winston v. o'brien attorney fee petition materials.pdf

7/27/2019 Winston v. O'Brien Attorney Fee Petition Materials.pdf

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ROBERT L. WINSTON,

Plaintiff,

v .

OFFICER OBRIEN, et al.,

Defendants.

)))))))))

Case No. 10-cv-8218

Honorable Judge Elaine Bucklo

PLAINTIFFS 42 U.S.C. 1988 FEE PETITION

Pursuant to Local Rule 54.3(f), Plaintiff Robert L. Winston (Winston) hereby submits

this 42 U.S.C. 1988 Fee Petition and states as follows:

1) For all the reasons stated in Plaintiffs Memorandum Of Law In Support Of 42 U.S.C.

1988 Fee Petition and the accompanying materials, filed concurrently herewith,

Winston requests attorneys fees in the amount of $336,918.

2) The parties Local Rule 54.3(e) Joint Statement is attached to this Fee Petition as

Exhibit A.

Dated: January 10, 2013 /s/ Alan N. Salpeter

Alan N. SalpeterRoss H. NeihausKAYE SCHOLER LLP70 W. Madison St., Ste. 4200Chicago, Illinois 60602Tel: (312) 583-2300Fax: (312) 583-2360Counsel for Plaintiff

Case: 1:10-cv-08218 Document #: 97 Filed: 01/10/13 Page 1 of 1 PageID #:1218


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Case: 1:10-cv-08218 Document #: 97-1 Filed: 01/10/13 Page 1 of 5 PageID #:1219


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EASTERN DIVISION

ROBERT L. WINSTON,

Plaintiff,

v .


Defendants.

)))))))))

Case No. 10-cv-8218


LOCAL RULE 54.3(e) JOINT STATEMENT

Pursuant to Local Rule 54.3(e), the parties hereby provide the Court with this Joint

Statement regarding the proper amount of attorneys fees to be awarded to Plaintiffs Counsel 1 in

this case, as follows:

1. Plaintiffs Counsel has provided Defendants Counsel with all materials required by

Local Rule 54.3(d) and more, including: (i) the total dollar amount of their fee request through

the end of trial and for their post-trial work through January 3, 2013; (ii) the time and work

records on which their Fee Petition is based; (iii) evidence of rates charged by attorneys of

comparable experience and qualifications; and (iv) a draft affidavit of Alan Salpeter in support of

Plaintiffs Fee Petition.

2. Defendants Counsel have informed Plaintiffs Counsel, pursuant to the Local Rule, that:

(i) they have a special arrangement with the City of Chicago (the City, and the payor in this

case) because they do volume work for the City; (ii) they charge the City a flat fee for their work

on this specific case; (iii) they do not have either billing or time records for this case; (iv) they

1 Plaintiffs Counsel refers to attorneys Alan Salpeter and Ross Neihaus of Kaye Scholer LLP, except whereotherwise indicated.



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normally charge the City $250 per hour for their 1983 and non- 1983 work; and (v) for other

commercial work for other clients, they charge up to $500 per hour.

3. On January 4, 2013, Plaintiffs Counsel and Defendants Counsel met and conferred,

face-to-face about the fees to be awarded to Plaintiffs Counsel.

4. Defendants agree that the number of hours Plaintiffs Counsel worked is reasonable; so

there is no dispute over such hours. However, Defendants Counsel: (i) object to the hourly rate

requested by Plaintiffs Counsel; and (ii) have an overriding objection to the disproportionality

of the amount of Plaintiffs attorneys fees requested compared to the amount of the damages

awarded to Plaintiff (as discussed further below).

5. Plaintiff is requesting a total fee award of$336,918. This amount was determined by the

lodestar method multiplying Plaintiffs Counsels normal billable rates by the number of hours

they spent on this case, as shown in the following chart:

Name and Position Hours Worked Hourly Rate Total

Alan Salpeter, Attorney 192.75 $925 $178,293

Ross Neihaus, Attorney 362.08 $425 $153,884

Eric Sussman, Attorney 2.25 $715 $1,608

Kenneth Anderson, Paralegal 14.92 $210 $3,133

Total $336,918

6. Defendants position regarding the amount of Plaintiffs Counsels fees is shown in the

following chart and assumes $250 per hour for each lawyer working on the case:

Name and Position Hours Worked Hourly Rate Total

Alan Salpeter, Attorney 192.75 $250 $48,187

Ross Neihaus, Attorney 362.08 $250 $90,520



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Eric Sussman, Attorney 2.25 $250 $562

Kenneth Anderson, Paralegal 14.92 $100 $1,492

Total $140,761

7. The outstanding disputes between the parties can be summarized as follows:

Defendants Argue That Plaintiffs Counsels Hourly Rates Should Be Lower And Equal ToDefendants Counsels Hourly Rates______________________________________________

Defendants contend that Plaintiffs Counsels hourly rates are too high. Defendants

Counsel only charge the City $250 per hour for their 1983 and non- 1983 work. Defendants

believe that Plaintiffs Counsel should be compensated at this rate. For their 1983 work in this

case, Defendants Counsel have a special fixed fee based upon their handling of a volume of

cases.

Plaintiffs Counsel believe that their requested hourly rates are appropriate because they

are similar to the rates charged by lawyers in their professional community with similar skills

and experience.

Defendants Contend That Plaintiffs Counsels Fee Should Be Reduced Because PlaintiffsCounsel Did Not Originally Intend To Charge Their Client_____________________________

Defendants Counsel contend that, because Plaintiffs Counsel was assigned to provide

this representation pro bono, Plaintiffs Counsel should not now be awarded their full hourly

rates. Instead, they should be awarded a substantially lower amount.

Plaintiffs Counsel states that the fact that they were originally going to provide their

services pro bono does not prevent them from collecting their full hourly rates as provided for by

42 U.S.C. 1988.



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Defendants Contend That The Total Amount Of Plaintiffs Counsels Requested Award IsDisproportionate To The Amount Of Damages Awarded At Trial_______________________

Defendants Counsel contend that the total amount of fees requested by Plaintiffs

Counsel is disproportionate to the total amount of damages awarded Plaintiff by the jury at trial.

Plaintiffs Counsel state that the proportion of damages to attorneys fees in 1983 cases

is not a proper consideration and that consideration of this factor actually undermines the

purpose of awarding fees in 1983 cases.

8. This Statement for fees is based upon a judgment entered following a jury verdict on

November 27, 2012. Defendants have not appealed that judgment and are undecided on whether

to file an appeal.

Dated: January 10, 2013

Alan N. Salpeter Thomas More Leinenweber Ross H. Neihaus James V. Daffada

KAYE SCHOLER LLP LEINENWEBER, BARONI, & DAFFADA,70 W. Madison St., Ste. 4200 LLCChicago, Illinois 60602 203 N. LaSalle St., Ste. 1620Tel: (312) 583-2300 Chicago, IL 60601Fax: (312) 583-2360 Tel: (312) 663-3003Counsel for Plaintiff Fax: (800) 896-2193

Counsel for Defendants



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EASTERN DIVISION

ROBERT L. WINSTON,

Plaintiff,

v .


Defendants.

)))))))))

Case No. 10-cv-8218


PLAINTIFFS MEMORANDUM OF LAWIN SUPPORT OF 42 U.S.C. 1988 FEE PETITION

Pursuant to 42 U.S.C. 1988 and Local Rule 54.3(f), Plaintiff Robert L. Winston (Winston or

Plaintiff), by and through his attorneys, respectfully petitions this Court for an order granting attorneys

fees to Alan Salpeter and Ross Neihaus of Kaye Scholer LLP (collectively, Counsel or Plaintiffs

Counsel).

INTRODUCTION

Winston respectfully requests that Plaintiffs Counsel be awarded a total of $336,918 in

attorneys fees, which includes $241,543 in fees through the end of trial on November 27, 2012, and an

additional $95,375 accrued from trial through January 3, 2013. The Court should award the full amount

of these fees for the following reasons:

This Court appointed Alan Salpeter (Salpeter) to represent Winston when he was in a

period of significant professional turmoil (i.e., his law firm was collapsing). Despite this

hardship, Salpeter and Ross Neihaus (Neihaus) eagerly accepted and effectively carried out

the representation.

From the start, Winstons case presented many difficulties. The case had challenging facts.

There was sharply conflicting evidence about the circumstances surrounding the tasering of



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Winston. Winston was the only witness available to testify about his abusive treatment at the

hands of the defendant police officers; and he would be testifying against two veteran

Chicago police officers. The law itself provided the defendant officers much leeway for their

actions.

Winston encountered additional obstacles while developing his case. The defense witnesses

failed to show up for their depositions on multiple (at least 5) occasions, causing Plaintiffs

Counsel to work harder than would otherwise have been necessary. Defendants also failed to

respond to Winstons offer of settlement in a timely manner, and they refused to engage in

any settlement dialogue at all.

Despite these circumstances, Counsel succeeded in procuring a significant jury verdict for

Winston. At trial, Plaintiffs Counsel, through Winston, gave convincing explanations for

each piece of evidence that, at first, appeared harmful to Winstons case. Counsel also

undermined the credibility of the primary defendant, Officer OBrien, by impeaching him on

several important issues with his own deposition testimony (and with Officer Yatess

testimony). By so doing, Counsel convinced a panel of eight jurors to find in Winstons

favor and to assess punitive damages against Officer OBrien.

On January 4, 2013, Plaintiffs Counsel and Defendants Counsel met and conferred about the

proper amount of attorneys fees to be awarded, as required by Local Rule 54.3. Although they did not

come to agreement, they did narrow the issues substantially. Defendants Counsel indicated that they do

not contest the number of hours that Plaintiffs Counsel worked. They only contest the hourly rate that

Plaintiffs Counsel is requesting, and they have an overall objection to the disproportionality of the

requested fees as compared to the damages awarded at trial. This is described in the Local Rule 54.3(e)



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Joint Statement, attached as an exhibit to Plaintiffs 42 U.S.C. 1988 Fee Petition (filed concurrently

herewith).1

For the reasons set forth in this memorandum, Plaintiffs Counsel should be awarded the full

lodestar amount of their fees, which totals $336,918.

FACTS

Winstons Case Had Significant Challenges

On or about May 10, 2012, Winston called Salpeter on the telephone and informed him that the

Honorable Judge Elaine Bucklo had assigned Salpeter to be his lawyer in this matter. 2 At that time,

Salpeter was in his final days as a partner at Dewey & LeBoeuf LLP, a law firm which was in the midst

of a sudden and very public financial crisis that, ultimately, resulted in the firms bankruptcy. Neihaus

was also working at Dewey & LeBoeuf and was also in his final days of employment there.

Despite the precarious situation, Salpeter did not hesitate to eagerly accept the appointment.

Within a short time, Salpeter and Neihaus together began working at their new law firm, Kaye Scholer

LLP, and quickly set up a face-to-face meeting with Winston.

After meeting with Winston, Counsel knew that this would be a difficult case to win for several

reasons. Many of the facts were unfavorable for Winston. Winston had a long arrest record, and he had

served time in prison for prior felonies. On this particular occasion, Winston was arrested for threatening

his neighbor with two kitchen knives, and he admitted to swearing and yelling racial slurs at the Officers

during the course of his arrest. Additionally, Winston had pleaded guilty to battering Officer OBrien just

before he was tasered and had served about two years in prison for this offense. During his plea hearing,

Winston had stipulated that he threatened and swore at both of his arresting officers,3 elbowed Officer

1 Plaintiffs Counsel has provided detailed time and work records to Defendants Counsel. Because DefendantsCounsel does not object to the number of hours worked by Plaintiffs Counsel, these records are not attached to thismemorandum. Plaintiffs Counsel can provide these time and work records if the Court wants to review them.

2 Although the appointment had been made one month earlier, Salpeter was not aware of the appointment untilWinstons call. (Affidavit of Alan Salpeter, hereafter Salpeter Aff. 3 (attached hereto as Ex. A).) For theCourts convenience, copies of all exhibits referenced herein will be delivered to the Courts chambers.

3 This refers to Officer Matthew OBrien and Officer Nicholaus Yates, the defendants in this action.



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OBrien in the chest (causing the officer bodily harm), and spat in Officer OBriens eye. See Transcript

of Trial (Trial), Winston v. OBrien, et al., Case No. 10-cv-8218 (Nov. 26 & 27, 2012) at 63:10-14.4

Winston also had stipulated that one of his handcuffs was undone when he battered Officer OBrien and

when Officer OBrien had tasered him. Report of Proceedings, People v. Winston, Case No. 10-CR-

06474 (Cir. Ct. Cook Cty. Dec. 9, 2011) at 9:10-22 (attached hereto as Ex. B). Finally, Winston admitted

that, just before he was tasered, he told the Officers that he was going to f*** them up and find out

where they live and kill them. (Trial at 49:22-24.)

Other evidence also was problematic for Winston. Winston claimed that he was tasered multiple

times, but the official taser report which had been stored in the computerized police files showed that

Officer OBrien had activated the taser once for five seconds. Robert could not produce the clothing that

he claimed the Officers had ripped during their altercation, and he could not procure any video footage

from the thirty-one security cameras at the 5th District Police Station -- where the tasering occurred.

Moreover, it seemed that at trial, Winston could suffer a credibility deficit. The only witness for

the Plaintiff would be Winston himself who, again, had pleaded guilty to, and been convicted of, an

offense stemming from his conduct in this situation. Defendants, on the other hand, would have two

witnesses (the defendants themselves), both of whom were veteran police officers. Winston had an

extensive criminal history, while both Officer OBrien and Officer Yates had received many awards and

commendations over their police careers. Winstons credibility deficit seemed even more worrisome

when the final jury had been selected, which did not include a single African-American 5 and which

consisted of several jurors with relatives and close friends who were police officers.

The law also provided challenges for Winston. Under the applicable law, to escape liability, the

Officers did not need to show that they acted perfectly during the tasering incident -- they merely needed

4For the Courts convenience, a copy of the complete trial transcript, with highlights of items referenced herein, will

be delivered to the Courts chambers.

5 Winston is African-American, and both Officer OBrien and Officer Yates are Caucasian.



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to show that their actions were not unreasonable in the circumstances. This provided the Officers with a

wide degree of discretion in determining the amount of force that was appropriate to use against Winston.

Additionally, when Plaintiffs Counsel was appointed to the case, discovery was already closed. 6

Winston had not taken any depositions when discovery had been open, and Winston had given his

deposition months before without having had the benefit of an attorney to represent him.

Plaintiffs Counsel Encountered Additional Obstacles While Developing The Case

Despite these troubling, initial circumstances, Plaintiffs Counsel began pursuing the case

diligently. Counsel met with Winston several times in the following months and spoke with him on the

phone on many more occasions in order to gain a full understanding of the facts, formulate legal theories

and strategies, and consider additional discovery that was needed before trial. Counsel also analyzed

various legal issues that were important to presenting the case, including police misconduct, applicable

1983 law, taser functionality and use, and other related issues.

To properly prosecute the case, Counsel decided that they needed to depose the two defendant

Officers as well as one non-party eye witness (Officer William Carter, the lock-up officer). Counsel

composed and submitted a Motion to Reopen a Limited Discovery asking that the Court allow them to

complete these depositions (a motion that this Court subsequently granted). Even with the Courts

permission to perform these depositions, however, Counsel encountered significant difficulties and delays

in actually scheduling and taking the depositions.7

6 Discovery had been closed since January 2012. Winston had represented himself up until May 2012.

7 The defense witnesses repeatedly failed to show up for their depositions. Here is a brief chronology of PlaintiffsCounsels attempts to take the defense witnesses depositions:

Sept. 10, 2012: Plaintiffs Counsel schedule all depositions for Sept. 27 & 28.

Sept. 25, 2012: Defendants Counsel confirm that all of the deponents would be attending their depositions,which were scheduled for two days later.

Sept. 26, 2012: Defendants Counsel cancel all of the depositions and ask to reschedule them. ThoughPlaintiffs Counsel had done much work to prepare for the depositions, Plaintiffs Counsel agree toreschedule the depositions for Oct. 3 & 4 on the condition that this...will be the last time that we do so (asour pretrial deadlines are quickly approaching). (Email of Sept. 26, 2012, attached hereto as Ex. C).)

Oct. 3, 2012: Plaintiffs Counsel appear to take the deposition of Officer Carter (whose attendanceDefendants Counsel had agreed to procure). Officer Carter, however, does not show up for hisdeposition. Defendants Counsel then state that none of the deponents would be showing up for theirdepositions on that day or the next and, again, request to reschedule allof the depositions. In an attempt to



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Defendants delays persisted throughout the proceedings. On October 31, 2012, Plaintiffs

Counsel sent a letter offering to settle the case but did not receive a response until just a few days before

trial (on November 21).8 In that response, Defendants Counsel informed Plaintiffs Counsel that the City

of Chicago (the City), which would be paying any settlement, had declined Winstons settlement offer.

The City also refused to make a counter-offer or to otherwise discuss settlement. Plaintiffs Counsel had

no choice but to proceed to trial.

Plaintiffs Counsel Succeed In Obtaining A Verdict

At trial, Plaintiffs Counsels vigorous preparations paid off. Presenting evidence to a panel of

eight jurors, Counsel explained, through Winston, the circumstances surrounding Winstons arrest and

guilty plea in this case; they presented viable and clear rebuttals for each of the negative facts to which

Winston had stipulated; and they helped Winston convey those alternative theories in a clear and

persuasive manner.

Counsel further called into question the Officers testimony by severely undermining Officer

OBriens credibility. Counsel undermined Officer OBriens credibility by exposing his inconsistent

be cooperative and to avoid taking the matter to the Court, Plaintiffs Counsel agree to reschedule thedepositions for October 4 & 5.

Oct. 4, 2012: Officer Yates is deposed. Defendants Counsel then cancel one of the depositionsscheduled f or Oct. 5 because the deponent, Officer OBrien, was on vacation for an indeterminate amountof time. This was the case even though Defendants Counsel had only scheduled the deposition the daybefore.

Oct. 5, 2012: Plaintiffs Counsel appear for the second time to take the deposition of Officer Carter.Officer Carter, however, does not show up for his deposition for the second time. Additionally,Defendants Counsel inform Plaintiffs Counsel that they could not reschedule either of the remainingdepositions (those of Officer Carter or Officer OBrien) because they could not get hold of the witnesses.Plaintiffs Counsel send Defendants Counsel an email detailing all of the scheduling mishaps which hadoccurred thus far and stating that they saw no choice but to seek the assistance of the Court in schedulingthe depositions. Defendants Counsel request that Plaintiffs Counsel refrain from petitioning the Court

and, within days, give assurances that Plaintiffs Counsel could take the remaining depositions onOctober 15 & 16. Oct. 15, 2012: Plaintiffs Counsel take the deposition of Officer OBrien. Oct. 16, 2012: Plaintiffs Counsel appear for the third time to take the deposition of Officer Carter. Officer

Carter, h owever, f ails to show up for his deposition f or the thir d time.

Oct. 17, 2012: Plaintiffs Counsel take the deposition of Officer Carter.

As a result of these cancellations and/or forced delays, Plaintiffs Counsel were made to do far more work thanshould have been necessary and to spend additional hours that could have been avoided.

8 This was actually Plaintiffs Counsels second time attempting to initiate settlement discussions.



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testimony about whether Winstons handcuffs were on or off at the time of the tasering. (Trial at 214:21-

216:19.) They also undermined Officer OBriens testimony that he had gone to the hospital following

the incident allegedly because Winston had spit at him. (Trial 218:21-221:14.) And, in one version of his

sworn testimony, OBrien forgot to mention that Winston had made physical contact with him. (Trial at

216:20-217:25.)

Plaintiffs Counsel also used Officer Yates to undermine Officer OBriens credibility while, at

the same time, gaining a pivotal admission in the case. At trial, Officer OBrien said that he only tasered

Winston one time. (Trial at 184:3-5.) When Counsel followed up on this point with Officer Yates,

however, Officer Yates stated that Officer OBrien may have tasered Winston more than twice. (Trial

at 241:21-23.)9

Through a carefully planned presentation of the evidence, Plaintiffs Counsel persuaded the jury

that Officer OBrien had used excessive force when he tasered Winston in the police station while

Winston was fully handcuffed with both hands behind his back. Counsels presentation was so effective

that, even though the jury only awarded nominal compensatory damages (as Winston, admittedly, had no

receipts or other verifiable evidence of the injuries he suffered), it took the unusual and significant step of

assessing $7,500 in punitive damages against Officer OBrien. Counsel achieved these results without

resorting to aggressive tactics, such as attacking the character or reputation of the Officers individually or

of the Chicago Police Department generally.

ARGUMENT

As this Court well knows, under 42 U.S.C. 1988, the prevailing party in a 1983 claim may

recover attorneys fees. See City of Riverside v. Rivera, 477 U.S. 561, 578 (1986) (fee awards are

designed to encourage the bringing of meritorious claims which might otherwise be abandoned because

of the financial imperatives surrounding the hiring of competent counsel). The presumptive amount of

9 Defendants post-trial motions for judgment notwithstanding the verdict misstate this testimony on severaloccasions. The defense motions state that Officer Yates testified that OBrien tasered Winston more than once.This is incorrect. Yates said at trial that OBrien tasered Winston more than twice. (Trial at 241:21-23.)



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the fee award is calculated by multiplying the number of hours reasonably worked by a reasonable hourly

rate (known as the lodestar method). Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The amount of

the award may not be changed from the lodestar amount arbitrarily. Spellan v. Bd. of Educ. for Dist., 59

F.3d 645, 657 (7th Cir. 1995). The fee award, however, may be influenced by a variety of factors as

described by the United States Supreme Court in Hensley. These factors include, for instance, the results

obtained, the experience, reputation, and ability of the attorneys, and the preclusion of alternative

employment due to acceptance of the case. Hensley, 461 U.S. at 429-30, n.3.10

For the following reasons, Plaintiffs Counsel are entitled to the entire amount of their lodestar

fees of $336,918 for all of their work through January 3, 2013. While Plaintiffs Counsel also believe that

some of the Hensley factors warrant an upward adjustment of the fee award, they are not requesting such

an adjustment.

1. Winston Is The Prevailing Party And Is Entitled to Attorneys Fees

When a plaintiff wins a victory on liability, he or she is entitled to recover attorneys fees. See

Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998) (If a plaintiff ultimately wins on a particular claim,

she is entitled to all attorneys fees reasonably expended in pursuing that claim.). The plaintiff does not

need to win on every claim, though, or even a majority of his or her claims, to recover a full fee award. A

lawsuit with multiple claims should not be viewed as a series of discrete claims. Hensley, 461 U.S. at

435. In many cases, including this one, the work done by Plaintiffs Counsel cannot be divided claim-by-

claim because the core set of facts and claims are so closely related. As the United States Supreme Court

has stated, [m]uch of counsels time [in a civil rights action] will be devoted generally to the litigation

as a whole, making it difficult to divide the hours reasonably expended on a claim-by-claim basis. Id.

10 According to the United States Supreme Court, however, the fact that Plaintiffs Counsel had initially been willingto provide Winston with services pro bono does not factor in to this analysis. See Blanchard v. Bergeron, 489 U.S.87, 95 (1989) (That a nonprofit legal services organization may contractually have agreed not to charge any fee of acivil rights plaintiff does not preclude the award of a reasonable fee to a prevailing party in a 1983 action,calculated in the usual way.); Blum v. Stenson, 465 U.S. 886, 893-95 (1984) (The statute and legislative historyestablish that reasonable fees under 1988 are to be calculated according to the prevailing market rates in therelevant community, regardless of whether plaintiff is represented by private or nonprofit counsel) (rejecting thenotion that the fees calculated by the lodestar method provide a windfall forpro bono attorneys).



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floor. Everyone agrees that while the taser was deployed one time, it stayed on for five seconds,

and within those five seconds you can tase somebody multiple times. So considering just these

agreed-upon facts, there's no doubt that the officers used excessive force against Robert.

(Trial at 259:16-24.)

Officer Yates also was a defendant, but the claim alleged against him constituted a minor part of

Winstons case. Winston alleged that after he was tasered, Officer Yates and Officer OBrien punched

him several times. Despite this allegation, almost none of Winstons case actually focused on Officer

Yates or his punches. In fact, when Counsel examined Officer Yates as an adverse witness, Counsel did

not once ask Officer Yates about the punches. Instead, Counsel asked Officer Yates: (i) whether Winston

hit Officer OBrien before Officer OBrien deployed the taser; (ii) whether Winstons handcuffs were on

or off at the time that he was tasered; (iii) the number of times that Officer OBrien tasered Winston; and

(iv) Officer Yatess personal experience with tasers. In other words, not only did Counsel decline to ask

Officer Yates questions about the punches, but their examination of Officer Yates was focused exclusively

on Officer OBriens tasering of Winston.

The war which Winston was fighting was over Officer OBriens use of excessive force and, on

that overriding theory of the case, the jury handed Winston a clear victory.

Winstons Victory Was Significant

The jury not only found that Officer OBrien used excessive force against Winston, but it took the

extraordinary step of imposing punitive damages. By any objective standard, this is an excellent result for

Plaintiff. See Hensley, 461 U.S. at 435 (explaining that even when a plaintiff is not successful on all

claims, [w]here a plaintiff has obtained excellent results, his attorney should recover a fully

compensatory fee.).

That Winstons award primarily consists of punitive damages, [this] in and of itself demonstrates

the plaintiffs significant victory. Edwards v. Rogowski, 2009 WL 742871, at *2 (N.D. Ill. March 18,

2009); see also Thomas v. City of Tacoma, 410 F.3d 644, 648 (9th Cir. 2005) (The jurys award of

punitive damages alone is sufficient to take it out of the nominal category.). By finding as it did, the jury

convey[ed] the communitys intolerance of the abusive tactics employed by [Officer OBrien] in this



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case, and Winston thereby contributed to the deterrence of future civil-right violations. Edwards,

2009 WL 742871, at *2 (citing Riverside, 477 U.S. at 575).

As the Seventh Circuit has emphasized:

The value of [Winstons] victory cannot be gauged by the modest size of the damages awarded. Ajudicial decision that finds a violation of constitutional rights and punishes the perpetrator with an

award of punitive damages not only vindicates constitutional principles but is a deterrent to future

violations, to the benefit not only of the plaintiff but of others in similar situations. If these were

not permissible considerations, no attorneys fees could be awarded in a case where the plaintiff

obtained only nominal damages. That is not the law.

Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988) (internal cites omitted). 11

Hence, in civil rights cases such as these, where plaintiffs recover small or even nominal

compensatory damages but some amount of punitive damages, courts routinely grant requests for

attorneys fees. See, e.g., Ustrak, 851 F.2d at 989 (awarding fees where plaintiff recovered only $1 in

compensatory damages but $1,000 in punitive damages, regardless of the fact that plaintiff had sought

one million dollars and prevailed on only one out of six claims); Estate of Borst v. OBrien, 979 F.2d 511,

515 (7th Cir. 1992) (awarding attorneys fees where the plaintiff recovered only $500 in compensatory

damages but also $500 in punitive damages).

In this case, Plaintiffs Counsel overcame a series of troubling facts and convinced a jury to make

an award that is significant and that contribute[s] to the deterrence of future civil-rights violations.

11 It is of no consequence that Counsel did not receive all of the damages requested at trial. After all, [a] lawyerwho figures out the likeliest outcome in his favor, and aims only for that, is likely to fall short. The good lawyeraims higher, and is not improvident to do so. Jaffe v. Redmond, 142 F.3d 409, 417 (7th Cir. 1998) (emphasis

added) (internal citation omitted); see also Hensley, 461 U.S. at 435, n.11 (Nor is it necessarily significant that aprevailing party did not receive all the relief requested so long as the relief obtained justified that expenditure ofattorney time); Hyde v. Small, 123 F.3d 583 (7th Cir. 1997) (When the civil rights plaintiff aims small, and obtainsan amount that is significant in relation to that aim (it need not reach the target), he is prima facie entitled to anaward of fees...).

Besides, Counsel specified in their closing argument that their requested damages were merely estimates of thevalue of Winstons damages, and they declined even to suggest an amount of punitive damages. (Trial at 270:12-21;271:11-13.)



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The case was factually and legally difficult, and the result is excellent.12 For their efforts on behalf of

Winston and for the results obtained, Counsel should receive their full lodestar fee award.

2. Plaintiffs Counsels Hourly Rates Are Reasonable

The appropriate hourly rate for an award of fees is the rate that lawyers of similar ability and

experience in their communities normally charge their paying clients for the type of work in question.

Harper v. City of Chicago Heights, 223 F.3d 593, 604 (7th Cir. 2000), quoting Spegon v. Catholic Bishop

of Chicago, 175 F.3d 544, 555 (7th Cir. 1999). [T]he burden is on the fee applicant to produce

satisfactory evidence -- in addition to the attorneys own affidavits -- that the requested rates are in line

with those prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation. Blum, 465 U.S. at 895, n.11. Once Plaintiff has done so, the burden shifts to

the defendant to provide a good reason why a lower rate is essential. People Who Care v. Rockford Bd.

of Educ., 90 F.3d 1307, 1313 (7th Cir.1996) (quoting Gusman v. Unisys Corp., 986 F.2d 1146, 1151 (7th

Cir.1993)).

This rate is best determined by the market, leading courts to hold that [t]he attorneys actual

billing rate for comparable work is presumptively appropriate to use as the market rate... People Who

Care, 90 F.3d at 1310 (7th Cir. 1996) (internal quotes omitted). This is fair because [i]f [the lawyer was]

not representing this plaintiff in this case, the lawyer could sell the same time to someone else. Gusman,

986 F.2d at 1150 (7th Cir. 1993); see also People Who Care, 90 F.3d at 1313 (The focus should be on

the amount the attorneys would have made if they had not been representing the plaintiffs in this case).

These principles hold true in cases such as this one, where a large law firm represents a client in

pursuing a 1983 claim. See Davis v. Budz, Case No. 99-cv-3009, 2011 WL 1303477 (N.D. Ill. March

12 In Riverside, the Supreme Court recognized the difficulty of prevailing in a lawsuit against police officers and ofobtaining a large damages award from such a lawsuit. 477 U.S. at 571, n.5 (quoting the District Court: I have triedseveral civil rights violation cases in which police officers have figured[,] and in the main[, the officers] prevailed

because juries do not bring in verdicts against police officers very readily.... The [small] size of the verdicts againstthe [officers] is not at all surprising because juries are very reluctant to bring in large verdicts against police officerswho dont have the resources to answer those verdicts. The relief here I think was absolutely complete.)



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31, 2011) (calculating fees for lawyers from Schiff Hardin, a national law firm with nearly 400 attorneys,

at their normal billing rates in a 1983 case); Natl Foreign Trade Council, Inc. v. Giannoulias, Case No.

06 C 4251, 2007 WL 2688454, at *2-3 (N.D. Ill. Sept. 7, 2007) (awarding attorneys from Winston &

Strawn fees based on their full hourly rates under 1988); see also Youakim v. McDonald, 171 F.R.D.

224, 230 (N.D. Ill. 1997) (explaining that commercial rates obtained by a prevailing attorney from her

paying clients [in non-civil rights cases] are relevant to the attorney's presumptively reasonable rate,

which is measured by the opportunity cost of the civil rights case.) ( applying Cooper v. Casey, 97 F.3d

914, 920 (7th Cir.1996)); but see Cooper, 97 F.3d 914.

Alan Salpeter

Alan Salpeter has been a trial lawyer for over 40 years and has tried over 70 cases to judgment.

He worked at Mayer Brown for 35 years, 29 years as a partner, and he served 6 years as co-head of the

Litigation Department. In 2007, Salpeter became a Partner at Dewey & LeBoeuf, a position which he

held for 5 years. Salpeter currently serves as Special Counsel at Kaye Scholer with all the duties and

privileges of a senior trial partner in the firm.

Salpeter is a Fellow of both the American College of Trial Lawyers and the International

Academy of Trial Lawyers. His practice is national in scope, and he has tried cases in courts throughout

the country, including in Illinois, New York, Washington, D.C., Florida, Texas, California, and more.

Salpeter has litigated some of the largest securities fraud cases ever filed, including the Enron

Securities Case, the WorldCom Securities Case, the Cendant Securities Case, the Oracle Securities Case,

the BellSouth Securities Case, the AtHome.com Securities Case, and many others. (Salpeter Aff. 13.)

Salpeters current billable rate is $925 per hour. This is similar to the rate charged by trial

lawyers with Salpeters skill and 40 years of experience at other large, national law firms. (See Affidavit

of M. Randall Oppenheimer (attached hereto as Ex. D).) For instance, as shown in the accompanying

Summary of Comparable Rates with Supporting Materials (attached hereto as Ex. E), other experienced,

national trial lawyers with over 35 years of experience regularly bill at least $925 per hour, and many



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often over $475. Neihaus previously worked with Salpeter at Dewey & LeBoeuf, and during that time,

Neihaus regular billable rate was $495 per hour. (Salpeter Aff. 16.)

Neihaus played an important role in preparing this case for trial and in trying it (where he

presented roughly half of Winstons case). For this, his firm should be compensated for all of his time

spent (which defendants do not dispute), even though he is at the beginning of his legal career. See

Riverside, 477 U.S. at 570 (If a young attorney demonstrates the skill and ability, he should not be

penalized for only recently being admitted to the bar. (quoting Johnson v. Georgia Hwy. Exp., Inc., 488

F.2d 714, 718-19 (5th Cir. 1974))). In fact, the quality of Neihaus work on this case and his contribution

to the jury verdict were greater than the average second-year attorney and should be seen as more

comparable to that of a fifth- or sixth-year attorney. (Salpeter Aff. 16.)

Eric Sussman

Eric Sussman is Kaye Scholers Chicago Co-Chair of the White Collar Litigation and Internal

Investigations Practice. Sussman concentrates his practice in complex civil and white-collar criminal

litigation, representing individuals and corporations in proceedings involving the SEC, the DOJ, and other

governmental agencies.

Prior to joining Kaye Scholer, Sussman was Deputy Chief of the Financial Crimes and Special

Prosecutions Section for U.S. Attorneys Office, Northern District of Illinois, where he supervised the

successful prosecution of a wide array of cases, including complex securities fraud, tax offenses,

regulatory violations, money laundering, racketeering, and computer-related investigations. Among the

cases that Sussman handled personally were the successful corporate securities and tax fraud prosecution

of Conrad Black and other top executives of Hollinger International.

In all, Sussman tried 29 federal cases, serving as first chair in 23 of them, and has briefed and

argued multiple appeals before the U.S. Court of Appeals for the Seventh Circuit. Prior to joining the

U.S. Attorneys Office, Sussman served as a Law Clerk to the Honorable George M. Marovich, in the

Northern District of Illinois. Sussman graduated from the University of Chicago Law School in 1994 and

earned his undergraduate degree from Amherst College. Sussmans current billable rate is $715 per hour.



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(Salpeter Aff. 17 n.1.) As shown in the accompanying Summary of Comparable Rates with Supporting

Materials (Ex. E), other trial lawyers with Sussmans skill and experience at large, national law firms

regularly bill at least $715 per hour and often over $750. Sussman spent 2- hours advising Salpeter and

Neihaus on this case.

Kenneth Anderson

Kenneth Anderson is an experienced paralegal. He has been a paralegal at Kaye Scholer since

2005, and from 2002 through 2005, Anderson was a paralegal for the law firm Greenberg Traurig.

Anderson graduated from DePaul University with a BA in Psychology. Andersons regular billable rate

is $210 per hour. (Salpeter Aff. 17 n.2.) As shown in the accompanying Summary of Comparable

Rates with Supporting Materials (Ex. E), other paralegals at large, national law firms regularly bill over

$210 per hour.

Because Plaintiff has provided satisfactory evidence...that the requested rates are in line with

those prevailing in the community for similar services by lawyers of reasonably comparable skill,

experience, and reputation, Blum, 465 U.S. at 895, n.11, the burden now shifts to Defendants to provide

a good reason why a lower rate is essential. People Who Care, 90 F.3d at 1313 (quoting Gusman, 986

F.2d at 1151).

Defendants Suggested Rate Of $250 Per Hour Is Not Reasonable

Defendants contend that all attorneys, including Salpeter, Neihaus, and Sussman, should be

compensated at the same rate of $250 per hour. This is inappropriate for several reasons.

First, this is clearly not the the rate that lawyers of similar ability and experience in their

communities normally charge their paying clients for the type of work in question. Harper, 223 F.3d at

604. This is evidenced by the Summary of Comparable Rates with Supporting Materials (Ex. E). What is

more, by suggesting that all attorneys get paid $250 per hour, Defendants are not even attempting to

comport with the law in this area. Surely, Defendants do not credibly assert that Neihaus, who is at the

beginning of his legal career, possesses similar ability and experience to Salpeter, who has more than



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40 years of trial experience in large, complex, high-profile trials, or Sussman, who was lead trial counsel

in the prosecution of Conrad Black.

Second, in the Northern District of Illinois, experienced lawyers regularly receive much more

than Defendants suggested rate under 42 U.S.C. 1988. See Jiminez v. City of Chicago, Case No. 09-C-

8081 at 4-5, 7-8, 10 (N.D. Ill. Nov. 14, 2012) (awarding an attorney with 19 years of experience $495 per

hour and noting that lawyers with more experience have made $535 per hour) (attached hereto as Ex. G),

appeal to underlying case docketed, No. 12-2779 (7th Cir. Nov. 7, 2012); Delgado v. Mak, 2009 WL

211862, at *3, 6 (N.D. Ill. Jan. 29, 2009) (Dow, D.J.) (awarding attorney Flint Taylor, one of the senior

attorneys on the case, $525 per hour);13 Foltin v. Ugarte, Case No. 09 C 5237, Dkt. No. 144, at 18-19

(N.D. Ill. Oct. 12, 2011) (awarding attorney Thomas Morrissey $535 per hour) (attached hereto as Ex. I).

Finally, Defendants request this $250 per hour rate because it is the rate that Defendants Counsel

say they charge the City for billable work. Defendants Counsel, however, did not charge the City $250

per hour for its work in this case. Defendants Counsel charged the City a flat rate for the entire case.

They also did not keep any time or work records, so it is impossible to calculate their effective hourly

rates. On other matters, Defendants Counsel do charge the City $250 per hour, but that is a heavily

discounted rate that was negotiated because the City provides Defendants Counsel with a large volume

of work. For their regularly paying clients, Defendants Counsel charges up to $500 per hour.

3. Awarding Counsel Their Full Lodestar Fees Is Fair And Just

It is also fair and just to award Counsel the full lodestar fee amount. Through this victory,

Counsel has helped Winston achieve a matter of public importance. Congress [has] explicitly

recognized that a plaintiff who obtains relief in a civil rights lawsuit does so not for himself alone but also

as a private attorney general, vindicating a policy that Congress considered of the highest importance.

Riverside, 477 U.S. at 575 (internal quotes and citation omitted)). After all, [i]f the citizen does not have

13 Judge Dows opinion approved the rates without stating them. A copy of the Joint Fee Statement from that case isattached hereto as Ex. H.



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the resources, his day in court is denied him...and the entire Nation, not just the individual citizen,

suffers. Id.

The City of Chicago has the resources necessary to pay this fee award. These fees constitute far

less than 1/100 of 1% of the Citys $6.3 billion budget for 2012 and less than 1% of the Law

Departments $34 million plus budget (not counting insurance). See Hal Dardick & John Byrne,

Emanuels Budget Unanimously Approved, Chi. Trib., Nov. 16, 2011 (attached hereto as Ex. J); Ameet

Sachdev, Chicago Corporation Counsel Seeks To Bring More Legal Work In House , Chi. Trib., May 17,

2011 (attached hereto as Ex. K).14

Proportionality Between The Attorneys Fees And The Amount Of The Jury Award Is Not Required

Defendants argue that the amount of attorneys fees must be proportionate to the damages

awarded at trial. The United States Supreme Court, however, has declared just the opposite that there

need not be any proportionality between damages at trial and attorneys fees, and that to hold otherwise

undermines the purpose of fee shifting in these cases. In other words, it does not matter whether the

attorneys fees are less than, greater than, or even fargreater than the actual damages awarded at trial. As

the United States Supreme Court stated:

Because damages awards do not reflect fully the public benefit advanced by civil rights litigation,Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on

obtaining substantial monetary relief.... The Senate Report specifically approves of the fee awards

14 Clearly, the City should be obligated to pay the fees of Plaintiffs Counsel. First, According to the CollectiveBargaining Agreement between the City and its police officers, the City shall...pay for damages or monies whichmay be adjudged, assessed, or otherwise levied against any officer covered by this Agreement. (Relevant portionattached hereto as Ex. L.)

Second, the City paid for Defendants attorneys and had complete control and decision-making authority over thedefense, including over the trial and all settlement negotiations. Under the Citys control, Defendants refused tosettle this case or even to consider settlement discussions. Additionally, Defendants are continuing to litigate even

after trial. They have recently filed several post-trial motions to which Winston is in the process of responding.The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent [and thefees accrued] by the plaintiff in response. Riverside, 477 U.S. at 580-81, n.11 (internal citation omitted).

Besides, to hold otherwise, and to release the City from its obligation to pay Plaintiffs Counsels fees, wouldundermine the purposes of 1988. See Graham v. Sauk Prairie Police Com'n, 915 F.2d 1085, 1108 (7th Cir. 1990)(Absent indemnification [by the municipality], Graham [the plaintiff] would not actually recover the money shewas awarded in her 1983 suit.... Allowing Graham to recover attorney fees [by] pursuing her indemnity claim[against the municipality] furthers 1988's purpose of ensuring effective access to the judicial process for personswith civil rights grievances.).



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made in cases...[in which] counsel received substantial attorneys fees despite the fact that

plaintiffs sought no monetary damages. Thus, Congress recognized that reasonable attorneys fees

under 1988 are not conditioned upon and need not be proportionate to an award of money

damages.... A rule that limits attorneys fees in civil rights cases to a proportion of the damages

awarded would seriously undermine Congress purpose in enacting 1988.

Riverside, 477 U.S. at 575-76 (emphasis added); see also Wallace v. Mulholland, 957 F.2d 333, 339 (7th

Cir. 1992) (Neither the Supreme Court nor this Court has required any correspondence between the

degree to which a plaintiff has financially prevailed and the attorney fees awarded to him. (emphasis in

original)).

With its verdict, the jury sent a clear and unambiguous message to the City of Chicago: that its

police officers may not taser an individual multiple times when that individual is fully secured in

handcuffs and in a police station environment. If the City receives this message loud and clear, as it

should, then it will be a lesson well learned by the City and well worth the fees it will pay now.

CONCLUSION

Through their skill and substantial efforts, Plaintiffs Counsel have upheld Winstons

constitutional rights while sending a strong message to the City of Chicago regarding the proper treatment

of handcuffed arrestees and proper use of a taser. Plaintiffs Counsel overcame substantial odds in

procuring such a highly successful result and their law firm should be compensated accordingly.

WHEREFORE, Winston respectfully requests that his petition for fees be approved in full.

Dated: January 10, 2013 /s/ Alan N. Salpeter

Alan N. SalpeterRoss H. NeihausKAYE SCHOLER LLP70 W. Madison St., Suite 4200

Chicago, Illinois 60602(312) 583-2300Counsel for Plaintiff



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winston v. o'brien attorney fee petition materials.pdf

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