When the plaintiff in a civil rights case wins the case, her attorney is able to recover attorneys' fees. This means the loser pays not only the victorious plaintiff, but her attorney. The jury decides what the plaintiff gets, but the judge decides the attorneys' fees issue. An attorneys' fees award depends on many things, including how much time the lawyer spent on the case and her hourly rate. You may think the hourly rate is not a disputed issue, but it is.
The case is Simmons v. New York City Transit Authority, decided on August 3. Simmons won her disability discrimination claim in the Eastern District of New York. Her attorney's office is located in Southern District of New York. For the uninitiated, EDNY includes Brooklyn, Queens and Long Island. SDNY includes Manhattan, The Bronx, Westchester and a few counties north of the Tappan Zee Bridge. The case law governing this issue confirms that, in the eyes of the court, SDNY rates are much higher than EDNY rates, even though EDNY includes downtown Brooklyn, and SDNY includes semi-rural counties like Orange and Dutchess. Since SDNY rates are based on Manhattan rates (for the most part), the anomaly is that a civil rights lawyer in Orange County with less experience may have a higher rate than a more experienced lawyer in Brooklyn whose office is located one or two subway stops from the more lucrative jurisdiction, Manhattan.
So what do you do when the case is litigated in EDNY but the lawyer's office is located in SDNY? Do Southern District rates apply, or do Eastern District rates apply? In Simmons, the Court of Appeals noted its recent decision in Arbor Hill v. Concerned Citizens v. County of Albany, 522 F.3d 182 (2d Cir. 2008), which says that the hourly rate is based on the rates of the judicial district in which the case was filed, not where the attorney has her offices, unless the attorney can show that this is one of the unusual cases where the plaintiff's use of an out-of-district attorney was reasonable under the circumstances. Simmons resolves the issue of how to determine the hourly rate.
In Arbor Hill, the plaintiff's lawyers were located in New York City, but the case was litigated in Albany, in the Northern District of New York, which provides for much lower hourly rates than SDNY. But in Simmons, the case was tried in Brooklyn, and the lawyer's office is in Manhattan. Which jurisdictional rate applies?
In Simmons, the Second Circuit (Walker, Jacobs and Leval) answers that question. They find that Simmons can hire any lawyer she wants, but the lawyer's fee is presumed to be governed by the jurisdiction where the case is litigated, not the location of the lawyer's office. The lawyer can get the higher rate if he is situated in a more lucrative jurisdiction, but under this ruling, that's a hard burden to satisfy. The Court of Appeals holds that "in order to receive an attorney's fee award based on higher out-of-district rates, a litigant must overcome a presumption in favor of the forum rule, by persuasively establishing that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result."
In other words, the plaintiff has to show that she chose a Manhattan lawyer to litigate a case in Brooklyn because the Manhattan lawyer would likely have produced a much better result than a lawyer in Brooklyn (or Long Island, also part of EDNY). I'm not sure how this burden can be satisfied in most civil rights cases, especially since the Southern and Eastern Districts of New York each have good civil rights lawyers capable of winning their cases. In an effort to garner a higher attorneys' fee rate, an out-of-district lawyer may have to argue that she is the cream of the crop and much better than her colleagues who handle similar work. That is not as easy as it sounds, as the lawyer may have to toot her own horn at the expense of her colleagues in the civil rights bar.
In any event, the Second Circuit holds that "a litigant cannot overcome the presumption through mere proximity of the districts, nor can a litigant overcome the presumption by relying on the prestige or 'brand name' of her selected counsel." The court adds, "The Transit Authority should not be required to pay for a limousine when a sedan could have done the job." Under this high burden, the Court of Appeals finds that the attorney's fees award in this case is too high and that Simmons' lawyer deserved fees under the lower EDNY rates, not the SDNY rates. The fees are reduced by $45,000.
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