# Opposition Brief — City of Chicago v. Friedrich

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0945%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1077

## Text

BEST AVAILABLE COPY Saifer=or=xm

No. 89-1230

In The
Supreme Court of Che United States
@ctober Term, 1989

CITY OF CHICAGO and
SUPERINTENDENT OF POLICE
Petitioners,
v.
WALTER FRIEDRICH,

individually and on behalf of a class

of similarly situated persons,
Respondents.

BRIEF IN RESPONSE TO PETITION FOR
A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

JOHN A. POWELL WILuiAM M. HANNAy
STEVEN R. SHAPIRO Counsel of Record
AMERICAN Civit LipertTies SHERI L. GRONHOVD
UNION FOUNDATION Scuirr HarpIn & Waite
132 West 43rd Street 7200 Sears Tower
New York, New York Chicago, Illinois 60606
10036 ’ (312) 876-1000

(212) 944-9800
HarRVEY GROSSMAN

Of Counsel RoGer BALDWIN FOUNDATION
OF THE AMERICAN CIVIL
LiBerTieEs Union, Inc
20 East Jackson Boulevard
Chicago, Illinois 60604
(312) 427-7330

Attorneys for Respondents

American Reprographics Management, Inc.™ (312) 332-ARMI

QUESTION PRESENTED

Whether fees and expenses for
experts who advise and testify in civil
rights litigation are reimbursable
under The Civil Rights Attorney's Fees

Awards Act of 1976, 42 U.S.C. § 1988.

TABLE OF CONTENTS

Page(s)
QUESTION PRESENTED ....-+-+-+-- ii
TABLE OF AUTHORITIES .......-. iv
STATEMENT OF THE CASE oT oo te ae ee 1
REASONS FOR NOT OPPOSING THE WRIT
AND FOR CONSOLIDATING ORAL
ARGUMENT WITH THE CASEY CASE ° 8

FRIEDRICH PRESENTS THE IMPORTANT
ISSUE OF THE RECOVERABILITY

OF AN EXPERT'S FEES FOR
NON-TESTIMONIAL TIME IN A
TRADITIONAL CIVIL RIGHTS CASE . 10

CONCLUSION . . * 7 . * * . 7. . 7. . . 2 0

,

TABLE OF AUTHORITIES

Cases Page(s)

Boring v. Kozakiewicz, 833 F.2d

468 (30 Gis. 1987) .....8

Crawford Fitting Co. v. J.T.
y

, 482 U.S.
See ee ei eG ww BG, 24

Denny Vv. Westfield State
College, 880 F.2d 1465

(Soe eeCAOORh ct os 4 «23, 14

Friedri PF i of Chicago,
888 F.2d 511 (7th Cir.

1989), petition for cert.

filed, 58 U.S.L.W. 3505
(U.S. January 29, 1990) passim

Gilbert v i ock,
867 F.2d 1062 (8th Cir.) .. 8

Missouri v. Jenkins, mF

: 109 S.Ct. 2463
(2989) 2. © ee © eo « +) | 6pessin

Sevigny _v. Dicksey, 846 F.2d

953 (4th Cir. 1988) .... 8

Vv i i ‘si
Hosptials _v. Casey, 885
- F.2d 11 (3d Cir. 1989),

petition for cert.

csranted, 58 U.S.L.W. 3545
(U.S. February 26, 1990) passim

West

Statutes and Rules
36 U.8.C. § Bee 41% ¢ « 2 « « GO BS
Sh O50. 6: Os 2 6 ee et
at O.8.6. | SOR sce sik 48 a eB
CS A. ae: oe ae a ae

Supreme Court Rule 27.3... . 9, 21
Legislative History

H. Rep. No. 94-1588 94th Cong.,
2d Sess. (1976) ji Bek « 26

S. Rep. No. 94-1011, 94th
Cong., 2d Sess. (1976) .. 15

122 Cong. Rec. 35,123 (1976) .

In The
SUPREME COURT OF THE UNITED STATES

October Term, 1989

CITY OF CHICAGO and
SUPERINTENDENT OF POLICE,

Petitioners,
Vv.
WALTER FRIEDRICH,
individually and on behalf of a class

of similarly situated persons,

Respondents.

BRIEF IN RESPONSE TO PETITION
FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

STATEMENT OF THE CASE

Respondents are a class of
hundreds of street performers. in
Chicago who brought a successful civil

rights suit under 42 U.S.C. § 1983 to

enjoin a municipal ordinance that
restricted respondents' First Amendment
rights. The litigation was financially
sponsored by the Roger’ Baldwin
Foundation of the American Civil
Liberties Union ("RBF") and the
plaintiffs were represented by RBF and
cooperating pro bono private counsel.
RBF is the not~for-profit legal arm of
the American Civil Liberties Union
("ACLU") in Illinois.

At the trial court level,
respondents engaged two experts to
advise and to testify in the case:
Robert di Grazia, an experienced law
enforcement official, and William H.
Whyte, an internationally-recognized
sociologist. As the prevailing party,

respondents sought and obtained an

award of attorney's fees under the

—"

oom —— -¢. —__. >> ———

Civil Rights Attorney's Fees Awards Act
of 1976, 42 U.S.C. § 1988 (the "Fee
Act" or "Section 1988"), which included
$9,927.91 for the fees and expenses
paid to those experts. App. 19, 31.2

The bulk of the expert fees
awarded to respondents was for out-of-
court research and consultation rather
than testimonial work. As the Court of
Appeals noted, "less than ten percent
of the money paid the experts was for
time actually testifying." Friedrich
v. City of Chicago, 888 F.2d 511, 515
(7th Cir. 1989) (App. 6). In fact,

respondents sought no compensation for

the trial testimony of Mr. Whyte, and

1the district court found
respondents' experts expenses to be
reasonable (App. 30), and neither the
reasonableness nor the necessity of the
expenses incurred for experts was
challenged by petitioners. Friedrich,
888 F.2d at 513 (App. 3).

the $2,026.66 awarded in connection
with his services was only to reimburse
the costs of Mr. Whyte's pretrial
consulting and travel. He declined to
charge a fee for attending and
testifying at the court proceedings.
(R. 120, Ex. B at ¢ 16).

In the proceedings below,
experienced civil rights trial counsel
established, by declaration, the
inability of traditional civil rights
plaintiffs to obtain expert services
pro bono, and their inability in this
and other cases personally to bear such
expenses. (R. 120, Ex. B at 4G 15-16).
The evidence further showed, first,
that private civil rights and civil
liberties organizations like the RBF,

which depend solely on_ private

charitable contributions have only

“Ne a oe

limited ability to sponsor civil rights
litigation and, second, that recovery
of these expenses is critical to RBF's
ability to maintain its legal program
through future cases which advance the
goals of the Fee Act. (R. 120, Ex. B.
at 94% 17-18). None of this evidence
was challenged by petitioner in the
trial court.

The Court of Appeals for the
Seventh Circuit affirmed the district
court's award of experts' fees, relying
on Missouri v. Jenkins, ___ U.S. ___,
109 S.Ct. 2463 (1989), and concluding
that it would be “both arbitrary and
inconsistent" with the meaning of
Section 1988 to hold that, of all

expenses ordinarily shifted under fee-

shifting statutes, only expert-witness

fees are excluded. Friedrich, 888 F.2d
at 519 (App.14).

The Court of Appeals recognized
that the issue of expert fees is
broader than the narrow question of
whether expert witness fees are
"otherwise provided by law" within the
meaning of 28 U.S.C. § 1821. cs.
Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437 (1987). The court
pointed out that, however this question
is answered, “the plaintiffs in this
case would still be entitled to an
award of fees incurred for advice, as
distinct from testimony." Friedrich,

888 F.2d at 515 (App. 7). The court

2section 1821 provides that,
"(e)xcept as otherwise provided by
law," a witness in attendance at a
court of the United States "shall be

paid an attendance fee of $30.00 per
day." (emphasis added).

m3

reasoned that the time spent by an
expert "to educate counsel in a
technical matter germane to the suit"

is a “substitute for lawyer time, just

as paralegal time is." Friedrich, 888
F.2d at 514 (App. 5). The court stated

as follows:

There is thus no basis for
distinguishing Jenkins
from the present case so
far as time spent by these
experts in educating
plaintiffs’ lawyer is
concerned... , for it
is difficult to separate
time spent by an expert in
educating the lawyer from
time spent in preparing to
testify. Sometimes it is
impossible; the same time
may serve both purposes.

Friedrich, 888 F.2d at 514-15 (App. 5).

REASONS FOR NOT OPPOSING THE WRIT AND
FOR CONSOLIDATING ORAL ARGUMENT
WITH THE CASEY CASE

Respondents’ position is that
this Court's decision in Missouri v.

Jenkine, _ U.S. _¥., 108 8. GE. 2463

(1989), has resolved the issue of
whether Section 1988 authorizes the
reimbursement of fees and expenses for
experts who advise and testify. The
primary reason for the apparent split
in the Circuits is that the cases
disallowing reimbursement, other than
West Virginia University Hosptials v.
Casey, 885 F.2d 11 (3d Cir. 1989),
petition for cert. granted, 58 U.S.L.W.
3545 (U.S. February 26, #1990)
(hereinafter Casey), were decided prior
to Jenkins. ? However, in view of this

3see, e.g., Gilbert v. City of
Little Rock, 867 F.2d 1062 (8th Cir.)
(en banc) (affirming by an equally
divided vote a district court's denial
of expert fees under Section 1988 in
excess of $30 per day), cert. denied,
110 S. Ct. 57 (1989); Sevigny v.
Dicksey, 846 F.2d 953 (4th Cir. 1988)
(denying expert witness fees under
Section 1988); and Boring v.
Kozakiewicz, 833 F.2d 468 (3d Cir.
1987) (denying expert witness fees

Court's grant of certiorari in Casey,

respondents do not oppose a grant of

certiorari in City of Chicago v.

Friedrich No. 89-1230, 4 and request

that Friedrich and Casey be
consolidated for purposes of oral

argument before this Court, pursuant to
Supreme Court Rule 27.3.

Respondents believe that joint
consideration of Friedrich and Casey
will contribute substantially to the
Court's deliberations by providing the
perspective of a traditional civil
rights litigant and organization as
well as a different factual context.

Additionally, this Court will benefit

under Section 1988), cert. denied, 108
S. Ct. 1298 (1988).

“see F.2d 511 (7th Cir. 1989),
, 58 U.S.L.W.
3505 (U.S. January 29, 1990).

10

by hearing the two cases together
because the Court of Appeals' opinion
in Friedrich offers a more complete
analysis of non-testimonial expert

expenses and of this Court's decision

in Jenkins.

FRIEDRICH PRESENTS THE IMPORTANT
ISSUE OF THE RECOVERABILITY OF AN
EXPERT'S FEES FOR NON-TESTIMONIAL
TIME IN A TRADITIONAL CIVIL RIGHTS
CASE.
The question presented in Casey
(No. 89-994) is phrased in terms of
"compensation for expert witnesses"
(emphasis added). Petitioners in
Friedrich have phrased the question as
whether Section 1988 “authorizes an
award of expert witness fees in excess
of the $30 per day allowed by 28 U.S.C.
§§ 1821, 1920(3)." See Petition for

Certiorari at i, Friedrich (No. 89-

11

1230). The true question presented by
these cases -- and the _ issue
respondents request this Court to
address -- is a broader one: whether
the fees reimbursable under Section
1988 include fees and expenses for an
expert's non-testimonial time spent
consulting, advising, and assisting
counsel, as well as fees and expenses
for attendance as a witness at trial.

The decision of the Court of
Appeals for the Third Circuit in Casey
did not address the distinction between
experts' fees and expenses incurred for
testimony and experts’ fees and
expenses incurred for consultation with
attorneys. As the Court of Appeals for
the Seventh Circuit pointed out in
Friedrich, however, the time spent by

an expert advising and educating

12

counsel substitutes for attorney time
and contributes to an attorney's work
product. Friedrich, 888 F.2d at 514
(App. 5). The evidence in the
proceedings below established that
civil rights litigation often includes
important questions relating to many
disciplines which are beyond the
knowledge of lay persons, attorneys and
judges and that the services of experts
are necessary to prepare properly to
litigate such difficult issues. (R.
120, Ex. B. | 14). To deny recovery of
a consulting expert's fees and expenses
"would encourage underspecialization
and inefficient trial preparation."
Friedrich, 888 F.2d at 514 (App. 5).
The court in Friedrich noted that
"less than ten percent of the money

paid the experts was for time actually

= ie eer

13

testifying" and concluded that
respondents were entitled to "fees

incurred for advice, as distinct from

testimony and preparation for
-
testimony, oy experts" because

"Sections 1821 and 1920 do not bear on
fees for nontestimonial services."
Friedrich, 888 F.2d at 515 (App. 7).
In so ruling, the Court of Appeals
answered the two questions posed in
Denny v. Westfield State College, 880
F.2d 1465 (lst Cir. 1989), as to
"whether, or under what conditions,
expenditures for 'non-witness experts'
such as consultants and private
investigators may be shifted after
Crawford" and whether and to what
extent "the costs of non-testimonial
time spent by an expert witness. .

may or may not be shifted." Denny, 880

14

F.2d at 1474. The Court of Appeals in
Casey did not focus on these questions
and therefore misunderstood the
relevance of this Court's decision in
Jenkins to awards of expert fees under
Section 1988.

In concluding that Crawford
Fitting was the controlling precedent
on the issue of expert fees, the Casey
court accepted the superficial argument
that the words "expert witness fees"
must literally appear in the Fee Act in
order to meet the Crawford test.
Casey, 885 F.2d at 34. In so doing,
the Court of Appeals for the Third
Circuit further failed to follow this
Court's guidance in Jenkins and to
examine the legislative history of the

Act.

15

In Friedrich, however, the
Seventh Circuit did examine’ the
legislative background of Section 1988
and did so in the context of the sort
yr" paradigmatic civil rights case
considered by Congress when it adopted
the Fee Act.

As recognized by the Court of
Appeals in Friedrich, the legislative
history and purposes of Section 1988
show that Congress desired prevailing
parties to recover "what it costs them
to vindicate these [civil] rights in
court.* S. Rep. No. 94-1011, 94th
Cong., 2d Sess. 2 (1976), reprinted in,
1976 U.S. Code Cong. Admin. News at
5910. The legislative history also
reveals Congress' recognition that a
"vast majority" of the civil rights

plaintiffs were unable to vindicate

16

their rights in the courts because of
economic barriers. H. Rep. No. 94-
1588, 94th Cong., 2d Sess. 1, 6 (1976).
The plaintiffs in Friedrich, like most
civil rights plaintiffs, are
individuals of extremely limited means,
and, unless their attorneys can be
reimbursed for the expense of expert
consultants and witnesses, their hopes
of vindicating those rights dim.
Here, the Roger Baldwin
Foundation of the American Civil
Liberties Union, Inc. ("RBF") bore the
expense of retaining the experts,
Messrs. di Grazia and Whyte. The RBF
does not accept government grants and
funding and is dependent upon the
private funding community. Because the
RBF, like other civil rights

organizations, sometimes supports

17

unpopular causes, private funding

fluctuates. Recovery of expenses for

‘experts fees, therefore, is vital to

the RBF's "ability to maintain its
legal program through future cases
which further advance the goals of the
Fee Act." (R. 120, Ex. B., at qq 17,
18)

One of the Fee Act's sponsors,
Representative Drinan, made it clear
during House floor debates that the
fee-shifting provision of the statute
was intended to compensate prevailing
civil rights plaintiffs for costs
incurred in bringing civil rights
suits:

I should add that the

phrase "attorney's fee"

would include the values

of the legal services
provided by counsel,

and __ necessary _ expenses
; Pn teenie)

18

representation.

122 Cong. Rec. 35,123 (1976) (emphasis
added). As this Court concluded in
Jenkins, "a 'reasonable attorney's fee'
cannot have been meant to compensate
only work performed personally by
members of the bar." Jenkins, 109 S.
Ct. at 2470. Rather, the phrase "a
reasonable attorney's fee":

must refer to a reasonable
fee for the work product
of an attorney. Thus, the
fee must take into account
the work not only of
attorneys, but also of
secretaries, messengers,
librarians, janitors, and
others whose labor
contributes to the work
product for which an

attorney bills her client;

Jenkins, 109 S. Ct. at 2470 (emphasis
added).

19

Petitioners contend that the
appellate court's interpretation of
Section 1988 in Friedrich "departs
radically from the reasoning of this
Court and the decisions of other
courts, particularly the Third
Circuit." See Petition for a Writ of
Certiorari at 13, Friedrich (No. 89-
1230). Respondents disagree and
contend that, far from being a "radical
departure," the Seventh Circuit's
decision in Friedrich is the only case
cited to the court by petitioners that
is consistent with Jenkins and Section
1988. The decision in Jenkins makes
clear that Congress intended Section
1988 to remove the economic —_—a to
civil rights litigation by granting a

prevailing civil rights plaintiff a

20

fully compensatory fee. Jenkins, 109
S. Ct. at 2470.

Because the facts and legal
analysis in Friedrich present the
broader question of the recovery of
fees and expenses for both testifying
and non-testifying experts in the
context of a traditional civil rights
case, its consideration by this Court
along with Casey will best serve the

interest of justice.

CONCLUSION

In light of this Court's grant
of certiorari in Casey, Respondents do
not oppose a grant of certiorari in
this case and request that it be
consolidated for purposes of oral

argument pursuant to Rule 27.3 with

21

West Virginia University Hospitals v.
Casey, No. 89-994.

Respectfully submitted,
JOHN A. POWELL WILLIAM M. HANNAY
STEVEN R. SHAPIRO Counsel of Record
American Civil SHERI L. GRONHOVD
Liberties Union Schiff Hardin &
Foundation Waite

132 West 43rd St. 7200 Sears Tower
New York, New York Chicago, Illinois

10036 60606

(212) 944-9800 (312) 876-1000

Of Counsel HARVEY GROSSMAN
Roger Baldwin
Foundation of the
American Civil
Liberties Union,
Inc.

20 E. Jackson Blvd.
Chicago, Illinois
60604

(312) 427-7330

Attorneys for
Respondents

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0945%3A2. Public record. Not legal advice.