exhibit b - moritz college of...
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SHANNON PEREZ et al., § § Plaintiffs, § § v. § CIVIL ACTION NO.
§ 5:11-CV-0360-OLG-JES-XLR STATE OF TEXAS et al., § § Defendants. §
EXHIBIT B Expert Report of Scott Brister
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
SHANNON PEREZ, et al. § § v. § C.A. NO. SA-11-CA-360 § (consolidated cases) STATE OF TEXAS, et al. §
EXPERT REPORT OF SCOTT BRISTER
I. QUALIFICATIONS
I am a partner in the law firm of Andrews Kurth LLP, a law firm of
about 400 lawyers founded in Houston in 1902. I am the attorney in charge of
the firm’s appellate section, but I practice in both trial and appellate courts. I
am Board Certified in Civil Trial Law, Civil Appellate Law, and Personal
Injury Law by the Texas Board of Legal Specialization. I have been licensed to
practice law in Texas since 1980, and have been admitted to practice before all
state and federal courts in Texas and the United States Supreme Court.
I served as a state judge in Texas for 20 years, beginning in 1989 as
Judge of the 234th District Court of Harris County, Texas. In my 11 years as a
trial judge, I presided over 670 trials to verdict, including 454 jury verdicts.
During part of that time I also served as the Administrative Judge for the 25
Harris County Civil District Courts.
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In 2000, I was elected to serve as a Justice on the First Court of
Appeals. Six months later, I was appointed as Chief Justice of the Fourteenth
Courts of Appeals. Both of these courts possess intermediate appellate
jurisdiction of civil and criminal appeals in ten counties including and
surrounding Houston. During my three years on these courts, I authored 442
opinions, including 194 signed majority opinions.
In 2003, I was appointed as a Justice of the Supreme Court of Texas,
where I served for six years. In addition to serving as the court of last resort
in all civil matters, the Supreme Court has sole authority for licensing
attorneys, is responsible for the lawyer discipline system in the state, and
promulgates various professional rules including the Texas Disciplinary Rules
of Professional Conduct. During my six years on the Supreme Court, I
authored 122 opinions for the Court, as well as 16 concurring and 21
dissenting opinions.
With respect to recovery of attorney’s fees, I have published two articles
in legal journals or periodicals: Proof of Attorney’s Fees in Texas, 24 ST. MARY’S
L.J. 313 (1993), and Proving Up Attorney’s Fees at Trial, 28 HOUSTON LAWYER
29 (1990). I have also authored opinions on the issue, including the opinion of
the Texas Supreme Court in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d
299 (Tex. 2006), which addresses segregation of attorney’s fees.
I have published numerous articles and editorials in legal journals and
newspapers urging reforms to make litigation in Texas more efficient and less
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expensive, including: The Decline in Jury Trials: What Would Wal-Mart Do?,
47 SOUTH TEX. L.R. 191 (2005); Lonesome Docket: Using the Texas Rules to
Shorten Trials and Delay, 46 BAYLOR L.R. 525 (1994); The O.J. Trial: What We
Learned, THE HOUSTON CHRONICLE (February 9, 1997); Speed Up Pace of Texas
Justice, THE HOUSTON CHRONICLE (July 23, 1995); and Living With Shorter
Trials, THE TEXAS LAWYER (October 11, 1993).
II. SCOPE OF REVIEW
I was engaged by the Office of the Attorney General of the State of
Texas to render opinions as an expert witness in this case regarding
reasonable and necessary attorney’s fees and expenses claimed by certain
Plaintiffs and Intervenors under federal law. See 42 U.S.C. §§ 1973(e) & 1988.
I was not asked to address whether all requests for interim fees should be
denied (which I understand the State plans to urge on several grounds), but
merely to address reasonable and necessary interim fees and expenses should
the Court decide to award them.
I have reviewed the motions requesting fees, selected pleadings in the
case, parts of the transcript of the September 2011 trial in San Antonio, and
the opinions and orders by this Court granting interim relief in February and
March of 2012.
III. ANALYSIS APPLICABLE TO ALL FEE CLAIMS
Section 1973l(e) of the Voting Rights Act and Section 1988 of the Civil
Rights Attorney’s Fees Award Act afford a district court discretion to award
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reasonable attorney’s fees to prevailing parties in redistricting and voting-
rights cases. In calculating attorney’s fees, the district court first calculates
the lodestar, multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate in the local community.1 Next, the
district court must consider the factors articulated in Johnson v. Georgia
Highway Express, Inc.2
A. Lodestar: Reasonable Rates in San Antonio, Texas
The motions here assert hourly rates for attorneys up to $875. In my
opinion, reasonable market rates for voting-rights cases in San Antonio are
lower than most of those claimed, and rarely exceed $350 per hour.
The relevant hourly rates here are those for voting-rights cases in San
Antonio, the community in which the Court sits.3 Although other markets
may have higher rates, those rates are not the starting point for the lodestar
without proof that hiring a non-local attorney was a necessity.4
The most recent survey by The Texas Lawyer of hourly billing rates in
Texas found that average hourly rates in San Antonio run from $200 to $353
per hour (see Tab B-1)5:
1 McClain v. Lufkin Indus., Inc., 649 F.3d 374, 380-81 (5th Cir. 2011).
2 488 F.2d 714, 717–19 (5th Cir. 1974).
3 McClain, 649 F.3d at 381.
4 Id. at 382.
5 2013 Salary & Billing Survey, THE TEXAS LAWYER, July 29, 2013, at 22-24.
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City Partners Associates
equity nonequity 7th year 4th year 1st year
Austin/San Antonio $353 $355 $295 $245 $200
Dallas/Fort Worth $499 $405 $345 $295 $230
Houston $388 $348 $300 $260 $200
Other $299 $224 $175 $203 $160 The same survey also shows that rates are substantially higher at large
firms than they are at smaller ones, with average rates at firms with fewer
than 30 attorneys again falling in the $200 to $350 per hour range:6
Firm Size Partners Associates
equity nonequity 7th year 4th year 1st year
100+ $558 $463 $392 $337 $265
50-99 $430 $340 $325 $245 $200
30-49 $370 $353 $241 $251 $175
< 30 $350 $325 $225 $225 $175 Hourly rates charged by major law firms often reflect items like prime lease
space, recruiting, marketing, charitable contributions, employee pensions, or
malpractice rates that small firms may not have to match. As almost all of the
law firms involved here are much smaller than 30 lawyers, their hourly rates
should fall in the same $200 to $350 range.
A range of $200 to $350 is also consistent with recent awards by federal
courts in Texas voting-rights cases. In 2010, a three-judge panel of this Court
6 2013 Salary & Billing Survey, THE TEXAS LAWYER, July 29, 2013, at 22-24.
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found $250 a reasonable hourly rate for such cases in this community.7 And in
June 2013, Judge Fitzwater found $200 to $350 per hour a reasonable fee in
such cases for lawyers affiliated with the litigation boutique Bickel & Brewer.8
Redistricting litigation is important and often complex, but as this case
shows there are many attorneys and firms eager to participate in them. Such
cases necessarily involve politics, the public interest, and a lot of publicity in a
large state like Texas. Those factors and others multiply the pool of lawyers
who are willing to take them, even at lower hourly rates. They also attract
political parties, public interest groups, and legal aid attorneys (including
several here) who generally charge or accept lower rates due to the public-
service nature of their work. For example, Paul Clement, one of the most
heralded advocates in the country, represented the State in its appeal to the
United States Supreme Court in this case at an hourly rate of $520.9 Just as
judges or lawyers for the State accept lower salaries due to the importance of
their work, the importance of this litigation is in part the very reason that
hourly rates are typically low.
7 See Lulac of Texas v. Texas, No. SA–08–CA–389, 2010 WL 9435141, *2 (W.D. Tex. April 7, 2010).
8 See Fabela v. City of Farmers Branch, Tex., No. 3:10–CV–1425–D, 2013 WL 2655071, *5 (N.D. Tex. June 13, 2013).
9 See Tab A-2 to Rios Declaration [Dkt. #845-1]; see also http://www.texastribune.org/ texas-redistricting/redistricting/abbott-elections-should-use-legislatures-maps/ (“Abbott hired Paul Clement, a noted Supreme Court advocate, to help his office with the case (at a rate of $520 an hour, which he called ‘a steep discount’).”); http://www.burntorangereport.com/ diary/11585/abbott-hires-520-per-hour-lawyer-asks-supreme-court-to-block-interim-maps (“Abbott Hires $520 per Hour Lawyer, Asks Supreme Court to Block Interim Maps”).
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Two of the fee claims cite an affidavit I signed in LULAC V. City of
Boerne, Civ. Action # 96-cv-808, which quoted reasonable hourly rates of $750
for the late Greg Coleman (noted advocate and former law clerk to Justice
Clarence Thomas), and $360 to $550 for other attorneys at his firm, Yetter
Coleman, LLP (see Tab B-2). But I was asked in that case only for an affidavit
relating to fees generally charged by such firms; I was not retained as an
expert and reviewed none of the files, so my opinion was not intended to
address voting-rights fees specifically.10 As the Court awarded no fees in that
case,11 it does not change my opinions stated above.
Certainly, reasonable clients could agree to pay hourly rates higher than
$200 to $350.12 But the question here is customary fees in the area. Like any
other service, market rates are not governed by measures of intrinsic value;
they are governed by the laws of supply and demand. As there is a large
supply of attorneys willing to appear in redistricting cases at or below
customary rates, it is my opinion that the customary and reasonable rates for
attorneys in the San Antonio area for cases like this generally fall in the range
from $200 to $350 per hour.
10 See, e.g., Fabela, 2013 WL 2655071, *4 (“[T]his court does distinguish between civil rights cases and complex commercial litigation”).
11 See Civil Action No. SA-96-CV-808-XR [Dkt. #93].
12 See Pugach v. M & T Mortg. Corp., 564 F.Supp.2d 153, 157 (E.D.N.Y. 2008) (“[C]ourts have acknowledged that a judicial determination of what is ‘reasonable’ for purposes of a fee award to be paid by the losing party to the prevailing party in a litigation is not the same as the reasonableness of a bill that a law firm might present to its own paying client.”).
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B. Lodestar: Reasonable Hours Expended
1. Duplication
The motions here seek fees for 38 attorneys from 17 different firms.13 In
the private sector, economic forces naturally limit this kind of overstaffing:
clients will not pay for 38 lawyers when 3 or 4 will do. But in public-interest
litigation like this, where attorneys count on court-ordered fees for part or all
of their recovery, the absence of an independent client who is paying all the
bills removes some of the disincentives to duplicative work.
In calculating the number of hours reasonably expended, the Court
“must eliminate excessive or duplicative time.”14 It is natural that advocacy
groups and officeholders want their own attorneys in a redistricting case, but
the number of people interested in and affected by redistricting in Texas is
limited (if at all) only by the entire population. Even if 30 or 40 attorneys
agree to work cooperatively on a redistricting case, that does not make it
reasonable and necessary for the defendant to pay for all of them when most of
the claims made by the independent parties are the same.
The fee applications do not dispute that their substantive claims in this
lawsuit were duplicative. Some frankly admit that they litigated their claims
“in tandem with other plaintiffs,15 “essentially tried their cases together,”16 or
13 The number of attorneys included in each fee claim are: Rodriguez (9), MALC (7), TLRTF (6), NAACP (6), Perez (5), Quesada (3), Cuellar (1), and Texas Democratic Party (1).
14 LULAC No. 4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1231 (5th Cir. 1997).
15 Perez Motion [Dkt. #843] at 4.
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that they focused on only parts of the case.17 Filing duplicative claims was
their choice, but the State should not have to pay for duplicative work.
For example, the attorneys divided duties in the September 2011 trial,
yet all seek fees for the whole trial. Though many of them rarely spoke, their
fee claims are not always commensurate with their limited roles:
Party Examination/Argument % of Trial Fee Claim
for Trial18 State of Texas 420 pages 22.7% --
NAACP 436 pages 23.6% $ 112,420
TLRTF 296 pages 16.0% 107,856
MALC 225 pages 12.2% 174,823
Rodriguez 158 pages 8.5% 28,457
LULAC 131 pages 7.0% --
Perez 122 pages 6.6% 107,369
Quesada 63 pages 3.4% 58,825
Cuellar 27 pages 1.5% 24,492
Democratic Party 0 pages 0.0% 29,888
TOTAL 1,878 pages 100.0% $ 644,128 Splitting up the trial was reasonable to the extent it avoided duplication of
effort. But it would be unreasonable to award fees to so many attorneys for
sitting in trial and watching someone else try the case.
16 NAACP Motion [Dkt. #854] at 4.
17 Perez Plaintiffs’ Post Trial Brief [Dkt. #401] at 1 (“Our brief will focus, as has our evidence, on Texas House seats.”).
18 These figures include all time billed on the days of trial. As many attorneys used block-billing that stated only “attend trial” or included “trial prep,” it is impossible in most cases to segregate these figures more precisely.
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Of course, attorney’s fees should not be awarded based solely on who
uses up the most time, nor can an attorney go work on other matters while an
opposing party presents its case. But it is obvious from the chart that some of
the firms claiming the biggest trial fees did a smaller share of the work.
The Voting Rights Act does not require that a governmental entity pay
for dozens of attorneys to file similar motions or appear at trial when
considerably less would do. It may have been reasonable for officeholders or
groups representing minority voters to hire their own attorneys, but it was not
necessary that they hire as many different law firms as participated here.
Accordingly, the fees claimed should be reduced for the more peripheral
claimants.
2. Lack of success
Only prevailing parties are entitled to recover fees in redistricting and
voting-rights cases.19 Thus, the parties here are entitled to recover fees only
for claims on which they prevailed, not claims on which they didn’t. Without
trying to account for every claim made, the following is a nonexhaustive list of
the most important proceedings and issues on which these claimants did not
prevail, and thus should not have included in their fee claims.
Preclearance claims rendered unconstitutional. All claimants filed or joined
the preclearance claims under section 5 of the Voting Rights Act as applied to
19 42 U.S.C. § 1973l(e); Wilson v. Mayor & Bd. of Alderman of St. Francisville, 135 F.3d 996, 998 (5th Cir. 1998).
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Texas under the coverage formula in section 4(b) of the Act. In Shelby County
v. Holder, the Supreme Court held the coverage formula unconstitutional. As
none of the claimants can prevail under the coverage-formula theory on which
they based their preclearance claims until recently, they have not prevailed on
that claim and should not be reimbursed for that work.
Permanent relief rendered moot. All claimants sought permanent relief
against the redistricting plans adopted by the 82nd Legislature in 2011. In
June 2013, the 83rd Legislature adopted new plans that render the 2011 plan
moot. Except to the extent the 2013 plan incorporates changes pleaded by the
claimants, their requests for permanent relief are now moot.
Claims rejected or not reached. Before trial, the Court dismissed claims
under the 15th Amendment, claims alleging partisan redistricting, claims
against Lieutenant Governor David Dewhurst and Speaker Joe Straus, and
claims based on where prisoners “reside.” The Court also rejected claims
relating to House district 33 and Congressional district 27 in Nueces County,
and claims relating to Congressional districts 25 and 35 between Travis and
Bexar counties. Furthermore, the Court did not find it needed to reach many
of the claims raised in their pleadings and briefs. As it is undisputed that no
claimant prevailed on claims they lost or that were never reached, fees should
not be awarded for work done on them.
In many instances it is impossible to segregate fees related to these
losing or unreached claims, as the time entries are too vague or indefinite to
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identify them. Because the fee applicants had the burden to adequately
document their fee claims, the Court may reduce or eliminate some of these
fees on the ground that the documentation is vague or incomplete.20
3. Fees for work before the Legislature acted
Every one of the fee applications seeks fees for periods before the
Governor signed the new Texas House district map (on June 17, 2011) or
Congressional map (July 18, 2011). Until the new maps were adopted, any
litigation about them was premature. Research, negotiations, and lobbying as
part of the legislative proceedings that drew up the maps were not part of the
judicial proceedings that followed. Accordingly, it is my opinion that fees are
not recoverable for work done before the new plans were adopted and thereby
created something to litigate about.
4. Fees for work after this Court acted
The only ground on which anyone claims to be a prevailing party is the
interim relief granted by this Court regarding the 2012 elections. Those orders
were entered on or before March 19, 2012. Accordingly, it is my opinion that
fees and expenses incurred thereafter are not recoverable as they occurred
after the only relief on which the claimants prevailed had been granted, and
thus could not have contributed to it. Regarding aspects of this case that
remain pending, any fee claims related thereto are premature as the
prevailing party is not yet known.
20 See LULAC No. 4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1231 (5th Cir. 1997).
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C. Analysis of remaining Johnson factors
There is a strong presumption that the lodestar method yields a
reasonable fee.21 But before making any fee award, courts also consider the
following factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974).
1. time and labor required. My opinions on this factor are set out in
part III(B) above and in the individual analyses of each claim in part IV below.
2. novelty and difficulty of the questions. The huge changes in the
Texas population and the creation of four new Congressional districts made
the redistricting process complex, perhaps to an unprecedented degree.
Similarly, the statewide nature of the case made it more complex than one
that involved only a local jurisdiction. But as all those issues were thoroughly
researched and analyzed in the legislative proceedings, that should have
simplified them for the judicial proceedings.
3. skill requisite to perform the legal service properly. The skill needed
by a single attorney or firm to handle every aspect of this case was substantial.
But the skill needed by 30 or 40 attorneys to adopt pleadings, motions, or
claims made by other parties, or to watch co-counsel examine a witness, was
minimal.
4. preclusion of other employment. A few motions include claims that
work in this case precluded other employment, but none state any particulars.
21 See Perdue v. Kenny A., 559 U.S. 542, 130 S. Ct. 1662, 1672–73, 176 L.Ed.2d 494 (2010).
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Merely spending hours on this case rather than some other is not “preclusion
of other employment,” as that would merely duplicate the time-and-labor-
expended factor.22
5. customary fee. My opinions on this factor are set out in part III(A)
above.
6. fixed or contingent fee. A contingent fee may be higher than a fixed
fee because of the risk of non-recovery. But reasonable fee awards are common
in redistricting or voting-rights cases if a party prevails. For the reasons
stated in part III(A) above, many attorneys appear to be willing to participate
in suits like this despite the risk and the lower hourly rates because of the
political and public-interest implications involved in the result.
7. time limitations imposed by the client or circumstances. Like most
redistricting cases, this one had to be handled on an expedited basis. New
districts drawn by the Texas Legislature are generally effective for the next
election, which is rarely more than a few months away. In my opinion, the
fees here should be no higher than in other redistricting cases, as the
exigencies are usually the same.
8. results obtained. My opinions on this factor are set out in part III(B)
above, and in the individual analyses of each claim in part IV below.
22 See Shipes v. Trinity Indus., 987 F.2d 311, 321-22 (5th Cir. 1993) (“If, for example, [plaintiff]’s attorney worked on nothing but this case, then this potential loss of income in refusing other employment is compensated for in the number of hours she billed in the instant case.”).
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9. experience, reputation, and ability of the attorneys. Some of the
attorneys included here are among the most experienced and well-known
counsel involved in redistricting and voting-rights cases, both in Texas and
beyond. Yet as indicated by the rate charged by Paul Clement,23 it does not
appear that exceptional experience, reputation, and ability translate into
anything like the fees that would be expected in other types of cases.
10. undesirability of the case. Given the politics, publicity, and profile
of redistricting cases, redistricting cases do not appear to be undesirable to
anybody, except perhaps the defendants.
11. nature of the professional relationship. Many of the attorneys and
law firms in this case serve regularly as counsel for politicians, interest
groups, or community groups like those they represent here. Accordingly, they
are in some respects similar to the “captive” law firms often used by insurers,
which bill at reduced rates in return for a steady flow of business.24 These
long-term relationships would probably not exist if these attorneys did not
charge rates equal to or lower than other firms of comparable ability.
12. awards in similar cases. My opinions on this factor are set out in
part III(A) & (B) above.
23 See part III(A), supra.
24 See, e.g., Unauthorized Practice of Law Committee v. Am. Home Assur. Co., 261 S.W.3d 24, 27 (Tex. 2008).
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IV. ANALYSIS OF INDIVIDUAL FEE CLAIMS
A. MALC
The Mexican American Legislative Caucus claims fees and expenses of
$2,544,163.81. For a number of reasons that claim appears to be inflated.
First, MALC seeks not only substantial fees for seven different
attorneys, but counts one of them twice. Ricardo G. Cedillo’s declaration
claims fees of $88,875, but MALC’s motion double-bills him.25
Second, more than half of MALC’s attorneys claim hourly rates from
$550 to $800 per hour. As indicated in part III(A) above, those are not the
customary rates for redistricting or voting-rights cases in Bexar County. Even
assuming every hour all seven attorneys billed was reasonable and necessary,
reasonable rates would reduce MALC’s claim by $819,933.26
Third, MALC claims fees of $354,494 for time expended before the
Legislature acted along with $6,314.49 in costs associated with this work.
MALC seeks $139,472.50 in fees and $4,148.12 in costs for periods after this
25 MALC’s memorandum [Dkt. #844-1] at 22-23; Cedillo Declaration [Dkt. #844-5], ¶ 2.
26 Claim Rate Reas. Rate Hours Reduced Claim Savings Jose Garza $550 $350 2,225.44 $778,904 $445,088 Joaquin Avila $800 $350 321.7 $112,595 $144,765 Martin Golando $250 $200 1,131.76 $226,352 $55,942 Ricardo Cedillo $750 $350 116.6 double bill $87,450 Ricardo Cedillo $750 $350 118.5 $41,475 $47,400 Mark Kiehne $350 $350 510.3 $178,605 $0 Laura Clark $275 $205 293.4 $60,147 $20,538 Pamela Karlan $725 $350 50.0 $17,500 $18,750 TOTAL $819,933
Mr. Golando’s reduced rate is based on his declaration that he has “limited expertise in litigation generally and voting rights cases specifically.” Golando Declaration, ¶9. Ms. Clark’s fees were for work largely performed while she was a first-year associate. The billing discount used by Messrs. Garza and Golando is applied in this chart and to all adjustments to MALC’s fees in this report.
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Court’s March 19, 2012 orders. For the reasons stated in part III(B)(3) and (4)
above, these are unrecoverable.
Fourth, a substantial part of MALC’s fees consists of simply monitoring
what other lawyers were doing. For example, the billing records contain over
500 entries by Mr. Cedillo in increments of 0.1 to 0.3 hours for reviewing email
or documents he received. Then on August 20, 2011, five MALC attorneys
attended a meeting with other parties and a subsequent conference among
themselves, altogether billing $26,005 for this one day of meetings.27 Two
MALC attorneys (Jose Garza and Martin Golando) discounted their time 20%
for “potential duplication” and for “unrelated or unnecessary legal or factual
issues”;28 three others say they reduced “certain hours” to avoid duplication.29
But there were no discounts for the remaining MALC attorneys, or any
explanation why these discount are sufficient given the large number of MALC
attorneys involved throughout the case.
Fifth, MALC’s claim includes $129,512 for fees and $44,402.33 for costs
(including expert witness fees) relating to the preclearance lawsuit in
Washington, D.C. For example, Mr. Golando billed 125 hours for trial and
travel (including a return trip from D.C. of 30.5 hours). Those fees would be
recoverable in that case rather than this one, and are not recoverable in that
27 Attachment 2 to Garza Declaration [Dkt. #844-2] at 29.
28 See Ex. 2 to MALC motion [Dkt. #844-2] at 2.
29 See Ex. 5 to MALC motion [Dkt. #844-5] at 2. The declaration of Joaquin Avila does not make any similar reductions.
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case either as MALC did not ultimately prevail when the judgment was
vacated as a result of Shelby County.
Sixth, MALC claims $173,662 for time relating to the appeal to the
United States Supreme Court in this case along with $7,894.57 in costs.
MALC of course was not the prevailing party in that appeal.
Seventh, MALC attorneys also claim at least $43,225 for time spent on
other redistricting cases not consolidated into this case.30 As most of MALC’s
fee entries are not specific as to case, this number may be significantly higher.
Eighth, MALC billed 129.5 hours (mostly block-billing) on two responses
to a motion to dismiss, a substantial part of which was spent unsuccessfully
trying to keep Lieutenant Governor Dewhurst and Speaker Straus as
defendants in this case.
Ninth, MALC includes 77.3 hours ($61,840) for time Seattle lawyer
Joaquin Avila spent travelling to Texas (much of it block-billed) and
$17,190.22 in associated costs. As there is no evidence in the motion showing
why hiring a Seattle lawyer was a necessity, those fees and costs should not be
included for the reasons stated in part III(A) above.
Tenth, MALC’s claim includes 50 hours ($36,250) for Pamela Karlan for
“Supreme Court prep.” No time sheets or invoices document this claim, nor
30 These cases include: Teuber, et al. v. Texas, et al., Cause No. 5:11-cv-572-OLG-JES-XR (W.D. Tex., filed Feb. 10, 2011); and Mexican American Legislative Caucus v. Texas, et al., Cause No. 7:11-cv-144 (S.D. Tex., filed April 5, 2011). See also Notice of Related Litigation [Dkt. #22].
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did Ms. Karlan provide a declaration in support. As the State prevailed in the
Supreme Court, fees related thereto are unrecoverable.
Finally, most of the MALC lawyers used block-billing that makes it
impossible to tell how much time they spent on a listed task. Further, many of
the entries are vague and incomplete. For example, Joaquin Avila’s bill lists 4
hours for “legal research; review of docs”; that is inadequate for the Court to
tell which case he was working on (the D.C. case, this case, or other MALC
redistricting cases not at issue here), what he did, or whether the work he
performed was on claims as to which MALC was the prevailing party.
B. TLRTF
Texas Latino Redistricting Task Force claims fees and expenses of
$1,212,876, about half that of MALC. Unlike most of the other Claimants,
TLRTF’s time records are generally specific about what work was done on
which case. The pleadings, briefing, and trial record also reflect that TLRTF’s
attorneys often took the leading role in this litigation, so their time entries
reflect a higher percentage of substantive work and a lower percentage of
merely monitoring the work of others.
TLRTF’s lead attorney (Nina Perales) claims hourly rates from $525 per
hour, well above the customary rates indicated in part III(A) above. Again,
assuming every hour she billed was reasonable and necessary, a top hourly
rate of $350 would reduce TLRTF’s claim by $239,041.25.
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Nevertheless, TLRTF’s claim includes $164,169.75 for fees related to the
preclearance trial in Washington, D.C. and $2,065.92 in associated costs.31
TLRTF also seeks $80,802.75 for fees and $11,201.77 in costs related to the
appeal in this case to the United States Supreme Court. Those sums are
unrecoverable for the reasons stated in part III(B)(2) above.
Similarly, TLRTF’s claim includes $25,778 for fees incurred before the
Legislature adopted any maps for the 2012 elections, and $68,407.75 for fees
incurred after this Court adopted the interim maps that governed the 2012
elections. For the reasons stated in part III(B)(3) & (4) above, those fees are
unrecoverable.
C. Perez
The Perez Plaintiffs claim fees and expenses of $1,032,499. As an initial
matter, the most striking thing about this claim is its comparative size.
Unlike several of the parties, the Perez plaintiffs actively challenged only the
Texas House district maps, not the federal Congressional maps. Yet the size of
the Perez claim is comparable to that TLRTF and almost double that of the
NAACP ― groups that challenged all the maps and appeared to play a more
active role in the litigation. For example, the Perez attorneys’ active
contributions during trial were small compared to most of the other parties, as
shown by the chart in part III(B)(1) above. Their briefing and other filings
show the same pattern.
31 This figure includes $ 4,751.50 in fees requested for GIS assistant Sara Evans.
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Additionally, the Perez parties’ primary attorneys (David Richards and
Richard E. Gray, III) claim hourly rates from $550 per hour. As indicated in
part III(A) above, those are well above the customary rates for redistricting
and voting-rights cases in Bexar County. Even assuming every hour these
attorneys billed was reasonable and necessary, a top hourly rate of $350 would
reduce this claim by $332,480.
The Perez parties’ claim also includes $60,248.50 for fees related to the
appeal in this case to the United States Supreme Court. Those fees are
unrecoverable for the reasons stated in part III(B)(2) above.
Finally, the Perez parties’ claim includes $59,906.50 for fees incurred
before the Legislature adopted any maps for the 2012 elections, and
$74,357.50 for fees incurred after this Court adopted the interim maps that
governed the 2012 elections. For the reasons stated in part III(B)(3) & (4)
above, those fees are unrecoverable.32
D. NAACP
The NAACP parties claim fees and expenses of $533,026. This is
substantially lower than some other claims in part because the rates alleged
are closer to the customary rates noted in part III(A) above. Only one attorney
(Anita Earls) charged an hourly rate above $350, and due to her limited
involvement reducing her rate to $350 reduces the fee claim by only $3,663.
32 While the Perez Plaintiffs request $53,618.36 in costs, they provide no documentation or even explanation to support this claim. Thus it is not possible to determine which of these costs are related to the above-referenced categories.
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However one attorney with an out-of-state public-interest group billed
for her time travelling between North Carolina and Texas. At her hourly rate
of $250, that amounted to $21,625. She also incurred an additional $4,896 in
travel expenses. The State should not have to pay for these extra fees and
expenses without a showing by the NAACP that it could not have used local
attorneys to do the same work.
The NAACP claim includes $41,150 for fees and $6,408 for costs related
to the appeal in this case to the United States Supreme Court. Those fees and
costs are unrecoverable for the reasons stated in part III(B)(2) above.
The NAACP claim also includes $14,920 for fees and $1,063 in expert
costs for fees incurred before the Legislature adopted any maps for the 2012
elections, as well as $25,809 in fees and $10,630 in travel and expert costs that
were incurred after this Court adopted the interim maps that governed the
2012 elections. For the reasons stated in part III(B)(3) & (4) above, those
amounts are unrecoverable.
E. Cuellar
Congressman Cuellar seeks fees and expenses of $328,448. His lead
counsel (Rolando L. Rios) claims an hourly rate of $520 per hour. As indicated
in part III(A) above, that is well above the customary rates for redistricting
and voting-rights cases in Bexar County. Again, assuming every hour billed
was reasonable and necessary, a top hourly rate of $350 would reduce this
claim by $88,468. The claim also includes $31,750 for a “GIS” named “SS” at
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23 AUS:669820.7
$125/hour without any explanation of who this is or why this rate is
reasonable.
While Congressman Cuellar and his counsel claim to have played a
substantial role in drawing up a compromise map similar to the one this Court
adopted for the 2012 elections, most of fees claimed appear to be unrelated to
drawing up that map. For example, the billing records contain 174 entries for
Mr. Rios in increments of 0.3 hours or less for reviewing email, and many more
that surpass that small increment only because review of several emails was
combined.
The Cuellar claim also includes $52,165 for fees and $1,240.24 for costs
incurred before the Legislature adopted any maps for the 2012 elections, and
$84,309 for fees incurred after this Court adopted the interim maps that
governed the 2012 elections. For the reasons stated in part III(B)(3) & (4)
above, those amounts are unrecoverable.
F. Quesada
The Quesada Plaintiffs claim fees and expenses of $257,581. They
reduced the hours they actually expended by 50%, conceding that their “main
focus” was a new minority district in the Dallas-Fort Worth metroplex, and
that by always going last during trial they usually did not have to add much.
But as other parties asserted the same complaints regarding the metroplex, it
is unclear why another set of attorneys was reasonable or necessary at all.
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24 AUS:669820.7
The rates sought for the Quesada counsel ― $875 per hour for Paul M.
Smith, $650 per hour for J. Gerald Hebert, $435 per hour for Caroline D.
Lopez ― are substantially higher than customary fees in San Antonio. See
part III(A) above. Again, assuming every hour billed was reasonable and
necessary, a top hourly rate of $350 (and $245 for Ms. Lopez33) would reduce
this claim by $83,158.
One of Quesada’s attorney’s also offices out-of-state. Although he did
not bill his travel time between his Virginia office and Texas, he did submit
discounted travel expenses of $20,198.75. The State should not have to pay for
these travel expenses without a showing by the Quesada plaintiffs that they
could not have used a local attorney to do the same work.
The Quesada claim includes $65 for fees incurred before the Legislature
adopted any maps for the 2012 elections, as well as $29,368.16 for fees and
$4,473.84 for travel and expert costs that were incurred after this Court
adopted the interim maps that governed the 2012 elections. For the reasons
stated in part III(B)(3) & (4) above, those amounts are unrecoverable.
G. Rodriguez
The Rodriguez Plaintiffs claim fees and expenses of $191,064. All of
these attributable to the Perkins Coie LLP firm in Seattle and Washington,
D.C. Their hourly rates are markedly above customary rates in Bexar County,
especially considering their very limited involvement at trial (Austin attorney
33 Ms. Lopez was apparently a third-year associate at the time she worked on this case.
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25 AUS:669820.7
Renea Hicks, primary spokesman for the Rodriguez Plaintiffs at trial, has not
made a fee claim). There is neither a claim nor proof that local attorneys were
not available to perform the same work. Again, assuming every hour billed
was reasonable and necessary, a top hourly rate of $350 would reduce this
claim by $29,287.34
Unlike many of the other Claimants, the Rodriguez claim does not
include fees related to the preclearance lawsuit in Washington, D.C., or to the
appeal in this case to the United States Supreme Court. As the supporting
declaration states, every entry related to those proceedings “has been removed
from these billing records.”35 That is the way all of the fee claims here should
have been prepared.
But the Rodriguez claim does include $1,434.80 for fees incurred before
the Legislature adopted any maps for the 2012 elections, and $24,523 for fees
incurred after this Court adopted the interim maps that governed the 2012
elections. For the reasons stated in part III(B)(3) & (4) above, those fees are
unrecoverable. Further, the Rodriguez claim includes 15.6 hours ($4,758) for
34 Claim Rate Reas. Rate Hours Reduced Claim Savings Devaney $490/550 $350 18.4 $6,440 $3,650 Elias $550/635 $350 27.8 $9,730 $5,900 Frost $385 $260 17.2 $4,472 $2,150 Hamilton $480 $350 13.0 $4,550 $1,690 Khanna $305/375 $245/260 147.2 $36,073 $8,865 Manheim E. $375 $280 8.4 $2,352 $798 Manheim N. $305 $245 37.7 $9,065 $2,220 Mrazik $295 $230 6.5 $1,495 $422.50 Purcell $300/370 $245/260 51 $12,538 $3,591.50 TOTAL $29,287.00
35 Elias Declaration [Dkt. #853-1] at 2.
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26 AUS:669820.7
time Seattle lawyer Abha Khanna spent travelling to Texas along with
$2,983.69 in associated costs. As in the case of fellow Seattle lawyer Joaquin
Avila, these travel costs are not reasonable given the absence of any showing
that local counsel was not available for the work.
H. Texas Democratic Party
The Party claims fees and expenses of $95,344. Lead counsel (Chad
Dunn) claims an hourly rate of $375 per hour. Reducing that to an hourly rate
of $350 would reduce this claim by $6,535.
But in fact, no claim was reasonable or necessary here because all the
Party’s claims against the State defendants were dismissed on September 2,
2011;36 the Party asked the Court to reconsider that ruling, but as it was never
reinstated it was not prevailing party.
Conceding that it “did not carry the heavy lifting” in this case,37 the
Party says it has substantially reduced its claim. Yet Mr. Dunn billed
$29,887.50 for preparing for and attending every day of trial in this case, even
though he never said anything after announcing his appearance. The motion
claims entitlement to fees because Mr. Dunn was the one “preparing orders
concerning the election calendar.”38 But helping conduct elections is part of a
36 Order [Dkt. #285] at 26.
37 Party’s Motion [Dkt. #847] at 6.
38 Id. at 5.
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27 AUS:669820.7
political party’s duties in Texas;39 that does not make it a prevailing party in
this litigation.
The Party’s claim includes $8,662.50 for fees related to the appeal in
this case to the United States Supreme Court. Those fees are unrecoverable
for the reasons stated in part III(B)(2) above.
The Party’s claim also includes $375 for fees incurred before the
Legislature adopted any maps for the 2012 elections, as well as $20,009.54 for
fees and $809.54 for travel that were incurred after this Court adopted the
interim maps that governed the 2012 elections. For the reasons stated in part
III(B)(3) & (4) above, those amounts are unrecoverable.
CONCLUSION
The fee claims here seek almost $6.2 million in reimbursement for 38
attorneys working at 17 different firms. Even in the most complex of cases, it
would be impossible to avoid substantial duplication with this many different
attorneys and firms involved. Due to the vague and general time entries many
of them used, it is impossible to quantify the extent of duplication, or even
segregate work on successful from unsuccessful claims given the mixed results
achieved. The Court should consider this difficulty and general background
before making any fee award.
39 See, e.g., TEX. ELEC. CODE §§ 172.028-.029 (requiring party chair to certify candidates for ballot); id. §§ 172.082-.084 (describing party’s role in preparation of ballot); id. § 172.111 (making party executive committee responsible for supervising conduct of primary elections); id. §§ 172.113-.117 (authorizing party to tabulate primary results and certify party’s nominee).
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EXHIBIT BCase 5:11-cv-00360-OLG-JES-XR Document 864-2 Filed 08/19/13 Page 29 of 32
;:,ource: :u rtrms
HouRLY BILLING RATES
Source: 92 firms
TAB B-1Case 5:11-cv-00360-OLG-JES-XR Document 864-2 Filed 08/19/13 Page 30 of 32
Exhibit C
UNITED STATES DISTRICT COURT FOR THE WESTERN l)ISTRICT OF TEXAS
SAN ANTONIO DIVISION
LEAGUE OF UNITED LATIN § AMERICAN CITIZENS, DISTRICT 19, §
Plaintiff, § §
~ § §
CITY OF BOERNE, ET AL., § Defendants, §
§ and §
§ MICHAEL R. MORTON, §
Intervenor. §
CA NO. SA-96-CV-808-XR
AFFIDAVIT OF SCOTT A. BRISTER
STATE OF TEXAS § §
COUNTY OF TRAVIS §
BEFORE ME, the undersigned Affiant personally appeared, who, by me first duly sworn
on oath, deposed and stated as follows:
1. "My name is Scott A. Brister. I am over the age of 21 years and am competent to testify in this cause. I have never been adjudicated an incompetent. I have personal knowledge of the facts stated herein and they are true and correct. My personal knowledge was obtained through my 32 years of practicing appellate and trial law.
2. I am an attorney licensed to practice law in the State of Texas. I was licensed to practice in 1980 and do so around the state, in both state and federal courts. Following my graduation cum laude from Harvard Law School, I clerked on the Texas Supreme Court, and worked in private practice. I also served as a judge or justice at all levels of the Texas court system, to include the Texas Supreme Court. During my 32 years of practice and judicial experience, I have presided over and participated in numerous trials and appeals in state and federal court, including proceedings involving elections. I am boardcertified in civil appellate, civil trial, and personal injury trial law.
TAB B-2Case 5:11-cv-00360-OLG-JES-XR Document 864-2 Filed 08/19/13 Page 31 of 32
3. As a result of my experience, I am familiar with the reasonable and necessary fees and prevailing rates charged by attorneys in the State of Texas, including in the Western District of Texas.
4. Based on my experience, it is my opinion that the prevailing rate for similar services by an attorney with 18 years of experience and credentials similar to Greg Coleman is $750; by an attorney with 11 years of experience and a background similar to Chris Ward is $550; by an attorney with 7 years of experience and a background similar to Rich Farrer is $430; by an attorney with 6 years of experience and a background similar to Ryan Bates is $400; and by an attorney with 5 years of experience and a background similar to Kevin Terrazas is $360.
FURTHER AFFIANT SAITH NOT.
SUBSCRIBED AND SWORN TO BEFORE ME on this
KAREN DIXON MY COMMISSION EXPIRES
Ma!ch22, 2015
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