Cir. 1975) and Tillman v. Wheaton-Haven Recreation When a party has "prevailed" and the court determines that an award of counsel fees is appropriate, the computation can be difficult. In Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir. 1977), cert. granted, 436 U.S. 547, 98 S.Ct. 52, 54 L.Ed.2d 71 (1977), rev'd on other grounds, No. 761484, May 31, 1978, the court observed at note 3 that the Senate Report to the Civil Rights Attorney's Fees Award Act of 197624 approved the standards applied by the district court in awarding counsel fees in Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1974). In that case the court stated: This court, following the suggestion of the Ninth Circuit, intends to consider 64 F.R.D. at 682-83. Lindy v. Am. Radiator, 540 F.2d 102 (3d Cir. 1976) (en banc), (Lindy II) and Lindy Bros. Bldrs., Inc. of Phila. v. American R. and S. San. Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I) are the leading cases in 24. Sen. Rep. No. 94-1011, 94 Cong., 2d Sess., 4, reprinted in (1976) U.S. Code Cong. & Ad. News 5908, 5912. -- establishing standards for the determination of fees. Lindy I announced a formula that starts with a basic "lodestar" a calculation of time spent times the hourly rate usually charged by the lawyer. The "lodestar" can be increased by a contingency factor; it can be either increased or decreased by a quality-of-work factor. In Lindy II the court stressed that these general considerations must be affected by particular features of the case. For example, under the rubric "contingency of success, considerations might be the complexity of the case, whether there is controlling case law, whether defendant's liability is clear. 540 F.2d at 117. Under the rubric of quality-of-work, considerations might be whether "the lawyer discharged the professional burden undertaken with a degree of skill above or below that expected for lawyers of the calibre reflected in the hourly rates. 540 F.2d at 118. King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977), following a Lindy approach, determined that mechanical application of the Criminal Justice Act fee schedule was not proper. The court recognized that the fee to be awarded is a matter within the sound discretion of the district court. However, the court did identify certain general criteria it expected the district courts to follow: 1) the time and labor required; 2) the These criteria are similar to those in the The court of appeals applied the criteria to the court's award of $50 an hour for a total of eighty hours and approved the award of $4,000. In Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977), the court determined that although counsel had not submitted sufficiently detailed time sheets as required by King, supra, the lower court properly accepted counsel's one affidavit as to the time spent on the case since the standards set forth in King had been developed years after counsel's services were rendered. The court noted that the fees for the three attorneys, in the amounts of $19,402.50, $2,040, and $1,776, were very high but approved them. The court further determined that a district court could award counsel fees for the appellate work of the attorneys. However, since the court of appeals was in a better position to assess the importance and quality of appellate work, the court of appeals was required to give less deference to the district court's determination. The court further held that plaintiff's attorneys were not necessarily precluded from receiving a fee for time spent litigating the issues of fees. The court stated: "[T]he fact that litigation over fees only indirectly benefits the plaintiff class is a consideration of some importance in a determination of the reasonableness of a particular fee for these services." 564 F.2d at 614. The court determined that the fee awarded to one of the attorneys for his work performed on appeal was required to be reduced to no more than $50 an hour. The Fifth Circuit, in Rainey v. Jackson State College, 551 F.2d 672, 677 (5th Cir. 1977), identified the factors to consider in awarding attorneys' fees as basically those set forth in King, supra. After considering those factors the court of appeals determined that the fee should be $35 per hour for the period through the first appeal and one half that amount for the second appeal.. In Miller v. Carson, 563 F.2d 741, 756 (5th Cir. 1977), the court found no error by the trial court in setting the attorney's fee at $60 an hour for in-court time, $40 an hour for out-of-court time for primary counsel, and $30 an hour for less experienced lawyers working with him. 25. Part of the work by counsel on the second appeal related to plaintiff's unsuccessful claims. Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977) held that the district court had improperly denied plaintiff's request for attorneys' fees and after reviewing the affidavits of plaintiff's attorneys setting forth their experience, the number of hours spent on the case, and the suggested hourly rate, awarded counsel fees in the amount requested: $2,276.25, allowing $65 per hour for 29.25 hours for one attorney and $75 per hour for a total of five hours for the other attorney. Brown, 559 F.2d at 276 n. 4. See also Walston v. School Bd. of City of Suffolk, 566 F.2d 1201, 1205 (4th Cir. 1977) (award of counsel fees inadequate where based solely on amount of award recovered). Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977), was a class action based upon sex discrimination in employment under the Civil Rights Act of 1964. The court stated: The awarding of counsel fees is a matter of discretion with the trial court, but we have provided objective standards to guide and facilitate the sound exercise of that discretion. Lindy Bros. Builders, Inc. of Phila. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I) and Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II). The district court is required to employ the formula we devised and to articulate the values of its variable components. The total time expended and a reasonable hourly rate are the elements of the initial computation. That calculation in turn must be adjusted to reflect the quality of the work, benefit to the client, and contingency of the result in order to arrive at a reasonable value of the attorneys' services. If the district court applies this criterion to findings of fact which are not clearly erroneous, it acts within its discretion and the decision will not be disturbed. 557 F.2d at 1018. Later, the court mentions the possibility of adjustments to the fee scale: [W]e observe that the "quality" factor Conversely, emphasis on the objective 557 F.2d at 1019. In that case the class action had been settled and the proposed settlement petition provided for payment of counsel fees as part of the settlement. The court noted that there was, in reality, only one fund for both the class and attorneys' fees. In such a case the defendant was interested only in disposing of the total claim asserted against it and was not interested in allocation between the attorneys' fees and payment to the members of the class. The court of appeals determined that the district court had properly required public disclosure of the basis for the fees, even though the defendant had agreed to the amount: A reasonable solution, we suggest, is 557 F.2d at 1021. |