Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-1067-REB-CBS

WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant.

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO MOTION FOR AWARD OF ATTORNEY'S FEES AND COSTS ______________________________________________________________________ Plaintiff, William R. Cadorna ("Plaintiff" or "Mr. Cadorna") hereby replies to Defendant's March 29. 2007 Response to Plaintiff's Motion for Award of Attorney's Fees and Costs: I. PLAINTIFF'S FEE AND COST MOTION SUMMARIZED To rehearse for the Court's convenience, Plaintiff has requested an award of attorney's fees, expert witness fees and costs incurred in enforcing his rights under the ADEA, as follows: (1) 924.80 hours of services performed by Mark E. Brennan, P.C., between August 13, 2003 and March 9, 2007, at the rate of $300 per

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hour, or $277,440.00, plus litigation expenses and costs of $14,030.63, for a total of $291,470.63 (Motion, Exh. 2; Exh. 2-A through F); (2) 101 hours of services performed by the Law Offices of Anne Gill, P.C., since January 16, 2007, at Ms. Gill's rates of $275 per hour for her services, $175 per hour for her associate, Sharlene Aitken, and $65 per hour for contract attorney Laurel Adams, or a total (after a highly professional voluntary discount by Ms. Gill for arguably duplicative work) of $20,845.00 (Motion, Exh. 3); (3) Services as an expert witness performed by John Culver, Esq. since December 8, 2006, at Mr. Culver's hourly rate of $300, or $2,167.50, plus $19.43 in costs, for a total of $2186.93 (Motion, Exh. 1); (4) In total, Plaintiff has requested attorneys' fees and costs incurred through March 9, 2007 of $314,502.56. Plaintiff voluntarily exercised considerable billing discretion to reduce his fee request from the 1,159.50 hours to 924.80 hours, or 79.7% of the total hours necessary to preserve or vindicate Plaintiff's rights. Defendant would have this Court reduce Plaintiff's fee award by an additional 221.70 hours, to a mere 703.10 hours, or just 60.63% of the 1,159.90 hours Defendant's willfully unlawful age discrimination forced Plaintiff's counsel to devote, against all odds, to restoring Plaintiff's reputation and career. By global, or cosmic, standards, one mighty fairly ask whether the efforts of any lawyer are worth that much, compared to the courageously selfless efforts of a nurse

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treating AIDS-stricken children in Uganda, a fearless U.S. Marine in Anbar Province, a kindergarten teacher in Watts, or a sewer worker in Denver. According, however, to the unreflectively parochial and narcissistic standards of the American legal community (and the legal standards governing this Court), the efforts of the undersigned in this case are no less worthy of compensation at a high level than the efforts of other lawyers of no greater courage, perseverance, education or skill. After all, we live in a time in which moronic "gang-bangers" who happen to be wondrously talented with a basketball make $500,000 per week, while our greatest heroes are rewarded with but a few hundred dollars per week, the perfunctory "thanks of a grateful nation", and studied neglect.1 II. THE CIVIL SERVICE PROCEEDINGS WERE HARDLY "OPTIONAL". THE CIVIL SERVICE AND SAFEWAY CASES OBVIATED OR SUPPLANTED SIGNIFICANT DISCOVERY, RESEARCH AND BRIEFING THAT WOULD HAVE BEEN NECESSARY HAD THIS ACTION STOOD ALONE. The Civil Service Commission case was hardly "optional". Had Plaintiff attempted to bypass the Civil Service Commission proceedings and go straight to Federal Court with his age claims, no actionable decision by a "final policy-making official or body" of the City and County of Denver would have occurred. Plaintiff would therefore have been foreclosed, as a matter of law, from bringing his §1983 and §1981 race discrimination claims against Defendant in Federal Court. Even had he not been foreclosed from bringing his ADEA claims against Defendant without administrative litigation, Plaintiff would have missed what he
When distinguished Federal Judges make less than wet-behind-the-ears first year associates at Brownstein, Hyatt, Farber and Shrek, one is hesitant to suggest that no less than $300 X 924.80 hours per hour will do, but such are the oddities of our system of justice. "Fair" is "fair".
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reasonably believed to be the best, most efficient possible means of correcting Defendant's discrimination. Defendant undoubtedly would have exploited his failure to pursue administrative remedies as grounds for arguing in this Court, potentially to very good effect, that it should not be held responsible for the discriminatory attitudes of lowlevel managers of which its top decision-makers were arguably unaware. Most importantly, had Plaintiff not pursued his administrative appeal, he would never have had the "benefit" of his strongest cause of action under the ADEA: the City's explicit reliance upon Plaintiff's age as grounds for refusing to reinstate him, even after agreeing that it had unlawfully terminated him. By pursuing his Civil Service Appeal to

hearing, then seeking review by the Civil Service Commission, Plaintiff sought to afford Defendant the opportunity to correct a patent error without the need for protracted litigation. He nearly succeeded, only to find that even the Denver Civil Service Commission and its Hearing Officer have, at best, a peculiar understanding of their obligations under federal law. To be sure, Plaintiff would still have had a sound "pretext" claim to present to the jury. His position was, however, strengthened immeasurably by the explicitly discriminatory actions or omissions of the City's "final policy-making official or body". It would be unjust, and very bad judicial policy, for this already overburdened court to declare, in effect, that plaintiff's attorneys who in good faith recommend that their clients first seek to rectify patently discriminatory conduct short of federal litigation may be punished for doing so, whereas those who bypass administrative litigation, rush

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to the federal courthouse, and conduct their discovery only after filing of the complaint will be handsomely rewarded. Of course, Plaintiff does not rely solely upon legal and policy reasons to claim his counsel's time in litigating his appeals to the Civil Service Commission and his claims against Safeway. Defendant itself relied quite heavily at trial upon testimony and documents from Plaintiff's Civil Service Commission appeals. Defendant's counsel participated extensively in depositions and other discovery activities in Plaintiff's concurrent case against Safeway. Defendant knows quite well that, had both parties not had an extensive opportunity to examine highly material witnesses, such as Joe Hart, Craig Hopp, Frank Hoffman, Rod Juniel, Tracy Howard, Kevin McKee, Gil Lettig, Officer Charles Jones, Safeway Security Investigator Jeff Adkins, and Safeway Security Director James Stein, in the Civil Service Commission or Safeway cases, it would have been absolutely necessary to depose them as part of this action. Only because they were examined as part of the Civil Service case, or as part of joint discovery in the Safeway case, was it unnecessary to examine them as part of discovery in this case. Indeed, every minute or hour spent examining them in the Civil Service or Safeway cases was a minute or hour devoted to examining them as (for all practical purposes) part of discovery in this case. There was complete overlap in the "common nucleus of operative facts" upon which Plaintiff based his claims in all three proceedings. The disingenuousness of Defendant's claim that work in the Civil Service or Safeway cases contributed nothing to the outcome of this case is apparent when one considers the absolutely devastating impact of the videotaped deposition of former

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Safeway Store Manager Michael Brown. Whereas Defendant would [paradoxically, given its denigration of the undersigned's abilities or experience in this fee dispute] have this Court conclude that the undersigned's alleged "misconduct" mesmerized a gullible jury into deciding this case contrary to all the evidence, the Michael Brown deposition clearly contributed far more to Defendant's utter humiliation at trial. Until Plaintiff settled his claims against Safeway just before that deposition, Brown's deposition was to be taken as part of the Safeway case, with full participation by Defendant's counsel. But for the opportunity to examine records and witnesses in

the Safeway case, Plaintiff's deposition of Michael Brown might not have been possible, and most assuredly would not have been so devastating in its exposure of the extent to which Brown was the eager, yet hapless, victim of calculated manipulation and deceit by Defendant. Any discovery in the Safeway case necessarily bore directly on Plaintiff's claims against Defendant. Plaintiff understands, of course, that, lacking any knowledge of the nuances of this case, Defendant's expert is hardly qualified to render an opinion on the utility of prior discovery, testimony, or briefing in the Civil Service or Safeway cases. It is therefore not hard to understand why, especially given the handsome rate at which he is being compensated "for this engagement"2, he fails to acknowledge the connection. Defendant cannot refute findings by other District Court judges that the prevailing rate for attorneys of the undersigned's experience and credentials is, at minimum, $300
Which raises the question whether he charges considerably more for other "engagements", such as the Hoiles v. Alioto case, D.Colo. Civil Action 04-cv-00438, but has "pegged" his rate much lower to assist his municipal client's cause "for this engagement". It is difficult to imagine that he charges such fantastically wealthy clients as Timothy Hoiles no more than Hoiles is charged for the services of someone vastly his inferior, i.e., a junior partner in a large Denver firm.
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per hour. Defendant completely ignores (and attempts to obscure by using an expert from a smaller law firm whose stated rates are relatively modest) that its own outside counsel's rates, and the rates of attorneys at other large firms, far exceed the rate requested by Plaintiff's counsel, even though the credentials and experience of their attorneys are in most cases no better, or inferior. Defendant certainly cannot dispute that, for such an "inexperienced" and illbehaved attorney, Plaintiff's counsel achieved far greater success against Defendant than anyone, other than Plaintiff and his counsel, imagined possible. How exactly does one reconcile the undersigned's "inexperience" with a $1.22 million verdict? III. $275 PER HOUR IS LESS THAN A JUNIOR PARTNER AT ANY BIG FIRM IN DENVER CHARGES FOR HIS OR HER TIME. Defendant would also have this court find that the prevailing hourly rate for Plaintiff's counsel's excellent work is just $275, less than the hourly rate charged by large Denver firms for junior partners in practice for less than eight years! (See Exh. 1, "Affidavit of Mary Hurley Stuart", Exh. 5, Defendant's 2/28/07 Motion for Sanctions, Bat v. A.G. Edwards, D.Colo. Civil Action 04-cv-02225-REB-BNB, attached). In effect, Defendant would have this Court unconstitutionally endorse a "two-tier" system of establishing attorney's fees, one for "big firm" lawyers, such as Richard Barkley, Mary Hurley Stuart, or their minions, whose lives and talents are dedicated exclusively to protecting the rich and the powerful, such as Joseph Alioto [see, e.g., Hoiles v. Alioto, D.Colo. Civil Action 04-cv-00438-JLK-MEH] or A.G. Edwards [Bat v. A.G. Edwards & Sons, Inc., D.Colo. Civil Action 04-cv-02225-REB-BNB], and another

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for those whose clientele are of far more modest means. Equal protection of the law forbids this. Defendant's expert, Thomas McMahon (undeniably a fine Irishman and an extraordinarily capable and experienced advocate), offers no real evidence that $300 per hour would be too much for Plaintiff's counsel's work. He completely ignores findings of other District Court judges to the contrary. Defendant insists that the cases in which those findings were made were somehow distinguishable, but offers no material distinction that bears on the question of the "prevailing market rate". Mr. McMahon has simply quite effectively established that, if far less capable junior partners at Holme, Roberts and Owen, or Brownstein, Hyatt, Farber and Shrek, charge as much as Mr. McMahon or Anne Gill (who literally wrote the book on appellate practice in Colorado), Defendant's expert and Anne Gill clearly charge far less than they are worth! IV. ANNE GILL IS WORTH EVERY PENNY SHE REQUESTS, AND MUCH MORE. DEFENDANT'S DELIBERATE DISTORTION OF PLAINTIFF'S CHARACTERIZATION OF HER FIRM'S WORK IS OUTRAGEOUS. In his Motion for Award of Fees and Costs, Plaintiff requested "a total (after a highly professional voluntary discount by Ms. Gill for arguably duplicative work) of $20,845.00" for 101 hours of services performed by the Law Offices of Anne Gill, P.C. since January 16, 2007. Defendant deliberately distorts Plaintiff's acknowledgement of Ms. Gill's characteristic professionalism into a so-called "admission" that her statement for services reflects "duplicative" effort. This is outrageous. As Richard Barkley would readily acknowledge if asked, Ms. Gill is one of the leading experts in appellate practice

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in the Rocky Mountain West. The prevailing market rate for someone of her standing in the legal community is probably $450-500 per hour, yet she charges much less. She is widely known and respected for her scrupulously ethical and professional approach to her work. Plaintiff was very fortunate indeed that, when his undersigned counsel was faced with an insoluble conflict between his obligation to file responses to post-trial motions in this case and his equal obligation to prepare for trial in another case, Ms. Gill and her able associate, Sharlene Aitken, were ready, willing and able step in and assist. It was not a question of Mr. Cadorna not "allowing" the undersigned to handle all of the post-trial motions; the undersigned was simply unable to handle them all, yet complete all of the extensive work required for the trial (in which he obtained a $500,000.00 judgment) in February. Even with Ms. Gill's assistance, January, 2007 was one of the three busiest months of the undersigned's entire career. Ms. Gill's request for 101 hours is quite reasonable. Surely this Court would agree that her request reflects remarkable efficiency, given the complexity and magnitude of the record and issues to be addressed. Indeed, Ms. Gill would be fully entitled to ask for considerably more. Plaintiff does not doubt that, were roles reversed, Defendant's counsel would display none of the noblesse oblige reflected in Ms. Gill's voluntary discounting of her bill. V. THE REQUESTED REDUCTION IN COSTS IS UNREASONABLE

Plaintiff has neither the time nor the space to reply to each and every nit picked by Defendant with respect to Plaintiff's claim for fees or costs. Plaintiff trusts this Court to deal with the issue of costs fairly and properly. Plaintiff would, however, like to

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remind the Court that the transcripts of depositions of Safeway security officials, in which Defendant's counsel participated because of their importance to this case, and the transcripts of Civil Service proceedings, should be compensated fully, for they, for reasons argued above, were vitally important to, and greatly advanced, Plaintiff's cause in this case. Respectfully submitted this Friday, the 13th day of April, 2007. MARK E. BRENNAN, P.C. /s/ Mark

E. Brennan

P.O. Box 2556 Centennial, CO 80161 (303) 552-9394 or (303) 797-7687 ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE The undersigned hereby certifies that on this Friday, the 13th day of April, 2007, a true and correct copy of the foregoing PLAINTIFF'S REPLY TO RESPONSE TO MOTION FOR ATTORNEY'S FEES AND COSTS was served via the CM/ECF system on the following persons: Richard P. Barkley Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, Colorado 80202 Christopher M.A. Lujan Assistant City Attorney, Litigation City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202 /s/ Mark E. Brennan

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