Free Memorandum - District Court of Arizona - Arizona

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RICHARD J. HARRIS LAW OFFICES, P.C .
304 MACY DR. ROSWELL, GA 30076 (770) 643-1606 (770) 643-1442 fax [email protected]

Richard J. Harris ­ #013859 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, v. CCEC, Connor et al. Defendants. Pursuant to Rule 54, Fed.R.Civ.P. and Local Rule 54.2(b)(2), Plaintiff submits this memorandum of points and authorities in support of Plaintiff's supplemental motion for award of reasonable attorney's fees and expenses and supporting documentation required pursuant to Local Rule 54.2(d). These documents support Plaintiff's claim for an award of attorneys' fees in the amount of $264,865.50,1 and costs in the amount of $10,684.11. The supporting documentation includes: Statement of Consultation by moving counsel, Exhibit A; Fee agreement, Exhibit B; Task-Based Itemized Statement of Fees and Expenses containing the itemization of all fees as required by LRCiv 54.2, Exhibit C; an itemization of expenses totaling $10,684.11 (includes expenses not approved by the clerk pursuant to LRCiv 54.1 for which Plaintiff requests reimbursement as part of the award of attorneys' fees), Exhibit D; Declaration of Plaintiff's counsel Richard J. Harris, Exhibit E; Declaration of Plaintiff's counsel David C. Larkin, Exhibit F; Declaration of CV03 2344 PHX FJM MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS FEES

Plus amounts expended in defense of this motion. Such amounts shall be included in the Reply Brief if Defendants oppose this motion for fees and costs.

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N. Douglas Grimwood, Exhibit G; Declaration of Thomas M. Rogers, Exhibit H. MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF IS ELIGIBILE FOR AWARD OF ATTORNEYS' FEES AND RELATED NON-TAXABLE EXPENSES. A. Authority For Award Of Attorneys' Fees And Related Expenses

5 Pursuant to 42 U.S.C. § 1988, the prevailing party in an action brought under 42 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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U.S.C. § 1983 is entitled to reasonable attorneys' fees. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (a prevailing civil rights plaintiff "should ordinarily recover an attorney's fee"); Missouri v. Jenkins, 491 U.S. 274, 284-89 (1989); United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403, 406-07 (9 th Cir. 1990); and Herrington v. County of Sonoma, 883 F.2d 739, 743 (9 th Cir. 1989) (in civil rights cases in which the plaintiff is the prevailing party, "fee awards should be the rule rather than the exception"). In addition to fees, a prevailing plaintiff "may recover as part of the award of attorney's fees those out-of-pocket expenses that would normally be charged to a fee paying client." Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994). Section 1988 awards are to be based on the "lodestar" method, a reasonable hourly rate multiplied by the number of hours reasonably spent on the case. See Blanchard v. Bergeron, 489 U.S. 97, 94 (1989); Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir.1995); Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.1996); accord Kadish v. Arizona State Land Dep't, 177 Ariz. 322, 331, 868 P. 2d 335, 344 (App. 1993). A civil rights plaintiff is a prevailing party within the meaning of § 1988 "[i]f the plaintiff has succeeded on any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing the suit." Texas Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 791-93 (1989), quoting and citing Hensley, 461 U.S. at 433. That a plaintiff is not successful on all claims is immaterial if he otherwise obtained related relief. See, e.g, Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493,

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517-18 (9 th Cir. 2000)(awarding fees for unsuccessful claims that were intertwined with successful claim), and Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-1053 (9 th Cir. 1991). Here, Plaintiff Matt Shaffer is the prevailing party, having received a verdict for $1.1 Million on his § 1983 claim (reduced by remittitur to a judgment for $660,000.00). B. Nature Of The Case And The Claims And Defenses As To Which Each Party Prevailed.

This case arises out of the abuse of power by Colleen Connor (Connor), the former Director of Arizona's Citizen's Clean Election Commission (CCEC). Connor defamed and stigmatized Shaffer in the course of terminating his employment. Connor's misconduct gave rise to several claims for the conduct alleged. Shaffer sued Connor 2 and the CCEC. Shaffer asserted claims pursuant to 42 U.S.C. § 1983 for violation of his liberty interest and for retaliation for exercising his first amendment rights. Shaffer sued Connor for interference with contractual relations; Shaffer sued Connor and the CCEC for defamation and/or false light invasion of privacy. Shaffer sued the CCEC for wrongful termination.3 To these claims Defendants Connor asserted the defense of absolute immunity and qualified immunity.4 Defendants claimed that because Shaffer did not have a property interest in continued employment, he could not assert a Liberty Interest under the 14 th Amendment. Defendants claimed that punitive damages were not available against Connor because she was a state employee. Connor disputed virtually every element of the liberty interest claim (including the elements of the defamation upon which the liberty interest claim was based). Connor asserted truth as a defense to the stigmatizing statements. Connor
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And her husband, Chad Jacobs (collectively Connor).

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R ICH ARD J. H ARRIS L AW O FFICES , P .C . Shaffer also initially made a claim against Jessica Funkhouser and a claim against the CCEC for Negligent Retention ­ these claims were unilaterally dismissed early in course of discovery. Alleging that qualified immunity shields government officials performing discretionary functions from liability for civil damages, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known, that Connor could reasonably have believed her actions were legal in light of clearly established law and the information she possessed at the time, and that Plaintiff has the burden to show that the federal right at issue was clearly established at the time of the alleged misconduct.
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asserted that because Shaffer was either a public figure or public officer she was absolutely privileged to defame him and that there was no clear and convincing evidence of actual malice. Connor asserted that there was no publication. Connor asserted that there was no duty to provide Shaffer a name clearing hearing unless it was specifically requested (as it was). Connor claimed that publication could not be accomplished by placing the

stigmatizing statement in an employee file subject to disclosure under the Freedom of Information Act. Connor disputed the necessity of a meaningful name clearing hearing. Defendants also argued that Shaffer was barred from making his federal law claims because they were not itemized in his state law notice of claim letter. Defendants claimed that Shaffer failed to mitigate his damages. In post trial motions, Defendants argued that the jury award was excessive and was not supported by evidence. Defendants moved for judgment as a matter of law at the conclusion of Plaintiff's case and again in post trial motions. On his retaliation claims (First Amendment and Wrongful Termination) Defendants argued that Shaffer was a confidential or policy making employee and therefore had no first amendment rights. Shaffer prevailed on all issues raised in the liberty interest claim and the underlying related defamation claim. The jury found for Defendants on the retaliation claims and on the Interference with Contract claim. C. In Determining The Amount Of Reasonable Attorneys' Fees In A Civil Rights Case, The Court Should Determine A "Lodestar" Amount.

The starting point for determining the lodestar amount is the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983), which states "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. 1. The Number of Hours. In this matter Plaintiff seeks compensation for a total

of 931.2 hours spent by Attorney Richard J. Harris (807.5 hrs), Attorney David C. Larkin (103.2 hrs), Attorney Robert Gregory (2 hrs); and paralegal Susan Larkin (18.5 hrs).

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Breakdown of those hours are set forth in Exhibit C and are discussed in the Declarations of Richard J. Harris, and David C. Larkin in support of the motion for award of attorneys' fees and expenses. The hours expended in this action are reasonable and related to Plaintiff's successful claims and judgment of $660,000.00. Counsel exercised billing judgment both in documenting the hours and in reducing certain hours in connection with this submission. See Harris and Larkin Declarations (Exhibits E and F) and Exhibit C. In addition, Plaintiff seeks compensation for time spent defending the judgment in post trial motions as well as time spent preparing and prosecuting the application for attorneys' fees and costs. Accordingly, additional fees will be set forth in a subsequent declaration upon filing of the Plaintiff's reply to the motion for fees. Gates v. Rowland, 39 F.3d 1439, 1448-49 & 1451 (9 th Cir. 1994) (affirming an award of attorneys' fees for preparing and litigating the fee application). The hours "reasonably spent on the case" include time spent investigating and litigating related claims and legal theories. See, e.g., Hensley, 461 U.S. at 435 ("Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters."); Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9 th Cir. 1991) ("Lawsuits usually involve many reasonably disputed issues and a lawyer who takes on only those battles he is certain of winning is probably not serving his client vigorously enough; losing is part of winning."); North Carolina Department of Transportation v. Crest Street Community Council, 479 U.S. 6, 14 (1986)(awarding fees in connection with administrative proceedings prior to suit). The number of hours claimed by Plaintiff's counsel in this case are set forth in the itemization of legal services attached as Exhibit C-4. The number of hours listed in the

itemization are less than the actual number of hours Plaintiff's attorneys and their staff spent on this case. For example, the itemization omits or reduces time spent by Richard J. Harris 5 Filed 04/03/2006

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for addressing the media inquiries and reports on the status of the litigation; time spent by two other attorneys who were once associated with Richard J. Harris on the case; it reduces the number of hours spent by Robert Gregory on research for the case; and it omits time spent on a tangential matter involving the ownership dispute over a clean elections web-site. According to 42 U.S.C. § 1988, the prevailing party in an action brought under 42 U.S.C. § 1983 is entitled to reasonable attorneys' fees, which includes time spent by paralegals and law clerks. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 284-89 (1989); United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403, 406-07 (9 th Cir. 1990). 2. The Hourly Rate. Courts consider two primary factors in determining

hourly rates to be used in calculating the lodestar: (1) the experience, reputation and ability of the attorneys and the skill required to perform the work; and (2) prevailing hourly rates in the legal marketplace. Blum v. Stenson, 465 U.S. 886 (1984). "[A]ttorney fees under § 1988 are to be based on market rates for the services rendered." Missouri v. Jenkins, 491 U.S. at 274, citing Blanchard v. Bergerson, 489 U.S. 87 (1989); Riverside v. Rivera, 477 U.S. 561 (1986) and Blum v. Stenson, supra. The lodestar's "reasonable hourly rate' is "the prevailing market rate in the relevant community," as established by affidavits of counsel, rate determinations in other cases, and other evidence. United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403, 406-07 (9 th Cir. 1990). Current, rather than historic, hourly rates are properly used to calculate the lodestar to compensate for delay in payment. See Missouri v. Jenkins, 491 U.S. at 283, 289-84; White v. City of Richmond, 559 F. Supp. 127 (N.D. Cal 1981), aff'd 713 F. 2d 458 (9 th Cir. 1983)). Clearly, compensation received several years after the services were rendered ­ as it frequently is in complex civil rights litigation ­ is not equivalent to the same dollar amount received reasonably promptly as the legal services are preformed, as would normally be the case with private billings. We agree, therefore, that an appropriate adjustment for delay in payment ­ whether by the application of current rather than historic hourly rates or otherwise ­ is within the contemplation of the statute. Missouri v. Jenkins, 491 U.S. at 283.

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Section III, infra, discusses the experience, reputation and ability of the attorneys and the skill required to perform the work and the prevailing hourly rates in the legal marketplace. Incorporated herein is that section and the declarations of Plaintiff's counsel Harris (Exhibits E and F) and in the declarations of N. Douglas Grimwood (President, Arizona Employment Lawyers Association) and Thomas M. Rogers (Editor, A RIZONA E MPLOYMENT L AW H ANDBOOK) (Exhibits G and H). In light of the Supreme Court's pronouncement on the need for payment of market rates, Plaintiff seeks a constant rate for all hours requested for services from 2002 through the conclusion of this motion in 2006. The hourly rates requested are $290 for Mr. Harris and Mr. Larkin, $150.00 for Robert Gregory and $25.00 for Susan Larkin. As shown hereafter, these rates are within the range of currently prevailing rates in the Phoenix area. II. PLAINTIFF IS ENTITLED TO AN AWARD OF ATTORNEYS' FEES AND RELATED NON-TAXABLE EXPENSES, INCLUDING FEES IN CONNECTION WITH THE APPLICATION FOR FEES. A. Where Plaintiff Has Achieved Excellent Results, He Should Be Fully Compensated For Fees And Expenses Incurred.

Plaintiff, as the prevailing party in a civil rights action, is entitled to reasonable attorneys' fees pursuant to 42 U.S.C. § 1988 and pursuant to 42 U.S.C. § 2000e-5(k). Factors that should be considered in fashioning the reasonable number of hours expended and the reasonable hourly rate of the lodestar include "(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation, (4) the results obtained, and (5) the contingent nature of the fee agreement" ("subsumed factors")." Morales v. City of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir.1996) (internal citations omitted). "There is a strong presumption that the lodestar figure represents a reasonable fee." The lodestar amount is adjusted only in "rare instances." Morales, 96 F.3d at 364, n. 8. Hensley requires the Court to consider the "results obtained" in calculating the lodestar figure. See Morales, 96 F.3d at 364. Where there is "limited success," it may be appropriate

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for some reduction. See, e.g., Farrar v. Hobby, 506 U.S. 103, 115 (1992) ("When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all." (citation omitted)); Webb v. Sloan, 330 F.3d 1158, 1168-69 (9 th Cir.2003). When success is substantial, reduction is inappropriate. Hensley, 461 U.S. at 434 ("Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee"). B. Plaintiff Should Be Awarded Reasonable Out-Of-Pocket Expenses For Items Incurred By Plaintiff's Attorneys.

In addition to attorneys' fees, reasonable out-of-pocket expenses for items incurred by Plaintiff's attorneys, which may be nontaxable costs pursuant to 28 U.S.C. § 1920, are part of an award of attorneys' fees pursuant to 42 U.S.C. § 1988 or pursuant to 42 U.S.C. §2000e-5(k). Davis v. City and County of San Francisco, 976 F.2d 1536, 1544 (9th Cir.1992). A prevailing plaintiff "may recover as part of the award of attorney's fees those out-of-pocket expenses that would normally be charged to a fee paying client." Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir.1994) (reimbursing plaintiff for "necessary and reasonable costs" including "service of summons and complaint, service of trial subpoenas, fee for defense expert at deposition, postage, investigator, copying costs, hotel bills, meals, messenger service and employment record reproduction" in a civil rights action); accord, Doe v. Keala, 361 F.Supp.2d 1171, 1189-90 (D.Ha. 2005); Navarro v. General Nutrition Corp. 2004 WL 2648373, *16 (N.D.Cal., 2004). Such expenses in this case include: 1) Expert Witness Fees pursuant to 42 U.S.C. §2000e-5(k) for litigation consultant/expert witness Dr. Larry Stokes (evaluation and computation of economic damages; testimony at deposition and trial); 2) Deposition costs, including video depositions of witnesses "necessarily obtained for use in the case." Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175 (9 th Cir. 1990); Cherry v. Champion International Corp., 186 F.3d 442, 448-49 (4 th Cir. 1999); 3) Copy Charges, Disc Golf Ass'n

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v. Champion Discs, Inc., 158 F.3d 1002, 1010 (9 th Cir. 1998); 4) Delivery Charges, Davis v. City and County of San Francisco, 976 F.2d at 1556; Harris v. Marhoefer, 24 F.3d at 20; Doe v. Keala, 361 F. Supp. 2d at 1189-90. C. Plaintiff Is Also Entitled To An Award Of Fees On The Motion For Fees.

In civil rights actions, prevailing plaintiffs are generally entitled to recover attorney's fees incurred in the preparation of an attorney's fees motion. "[T]ime spent by counsel in establishing the right to a fee award is compensable." Davis v. City and County of San Francisco, 976 F.2d 1536, 1544 (9th Cir.1992); accord, Gates v. Rowland, 39 F.3d 1439, 1448-49 & 1451 (9 th Cir. 1994) (affirming an award of attorneys' fees for preparing and litigating the fee application). Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th

Cir.1995)("[T]ime spent in establishing an amount of fees awardable under section 1988 is compensable."); Doe, 361 F.Supp.2d at 1189; Bernardi v. Yeutter, 951 F.2d 971 (9 th Cir. 1991) (plaintiff entitled to recover costs incurred in litigating fee petition). III. THE FEES REQUESTED ARE REASONABLE. Local Rule 54.2(b)(2)(c)(3) requires discussion of factors bearing on the reasonableness of the requested attorneys' fees award to determine the reasonable rate and reasonable number of hours to use in calculating the lodestar: (1) The Time And Labor Required Of Counsel. As discussed in Section I(C)(1) above, Plaintiff seeks, after the exercise of billing judgment, compensation for a total of 931.2 hours spent by his attorneys and paralegal in obtaining the award. These fees were incurred over a period of 3½ years. Explanation of the hours expended throughout the phases of the pre- and post-litigation activities is set forth in the Harris Declaration, ¶¶ 18, 19. Attorneys sought to protect Shaffer's rights in litigation by preparing the necessary documents to preserve his claims (i.e. the request for name clearing hearing and the notice of claim letter); the parties engaged in extensive discovery; Shaffer successfully defended his claims against two motions for summary judgment, two motions for judgment as a matter 9 Filed 04/03/2006

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of law, various evidentiary disputes (including Defendants' failure to produce documents); Shaffer defended post trial motions and has prosecuted this claim for attorney's fees. (2) The Novelty And Difficulty Of The Questions Presented. The difficulty of Shaffer's § 1983 claim is demonstrated by the fact that it was more hotly contested and greater weight of argument was given to every element of this claim than any other claim in the case. For example, Defendants' pretrial memorandum contained 8 pages of argument regarding the five counts to be tried. Of this, approximately 6 pages were devoted to the liberty interest claim and the included defamation claim.5 By contrast, the state law claims for wrongful termination and interference with contract received only one or two paragraphs. The Liberty Interest and underlying Defamation claims occupied 12 of 17 pages in Shaffer's response to Connor's motion for summary judgment. Defendants vigorously opposed Shaffer's liberty interest claim relying almost exclusively on case law from foreign jurisdictions. This required Shaffer to address novel defenses that are not recognized in the 9 th Circuit (e.g. the duty to affirmatively request a name clearing hearing; a lower standard for "meaningful hearing" and the argument that there could be no defamation (and thus no liberty violation) because Shaffer supposedly was a public figure). The pretrial discovery, debate and trial testimony was all related to the Liberty Interest claim. Everything pointed to either the underlying stigmatizing comments (defamation); the "plus factor" of Shaffer's termination in connection with the defamation; the failure to provide due process; and/or the damages resulting to Shaffer. Thus all time claimed on this case had direct implication on the Liberty Interest claim. (3) The Level Of Skill Required To Perform The Legal Service Properly. As set forth in the declarations of Richard J. Harris, Thomas M. Rogers and N. Douglas Grimwood, and as the Court is no doubt aware, litigating civil rights claims on behalf of plaintiffs is a

Liberty interest claims are often referred to as "defamation plus." E.g. Aponte v. Calderon, 284 F.3d 184 (1st Cir. 2002).

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very difficult, risky, and often thankless task because of the complexity of both the applicable legal principles and the multiplicity of material factual disputes. This is especially true in the area of litigation pursuant to 42 U.S.C. § 1988, where the qualified immunity defense is always asserted and often granted because no defendant ever admits that the conduct in which he engaged violated the Constitutional rights, or if it did, that such a violation was known or clearly established at the time. Successful civil rights attorneys require skill and experience beyond that of general practitioners, especially those who have not previously dealt with and have not navigated the required steps to understand the necessary elements of the claims and articulate the developing law with sufficient clarity to overcome summary judgment. Many practitioners, even those who regularly engage in employment discrimination litigation, are hesitant to take cases involving claims pursuant to 42 U.S.C. § 1983 due to the complexity of the area and difficulty of overcoming the qualified immunity defense. The undersigned is grateful to enjoy a reputation for such skill and experience. Tom Rogers, the Editor in Chief of the Arizona Employment Law Handbook stated: I know Richard J. Harris to have years of successful experience with these kinds of cases and I confer with him on virtually every § 1983 cases which I take. Richard Harris is among the few lawyers to whom I confidently refer civil rights litigation against the state of Arizona. Rogers Declaration, ¶ 8. (4) The Preclusion Of Other Employment By Counsel Due To Acceptance Of The Case.

Because of the time required to represent Plaintiff, Richard J. Harris, who bore primary responsibility for prosecuting this case, was required to refuse other cases and other fee producing work including dozens of initial consultations during the pendency of this litigation. Harris Declaration, ¶¶ 32-36. Indeed by the conclusion of trial, Harris observed that he had so few other matters pending that he was going to need to rebuild his practice.

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(5)

The Customary Fee Charged In Matters Of The Type Involved. Effective

civil rights litigation requires knowledgeable and experienced counsel who are capable of successfully representing clients in this fairly specialized area. As shown by the Rogers and Grimwood declarations, fees of in excess of $300/hour for senior attorneys are customary in employment discrimination/civil rights cases in this community. In Arizona, several employment defense firms report even higher rates. For examples consider the following median partner hourly rates for firms with Phoenix offices: Greenberg Traurig, $450.00; Ogletree Deakins, $305.00; Quarles & Brady, $335. See Exhibit I, National Law Journal, December 12, 2005. (6) Whether The Fee Is Fixed Or Contingent. As with many employment cases, this case started as an hourly fee based case6 but turned into contingent agreement because after paying only $24,826.40 the client became unable to meet the anticipated future hourly fee obligations. Plaintiff then agreed to pay a relatively small monthly fee ($1,500) with the majority of the fee to remain contingent upon the outcome. See attached Exhibit B. Eventually, Plaintiff became unable even to pay the monthly fixed portion and as an accommodation, the undersigned agreed to waive the monthly payments in anticipation of a contingency fee. Harris declaration. ¶¶ 39-40. (7) The Time Limitations Imposed By The Client Or The Circumstances. None other than Plaintiff's urgency in clearing his name and being made whole. (8) The Amount Involved And The Results Obtained. As the U.S. Supreme Court has acknowledged in this regard, "a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued in monetary terms." Riverside v. Rivera, 477 U.S. 561, 574 (1986); see also, Morales v. City of San Rafael, 96 F.3d 359, 364 (9 th Cir. 1995). In this case, Shaffer was able to clear his name of the false accusations made about
Shaffer and the undersigned hoped that early involvement would result in preservation of his liberty interest, and therefore a short term hourly fee might be best. However, Defendants refused Shaffer's request for both a liberty interest name-clearing hearing and his suggestion of meaningful mediation.
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him in connection with his termination. This vindicates his Constitutional rights. Moreover, the $1.1 Million award, and even the reduced $660,000.00 judgment obtained by Plaintiff clearly demonstrate the relief obtained by Plaintiff is not de minimus nor a technical victory. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Hensley, 461 U.S. at 434. On information and belief, the attorney general's office, Employment lawyer's associations and even the State Bar have taken notice of the importance of Liberty Interest claims as a result of this case. The undersigned has spoken on this matter before the Employment Law Section of the State Bar Association, to two audiences of Plaintiff's employment lawyers and is scheduled to speak at the State Bar Convention this summer. Harris Declaration, ¶ 15, Grimwood Declaration, ¶ 7. (9) The Experience, Reputation, And Ability Of Counsel. The experience,

reputation and ability of the attorneys are discussed in the Declarations of Plaintiff's counsel Harris, Exhibit E and Larkin F. These are supported by the Declarations of Doug Grimwood (Exhibit G) and Thomas M. Rogers (Exhibit H). Briefly, Mr. Harris was admitted to practice in 1991, after graduating cum laude from BYU Law School where he received the American Jurisprudence award for highest grades in employment law. Mr. Harris has served as a contributing author and editor for the A RIZONA E MPLOYMENT L AW H ANDBOOK and on the Arizona Employment Lawyers Association's legislation committee. Mr. Harris also served on the Arizona RAJI committee which recently drafted new employment law instructions (some of which were used in this case). Mr. Harris has taken several cases involving liberty interest violations many of which involved high profile/media intense matters. Similarly, Mr. Larkin was admitted to practice in Arizona in 1981 and as his declaration demonstrates is an abundantly qualified attorney. (10) The "Undesirability" Of The Case. As shown by the declarations of Thomas M. Rogers and N. Douglas Grimwood, and as the Court is no doubt aware, it is extremely difficult for a civil rights claimant to secure legal representation on a contingency fee basis. 13 Filed 04/03/2006

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In that respect, almost all civil rights cases asserted on behalf of plaintiffs are "undesirable" in this jurisdiction. See generally, Fadhl v. City and County of San Francisco, 859 F.2d 649 (9 th Cir. 1988) (approving enhancement of "lodestar amount" based on fact that plaintiff's Title VII cases are undesirable as a class of claims in the relevant legal market). In this case, Shaffer had difficulty securing representation. He was turned down by several lawyers before finding Richard J. Harris. Many lawyers report that they do not like taking cases against the state of Arizona because of the potential for dismissal under qualified immunity and because of the State's reputation for not discussing settlement until late in the case. This case was also unattractive for a number of political reasons: the defendants were highly placed government officers; Shaffer was protecting the rights of the losing candidate for Governor; and the president of the State Bar (Chas Wirken) was representing Defendant Colleen Connor. (11) The Nature And Length Of The Professional Relationship Between The Attorney And The Client.

Other than post-trial motions and appeal, the Plaintiff neither had nor has any ongoing professional relationship with his legal counsel and, hopefully, will never need employment-law and litigation counsel again. Counsel have not and cannot offer diminished fee expectations based on the likelihood of significant fees incurred in connection with an ongoing relationship. (12) Awards In Similar Cases. In recent Ninth Circuit cases involving civil rights claims, the Court approved awards of attorney fees far in excess of the award sought in this case. See Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493 (9 th Cir. 2000); (affirming an award of $580,414 in attorney fees, costs and expenses); Kelly v. City of Oakland, 198 F.3d 779, 784 & 786 (9 th Cir. 1999)(affirming award of fees for 1,074.4 hours at $350/hour, but remanding for further consideration the additional enhancement (multiplier of 1.5) of fees for taking on a difficult, novel and

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undesirable case and preclusion of other work because the novelty and complexity of the case are subsumed in the reasonable fee determination and where plaintiff's attorney lost only one client by taking the case). (13) Any Other Matters Deemed Appropriate Under The Circumstances.

Defendants failed to explore settlement at any stage prior to or during litigation. Despite Plaintiff having made several overtures toward settlement, Defendants never made any offer of settlement. Defendants refused to respond to Plaintiff's notice of claim letter which offered to compromise his claims to $264,000.00. Twice Defendants have refused to make any offer of settlement as a prerequisite to mediation. The fact that almost all the fees incurred could have been avoided and that the state of Arizona could have saved $396,000.00 ($660,000 - $264,000 = $396,000) by settlement early on militates in favor of a full award of attorney's fees. Defendants failed to identify any time entry that it disputed or any basis to dispute the reasonableness of the claimed rate of $290.00/hr. for the attorney time spent. Despite every effort to learn the basis for any dispute, Defendants provided none. However, Defendants also refused to stipulate to the attorneys fees as calculated following the mandatory personal consultation. Accordingly, Defendants are barred from raising a dispute after failing to raise the dispute at the appropriate time for good faith resolution. IV. CONCLUSION For the foregoing reasons, Plaintiff requests that a full lodestar fee be awarded for the hours requested by Plaintiff and at the rate requested, with no reduction; and that Plaintiff be awarded his costs and expenses as outlined herein. SUBMITTED this April 3, 2006. R ICHARD J. H ARRIS L AW O FFICES, P.C. By: s/Richard J. Harris Richard J. Harris 304 Macy Dr. Roswell, GA 30076 15 Filed 04/03/2006

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Copy of the foregoing electronically transmitted via the U.S. District Court's Electronic Case Filing System this April 3, 2006 and to: Jay Zweig Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants s/Richard J. Harris
Shaffer\pleadings\Brief on Application for Attorneys Fees Final

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