erroneous legal

standards; further, on the compensable hours issue, the

court made clearly erroneous factual determinations.

Brief of Appellant at 12.

II. Jurisdiction

This action was commenced pursuant to the Civil Rights Act

of 1964, as amended, 42 U.S.C. 2000e et seq. The district

court had jurisdiction pursuant to 42 U.S.C. 2000e-5(f)(3) and

28 U.S.C. 1331 and 1343. Plaintiff's various state claims

were properly before the district court pursuant to the doctrine

of supplemental jurisdiction as codified at 28 U.S.C. 1367(a).

The district court issued a final order on Plaintiff's

petition for attorneys' fees on June 30, 1995. We have

jurisdiction over an appeal from this order pursuant to 28 U.S.C.

1291.

III. Analysis

We review the reasonableness of an award of attorney's fees

for an abuse of discretion. Rose v. Dellarciprete, 892 F.2d

1177, 1182 (3d Cir. 1990). The question of what standards to

apply in calculating an award of attorneys' fees is a legal

question, and therefore we exercise plenary review over this

issue. Keenan v. City of Philadelphia, 983 F.2d 459, 472 (3d

Cir. 1992).

The matter of an attorney's marketplace billing rate is a

factual question which is subject to a clearly erroneous standard

of review. Student Public Interest Research Group v. AT & T Bell

Laboratories, 842 F.2d 1436, 1442 (3d Cir. 1988) (citing Black

Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648,

652 (3d Cir. 1986) (citation omitted), vacated on other grounds,

483 U.S. 1015 (1987)). More generally,

the appellate court may not upset a trial court's

exercise of discretion on the basis of a visceral

disagreement with the lower court's decision.

Similarly, the appellate court may not reverse where

the trial court employs correct standards and

procedures, and makes findings of fact not clearly

erroneous. In sum, "[i]f the district court had

applied the correct criteria to the facts of the case,

then, it is fair to say that we will defer to its

exercise of discretion."

Northeast Women's Center v. McMonagle, 889 F.2d 466, 475 (3d Cir.

1989) (quoting Lindy Bros. Builders, Inc. of Philadelphia v.

American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d

Cir. 1976) (in banc) (citation omitted)), cert. denied, 494 U.S.

1068 (1990).

A. The law of the lodestar

The Supreme Court has held that "[t]he 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." Hensley v. Eckerhart, 461 U.S.

424, 433 (1983); see also Rode, 892 F.2d at 1183 (same). The

result of this computation is called the lodestar. The lodestar

is strongly presumed to yield a reasonable fee. City of

Burlington v. Dague, 505 U.S. 557 (1992).

In this instance, the district court rejected Plaintiff's

claims with regard to both the billing rates of his attorneys and

the numbers of hours reasonably expended on the litigation. We

review each element in turn.

B. The billing rates

The general rule is that a reasonable hourly rate is

calculated according to the prevailing market rates in the

community. Blum v. Stenson, 465 U.S. 886, 895-96 n.11 (1984);

Student Public Interest Research Group, Inc., 842 F.2d at 1448

(adopting the community market rule). The prevailing party bears

the burden of establishing by way of satisfactory evidence, "in

addition to [the] attorney's own affidavits," Blum, 465 U.S. at

895 n.11, that the requested hourly rates meet this standard.

In the instant matter, counsel Alan Epstein sought hourly

fees of $250 and $275 for himself; fees of $140 and $165 per hour

for an associate, Thomas D. Rapp; and fees of $140 and $150 per

hour for another associate, Nancy Abrams. Petition, typescript

at 10. In support of the request, the lawyers submitted numerous

documents, including a "Verification" (in effect, an affidavit)

from Mr. Epstein for the fees cited, affidavits from various

Philadelphia lawyers practicing in employment discrimination

cases suggesting fees comparable to Mr. Epstein's, and billing

statements in the case.

As the district court accurately noted, "[t]he issue of

determining the reasonable hourly rate for an attorney, and the

specific issue of determining a reasonable rate for Epstein and

his associates are not unchartered waters in the district,"

Memorandum, typescript at 9. On two earlier occasions, the

district court had considered similar requests from Mr. Epstein.

Griffiths v. Cigna Corp., No. CIV. A. 91-2356 (E.D. Pa. Oct. 6,

1994) (VanArtsdalen, J.) (Memorandum and Order); Oliver v. Bell

Atlantic Corp., No. CIV. A. 92-751 (E.D. Pa. June 30, 1994)

(Robreno, J.) (Order Memorandum). In both cases, the court

rejected Mr. Epstein's claim and lowered his fee from the

requested $250 an hour to a "reasonable hourly rate" of $175 per

hour. Griffiths, 1994 WL 543501, *2; Oliver, 1994 WL 315815,

**4-5. It is worth noting that the court's determination in

Oliver was based on Judge VanArtsdalen's analysis in Griffiths.

The court in the instant case rejected Mr. Epstein's request

as well and concluded:

I will follow the rulings made by Judge VanArtsdalen in

Griffith [sic] and Judge Robreno in Oliver. I find

that a reasonable rate for Epstein is $175 per hour. A

reasonable rate for Rapp is $100 per hour. A

reasonable rate for Abrams is $85 per hour.

Memorandum, typescript at 2.

Those rulings, however, are no longer valid. This Court

recently vacated the district court's decision in Griffiths on

the very issue of hourly rates. Griffiths v. Cigna Corp., Nos.

94-2090 & 94-2091 (3d Cir. Nov. 30, 1995) (unpublished). In

rejecting the district court's determination, we explained:

As the prevailing party, Griffiths had the burden

of demonstrating "the community billing rate charged by

attorneys of equivalent skill and experience performing

work of similar complexity." See PIRG, 842 F.2d at

1450. We find that he did sustain that burden as to

Mr. Epstein's requested rate of $250 per hour, by

submitting the affidavits of Harold Goodman, Alica

Ballard, and Lorrie McKinley, attorneys in the

Philadelphia area who represent plaintiffs in civil

rights litigation. These affidavits stated that Mr.

Epstein's requested hourly rate of $250 was reasonable

and within the range of prevailing rates charged by

Philadelphia attorneys with Mr. Epstein's skill and

experience. The opposition submitted by CIGNA failed

to rebut plaintiff's submissions on this point, both

because CIGNA's affidavits focused on the market rates

of defense attorneys, and because CIGNA did not

otherwise effectively challenge the content of

plaintiff's affidavits.

Where, as here, the plaintiff has met his prima

facie burden under the "community market rate" lodestar

test, and the opposing party has not produced

contradictory evidence, the district court may not

exercise its discretion to adjust the requested rate

downward. Accordingly, we will vacate the attorneys'

fee award with respect to the hourly rate allowed for

Mr. Epstein's services, and direct that his services be

compensated at the $250 rate that plaintiff's

uncontroverted proofs established.

By contrast, plaintiff did not meet his prima

facie burden of proof with respect to the rates of

plaintiff's other attorneys, Mr. Rapp and Ms. Adams.

Specifically, Griffiths failed to demonstrate that the

requested rates were the prevailing rates in the

community. In the absence of such a showing, the

district court must exercise its discretion in fixing a

reasonable hourly rate. This court cannot say that

$100 and $85 per hour are unreasonable, and accordingly

the district court's award based on these rates will be

affirmed.

Id., typescript at 14-16.

Our reasoning in Griffiths applies with equal strength in

the instant matter. (It is worth noting that the same attorneys

filed affidavits in support of Mr. Epstein's claim, and the

district court even noted that Ms. Ballard "apparently filed an

identical affidavit before Judge VanArtsdalen in the Griffith[sic]

case."). See also Black Grievance Committee, 802 F.2d at

652-53 (district court is not free to disregard attorney's

affidavit when the other party "filed no affidavit and offered no

testimony contesting the accuracy of [the attorney's] statement

with respect to charges by comparable practitioners"); Cunningham

v. City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985) (no

material issue of fact when affidavit is uncontradicted), vacatedon other

grounds, 478 U.S. 1015 (1986).

Therefore, we vacate and remand to the district court to

reconsider the appropriate hourly fee for Mr. Epstein's services

in light of Griffiths, and we affirm the district court's

reduction of Mr. Rapp's and Ms. Adams's hourly fees.

C. The number of hours

In support of the petition, Mr. Epstein submitted forty

pages of itemized records specifying the date when the work was

performed, the attorney performing the work, the nature of the

work (e.g., "Prepare complaint," "Conference with Alan Epstein

regarding liability issues"), the amount of time spent and the

hourly rate charged for that particular task. JA 90-129.

The district court dramatically reduced the hours allowed.

First, in spite of the documentation submitted by Mr. Epstein,

the district court found that the hours set forth were "not

properly documented." Memorandum, typescript at 5. As the court

explained,

[i]t would be fair to say that most of the entries are

vague and identified only by non-descriptive statements

such as "research", "review", "prepare", "letter to",

and "conference with." Descriptions such as this do

not suffice in establishing the reasonableness of a fee

petition.

Id. (citation omitted).

Second, the court found that "many of the billable hours

requested are redundant, unnecessary or excessive." Id. The

court gave various examples of what it considered excessive,

including that "Epstein, an experienced litigator, claims 69.6

hours for unspecified 'trial preparation', an amount of time

approximately twice as long as the trial itself." Id.,

typescript at 6.

Third, the court found that "requesting that this Court

approve an expenditure of over $175,000 in fees to obtain a

$25,000 verdict is nonsensical." Id., typescript at 7.

On the basis of these concerns, and following the lead of

Judge Robreno in Oliver, the district court decreased the number

of hours to be billed by one-half "on the grounds that they are

excessive and unreasonable." Id., typescript at 8. In addition,

the court decreased the hours by another fifty percent on the

basis that "Washington hardly won a decisive victory in this

case." Id. The court pointed out that five of Mr. Washington's

nine claims were dismissed on summary judgment, that he did not

prevail on "his primary claim," racial discrimination, and that

the jury had awarded him far less than the $661,756.02 in damages

and $103,000 in lost wages he initially sought. Id.

1. Specificity

We first review the district court's conclusion that Mr.

Epstein did not adequately document the hours claimed. Attorneys

seeking compensation must document the hours for which payment is

sought "with sufficient specificity." Keenan, 983 F.2d at 472.

More specifically, our jurisprudence has established that "[a]

fee petition is required to be specific enough to allow the

district court 'to determine if the hours claimed are

unreasonable for the work performed.'" Id. at 473 (citing Rode,

892 F.2d at 1190 (citation omitted)). It is an established

proposition of law that "[w]here the documentation of hours is

inadequate, the district court may reduce the award accordingly."

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This

proposition, however, only begs the question of what constitutes

adequate documentation.

In answering this question, we do not operate in a legal

vacuum. On several occasions, this Court has considered the

proper degree of specificity required of a party seeking

attorneys' fees. In particular, we recently undertook such a

review in Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990).

We explained that specificity should only be required to the

extent necessary for the district court "to determine if the

hours claimed are unreasonable for the work performed." Id. at

1190 (citing Pawlak v. Greenawalt, 713 F.2d 972, 978 (3d Cir.

1983), cert. denied sub nom. International Broth. of Teamsters,

Chauffeurs, Warehousemen and Helpers of America v. Pawlak, 464

U.S. 1042 (1984)). Specifically,

a fee petition should include "some fairly definite

information as to the hours devoted to various general

activities, e.g., pretrial discovery, settlement

negotiations, and the hours spent by various classes of

attorneys, e.g., senior partners, junior partners,

associates." However, "it is not necessary to know the

exact number of minutes spent nor the precise activity

to which each hour was devoted nor the specific

attainments of each attorney."

Rode, 892 F.2d at 1190 (citing Lindy Bros. Builders, Inc. of

Philadelphia, 487 F.2d at 167).

Because we found that the district court had applied too

exacting a standard in reducing hours for lack of specificity, we

vacated its determination. The party seeking counsel fees had

submitted various documents as evidence of the hours spent on the

case, including a "computer-generated chronological list of the

tasks performed and the time devoted to those tasks by the two

attorneys, the paralegal and the law clerk who worked on the

case." Id. at 1189. The district court found fault with the

presentation of the records in simple chronological order, but we

rejected the court's imposition of a requirement that records be

kept by task -- e.g., for each motion, issue or part of the case.

Id. at 1189-90. The district court also found that the list did

not "provide[] adequate and specific descriptions of services and

the time devoted to those services." Id. at 1190. In fact,

[e]ach entry provided the general nature of the

activity and the subject matter of the activity where

possible, e.g., T (Dusman); CF (client); R (re

appeals), the date the activity took place and the

amount of time worked on the activity.

Id. at 1191.

We concluded that the submissions in support of the petition

"provided enough information as to what hours were devoted to

various activities and by whom for the district court to

determine if the claimed fees are reasonable." Rode, 892 F.2d at

1191.

We recently reaffirmed our Rode holding, noting that the

Court in Rode "found sufficient specificity where the computer-

generated time sheet provided 'the date the activity took

place.'" Keenan v. City of Philadelphia, 983 F.2d 459, 473 (3d

Cir. 1992). In Keenan, we found that "computer-generated

summaries of time spent by each attorney and paralegal met the

standards of Rode." Id.

The computerized lists submitted by Mr. Epstein and his

colleagues clearly meet the standards that we found satisfactory

in Rode and Keenan. Therefore, as we did in Rode, we find that

the district court applied erroneous legal standards when it

concluded that the hours were not properly documented.

2. Excess

We now turn our attention to the district court's conclusion

that the hours are "excessive and unreasonable." Memorandum,

typescript at 8. The court gave seven separate examples of the

alleged "outrageousness" of Mr. Epstein's claim, having to do

with hours claimed for the review of an entry of appearance filed

by the County Court's counsel, discovery planning, research on a

motion to compel filed by the Court, review of the Court's motion

for summary judgment and preparation of the response, trial

preparation, review of trial tapes, and preparation of post-trial

motions. The court found that "[t]hese figures are not merely

excessive, they border on the outrageous." Id., typescript at 7.

Mr. Epstein challenges the court's conclusions regarding

these various examples. In the first instance, the court deemed

as "redundant, unnecessary or excessive" 5.5 hours for research

on a motion to compel filed by the County Court. Memorandum,

typescript at 6. The motion was apparently to compel Mr.

Washington to submit to an examination by a psychologist and,

according to Mr. Epstein, certainly required the number of hours

claimed:

Plaintiff filed an answer and an eight-page memorandum

of law. The trial court does not explain why 5.5 hours

is excessive on this less than ordinary discovery

issue. To the contrary, research and drafting of these

papers would likely take a lawyer the 5.5 hours

claimed.

Brief of Appellant at 24.

The second example given by the district court to which Mr.

Epstein objects is time amounting to 158.2 hours spent in

preparing for and litigating the County Court's motion for

summary judgment. Mr. Epstein justifies the number of hours on

the length of the County Court's motion, the number of issues it

raised, the voluminous record and the length of his reply

memorandum. Id. at 24-25.

Third, the court stated that "Epstein, an experienced

litigator, claims 69.9 hours for unspecified 'trial preparation',

an amount of time approximately twice as long as the trial itself

($17,400)." Memorandum, typescript at 6. Mr. Epstein argues in

response that "this ratio is quite reasonable and that

experienced and successful trial lawyers spend substantially more

time in preparation than they do in the courtroom." Brief of

Appellant at 25.

Fourth, the court stated that "Epstein claims 26.1 hours in

reviewing tapes of the trial for the preparation of post-trial

motions, an amount of time almost as long as a minute-by-minute

replay of the entire trial, from voir dire to verdict ($6,525)."

Memorandum, typescript at 6. Here again, Mr. Epstein offers a

detailed explanation for the time:

The motion for judgment as a matter of law was based on

the argument that there was insufficient evidence to

support the jury's verdict. To properly respond to

this motion, plaintiff was obligated to marshall every

fact and every piece of evidence that a reasonable jury

could have relied upon to reach its verdict. This in

turn required a detailed and exact review of all of the

testimony in the case to assemble the relevant evidence

that supported the verdict.

Brief of Appellant at 26.

Finally, Mr. Epstein challenges findings by the district

court regarding "some very minor categories" on the ground that

"each is reasonable." Id. at 27.

Our task is not to determine whether, sitting as a court of

first instance, we would have reached the same conclusion as the

district court did. Rather, we only review the court's finding

that the hours claimed by Mr. Epstein are "excessive and

unreasonable" for clear error. While Mr. Epstein offers

persuasive arguments to support the hours he and his colleagues

spent on the various parts of the trial, we conclude that these

arguments fall short of satisfying our exacting standard of

review and therefore conclude that the district court's

conclusion is not clearly erroneous.

3. Proportionality

The district court stated that "[b]y any standard,

requesting that this Court approve an expenditure of $175,000 in

fees to obtain a $25,000 verdict is nonsensical." Memorandum,

typescript at 7. Mr. Epstein challenges this statement on the

ground that the court's position violates Third Circuit law

against proportionality analysis to determine the reasonableness

of counsel fees. Brief of Appellant at 29.

It is true that this Court has expressed serious concerns

with the practice of limiting an award of attorney's fees to

maintain proportionality between the fees and the amount of

damages awarded. See, e.g., Cunningham v. City of McKeesport,

807 F.2d 49, 52-54 (3d Cir. 1986), cert. denied, 481 U.S. 1049

(1987); Northeast Women's Center v. McMonagle, 889 F.2d 466, 474-

75 (3d Cir. 1989), cert. denied, 494 U.S. 1068 (1990). However,

before considering the legal propriety of the district court

conducting a proportionality analysis, we must first determine

the significance of the court's statement. This statement,

standing alone, is somewhat ambiguous. On the one hand, it can

certainly be read, as Mr. Epstein does, as suggesting that the

district court was concerned with the ratio between the damages

awarded Mr. Washington and the fees sought by Mr. Epstein and his

colleagues, and that it cut down the fees accordingly. The

statement could, on the other hand, reflect the court's opinion

that Mr. Epstein failed to exercise "billing judgment." SeeHensley v.

Eckerhart, 461 U.S. 424, 437 (1983) ("The applicant

should exercise 'billing judgment' with respect to hours

worked").

There is some support for this alternative reading. The

court's statement came directly after its conclusion that the

figures presented by Mr. Epstein "are not merely excessive, they

border on the outrageous." Memorandum at 7. After making this

finding, the court went on to explain:

If they were actually sent to a client who was expected

to pay for them, the bill would possible [sic] result

in that client either going bankrupt or, at a minimum,

finding a new attorney. By any standard, requesting

that this Court approve an expenditure of over $175,000

in fees to obtain a $25,000 verdict is nonsensical."

Id.

The court then cited the court's conclusion in Oliverregarding the

same issue that "the petition tendered by

plaintiff's counsel is woefully deficient of the billing judgment

that should have animated its preparation." Id. (citing Oliver

v. Bell, No. CIV. A. 92-751 (E.D. Pa. June 30, 1994) (Order

Memorandum)).

Nonetheless, in light of the district court's earlier

comment, made while discussing the history of the case, that

"[h]aving won a verdict of $25,000, Washington's attorney . . .

now asks that attorneys' fees be approved in excess of seven

times the amount of that award, $175,987.50," Memorandum at 3, we

find the interpretation suggested by Mr. Epstein persuasive, and

conclude that the district court did consider proportionality as

a factor in its analysis. The two comments taken together seem

no accident.

We now turn to the legal propriety of the court's action.

Our review of the jurisprudence commences with the edicts of the

United States Supreme Court on the issue at hand. The preeminent

case on the subject is City of Riverside v. Rivera, 477 U.S. 561

(1986). City of Riverside, however, offers no clear direction.

Based on an analogy with private tort actions, the municipality-

petitioner in that case had suggested that attorney's fees in

civil rights lawsuits "should be proportionate to the amount of

damages a plaintiff recovers." Id. at 573 (Brennan, J.,

plurality). Justice Brennan, writing for a plurality of four,

rejected the analogy, noting that

[u]nlike most private tort litigants, a civil rights

plaintiff seeks to vindicate important civil and

constitutional rights that cannot be valued solely in

monetary terms. . . . Regardless of the form of relief

he actually obtains, a successful civil rights

plaintiff often secures important social benefits that

are not reflected in nominal or relatively small

damages awards.

Id. at 574 (citation omitted) (emphasis added).

In other words, the monetary amount awarded to the plaintiff

would not be an accurate measure of the success achieved by the

attorneys in the case, and therefore attorney's fees assessed in

proportion to the damage award would not adequately compensate

the attorneys for their labor, which the plurality compared to

that of a "private attorney general." Id. at 575 (citation

omitted). The plurality concluded that "[a] rule of

proportionality would make it difficult, if not impossible, for

individuals with meritorious civil rights claims but relatively

small potential damages to obtain redress from the courts," id.at 578, and

for this reason rejected such a rule.

Justice Powell concurred in the judgment, because he saw no

basis to reject the district court's detailed findings of fact.

But the emphasis of his concurrence was markedly different from

that of the plurality opinion:

Where recovery of private damages is the purpose of a

civil rights litigation, a district court, in fixing

fees, is obligated to give primary consideration to the

amount of damages awarded as compared to the amount

sought. In some civil rights cases, however, the court

may consider the vindication of constitutional rights

in addition to the amount of damages recovered.

Id. at 585 (Powell, J., concurring in the judgment). In a

footnote that received substantial attention, the Justice added,

"[i]t probably will be the rare case in which an award of privatedamages

can be said to benefit the public interest to an extent

that would justify the disproportionality between damages and

fees reflected in this case." Id. at 586 n.3. Finally, then-

Justice Rehnquist dissented, joined by three other Justices,

including Chief Justice Burger, who also wrote a separate

dissent.

Shortly after the Supreme Court issued its opinion, this

Court tackled the difficult task of sorting through City of

Riverside's muddled outcome in Cunningham v. City of McKeesport,

807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987)

[hereinafter Cunningham II]. After noting that "the Supreme

Court plurality rejected a proportionality rule," id. at 52, we

considered what import to give to Justice Powell's concurrence:

. . . Justice Powell's opinion might be read to

suggest that disproportionality justifies a negative

multiplier.

We refrain from inferring such a view from City of

Riverside, however. First, this interpretation

represents at most the view of a lone Justice and was

not endorsed by any of the other eight. . . . Second,

we have doubts about Justice Powell's statement that

only the rare case justifies disproportionate fee

awards. The facts of City of Riverside seem similar to

those of a number of 1983 cases that we have seen. .

. . Finally, we consider application of Justice

Powell's reasoning problematic. The opinion sets out

no method or standards by which a court might calculate

the public interest served by a case, evaluate that

interest in light of a disproportionality between

damages and fees, and eventually settle upon a

particular negative multiplier. In the absence of an

explicit mandate, we are reluctant to begin the

difficult task of developing standards by which we

might incorporate proportionality principles into the

attorney's fee calculus.

Cunningham II, 807 F.2d at 53-54 (footnote omitted); see alsoNortheast

Women's Center, 889 F.2d at 474-75 (noting that the

"Supreme Court in City of Riverside [rejected] the

proportionality rule in the civil rights context.").

For the reasons articulated by the plurality in City of

Riverside and by this Court in Cunningham II, we hold today that

a court may not diminish counsel fees in a section 1983 action to

maintain some ratio between the fees and the damages awarded.

This is not to say that the amount of damages is irrelevant to

the calculation of counsel fees. To the contrary, we recently

recognized that "the amount of the compensatory damages award may

be taken into account when awarding attorneys' fees to a civil

rights plaintiff." Abrams v. Lightolier, 50 F.3d 1204, 1222 (3d

Cir. 1995). But as the context of our statement in Abrams makes

clear, the reason why the damage amount is relevant is not

because of some ratio that the court ought to maintain between

damages and counsel fees. Rather, the reason has to do with the

settled principle, which we discuss hereinafter, that counsel

fees should only be awarded to the extent that the litigant was

successful. The amount of damages awarded, when compared with

the amount of damages requested, may be one measure of how

successful the plaintiff was in his or her action, and therefore

"may be taken into account when awarding attorneys' fees to a

civil rights plaintiff." Id.

The County Court attempts to refute Mr. Epstein's arguments

on two grounds. First, it argues that the district court did notapply a

"strict proportionality test": "[h]ad the lower court

followed the strict 'proportionality' rule discussed in Abrams,

the court would not have awarded fees in excess of the damage

award." Brief of Appellee at 23. By a "strict proportionality

test," the County Court apparently refers to a rule whereby

counsel fees cannot exceed the amount of damages awarded. This

Court clearly rejected such a test in Abrams, 50 F.3d at 1222

("there is no rule that the fees award may be no larger than the

damages award") (citing Hensley v. Eckerhart, 461 U.S. 424

(1983)), and it is clear that the district court did not apply

such a test. Today we embrace the broader proposition that the

district court cannot adjust counsel fees to maintain a certain

ratio between the fees and damages -- to insure, for instance,

that fees not exceed three times the amount of damages. That is

just the type of analysis into which the district court seems to

have entered.

The second argument advanced by the County Court is that

even if the district court did conduct a proportionality analysis

(albeit not what it calls a "strict" one), it did so correctly.

In support of this proposition, the County Court suggests that

"[u]nder Hensley, the district court is required to consider 'the

relationship between the extent of success and the amount of the

fee award.'" Brief of Appellee at 23 (quoting Hensley, 461 U.S.

at 438). But Hensley does not stand for the proposition that the

court should adjust counsel fees to reflect a certain ratio

between fees and damage awards; rather, it stands for the

proposition, which we discussed in an earlier paragraph, that the

amount awarded in counsel fees should reflect the extent to which

the litigant was successful. See Hensley, 461 U.S. at 440 ("A

reduced fee award is appropriate if the relief, however

significant, is limited in comparison to the scope of the

litigation as a whole.") (emphasis added).

It is clear that the district court, in the disputed

statement, concluded that it was "nonsensical" to award fees of

$175,000 for a judgment of 25,000 because the request was

disproportionate with what the court considered a more

appropriate ratio. (Indeed, the court turned to the "success"

analysis substantially later in its opinion.) We hold that the

court's consideration of the proportionality of the damages to

the fee award was legal error. Therefore, as this legal error

affected the district court's determination to "decrease the

hours by one-half on the grounds that they are excessive and

unreasonable," Memorandum at 8, we must remand to the district

court for it to make only such part of that reduction as was not

due to proportionality. Above, we also concluded that we must

remand this same determination so that any reduction due to

specificity can also be eradicated.

4. Success

Finally, the district court diminished Mr. Epstein's counsel

fees by another fifty percent on the basis that "Washington

hardly won a decisive victory in this case." Memorandum,

typescript at 8. As the court explained,

Five of Washington's nine claims did not survive a

summary judgment motion. At the time of trial,

Washington requested a total of $661,756.02 in damages,

a figure which did not include mental anguish, punitive

damages, and prejudgment interest, and also did not

include the $103,000 Washington claimed in lost wages.

The jury ruled against his primary claim, racial

discrimination, and awarded him what amounted to a

nominal recovery of $25,000 on his retaliation claim.

Id.

In addition, the district court did not apply the reduction

to the time spent in preparation of the fee petition, but fully

disallowed time claimed for preparation of a motion to amend the

judgment to this Court which was denied. Id., typescript at 9.

Mr. Epstein contends that the court's analysis is based on a

"clear error of law" because "by persuading the jury to find for

the plaintiff on the racial retaliation claim, plaintiff

prevailed on a central theory of his case." Brief of Appellant

at 30. Mr. Epstein further argues that the initial claim of

racial discrimination "was so clearly related to the winning

claim, that as a matter of law, there can be no reduction of fees

for the work done since the time was necessarily spent on both

issues." Id. at 30-31. As he explains,

[A]ll of the evidence that was produced regarding the

race discrimination claim was necessary in the

litigation of the retaliation claim. The retaliation

was undertaken to punish plaintiff for his assertion of

race discrimination, and to properly show to the jury

the nature of the retaliation, the full context,

including the alleged race discrimination, had to be

proven.

Id. at 32.

Finally, Mr. Epstein argues that "the fact that the jury

awarded $25,000 is not a proper basis for reducing the hours or

the lodestar on the theory that the result was not a good one for

the plaintiff." Id.

We are unconvinced by Mr. Epstein's arguments. It is well

established that "the court can reduce the hours claimed by the

number of hours 'spent litigating claims on which the party did

not succeed and that were "distinct in all respects from" claims

on which the party did succeed.'" Rode, 892 F.2d at 1183

(quoting Institutionalized Juveniles v. Secretary of Public

Welfare, 758 F.2d 897, 919 (3d Cir. 1985) (quoting Hensley, 461

U.S. at 440)). Notwithstanding Mr. Epstein's contentions, we

conclude that the district court did not commit error when it

reduced Mr. Epstein's fees for his failure to prevail on one of

his two central claims, that of discrimination. In addition, the

alleged relatedness between the two general claims is too tenuous

to support a finding of error. Therefore, we conclude that the

court was well within its broad discretion when it discounted the

fees by fifty percent for partial lack of success.

IV. Conclusion

In light of the foregoing, we will vacate the district

court's award of attorneys' fees and remand for further

consideration consistent with this opinion. In particular, we

will vacate the district court's assessment of Mr. Epstein's

hourly rate, and remand for a new calculation in accordance with

this opinion; in addition, we will vacate the district court's

reduction of the number of hours by one half for their being

"unreasonable and excessive," and direct the court to consider

anew whether that reduction is warranted in light of our

decision.

Washington v. Philadelphia County Court of Common Pleas, No. 95-

1613

ALDISERT, Circuit Judge, Concurring and Dissenting.

Following our seminal attorneys' fees cases in Lindy Bros.

Builders, Inc. v. American Radiator & Standard Sanitary Corp.

(Lindy I) , 487 F.2d 161 (3d Cir. 1973), and Lindy Bros.

Builders, Inc. v. American Radiator & Standard Sanitary Corp.

(Lindy II), 540 F.2d 102 (3d Cir. 1976) (in banc), this court

carefully articulated the standard of review in attorney's fees

cases:

[A]n award of reasonable attorneys' fees is within the

district court's discretion. Thus our standard of

review is a narrow one. We can find an abuse of

discretion if no reasonable man would adopt the

district court's view. If reasonable men could differ

as to the propriety of the action taken by the trial

court, then it cannot be said that the trial court

abused its discretion. We may also find an abuse of

discretion when the trial court uses improper standards

or procedures in determining fees, or if it does not

properly identify the criteria used for such

determination.

Silberman v. Bogle, 683 F.2d 62, 64-65 (3d Cir. 1982) (quotations

and citations omitted); see also Deisler v. McCormack Aggregates

Co., 54 F.3d 1074, 1087 (3d Cir. 1995). What divides this panel

is not the selection of this standard of review as the governing

legal precept; here, there are no competing precepts. SeeMajority

typescript at 6 ("We review the reasonableness of an

award of attorney's fees for an abuse of discretion.") (citation

omitted). In agreement on the controlling major premise, then,

we differ only as to what it means. Such interpretation,

however, implicates questions of both legal philosophy and

jurisprudence.

At bottom, this case is about whether an appellate court

appreciates the allocation of competence between trial courts and

reviewing courts. To be sure, statements of deference by

appellate courts to district judges appear in this court's

dispositions. See, e.g., Majority typescript at 6. But quoting

a standard of review and respecting it are different matters.

See, e.g., Majority typescript at 11-13, 17-25. We must be

vigilant of this court's increasing proclivity to deny

substituting its judgment for that of the district court, but

then to proceed with the tack that it expressly renounces. In

this regard I am reminded of Byron's account of Julia: "And

whispering 'I will ne'er consent' -- consented." Byron, Don

Juan, Canto I, St. 117 (quoted in R. Aldisert, The Judicial

Process 717 (2d ed. 1996)).

I.

I first indicate those portions of the majority's opinion of

which I am in accord. I agree that the district court did not

clearly err in finding that the hours claimed by Mr. Epstein were

"excessive and unreasonable." Majority typescript at 17. I also

agree "that the district court was well within its broad

discretion when it discounted the fees by fifty percent for

partial lack of success." Majority typescript at 27.

Further, I agree that in light of the district court's

reliance on the district court opinion, subsequently reversed by

Griffiths v. Signa Corp., Nos. 94-2090 and 94-2091 (3d Cir. Nov.

30, 1995) (unpublished), we should remand for reconsideration of

the attorney's reasonable hourly rate. Thus, I concur in the

remand order.

Upon careful examination of the attorneys' time sheets, seeA91-A129,

I too have trouble with the district court's conclusion

that "[m]any of the hours set forth in the fee petition are not

properly documented." Dist. Ct. Op. at 5. Indeed, I agree with

the majority's reading of Rode v. Dellarciprete, 892 F.2d 1177

(3d Cir. 1990), which held that billing records such as those at

issue here need not document "the exact number of minutes spent

nor the precise activity to which each hour was devoted nor the

specific attainments of each attorney." Id. at 1190 (quotation

and citation omitted); see Keenan v. City of Philadelphia, 983

F.2d 459, 473 (3d Cir. 1992); see also Majority typescript at 13-

15. However, the statement of the district court giving rise to

this discussion of specificity, reprinted in the margin,

appears in a single paragraph of a much larger discussion under

the heading "HOURS REASONABLY EXPENDED". That section of the

district court opinion contained an independent alternative

justification for reducing the number of hours -- "that many of

the billable hours requested are redundant, unnecessary or

excessive." Dist. Ct. Op. at 5. The majority has no quarrel

with this alternative basis. See Majority typescript at 17

("[W]e only review the court's finding that the hours claimed by

Mr. Epstein are 'excessive and unreasonable' for clear error.

While Mr. Epstein offers persuasive arguments to support the

hours he and his colleagues spent on the various parts of the

trial, we conclude that these arguments fall short of satisfying

our exacting standard of review and therefore conclude that the

district court's conclusion is not clearly erroneous."). Thus,

although the majority remand based on the District Court's

criticism of the specificity of the documentation, in light of

the alternative justification for reducing the number of hours, I

dissent from the remand order based on specificity.

II.

I turn next to the majority's contention that the district

court "diminish[ed] counsel fees ... to maintain some ratio

between the fees and damages awarded." Majority typescript at

22. For the reasons that follow, I do not agree that the

district court impermissibly considered the proportionality of

the damages in diminishing the requested fee.

I turn first to the statement of the district court upon

which the majority premise their reasoning. The district court

stated that "requesting that this Court approve an expenditure of

$175,000 in fees to obtain a $25,000 verdict is nonsensical."

Dist. Ct. Op. at 7.

To be sure, this court has expressed serious concerns with

the practice of limiting an award of attorneys' fees to maintain

proportionality between the fees and the amount of damages

awarded. See, e.g., Cunningham v. City of McKeesport, 807 F.2d

49, 53-54 (3d Cir. 1986), cert. denied, 481 U.S. 1049 (1987);

Northeast Women's Center v. McMonagle, 889 F.2d 466, 474-75 (3d

Cir. 1989), cert. denied, 494 U.S. 1068 (1990). Although the

district court's statements, in and of themselves, have the

potential of being interpreted as implying that the district

court improperly reduced the fees to maintain proportionality, we

must consider the context in which the district court made them.

The district court offered the "nonsensical" description

after concluding that the fees submitted by Appellant "are not

merely excessive, they border on the outrageous." Dist. Ct. Op.

at 7. The district court explained that:

If the[se figures] were actually sent to a client who

was expected to pay for them, the bill would possibl[y]

result in that client obviously going bankrupt or, at a

minimum, finding a new attorney.

Dist. Ct. Op. at 7. Accordingly, taken in context, the district

court's statement also reflects a determination that Appellant

failed to exercise "billing judgment." See Hensley v. Eckerhart,

461 U.S. 424, 437 (1983) ("The applicant should exercise 'billing

judgment' with respect to the hours worked."). Indeed, after

making these statements, the district court added that "the

petition tendered by plaintiff's counsel is woefully deficient of

the billing judgment that should have animated its preparation."

Dist. Ct. Op. at 7 (citing Oliver v. Bell, No. CIV. A. 92-751

(E.D. Pa. June 30, 1994) (Order Memorandum)).

The majority agree that alternate inferences can be drawn

from the ambiguous statement of the district court. See Majority

typescript at 18 ("The statement could, on the other hand,

reflect the court's opinion that Mr. Epstein failed to exercise

'billing judgment.' There is some support for this alternative

reading..."). Yet, given two reasonable interpretations of an

ambiguous statement, the majority reject one reasonable

interpretation, in favor of another reasonable interpretation.

This a reviewing court may not do. Indeed, "[i]f reasonable

people could differ as to the propriety of the action taken by

the trial court, then it cannot be said that the trial court

abused its discretion." Deisler, 54 F.3d at 1087 (quotation and

citation omitted).

Moreover, even using the majority's preferred reasonable

interpretation of the district court's statement, the majority do

not identify how the district court deployed the forbidden ratio.

And indeed, even after the reductions, the fee awarded by the

district court still exceeded the damages by a ratio of 1.216 to

1 ($30,389.63 to $25,000.00). This hardly bespeaks a rigid

mathematical calculation by the district court.

Furthermore, the majority construct an unworkable -- if not

implausible -- schemata for determining attorneys' fees. They

condemn any relationship between fees and recovery, while making

it clear that the relationship between fees and recovery remains

extremely relevant in considering the plaintiff's success. SeeMajority

typescript at 23; see also Lindy I, 487 F.2d at 168 ("In

evaluating the quality of an attorney's work in a case, the

district court should consider ... the amount of recovery

obtained."). Although the majority purport to announce a new

rule of law that forbids consideration of proportionality between

the damage award and attorneys' fees, the currency value of this

initial public offering is seriously discounted by recognizing

that at least three clear exceptions inhere in it: one, in

measuring success, see Abrams v. Lightolier, 50 F.3d 1204 (3d

Cir. 1995); Majority typescript at 22; two, when considering

billing judgment, Hensley v. Eckerhart, 461 U.S. 424 (1983); and

three, as recounted above, in evaluating the quality of an

attorney's work.

Thus, the majority's new offspring is born with at least

three bar sinisters on its escutcheon, and staggering through its

uneasy fledgling steps, will no doubt cause confusion within

district courts and, most assuredly, will generate litigation.

Especially troubling here is that the majority fail even to

disclose where or how the district court employed a

proportionality ratio. To borrow from Lord Devlin, "I confess

that I approach the investigation of this legal proposition with

a prejudice in favour of the idea that there may be a flaw in the

argument somewhere." St. John Shipping Corp. v. Joseph Rank, 1

Q.B. 267, 282 (1957). Accordingly, I dissent in all respects

from the majority's conclusion on proportionality.

III.

I do not come as a stranger to attorney fee jurisprudence in

this court. Twenty years ago, I authored the in banc opinion in

Lindy II, wherein I stated the views of our court at that time:

We find it necessary also to observe that we did not

and do not intend that a district court, in setting an

attorneys' fee, become enmeshed in a meticulous

analysis of every detailed facet of the professional

representation. It was not and is not our intention

that the inquiry into the adequacy of the fee assume

massive proportions, perhaps even dwarfing the case in

chief. Once the district court determines the

reasonable hourly rates to be applied, for example, it

need not conduct a minute evaluation of each phase or

category of counsel's work.

Lindy II, 540 F.2d at 116.

Whatever had been the intention of the full court in 1976,

the history of the past decades demonstrates that our district

judges today have "become enmeshed in a meticulous analysis of

every detailed facet of the professional representation," as

evidenced by the opinions in this case. So also this court has

become enmeshed. Perhaps the time has arrived for us to have

the full court revisit basic concepts of our attorneys' fees

jurisprudence in order to furnish clearer guidance, and

hopefully, minimize the atrocious fulmination of these cases,

here and in the district court.

Drawing from my personal experience of almost 30 years on

this court, and my current practice of sitting in three or four

circuits each year, I beg indulgence to permit a personal

expression of what troubles me in examining pertinent cases.

Appellate courts seem to have lost respect for the narrow review

encompassed in reviewing an exercise of discretion. Either

because they have a hunger to get involved in the action, or

because they disagree viscerally with fees set by the district

courts, appellate judges introduce a devious device to broaden

appellate review: new standards or criteria for district courts

to follow meticulously.

What has emerged is what Holmes called "Delusive exactness

[,] a source of fallacy throughout the law." In this practice,

newly created "standards and criteria" wag the tail of genuine

exercise of discretion. And to argue against this, as I do, is

to inveigh against Mom and Apple pie because everybody knows that

"standards and criteria" are good for you. As indeed they are in

most circumstances, but not if they destroy the exercise of

discretion. These standards and criteria create an environment

where an appeal is taken every time a district judge fails to

kiss the book or to genuflect properly.

Most importantly, appeals challenging deviations from these

standards and criteria arrive in the appellate court with a

fundamental difference: the standard of review is not a limited

review of exercise of discretion or the more restricted clear

error, but plenary. See Keenan v. City of Philadelphia, 983 F.2d

459, 472 (3d Cir. 1992) (the question of what standards to apply

in calculating an award of attorney's fees is a legal question

subject to plenary review). Thus, instead of playing a limited

role in the determination of attorneys' fees in limited review of

discretion, the appellate courts, like the proverbial camel, have

not only stuck their noses under the district courts' tent, but

they are fully inside ranging around in turf that properly

belongs to the district courts.

Almost 40 years ago a youthful Charles Alan Wright,

America's premier federal courts expert, now president of the

American Law Institute, wrote a very perceptive law review

article entitled The Doubtful Omniscience of Appellate Courts

in which he decried the development in "which trial courts [are]

losing most of their power [and] the appellate courts have drawn

unto themselves practically all the power of the judicial

system." Professor Wright noted:

The principal consequences of broadening appellate

review are two. Such a course impairs the confidence

of litigants and the public in the decisions of the

trial courts, and it multiplies the number of

appeals.... Every time a trial judge is reversed, every

time the belief is reiterated that appellate courts are

better qualified than trial judges to decide what

justice requires, the confidence of litigants and the

public in the trial courts will be further impaired.

Under any feasible or conceivable system, our trial

courts must always have the last word in the great bulk

of cases. I doubt whether there will be much

satisfaction with the judgments of trial courts among a

public which is educated to believe that only appellate

judges are trustworthy ministers of justice.

I associate fully with Professor Wright's observations and

find his commentary apropos and germane to current attorneys'

fees jurisprudence. I believe that we should return to the basic

concepts of discretionary review we set forth in Lindy II: "If

reasonable men could differ as to the propriety of the action

taken by the trial court, then it cannot be said that the trial

court abused its discretion," 540 F.2d at 115, and cease the

manufacturing of "standards and procedures" in order to bring

about an abuse of discretion as a matter of law because the

district courts failed, directly or indirectly, to cross every

"t" and dot every "i" to the satisfaction of an appellate judge.

We should free the district courts in attorneys fees cases from

the solemn high mass ritual as is now required in the reception

of guilty plea under Criminal Rule 11, or the judiciary's nit

picking version of the USGA rules of golf---Sentencing

Guidelines. As Professor Wright comments, "If trial judges are

carefully selected, as in the federal system, it is hard to think

of any reason why they are more likely to make errors of judgment

than are appellate judges."

Indeed, there are several reasons why district judges are

much more capable of exercising broad discretion. They are on

the scene. They smell the smoke of battle. Indeed, Professor

Maurice Rosenberg has identified four reasons that support

vesting discretion in trial courts. The first three are lesser

reasons:

One is the plain urge to economize on judicial

energies. Appeal courts would be swamped to the

point of capsizing if every ruling by a trial

judge could be presented for appellate review.

* * *

A second reason is maintaining morale. A trial

judge ... would have an oppressive sense that

appellate Big Brothers [and Sisters] were ever

watching, peering over the trial bench, waiting

for the harried and hurried trial judge to lapse

into mortal fallibility.

The third reason is ... finality. The more

reverse-proof the trial judge's rulings, the less

likely the losing party is to test them on appeal

and the sooner the first adjudication becomes

accepted and the dispute tranquilized.

Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed

From Above, 22 Syracuse L. Rev. 635, 660-61 (1971). Then follows

what he calls the most pointed and helpful reason:

[T]he superiority of his [or her] nether position.

It is not that he [or she] knows more than his [or

her] loftier [brothers and sisters]; rather [the

trial judge] sees more and senses more. In the

dialogue between the appellate judges and the

trial judge, the former often seem to be saying:

"You were there. We do not think we would have

done what you did, but we were not present and we

may be unaware of significant matters, for the

record does not adequately convey to us all that

went on at the trial. Therefore, we defer to you."

Id. at 663. So long as the jurisprudence has conferred

discretionary power in the district courts, we should respect it.

We should not construct obstacles to its use in the form of

artificial standards and criteria, the breach of which we deem an

abuse of discretion as a matter of law, thereby creating a

philosophical oxymoron by savaging traditional notions of

discretionary powers.

It is for the foregoing reasons that I dissent from the

majority approach, except in those areas set forth above, in

which I concur.