The Washington Post has characterized that request as “adding insult to injury” and a “windfall” to which we are not entitled. The Post’s editorial is long on rhetoric but short on analysis. In fact, the $3.5 million request is perfectly reasonable under existing court precedent.
The purpose of the fee-shifting provision is to ensure “vigorous enforcement” of civil rights laws, especially when monetary damages are not available and the claimants may not be able to afford competent legal counsel. To attain that goal, prevailing lawyers should receive a market rate for their efforts.
The baseline is the total number of hours reasonably expended on the case times the hourly rate normally charged by lawyers of like ability and experience. The award should also include a “contingency enhancement” to offset the very real risk of losing even meritorious suits, in which case no fees are recoverable.
While the Supreme Court has (incorrectly, in our view) rejected that approach, it has approved fee enhancements for lawyers who achieve “exceptional results.”
With respect to our recorded hours, the total was under 3,100 for three lawyers over six years. No reasonable person could consider those hours excessive, particularly considering that we were up against more than a dozen lawyers — some of them eminent Supreme Court practitioners — from the D.C. Attorney General’s office and three of the nation’s largest and most elite law firms.
Moreover, we worked many hundreds of additional hours on tasks — such as media relations, speaking at public forums, writing articles for legal journals — that are not compensable under the statute even though they are essential ingredients of any public interest lawsuit.
Nor is it reasonable to quibble with our proposed rate of $557 per hour, which is consistent with rates charged by lawyers at major D.C. law firms — a fact we thoroughly documented with published survey data and testimony from a respected economist whose estimates have been accepted many times by federal courts.
