DOUGLAS GEEN, Complainant

STOUGHTON TRAILERS, Respondent

This matter arises out of a complaint filed in early 1997, alleging that Stoughton Trailers ("ST") discriminated against Douglas Geen ("Geen") because of disability in regard to the termination of Geen's employment. The matter is now before the commission for determination of a number of issues as to attorneys' fees and costs. The nature and scope of these issues are affected by a number of elements of the procedural history of the case, which is described below.
 

Procedural history - An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on September 29, 1999, finding that discrimination had occurred and ordering a remedy. Paul F. X. Schwartz and Darcy Haber, the two attorneys who had been representing Geen, each filed petitions seeking awards of attorneys' fees and costs. In response, ST argued that there had been an unnecessary duplication of efforts by Schwartz and Haber which should result in a reduction in the amount of the fees awarded. In its argument, ST specifically identified certain entries in the fee petitions of Schwartz and Haber which it asserted were duplicative and as to which it argued that the hours of one or the other of the two attorneys should not be allowed. The ALJ addressed this argument by applying a flat 15% reduction to the time claimed by both Schwartz and Haber, for all the hours specifically asserted by ST to have been unnecessarily duplicative. ST also challenged the necessity of the $570.50 in "investigator fees" which had been included in Attorney Schwartz's bill of costs. The ALJ addressed this by reducing the costs allowed for the investigator by $140.

ST filed a petition for review of the ALJ's decision by the commission. Geen's attorneys filed a motion to dismiss the petition for review, contending that it was untimely. The petition was eventually determined to have been timely.

The commission eventually concluded that there had been no discrimination and reversed the ALJ's decision. Thus, it did not address any issue as to attorneys fees.

In subsequent judicial review proceedings, the circuit court reversed the commission's decision and ordered the matter remanded. That decision was upheld by the court of appeals, and the supreme court declined a petition for review. The matter thus came back to the commission for it to reconsider certain issues relating to the question of whether there had been discrimination.

On remand, the commission concluded that there had been discrimination, making it necessary to decide the issues as to attorneys fees and costs. With regard to attorneys' fees and costs for the initial proceedings before the ALJ, the commission affirmed the ALJ's approach to the issues of alleged duplication of effort (i.e., a 15% across-the-board cut in the hours challenged by ST), and the matter of the costs for the investigator. With regard to attorneys' fees and costs for the first course of review proceedings before it, the commission also made an order for specific fees requested by the complainant's attorneys for those proceedings. In connection with that, it ruled that the hours spent on the failed motion to dismiss the petition for review were compensable because under the circumstances the filing of the motion was reasonable. Finally, with regard to attorneys' fees and costs for the second course of review proceedings before it, the commission made a non-specific order for reasonable fees, stating that determination of the amount would abide the final determination in the matter.

ST sought judicial review of this commission decision. The Circuit Court for Dane County, Hon. Michael N. Nowakowski presiding, issued a bench decision on April 26, 2004, confirmed by a May 6, 2004 Order, which affirmed the commission's decision that there had been discrimination, but which set aside in part and remanded in regard to an element of the commission's remedial order.

As noted above, the issues as to attorneys' fees and costs which had arisen and which remained open by the point at which Judge Nowakowski's decision was issued, were (1) the matter of alleged duplication of effort by the attorneys Schwartz and Haber in the proceedings before the ALJ, (2) costs for the investigator, and (3) compensability of time spent by Schwartz and Haber on their unsuccessful motion to dismiss the petition for commission review. The circuit court's oral decision, incorporated into its subsequent confirmatory order, covered all three of these issues explicitly or implicitly. First, the circuit court's decision expressly set aside the commission's decision on the matter of alleged duplication of effort by the attorneys Schwartz and Haber in the proceedings before the ALJ, and remanded the case to the commission for "further proceedings in order to arrive at a more adequately explained fee award for the time spent in the initial agency proceedings". Second, the circuit court's decision expressly affirmed the commission's decision to allow fees associated with the motion to dismiss the first petition for review. Third, by virtue of the fact that the circuit court's decision stated that "the September 11th, 2003 decision of LIRC is affirmed in all respects, except that the award of attorney's fees for time spent in connection with the initial agency proceedings is remanded to LIRC for redetermination consistent with this decision", that decision implicitly upheld the commission's decision regarding costs for the investigator.

The circuit court's decision was appealed by ST and was eventually affirmed, without modification or further mandate, by both the Court of Appeals and the Supreme Court. Stoughton Trailers, Inc. v. LIRC and Geen, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102; aff'd, Stoughton Trailers, Inc. v. LIRC and Geen, 2007 WI 105, _ Wis. 2d _, 735 N.W. 2d 477. With the issuance of the Supreme Court's decision on July 17, 2007, the circuit court's decision became final.

Thus, what remains is for the commission to take the further action contemplated by the decision of the circuit court. This has several elements. One involves the fee award for the proceedings before the ALJ. As to this, the circuit court expressly directed:

The attorney fee award must be remanded to LIRC for further proceedings in order to arrive at a more adequately explained fee award for the time spent in the initial agency proceedings.

This is addressed in section 1. of the discussion below. In addition, several matters concerning costs and fees for the initial proceedings before both the ALJ and the commission are addressed in sections 2. through 4. of that discussion. Finally, the question of fees and costs for proceedings after the point of the commission's first decision is also presented. As to this, the circuit court stated:

[T]he September 11th, 2003 decision of LIRC is affirmed in all respects, except that the award of attorney's fees for time spent in connection with the initial agency proceedings is remanded to LIRC for redetermination consistent with this decision. LIRC is free, of course, to join with this remand obligation a consideration of any further fee requests that may be made by Geen's attorneys.

(emphasis added). Such further requests have been made by Geen's attorneys, and both sides have submitted argument regarding them. These are addressed in sections 5. through 9. below. 
 

Discussion - In calculating reasonable attorney fees, the most useful starting point is to determine a "lodestar" figure, based on the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Roytek v. Hutchinson Technology (LIRC, Feb. 15, 2005), citing Hensley v. Eckerhardt, 461 U.S. 424, 31 FEP Cases 1169 (1983). In this case, there is no dispute over the reasonableness of the hourly rates sought; the principal issue is whether the number of hours expended by various counsel at various points during the litigation was reasonable. 
 

1. Attorneys' fees for initial ERD proceedings (before the ALJ) --

As noted above, after the ALJ issued his preliminary non-final decision finding discrimination and schedule for submission of an attorneys' fee request and a response thereto, Attorneys Haber and Schwartz on September 3, 1999 filed petitions seeking attorneys fees for the initial proceedings before the ERD, up through the ALJ's decision. The petitions sought $18,358.25 for Attorney Haber, based on approximately 150 hours of work, and $18,656.25 for Attorney Schwartz, also based on approximately 150 hours of work. (1)

In its response filed on September 14, 1999, ST focused on a number of specific billing entries as to which Haber and Schwartz both reported work on the same task, and as to which it asserted that the services of only one attorney would have been sufficient. As to those entries, ST argued that only one attorney's fees should be allowed, and that as between the two attorneys it should be the one who billed a smaller amount for that task (in some cases this was Haber, as a result of her rate initially being lower than Schwartz's; in other cases one of the attorneys had a lower fee because less time was claimed for the task). The total amount of the reduction which would occur if ST's approach was adopted, was $12,975.

ST expressly disclaims any challenge to the fact that two attorneys were involved in this case, noting for example that it did not challenge the many phone conferences between Haber and Schwartz regarding status updates and case strategy, even though that time would probably have been unnecessary had this case been handled by only one attorney. ST also stated that it did not challenge time claimed for post-hearing briefs, because the entries indicated that the attorneys divided the brief writing tasks between themselves. Rather, it asserted, it was objecting to tasks which it contended were duplicated by Haber and Schwartz. It argued that the very fact that the entries relating to brief writing clearly delineate separate tasks done by each attorney, showed that where they elsewhere failed to delineate separate tasks, they were duplicating one another's efforts.

On September 21, 1999, Attorney Schwartz filed a letter responding to ST's response to the petition for attorneys' fees. This letter makes generalized arguments that he and Haber spent no more time on the case than they believed was absolutely necessary. He characterizes ST's argument as being that because he and Haber both engaged in activities of similar description their efforts were necessarily duplicative and therefore could have been completed in the time taken by one of them, an argument he calls illogical. He argues that the collaborative approach was more efficient because it resulted in a more thorough product.

However, while ST's response to the fee petition had identified particular listings that it asserted reflected duplication of effort, Schwartz did not respond to these with any specificity, except in two respects. One of the specific responses made by Schwartz to ST's arguments concerned the entry for May 25, 1998, shown as "meeting regarding formulating discovery responses." The only other specific response made by Schwartz to ST's arguments concerned Schwartz and Haber conducting depositions together on October 21 and November 6, 1998. This is discussed in more detail below.

The ALJ addressed the "duplication of effort" issue by applying a 15% reduction to the fees for the hours of each attorney which ST had specifically objected to as duplicative. The total dollar amount of the reduction which resulted from the ALJ's approach, was $3,857.50.  (2)  The commission eventually decided to adopt this approach, but that part of its decision was set aside by the circuit court.

In his most recent arguments submitted on this issue, Schwartz initially states that it was his and Haber's position that the amounts they originally requested for the proceedings before the ALJ were reasonable and appropriate. ST's argument to the commission on this issue simply references and reincorporates its position as it was initially argued to the ALJ and to the commission (as described above). In response, Attorney Schwartz repeats his assertion that all of his (and Haber's) fees were reasonable. He argues that the fact that because ST expressly stated that it "[did] not challenge the many phone conferences between Attorney Haber and Schwartz regarding status updates and case strategy" (ST's February 8, 2008 brief, p. 4), it should not be heard to argue that in-person meetings between Haber and Schwartz were duplicative. Finally, he essentially argues that any duplication of effort did not affect the ultimate reasonableness of the total fees requested because even the combined fees of himself and Attorney Haber ($235-250 per hour) "was roughly equivalent or only slightly more than what most experienced employment attorneys were charging at the time for an hours' work by one attorney."

In his ruling, Judge Nowakowski stated:

Stoughton Trailers...contends that the 15 percent reduction was arbitrary in responding to what LIRC in fact had found were duplicative efforts by the two attorneys.

I would agree. The ALJ's determination adopted by LIRC does not explain why a 15 percent across-the-board reduction is appropriate rather than a 10 percent, 20 percent or some other reduction. The only real rationale offered was the difficulty in assessing the impact of duplication from the itemized statement submitted. This explanation is inadequate. If the submissions made were not of sufficient detail, the ALJ and LIRC were entitled to request greater itemizations and may do so on remand.

I do not conclude that an adequately explained percentage reduction for duplication is always an erroneous exercise of discretion, but the preferred methodology would be an examination of the individual entries of an attorney's submission.

In view of the court's expressed preference, the commission has attempted to use such a methodology here. As will be indicated, however, in some circumstances where it appears that both attorneys were performing the same work and that the total cumulative number of hours was higher than was reasonable, there is simply no non-arbitrary way to justify a decision that a certain number of the hours spent by one attorney should be allowed while that number of hours spent by the other attorney should not. In these circumstances, the use of a percentage reduction factor applied to the hours of both attorneys seems the most reasonable manner of arriving at a result providing a reasonable number of hours.

The chart below reflects the specific entries as to which ST asserts there was a duplication of effort by Attorneys Schwartz and Haber. An examination of the individual entries follows.

 
4/2/98 -- Initial mtg w. Geen - This was a 2 hour initial meeting with the client. ST has indicated that they do not challenge the fact that two attorneys were involved in representing Geen. Given this, the commission concludes that ST should not be heard to challenge the reasonableness of both of these attorneys participating in the initial meeting with the client. Notwithstanding that in subsequently handling the case the attorneys could be expected to apportion their time efficiently insofar as possible, it seems reasonable that in a case where two attorneys are going to be representing the client they both obtain the minimal level of familiarity with the client and the case that may be obtained from the initial meeting. These hours will therefore be allowed.
 

4/14/98 (H), 4/10/98 (S) -- Document review - Schwartz spent 2.25 hours reviewing documents on April 10, 1998. Haber then spent 1.4 hours reviewing documents on April 14, 1998. Without any specification (such as that which was used in the entries relating to briefing) allowing a conclusion that Haber was reviewing different documents than those which Schwartz had already gone over, an inference is possible that Haber was duplicating work which had already been done by Schwartz. While it was undoubtedly necessary for the attorneys representing Geen to acquire familiarity with all of the documents which might be relevant to his case as they found it at the point when they took on that case, one attorney could have reviewed the documents and advised the other attorney of the important pieces of information that could be gleaned in them. The commission concludes that this time sought by Haber should be disallowed as unnecessary, based on the inference that she was duplicating work which had already been done by Schwartz.
 

4/25/98 (H), 4/11,14/98 (S) -- Listen to UC hrg tapes - Schwartz spent 3.5 hours on April 11 and 14, 1998, listening to tapes of Geen's UC hearing. Haber then spent 2 hours reviewing on April 25, 1998 listening to those same tapes. As with the "document review", above, the commission believes that without a specification that allows a conclusion that the attorneys were each listening to different parts of the hearing, it is reasonable to infer that they were, to at least some extent (since they spent different amounts of time at it), listening to the same parts of the hearing. As with the "document review", the commission concludes that this time sought by Haber should be disallowed as unnecessary, based on the inference that she was duplicating work which had already been done by Schwartz.
 

4/30/98 -- Phone conf w. ALJ re: hrg date - Given that Haber and Schwartz were in separate practices, it is understandable that they would both have to participate in conferences about scheduling. The real question is, whether it was necessary for both to attend the hearing, since if it was not, then it would not be necessary for the one who was not going to be at the hearing to engage in a conference about scheduling it. Since the commission concludes for the reasons discussed below that it was reasonable for both attorneys to be involved in attending the hearing, it concludes that it was reasonable for both to expend this time relative to hearing scheduling.
 

5/19/98 -- Met w. client re: his deposition; 5/21/98 -- Attend Geen's deposition; 5/21/98 -- Met w. client after deposition - This was a deposition of Geen. As such, the greater part of the deposition would have consisted of examination of Geen by ST's counsel.

Representation of one's own client when they are being deposed by opposing counsel, differs in some respects from conducting a deposition of an opposing party's witness. One presumably knows pretty much what one's own client will be saying when they are being deposed. In contrast, the very nature of a deposition of an opposing witness is that it is investigatory and may lead to the discovery of unknown facts, which will then suggest possible new lines of inquiry. For this reason, in some circumstances it could be reasonable for more than one attorney to be involved for at least part of the time in depositions of the adverse party's witnesses. By contrast, it is harder to see why it would be necessary to have two attorneys present for the deposition of one's own client. The arguments submitted on behalf of Attorneys Schwartz and Haber contained nothing responding to the assertion by ST that there was a duplication of effort with regard to this time spent in connection with this deposition of Geen. While concluding that it was reasonable for both attorneys to be involved in the meeting with Geen after the deposition, so that both could be adequately informed about what had occurred and how it had gone, the commission concludes that it was otherwise unnecessary to have both Schwartz and Haber handle Geen's deposition.

This requires a determination as to how to apportion the reduction of hours which follows from this conclusion. While one approach would be to equally reduce the hours of each attorney, the commission concludes that in this situation it is more appropriate to simply allow the hours claimed by Attorney Haber for May 19 and May 21 and to disallow the hours sought by Attorney Schwartz for those dates. The commission notes that at the eventual hearing, the examination of Geen himself was handled by Attorney Haber rather than Attorney Schwartz. This was presumably determined between the two of them in advance of that hearing. The reasonable course would have been for the attorney who was going to be handling the examination of the client at the hearing, to handle the pre-hearing deposition of that client. It was thus most reasonable for Attorney Haber to have incurred the time involved in Geen's deposition.
 

5/25/98 -- Mtg re: formulating discovery ; 6/2/98 -- Mtg re: finalizing discovery questions; 7/24/98 -- Mtg w. each other re: inadequate discovery responses; 9/1/98 -- Mtg w. each other re: discovery ruling & new discovery requests; 9/25/98 -- Mtg w. each other re: discovery responses; 9/30/98 -- Mtg w. client re: discovery responses -- These entries have in common that they all relate to work in the contentious course of pre-hearing discovery in this matter.

One of the specific responses made by Schwartz to ST's arguments concerned the entry for May 25, 1998, shown as "meeting regarding formulating discovery responses" He asserted that

in a typical meeting such as this, Attorney Haber and I would meet in one location and begin brainstorming on information ST possessed that may help prove the facts we needed to meet our burden. Then, usually one would begin drafting questions, while the other looked through documents to confirm what we already knew and ferret-out those documents that demanded follow-up. All the while, we would have the ability to communicate back and forth as we came up with ideas or difficulties. Eventually, the attorney not drafting would look over the drafted questions to take out any vagaries or other possible objections, while the other drafted a cover letter.

Schwartz also argued that this approach

was most efficient as our collaborative efforts usually combined to produce a product much more thorough than that which we could have produced had one of us put in all the hours on that particular task. We felt this approach was particularly essential in such a complex case as this one, where the truth was so well hidden under layers and layers of misleading and missing documents, topped with a few patently false statements.

Schwartz's argument in this regard is less persuasive when considered in connection with the fact that during significant periods, Attorney Haber alone handled all of the discovery-related activities taking place in the case. During an extended period from the latter part of July through August of 1998, Attorney Haber had multiple entries, totaling 9.5 hours, all involving discovery and matters touching on it, while Attorney Schwartz charged no hours to the case from July 24 until September 1. The fact that Attorney Haber did this discovery-related work during this period of the case without engaging in this "collaborative" process which Schwartz argued they felt was "particularly essential", undercuts Schwartz's argument.

There are other indications that Haber was effectively the lead counsel in this stage of the discovery process with respect to Geen's discovery requests to ST. While she and Schwartz both charged hours on May 25 (2.75 hrs each) and June 2 (1.5 hrs each) to "formulate" discovery questions, it was Attorney Haber who on June 4 spent 1.2 hours "finalizing" the discovery questions and sending them out. While she and Schwartz both charged hours on July 24 (1.25 hrs each) to review ST's responses to the discovery requests, it was Attorney Haber who on that same date spent 2.4 hours drafting a letter to ST's attorney, Amy Bruchs of Michael Best & Friedrich ("MB&F"), regarding those responses.

For those reasons, the commission concludes that the time claimed by Attorney Schwartz for some of the dates noted above (5/25/98; 6/2/98; 7/24/98), which was with respect to Geen's discovery requests to ST, was unnecessarily duplicative of work being done by Attorney Haber and was not necessarily spent, and those hours will be disallowed.

In September, 1998, Geen had discovery requests from ST which he had to respond to. This presents a distinct set of issues from those presented by the offensive discovery by Geen which had been being pursued. Geen's attorneys began to devote time to this matter in the beginning of September, with time being claimed by both of them for this on September 1, September 25 and September 30. As to this discovery, it was eventually Attorney Schwartz who, by himself, finalized the discovery answers for Geen on October 1. In the absence of any specific explanation of why it was also necessary for Attorney Haber to expend hours on those discovery responses, the commission concludes that the hours of time claimed by Attorney Haber on September 1, 25 and 30, with respect to ST's discovery requests to Geen, was unnecessarily duplicative of work being done by Attorney Schwartz and was not necessarily spent, and those hours will be disallowed. 
 

10/16/98 -- Mtg w. each other & investigator re: Tammy Droessler; 10/19/98 -- Mtg w. investigator & prep. for depositions; 10/20/98 -- Prepare for depositions, meet w. investigator, & review TD's affidavit; 10/21/98 -- Conduct depositions of ST's employees; 11/5/98 - joint prep. for depositions; 11/6/98 -- Conduct depositions -- These entries are all essentially concerned, in one way or another, with preparation for the upcoming depositions of ST employees and former employees, and with conducting those depositions.

With respect to these depositions, Attorney Schwartz has argued that

[b]ecause so many documents were missing, and so many others contradicted each other, we had to do 12 (sic) separate depositions in this case -- eight on one day, five on the other. I do not believe that either Attorney Haber and I would have had the stamina to conduct all the depositions on any one of those days, and would not have gained the benefit of conferring with each other between depositions. The quality of the deposition questioning would certainly have suffered particularly where that one attorney would have had to prepare for eight depositions at one time. Needless to say, although we prepared for depositions together, we each focused on the individuals we planned to depose and merely conferred with the other when we had questions or to get additional ideas. Similarly, while we prepared for the hearing together, we each focused on preparation for the witnesses we planned to examine at hearing.

The commission does not find this argument persuasive, for two reasons.

First, entirely apart from the fact that the sum of 8 and 5 is 13, not 12, Schwartz's count of 12 depositions does not match what can be found in the file, or what is in Haber's and Schwartz's fee petitions. The file contains only 6 depositions (those of Kortte, Burdick, Snyder, Reese, Reilly, and Schieldt) taken on October 21, 1998. They cover the time between 9:05 A.M. and 3:26 P.M. on that day, a period of approximately 6.5 hours. This count corresponds with the entry in both Schwartz's and Haber's fee petitions, which indicate that there were 6 depositions taken on this day (although both billed for 8 hours). The file contains only 4 depositions (those of Droessler, Kortte, France, and Everson) taken on November 6, 1998. They cover the time between 9:00 A.M. and 2:00 P.M. on that day, a period of 5 hours. Both Schwartz's and Haber's fee petitions state that 4 persons were deposed on this date (for which both billed for 5.5 hours). Doing 6 depositions over the course of 6.5 hours does not seem to the commission to present such a challenge to an attorney's stamina that it would require the full-time assistance of a second attorney; neither does doing 4 depositions over the course of 5 hours rise to that level.

Second, the depositions show a different picture than the one painted by Schwartz's argument. His statements that "we each focused on the individuals we planned to depose and merely conferred with the other when we had questions or to get additional ideas" and that this was "similar" to their preparation for hearing in which they "each focused on preparation for the witnesses we planned to examine at hearing", suggests that they divided up the individuals to be deposed and that each prepared specifically for just those individuals they were going to be deposing. Such an approach would have been a reasonable and efficient way to handle the depositions -- but it appears it was not done this way. The depositions show that Haber and Schwartz both engaged in questioning of every one of the individuals deposed, switching back and forth, often repeatedly, in the questioning of a single deponent. This has an impact on the question about the appropriateness of the time spent in preparation for the depositions, as well as in attendance at them. From the fact that both Haber and Schwartz were actively involved in the examination of every deponent, it can reasonably be inferred that they both engaged in preparation to question every deponent. This would not be an efficient use of time.

Considering all of the foregoing, the commission concludes that there was some unnecessary expenditure of time here. The question is, how to quantify this. In regard to these particular hours, the commission sees no particular basis for assuming that, if the two attorneys had been appropriately trying to avoid duplication of efforts, one of the attorneys would have performed particular services rather than the other, or that one of the attorneys could have performed those services more efficiently than the other. The commission has given careful consideration to the views of Judge Nowakowski that while an adequately explained percentage reduction for duplication is not necessarily always improper, the preferred methodology would be an examination of the individual entries of an attorney's submission. It understands his rationale for that view, but it believes that in circumstances such as these, in which there is duplication of effort and also no particular reason to conclude that it would have been more reasonable for one attorney rather than the other to have done more or all of the work, one reasonable approach is to equally reduce the time allowed to each attorney to approximate the degree to which their work was unnecessarily duplicative. Considering the circumstances here, in which it seems reasonable to conclude that there was some benefit obtained by the joint collaborative work of both attorneys but that at the same time their expenditures of time appear to have exceeded what would have been reasonably efficient, the commission concludes that the hours allowed for each attorney as to each of these challenged entries should be reduced by 25% (i.e., each attorney to be allowed 75% of the time they sought). 
 

Entries from October 29, 1998 through November 10, 1998 (10/29/98 -- Joint prep. for mtg w. & drafted letter to ALJ; 10/30/98 -- Joint attendance at mtg w. Atty Bruchs & ALJ; 11/2/98 -- Research, draft letter & compile package jointly w. each other for ALJ; 11/10/98 -- Review additional documents produced by Respondent; 11/10/98 -- Jointly prepare letter to ALJ re: discovery ruling) - The meeting referred to here was a conference between the ALJ and counsel for the parties, called by the ALJ to discuss the issues raised in a letter to the ALJ from Attorney Haber on October 16, 1998. This letter asked the ALJ to rule on a number of pre-trial matters (the lifting of a cap on damages claimable by Geen which the parties agreed to as part of a stipulation to a continuance, and the question of whether production would be ordered of a particular memorandum which had been written by Tammy Droessler). The October 29 letter referred to was signed by Attorney Schwartz, and consisted basically of argument on a number of points, some (the previously-agreed-upon damages cap, the production of the memorandum) overlapping with the issues mentioned in Haber's October 16 letter, and others apparently newly raised. The November 2 letter and "package" were a 5 page letter signed by Attorney Schwartz, and a number of attached documents. The letter basically concerned discovery issues and asked for a number of actions by the ALJ, including orders for the production of certain documents and for payment of certain fees and costs as a sanction. The ALJ issued a letter ruling on November 5, and the November 10 letter referred to here was a response to the ruling and a request for further relief.

Essentially, all of these entries are concerned with disputes about discovery. With the exception of the November 10 "Review additional documents produced by Respondent" entry (in which Schwartz claimed 0.2 hours more than Haber), in all of these entries both Haber and Schwartz claimed the same number of hours for the same activities. The entries themselves reflect, by their frequent use of "joint" and "jointly", that the two attorneys were working on the same issues.

The commission is satisfied that the joint involvement of both Haber and Schwartz in preparation for and participation in the meeting with the ALJ and opposing counsel, was appropriate. It reaches the same conclusion with regard to their subsequent work, reflected in the other entries referred to here. Both were involved, reasonably, in preparation for the hearing. The commission is satisfied that their joint work on these issues relating to discovery compliance was no less efficient than it would have been to have one of them do all the work reasonably required on these elements of the case. Therefore, the commission concludes that these hours should be allowed.
 

11/19/98 -- Met w. Atty Mary Kennelly re: case strategy -- ST challenged the reasonableness of these requested fees, simply on the grounds that Attorney Kennelly had no connection to this case. The ALJ agreed, and completely eliminated the requested 1 hour for each attorney, finding the expenditure of time unreasonable in the absence of a fuller explanation as to why it was necessary. Given that no petition for commission review was filed by Geen to challenge any aspect of the ALJ's attorneys' fee decision, and given also that this particular aspect of the ALJ's ruling was not related to the 15% reduction for duplication of efforts which was the sole issue as to which Judge Nowakowski remanded the matter, this particular issue can be considered to have already been finally decided against Geen and his counsel. This time will not be allowed.
 

11/14/98 -- Review deposition transcripts; 11/15/98 -- Jointly review deposition transcripts & prepare witness & exhibit list; 11/17/98 -- Met w. each other to discuss ALJ's rulings & prepare witness & exhibit list; 11/20/98 -- Joint prep. for hrg; 11/22/98 -- Joint prep. for hrg; reviewing discovery transcripts & preparing questions; 11/23/98 -- Joint prep. for second day of hrg - These entries from November 14 through November 23, challenged by ST as duplicative, include a total of almost 51 attorney hours of activities in the nature of preparation for hearing. This includes a significant number of hours for "reviewing deposition transcripts" by both attorneys, notwithstanding that both attorneys had themselves sat through all of the depositions.

As to these hours, the descriptions of the services performed were the same for both attorneys. While it is possible to imagine ways in which two attorneys could divide between them the kind of work involved in preparation for a hearing, the billing entries for this work on these days do not provide any indication that this occurred. By contrast, for some other billing entries in this period relating to work in preparation for the hearing, it is possible to see that the two attorneys were dividing tasks between them. Thus, for November 21, 1998, Attorney Haber listed 3.25 hours for "Reviewed documents/exhibits and organize for hearing" while Attorney Schwartz listed 2.5 hours for "Reviewed case law for hearing". Considering the presence of distinguishing descriptions for some entries, and the lack of such entries for the challenged hours, it seems reasonable to infer that in those hours the two attorneys were to some extent engaging in the same preparation activities. The commission thus concludes that there was some unnecessary expenditure of time here.

As is discussed below, the commission does not find it unreasonable that both Attorney Schwartz and Haber attended the hearing. Both were active participants in the hearing, and it is reasonable that both would have expended time in preparation for that hearing.

Considering all of the circumstances, the commission concludes on the same basis and for the same reasons as discussed above with respect to the hours spent in preparation for the depositions of ST employees and witnesses, supra at p. 12, that the hours allowed for each attorney as to each of these challenged entries should be reduced by 25% (i.e., each attorney to be allowed 75% of the time they sought). 
 

11/23/98 -- Joint attendance at hrg (7 hrs each); 11/24/98 -- Joint attendance at hrg (8 hrs each) - The commission concludes that it was reasonable for both of Geen's counsel to attend the hearing. While it may not have been absolutely necessary for two attorneys to be present - obviously, the fact that many hearings involve only one counsel for each party shows that it can be done - the question of whether it was reasonable is different. When two counsel are present at a hearing, it allows one to concentrate on examination of witnesses while the other is engaging in the kind of cross-checking and analysis of the witnesses' answers which the examining counsel, who continually needs to move on to the next question, is less able to do. Again, the question is one of reasonableness. In a hearing like this - indeed, in this specific hearing, given the procedural history relating to discovery - there was plenty for two attorneys to do without overlapping on one another. The fact that ST also had two attorneys present during the hearing, also supports the conclusion that it was reasonable for both of Geen's counsel to be in attendance.
 

1/28/99 -- Jointly outline issues for brief (1.25 hrs each) - The extensive subsequent work by Attorneys Schwartz and Haber on actually briefing the case was substantively divided between them, was appropriately noted as such on their billings, and was not challenged by ST. The commission believes it is reasonable to infer that in the work of jointly outlining the issues for briefing, the two attorneys similarly both made distinct contributions. The commission sees no reason to reduce the hours allowed as to this entry.
 

Summary - reductions to hours sought by Haber and Schwartz -- Attorney Haber's original request for attorneys' fees for proceedings before the ERD up to the point of the ALJ's decision was for $18,358.25, based on 29.45 hours at $110/hour, 1 hour at $62.50, and 120.45 hours at $125/hour (a total of 150.9 hours). The ALJ, after applying his 15% reduction to the hours specifically challenged by ST, allowed a total fee of $16,472. Based on the adjustments described above, the commission finds that a reasonable fee for Attorney Haber should be based on 24.95 hours at $110/hour and 103.9 hours at $125/hour (a total of 128.85 hours). The total fee allowed to Attorney Haber for proceedings before the ERD up to the point of the ALJ's decision will therefore be $15,732.

Attorney Schwartz's original request for attorneys' fees for proceedings before the ERD up to the point of the ALJ's decision was for $18,656.25, based on 149.25 hours at $125/hour. The ALJ, after applying his 15% reduction to the hours challenged by ST, allowed a total fee of $16,685. For the reasons described above, the commission finds that a reasonable fee for Attorney Schwartz should be based on 125.65 hours at $125/hour. The total fee allowed to Attorney Schwartz for proceedings before the ERD up to the point of the ALJ's decision will therefore be $15,706.25.
 

2. Attorneys' costs for proceedings before the ERD --

Attorney Schwartz requested $2,440.19 in costs for the proceedings through the point of the ALJ's decision. (3)   ST's only articulated objection to this request had to do with a claim for expenses for an investigator.

In its initial response filed on September 14, 1999, ST objected to the entire 16.3 hours of investigator time claimed (at a rate of $35/hour, thus amounting to $570.50) on the grounds that the request was not specific as to what the investigator did. After Attorney Schwartz submitted a specification as to the investigator's hours, ST filed a response on September 21, 1999 in which it asserted that there were still shortcomings in the request. The only shortcomings specifically identified, though, were 1.2 hours of investigator's time claimed for a meeting with Attorney Schwartz on October 28, 1998 which did not line up with a corresponding entry by Attorney Schwartz as to his time claiming only 0.1 hours for the same meeting, and 5.8 hours of the investigator's time attributed to looking for a witness who ST asserted could have been easily found, making that time unnecessary. The total investigator expense being specifically contested by ST at that point was thus effectively reduced to 6.9 hours of the investigator's time, equivalent at the claimed $35/hour rate to a cost charge of $241.50.

The ALJ, in his decision, reduced the amount allowed for the investigator's costs by 4 hours, or $140 (based on a conclusion that the time spent searching for the witness was excessive); he thus allowed total costs of $2,300.19.

In its current arguments to the commission, ST has simply stated that "[its] position with respect to the costs sought by Attorneys Paul Schwartz and Darcy Haber remains the same as it was when Stoughton filed its initial opposition to their fee request" and that it "reincorporated" all of its objections to the proposed fees of Schwartz and Haber. In that regard, it identified a "recommended reduction" of $570.50 (the amount corresponding to the entire expense claimed for the investigator).

However, the commission concludes that the issue of costs for Attorney Schwartz for the proceedings before the ALJ was conclusively determined by Judge Nowakowski's decision, which is now final. The September 11, 2003 commission decision which Judge Nowakowski had before him for review contained an express order that costs in the amount of $2,300.19 be allowed to Attorney Schwartz for the proceedings before the ALJ. Judge Nowakowski's decision expressly affirmed the commission decision "in all respects, except [for] the award of attorneys' fees for time spent in connection with the initial agency proceedings" (emphasis added). Thus, that decision necessarily affirmed that part of the commission's order concerning costs.

For these reasons, the commission will not include in its order in this matter any provision touching on the costs allowed to Attorney Schwartz for the initial proceedings before the Equal Rights Division. For the sake of clarity, however, it will note therein that its September 11, 2003 order provided for such costs, in the amount of $2,300.19, which part of that order is now final. 
 

3. Attorneys' fees and costs for first LIRC proceedings -

For this part of the proceeding, Attorney Haber sought an award for 16.55 hours at $125/hour, for a total of $2,068.75. Attorney Schwartz sought an award for 27.1 hours at $125/hour, for a total of $3,387.50, plus costs of $42.87.

In its initial response at the time, ST specifically and expressly asserted only one objection to this fee request: it argued that fees should not be allowed for hours spent by Geen's attorneys in attempting to get the petition for review dismissed on the grounds that it was untimely. However, the commission allowed all of the fees sought for the first commission review, including all of the hours claimed for the attempt to get the petition for review dismissed.

Subsequently, Judge Nowakowski expressly rejected the challenge to the award of fees for those hours, stating:

As to this latter challenge, LIRC's determination to allow fees associated with this motion will be affirmed. LIRC exercised its discretion based on findings supported by substantial evidence in the record, and I cannot conclude that its decision was unreasonable.

The affirmance of the commission's decision "in all respects except" for the matter of attorneys' fees for the proceedings before the ALJ, thus was a final determination as to the commission's decision on attorneys' fees for the proceedings before the commission, including the matter of the motion to dismiss the petition for review.

In its current arguments to the commission, ST has not mentioned anything about the matter of the fees to be allowed to Haber and Schwartz for the first commission review. It presumably recognizes that this issue is no longer open.

For these reasons, the commission will not include in its order in this matter any provision touching on attorneys' fees and costs for the initial proceedings before the commission. For the sake of clarity, however, it will note therein that its September 11, 2003 order provided for such fees, to Attorney Haber in the amount of $2,068.75, and to Attorney Schwartz in the amount of $3,387.50 along with costs in the amount of $42.87, which part of that order is now final. 
 

4. Interest on costs for proceedings before ERD, and on fees and costs for first LIRC proceedings -

In a December 8, 2007 letter from Attorney Schwartz to the commission, he argued that he and Attorney Haber were entitled to interest on the amounts awarded in the commission's September 11, 2003 decision for

(1) costs for the proceedings before the ERD,

(2) attorneys' fees for the first proceedings before LIRC, and

(3) costs for the first proceedings before LIRC.

(Schwartz's letter to LIRC of December 8, 2007). (4)   They sought 12% interest on these amounts, running from the date of the commission's September 11, 2003 decision. Their theory was that with the issuance of the Supreme Court's decision, the commission's September 11, 2003 decision became final in all respects except for the one issue specifically reserved in Judge Nowakowski's decision, which was the issue of the appropriate reduction in the amount of attorneys' fees for the initial proceedings before the ERD.

Attorney Schwartz cited no authority for this position apart from a statement that it was "pursuant to Chapter 814". Wis. Stats. Ch. 814, "Court Costs And Fees", does contain a provision, in § 814.04, about 12% interest on money judgments being computed by the clerk "from the time of verdict, decision or report until judgment is entered" and added to the taxed costs, but it is questionable at best to suggest that this provision is directly applicable to the completely different procedural situation this case is in.

Apparently anticipating that such a request would be made, ST had previously argued, in a letter from its counsel on October 10, 2007, that because "no 'award' of attorneys' fees ha[d] been made in this case", no interest had accrued on attorneys' fees, citing Wis. Admin. Code § DWD 218.20(4). (5)   It then argued that any request for "prejudgment interest" on attorneys fees should be denied because such a remedy was to be assessed on back pay awards, citing Anderson v. LIRC, 111 Wis. 2d 245 (1983).  It renews this argument in its February 8, 2008 brief.

The only authority ST cited apart from Wis. Admin. Code § DWD 218.20(4) was Anderson v. LIRC, 111 Wis. 2d 245 (1983), and it cited it only by way of mentioning that interest has been recognized as appropriate when applied to back pay. Anderson actually has nothing to say, one way or the other, on the question of whether interest is appropriately ordered on attorneys fee awards.

There is, in fact, little or no Wisconsin authority on the question of whether interest can be ordered on attorneys' fee awards. The ER Digest collects two decisions under this topic, Olson v. Phillips Plating (LIRC, 02/11/92) and Watkins v. Milwaukee County (LIRC, 07/03/85). Watkins is distinguishable, in that it involved interest on amounts ordered paid directly to the complainant for amounts she had actually paid to her attorneys for their services over the past years in which the case was progressing. Olson is arguably more on point, although still somewhat different on the facts. In Olson, the interest issue related to an amount of fees which had been awarded to the employee in an earlier, related, federal litigation, but which had not been paid by the employer until later. When it did eventually pay the fees, the employer also paid some amount of interest on those fees, but it did not pay the full amount of interest which would have been due on the full amount of the fees ordered by the federal court, and the commission ordered an additional payment representing the remaining interest due.

Whether the law permits, as a general matter, an order of interest on amounts allowed for attorneys' fees and costs, is not the only issue, however. Because of the procedural posture of this case, there is an issue as to whether the commission can make such an order now, at this point in the case. The commission concludes that it can not, because the request for interest on attorneys' fees and costs as part of the remedy comes far too late, and because it is effectively beyond the commission's authority to act on that request at this point.

Attorneys Schwartz and Haber could have asked, when they filed their original petitions for attorneys fees and costs in 1999, that the ALJ order interest on the amount of the costs sought, to run from the date of the ALJ's order, or the date on which it became final. They did not do so. While the ALJ's subsequent order did specifically provide for interest (pre- and post-judgment) on the amount of back pay allowed, it omitted any requirement that interest be paid on the amounts of costs (or attorneys' fees, for that matter) provided for in that order. Geen, of course, did not file a petition for commission review of the ALJ's decision and order. Furthermore, in the reply brief on Geen's behalf filed with the commission, Attorneys Haber and Schwartz made no argument for interest on the amount of the costs they had sought before the ALJ. In addition, in their requests for additional attorneys' fees and costs for the proceedings before the commission, Haber and Schwartz did not make any request that the commission should order that interest be paid on those amounts. In short, during the entire time that they were involved in this case as Geen's counsel, Attorneys Haber and Schwartz never mentioned anything about interest on the amount of the attorneys' fees and costs which they were specifically seeking.

In some cases, failure to submit a request for attorneys' fees for specific work on a case can be treated as a waiver of the right to seek an award of fees for that work. Haas v. Sark (LIRC, Dec. 29, 1999), Schmocker v. County of La Crosse (LIRC, Mar. 21, 2004). Application of that approach here could justify a conclusion that, given the lack of any request for interest when the matter was before the ALJ or on its initial appeal to the commission, any such entitlement was waived.

The commission chooses to rest its decision, however, primarily on the conclusion that it cannot agree to the request for interest because it is simply no longer within its power to make any change in the substance of the remedial order except insofar as specifically and narrowly allowed by the remand mandate of the circuit court. As has been noted above, in his oral ruling Judge Nowakowski stated that "the September 11th, 2003 decision of LIRC is affirmed in all respects, except that the award of attorney's fees for time spent in connection with the initial agency proceedings is remanded to LIRC for redetermination consistent with this decision". In his subsequent written order he stated, "it is ordered the Commission's Decision is affirmed except for the award of attorney's fees for time spent in the initial agency proceeding".

If interest on the costs allowed for the proceedings before ERD and on the attorneys' fees and costs allowed for first commission proceedings were theoretically available, such amounts could have been requested initially and could have been allowed in the commission's September 11th, 2003 decision. They were not. Interest on amounts allowed is clearly an element of remedy distinct from the amount of "the award of attorney's fees for time spent in the initial agency proceeding" -- which is the only thing Judge Nowakowski's decision left open from this part of the case. Given the narrowness and specificity of that decision, the commission concludes that it lacks the authority to now issue an order providing that remedy. 
 

5. Attorneys' fees and costs (Atty. Petranech) for 1st Cir. Ct. review, 1st Ct. App. review, 1st petition for Sup. Ct. review, 2nd Cir. Ct. review -

This portion of the case was handled by Attorney Brett Petranech, who was most recently associated with the law firm of Lawton & Cates ("L&C").  (6)   It involved the initial Circuit Court judicial review proceeding, the initial Court of Appeals judicial review proceeding, response to the first petition for Supreme Court review filed by ST, and the second Circuit Court judicial review proceedings which followed after the commission issued its decision on remand from the first judicial review proceedings. The fee request made on Geen's behalf by L&C  (7)   for Petranech's work on these matters is for 155.75 hours at $200/hour, for a total of $31,150.

In its argument, ST in effect sets Petranech up as the benchmark for efficiency, against which it measures the work of the other L&C attorneys. Perhaps unsurprisingly given this approach, it has only one very limited objection to the hours claimed for Petranech: it disputes the necessity of 9.5 hours he logged for "reviewing the file" when he first took over the case from Attys. Schwartz and Haber. It relies on Vallo v. Great Atlantic & Pacific Tea Co., 16 F.E.P. 967, 969-71 (W. D. PA July 7, 19977), for the proposition that a fee reduction is appropriate where there is overlapping work when new lawyers take over a case in mid-stream.

In its reply brief, Geen's only argument in response to this is an assertion that ST mischaracterized the holding of Vallo and that properly read, that decision would at most support a 10% reduction of the "overlap" hours, not a complete elimination of them.

Geen is correct: ST's argument mischaracterizes the holding of Vallo. In that case an attorney claimed 374.5 hours for work in a class-action case. The court stated, "This we will reduce by 10% because of the overlapping nature of his work and that of prior counsel". There is nothing in the decision, though, which indicates anything about the nature of the work which the court found to have been overlapping. Thus, it does not necessarily stand for the proposition that work by an attorney to review the file in a case which they have inherited from another attorney, is per se duplicative.

In arguing that these particular hours of Petranech's time were unnecessary, ST does not contend that the decision to hand the case over from Schwartz and Haber to Petranech for the judicial review proceedings was itself unreasonable. The commission believes that a certain amount of work to review the file in order to acquire familiarity with the case, would reasonably be considered necessary when there has been a change in attorneys. In this case, for example, in which Petranech was going to handle the judicial review, it would have been necessary for him to read the hearing transcript so that he knew what evidence was in the record. Other necessary review would have included briefs filed by ST, and by Schwartz and Haber on Geen's behalf.

The commission finds ST's argument for this reduction in Petranech's fees to be unpersuasive. Since this was ST's only objection to the fees claimed based on Petranech's hours, and since the number of hours claimed for Petranech's work appears altogether reasonable, the commission will allow them all.  
 

6. Attorneys' fees for 2nd Ct. App. proceedings -

The second course of proceedings before the Court of Appeals was handled for Geen exclusively by Attorney Christopher J. Blythe of L&C. The request for fees for his services was for 37.5 hours at $200/hour, for a total of $7,500. (L&C also seeks 0.75 hours of paralegal time on this phase of the case for some work regarding damage computation).

In its response to the fee request, ST has not expressly  (8)   raised any objection to the number of hours claimed for Attorney Blythe (or even mentioned the minimal requested paralegal time). Its only reference in that response to the hours claimed for Attorney Blythe, is in a footnote in which it speaks positively of Attorney Blythe's efficiency as compared to that of Attorney Carlson.

Because ST has not raised any express objection to the fees claimed based on Blythe's hours, and since the number of hours claimed for Blythe's work appears altogether reasonable, the commission will allow them all.
 

7. Attorneys' fees for 2nd Sup. Ct. proceedings --

This phase of the case (which can be considered to have begun at the point at which the second Court of Appeals decision was issued, on July 27, 2006) involved responding to ST's petition for Supreme Court review, briefing to the Supreme Court after it accepted review, and preparation for oral argument (and the argument itself) to the court. L&C seeks a very large award for this part of the case - including around 115 hours for Attorney White (at $175/hour), primarily for work on the response to ST's petition for Supreme Court review and on Geen's brief to the Supreme Court, around 245 hours for Attorney Carlson (at $200/hour), primarily for work on Geen's brief to the Supreme Court and on preparation for oral argument, and another dozen or so hours for a couple of other attorneys.

ST does not challenge the hourly rates sought but argues strenuously that the number of hours spent on these parts of the case was excessive.

L&C's fee petition is supported by affidavits from its attorneys John C. Carlson, Jr., Matthew White, Victor Arellano, and Christopher Blythe, all of whom billed for some work on the proceedings before the Supreme Court, and also its attorney Richard Thal, who billed for work on the fee petition itself. These affidavits have supporting materials (billings, records of costs) attached. The affidavits describe each attorney's education and experience, considerations which are really more relevant to the question (not in dispute here, as noted above) of the reasonableness of the hourly rate requested, than to the question of the reasonableness of the number of hours spent. The affidavits also contain, unsurprisingly, the opinion of each counsel that the number of hours they billed was reasonable. In addition, L&C submitted a petition from Attorney Jeff Scott Olson, reflecting his opinion on the reasonableness of the fees sought.

ST's argument is presented in the form of a Response To Complainant's Petition For Attorneys Fees And Costs, but also in two attached "declarations"  (9)  by ST's counsel Amy Bruchs and by Attorney (and former Wisconsin Supreme Court Justice) William Bablitch. These declarations each track the argument points made in ST's formal response.

With respect to the time spent on responding to its petition for Supreme Court review, ST contrasts the amount of time spent by Petranech on responding to the first petition for Supreme Court review in this matter, with the amount of time spent by Attorneys Carlson and White on responding to the second petition for Supreme Court review. While Petranech spent around 18 hours, Carlson and White spent a total of over 60 hours. ST's argument takes it as self-evident from this disparity that the time spent by Carlson and White must necessarily be "clearly excessive". ST also argues that there was duplication of work by Carlson and White, pointing to the fact that both billed for some hours which were described generally as reviewing the ST petition for review and drafting a response to it, without any indication that they were working on different aspects of the response (compare this to the hours claimed by Attorneys Haber and Schwartz on the brief to the ALJ, as to which their billing entries reflected that they were working on different sections of the brief). Finally, ST places significant reliance on the declaration by Bablitch reflecting his opinion that the time spent by Carlson and White on responding to ST's petition for Supreme Court review was "unnecessary and excessive".

With respect to the time spent on briefing to the Supreme Court, ST asserts that Attorneys Carlson and White spent 167 hours on their brief to the Supreme Court. Its position is that this should be reduced to 35 hours, to bring the amount in line with the amount of time Attorney Blythe spent to draft the successful (2nd) Court of Appeals brief. ST makes a similar argument here, that the time spent was clearly excessive and unnecessary; it argues that the time was in part duplicative, referring to entries by Carlson and White regarding work on the brief that provide no basis for finding that they were working on different parts of it; and it compares the time spent to that spent by Attorneys Petranech and Blythe. It also makes an assertion (not actually supported by any specific reference to the contents of the briefs involved) that in their brief to the Supreme Court, Attorneys Carlson and White were simply "re-making arguments already presented by Attorneys Petranech and Blythe".

With respect to the time spent on preparation for oral argument, ST complains that Attorney Carlson spent 114 hours preparing for oral argument to the Supreme Court. Its brief argument begins by asserting that Carlson had ceded half his oral argument time, and half of his arguments to Assistant Attorney General David Rice, who was arguing the case for the commission, the implicit point of this apparently being that this should have reduced the amount of time he needed to prepare. It also points to the opinion of Bablitch in his declaration that the time spent by Carlson in preparation for oral argument was "grossly excessive and unnecessary". Finally, it compares the time spent by Carlson with the 25 hours which ST's counsel, Amy Bruchs, indicated she spent in preparation for oral argument. It then proposes that the time allowed for Carlson should be reduced to that same 25 hours.

L&C's reply brief in support of its fee petition makes these main points in response to ST's argument:

Objection to the Bablitch Declaration as "inappropriate" - Initially, and entirely apart from its subsequent arguments that Bablitch's declaration is for a variety of reasons not persuasive on the question of whether L&C's fee request was reasonable, Geen argues strenuously that Bablitch's declaration should be disregarded outright as "inappropriate".

L &C takes several tacks in this argument. First, it contends that the declaration was submitted as an "independent" affidavit challenging the reasonableness of the fee, but that Bablitch is not in fact "independent" since he has since 2003 been a partner and member of Michael, Best & Friedrich, ST's attorneys in this case. L&C also argues that the fact that Bablitch is a former Justice makes responding to his declaration more difficult in that it must deal with the "risk [of] conveying a false sense of disrespect for such a distinguished person". L&C also argues that the commission's decision on the fee petition could in theory be appealed all the way to the Supreme Court, and if that were to happen ST would be presenting to the court a supporting statement from someone who had been a member of the Court and a colleague of some of its members. It suggests that this is a "potential conflict".

L&C's argument that it will be handcuffed in responding to Bablitch's declaration because of its reluctance to seem disrespectful to the Court or one of its former justices, is undercut by the fact that, after making this argument, the brief then challenges the persuasiveness of Bablitch's declaration quite vigorously. It is clear that L&C has not in fact been restrained by fear of appearing disrespectful to former Justice Bablitch. And, even accepting for the sake of discussion that the injection of his declaration into the case could be considered to present the potential for a "conflict" to arise, this is not a reason for the commission to effectively edit Bablitch's declaration out of the process. If events occur as Geen's argument hypothesizes, then it will be up to the members of the Court to decide whether or not to sit out consideration of the case because of their relationship with the former justice.

L&C's argument that Bablitch is not "independent" in this matter, as ST's brief may be seen as attempting to suggest, (10)  is certainly valid. L&C is also correct in its observation, that it would be unusual for an attorneys' fee petition to be supported by an affidavit filed by another attorney who had had no involvement in the case but who just happened to be an attorney in the firm seeking the fees.

However, the commission does not find this to be a reason to disregard his declaration, any more than it would be a reason to disregard the declaration of Attorney Bruchs, or the affidavits of all of the L&C attorneys who worked on the case. While it is typical that responses to fee petitions are accompanied by supporting statements from persons unconnected with the case who have (or assert) special experience or expertise in the matter of what fees are reasonable in certain kinds of cases, it is not an absolute requirement that a respondent include such "independent" supporting statements with its argument. The commission is inclined, though, to give Bablitch's declaration somewhat less weight than it might be given if it he were not a member of the firm representing a party in the case.

Persuasiveness of Bablitch's declaration as against Olson's affidavit -- L&C's arguments convincingly undercut Bablitch's opinion, in several respects.

First, the commission believes that L&C is correct in arguing that Bablitch's extensive experience as a Justice of the Wisconsin Supreme Court does not necessarily establish any particular expertise on his part in regard to the amount of time which it is necessary or reasonable for an attorney to spend in representing a party in an appeal before that court. Bablitch's assertion that by virtue of his experience as an appellate judge he is "keenly aware of what level of preparation is required in order to draft a competent and thorough appellate brief", is unpersuasive. The processes are significantly different. Knowing what "level of preparation" a Supreme Court Justice may wish to see in an appellate attorney who is arguing a case to that Court, does not automatically equate to knowing how many hours of time it is necessary and reasonable for such an attorney to expend in order to acquire that level of preparation. Bablitch does assert that upon his retirement from the Supreme Court, when he became a partner and member at MB&F, he "focused [his] practice on assisting attorneys with briefing and oral argument preparation before the Wisconsin Supreme Court", and that he has "counseled lawyers from other prominent law firms with their appellate practice issues", but he does not assert that in this capacity he acquired any particular knowledge as to how much time in total was being expended by attorneys he was thus assisting in such cases.

The indefiniteness in the Bablitch declaration as to the extent and nature of his experience with issues as to the reasonableness of attorneys' fees, is in marked contrast with the assertions offered in the supporting affidavit of Attorney Jeff Scott Olson filed by Geen in support of the fee request of L&C. Olson describes in detail how he acquired the experience in such matters which he contends allows him to authoritatively express opinions in the area. His vita establishes his reputation as an expert in the area of recovery of attorneys fees in civil rights litigation. In addition, he has been involved in a number of cases as counsel for other attorneys in the fee recovery part of the case, representing them in their efforts to recover fees. Also, he has made a concerted study of the rates and billing practices of attorneys in civil rights litigation, collecting and reviewing fee petition affidavits in order to collect information about such matters. All things considered, Olson's affidavit provides a much more persuasive case for finding him to be experienced and knowledgeable about what might or might not be a reasonable bill in a case such as this, than does Bablitch's declaration.

Second, while Bablitch asserts generally in his declaration that as a Justice he "reviewed and ruled upon claims for attorney's fees in conjunction with various causes of action", this assertion is not quantified, and there is reason to question whether he in fact had a significant enough degree of experience in actually deciding issues as to the reasonableness and necessity of attorneys' fee claims to be able to make pronouncements as an expert. Actually determining the amount of attorneys fees to be allowed in a particular case is not a function typically carried out by the Supreme Court. (11)   In cases under the Fair Employment Act, it should be noted, it is the practice of the Court to remand requests for attorneys fees for appellate work back to the commission, rather than to address them directly, and thus the Court acquires no first-hand experience in determining (at least initially) what amount of fees may be reasonable and necessary in such cases.

Validity of the comparison of Carlson's and White's hours to Petranech's and Blythe's hours on earlier aspects of the case - ST compares the hours spent by Carlson and White on the response to ST's petition for Supreme Court review, and then on the argument to the Supreme Court, to the (significantly fewer) hours spent by Petranech and Blythe on earlier parts of the case, and argues that this demonstrates that Carlson's and White's hours were excessive.

On this question of whether it is valid to compare the time spent by Carlson and White with the time spent by Petranech and Blythe, neither the opinion of Bablitch, or the opinion of Olson, is particularly persuasive. This is because, at least insofar as is indicated by their statements, neither one of them reviewed any of the actual work done (i.e., briefs) by any of those attorneys, and there is thus no reason to think that they would have a good idea whether the complexity of the work they did was comparable.

As L&C correctly point out, Bablitch's declaration asserts only that in preparation for rendering his opinion on the reasonableness of L&C's fees, he reviewed "Complainant Douglas Geen's Petition for Attorney's Fees and Costs in this matter along with all supporting documentation and affidavits". Presumably, the "supporting documentation and affidavits" Bablitch refers to here are the materials that were attached to Geen's fee petition. Significantly, Bablitch does not assert that he reviewed any of the actual argument that Geen's counsel had to respond to (i.e., ST's petition for Supreme Court review, and ST's Brief to the Supreme Court), or any of the work that was actually produced by Geen's counsel (i.e., Geen's response to ST's petition for Supreme Court review, and Geen's Brief to the Supreme Court). In the absence of such an assertion, it is reasonable to conclude that Bablitch did not review any of those documents. If, as thus appears, Bablitch did not review these materials, it is difficult to understand what conceivable basis he could have for opining that the time spent by Geen's counsel reviewing ST's arguments and drafting Geen's arguments was excessive.

The same objection can be made, though, to the supporting affidavit of Attorney Jeff Scott Olson filed by Geen in support of the fee request of L&C. Olson asserts only that he reviewed "the affidavits [of the L&C attorneys] and the corresponding attachments to each affidavit"; it is on that basis that he then declares it to be his position that the hours spent by the attorneys were reasonable. Again, it is difficult to understand how Olson can arrive at the conclusion that the time spent reviewing and responding to ST's arguments was reasonable if he has not read ST's arguments or the responses filed by Geen's counsel.

Since there is no basis for finding that either Bablitch or Olson had a good understanding of what issues were presented and what arguments were made at various points of the case, there is reason to question the value of their opinions on whether the time spent by Carlson and White was excessive because much of the work had already been done for them by Petranech and Blythe in the arguments they had already drafted.

What remains then is the argument submitted by ST in Attorney Bruch's response to the fee petition, and by L&C in Attorney Thal's reply brief supporting the fee petition. ST's argument on this issue conspicuously lacks any substantive discussion of what the issues were in the first petition for Supreme Court review process as compared to the second, and whether the greater number of hours might be explainable in part or in whole by any such differences. The reply argument filed by L&C, however, does. Comparing Petranech's brief to the Court of Appeals with Carlson's brief to the Supreme Court, L&C argues that the focus of the "Statement Of The Case" in each was different, in that in the latter it was necessary for Carlson to engage in a careful record review for the purpose of rebutting a discrepancy between the Commission's Findings of Fact and the facts as stated by ST in its brief to the Supreme Court, something which Petranech did not do. More significant, is the point made by L&C that when the matter was being briefed by Petranech to the Court of Appeals, and when Petranech was subsequently responding to ST's petition for Supreme Court review, the issue of whether Geen's discharge could be considered to have been "because of" disability within the meaning of the Act was not presented and it was therefore not necessary for Petranech to address it. By contrast, when the matter was before the Supreme Court (both on petition for review, and then on the merits) after the second Court of Appeals decision, that was a central issue in the case, one which was argued at length (L&C point out that the discussion of this issue in Carlson's brief to the Supreme Court covered 27 pages, almost as much as Petranech's entire brief to the Court of Appeals). L&C persuasively explain why analysis of the "because of" issue was so difficult, noting the sub-issues it presented, including the issue of whether the "mixed motive"/ "in part" test, Hoell v. LIRC, 186 Wis. 2d 603, 611, 522 N.W.2d 234 (Ct. App. 1994), or the "a factor"/ "determining factor" test, Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172-73, 376 N.W.2d 372 (Ct. App. 1985), Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 874, 469 N.W.2d 224 (Ct. App. 1991), applied.

Another significant point made by L&C was that when they were briefing to the Supreme Court, the second (September 11, 2003) commission decision, the second circuit court decision (Nowakowski's ruling), and the second Court of Appeals decision had all been issued and the analyses of those decisions were all relevant and had to be addressed. It also points out that the "clemency and forbearance" analysis of Target Stores v. LIRC, 217 Wis. 2d 1, 8, 576 N.W. 2d 545 (Ct. App. 1998), not touched on by Petranech's briefing, was an important focus of L&C's briefing in the second course of appellate proceedings - and was ultimately discussed at length by the Supreme Court in its eventual decision. Finally, it also points out that Carlson's brief developed a more extensive argument concerning Seventh Circuit case law on the FMLA issues presented by the case.

The commission believes that L&C persuasively explains why the amount of time necessary to research and brief the issues in this case could and did go up, rather than down, as the case moved to the final proceedings before the Supreme Court. As they note, the roles of the Court of Appeals and the Supreme Court are different, the former being essentially an error-correcting court not primarily focused on establishing guiding precedent and policy, while the latter is focused precisely on defining and developing the law. Indeed, the very fact that the Supreme Court accepted review the second time the case came up to it, while refusing such review the first time, is evidence that at that later point the issues presented by the case had reached a higher state of both difficulty and importance. The idea that Geen's attorney's could have simply recycled briefs which had been previously drafted as part of the more constrained review by the Court of Appeals, is not persuasive.

For the foregoing reasons, the commission does not believe that reductions are called for based on a theory that Petranech and Blythe had already done some of the work for Carlson and White as justification for any reduction in the time claimed by them for work on their arguments to the Supreme Court (both in response to the Petition for Supreme Court Review, and in arguing to the Court on the merits).

However, the commission does conclude that some reductions are appropriate, based generally on a conclusion that the amounts of time expended on various parts of the case were simply unreasonable.

Before discussing each of the identifiably separate phases of the case (response to petition for Supreme Court review, briefing to the Supreme Court, preparation for and oral argument to the Court, and these proceedings relative to attorneys' fees) separately below, the commission wishes to touch on a more general reason for the conclusion that the overall request is excessive.

The commission has previously had experience in deciding what is a reasonable number of hours to spend in the appellate phase of an equal rights case, in the follow-up to the litigation which culminated in Hutchinson Technology v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343. That case was comparable to this one in that it was a single-complainant disability discrimination case involving multiple issues (standard of review, "disability", accommodation). Like this case, it involved, at the appellate level, briefing to the Court of Appeals in an attempt to obtain affirmance of a Circuit Court decision which had upheld the commission's decision in favor of the complainant, responding to the employer's petition for Supreme Court review, briefing to the Supreme Court (where WMC was an amicus arguing against the complainant's position), oral argument to the Supreme Court, and ultimately (after a motion for reconsideration before the Supreme Court, which did not occur here), proceedings on remand before the commission to arrive at a determination as to the reasonable attorneys' fees for the case.

In Roytek, when the matter came back to the commission for determination of attorneys' fees, the amount of fees for the initial agency and commission proceedings and the circuit court proceedings had already been determined, and what was at issue was the fees for the appellate court (Court of Appeals, Supreme Court) proceedings, and the commission remand proceedings concerning the fees themselves. The total number of hours for which complainant's counsel sought fees, covering those appellate proceedings and the subsequent fee proceedings before the commission, was 236.7, and the commission determined that just over 235 hours was reasonable. Roytek v. Hutchinson Technology (LIRC, Feb. 15, 2005). In this case, by contrast, the total number of hours expended on the (second) Court of Appeals, Supreme Court, and subsequent commission fee proceedings for which L&C seeks fees, is over 506 (plus over 35 hours of law clerk and paralegal time).

To a great extent, these numbers speak for themselves. The request made by L&C here is significantly higher than what the commission has previously found to be a reasonable number of hours for the same course of appellate work in a similarly complex and important case. It should also be noted, though, that the position taken by ST in this case is also way out of line with what was found reasonable in Roytek. Taking into account that ST does not challenge the time spent by L&C's Attorney Blythe on the Court of Appeals proceedings, and looking at the position ST takes as to what a reasonable number of hours would have been for the remaining Supreme Court proceedings and the current commission fee proceedings, ST would have the commission allow a total of only around 120 hours for the same amount of appellate litigation for which the commission found 235 hours reasonable in Roytek.

With these observations, the commission will turn to discussion of the specific phases of the case as to which the question of reasonable hours remains.
 

Reasonableness of hours on petition for S.Ct. review - Attorney White spent 57.75 hours on the response to the Petition for Supreme Court Review. Attorney Carlson also billed for 7 hours, and Attorney Arellano billed for 2.75 hours, during this period of time (Aug. 14 - Nov. 7, 2006).

ST asserts that the total hours allowed to L&C for responding to its petition for Supreme Court review should be cut to 18 hours, a figure it arrives at by looking at the number of hours Petranech spent working on his response to the first petition for Supreme Court Review after the first Court of Appeals decision.

L&C notes several differences in the issues presented and dealt with in the responses to the petitions for Supreme Court review filed by Petranech the first time through and by White the second time through. These include the important issue of whether Geen's discharge was "because of disability", and the question of the standard of review (which White, unlike Petranech, addressed at length). While this argument supports L&C's position that Petranech's time should not necessarily be taken as a fair measure of how much time it was necessary for White to take, it does not otherwise deal specifically with the question of the reasonableness of any particular hours expended by White in working on the response. This is unremarkable, though, in that ST's argument also does not do so. Ultimately, the arguments reduce themselves to the conclusory assertions that either only 18 hours is reasonable, or that fully 65 hours is reasonable.

As discussed above, the commission concludes that the opinions of Bablitch and Olson are relatively unpersuasive on the question of whether the time spent by Petranech and Blythe is a reasonable benchmark for the later work in the case, and that the opinion of Olson is more persuasive than that of Bablitch on the general question of whether the time spent by Carlson and White on that later work in the case was reasonable. This weights the matter somewhat towards L&C. However, the commission still believes that the amount of time spent by Attorney White on this part of the case must be considered excessive.

The question of whether the Supreme Court accepts review of a decision of the Court of Appeals is governed by criteria for review in Wis. Stat. § 809.62, and

[j]ust as the focus of the petition should be whether the case satisfies the criteria for review...the response should be limited to the question of whether the case should be reviewed in the exercise of the supreme court's discretion. The merits of the underlying case should be discussed only as they relate to this issue.

Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin (4th ed.2006), § 23.13. Taking this appropriate approach, will tend to limit the scope and extent of a response to a petition for Supreme Court review. It can be noted, by way of illustration, that for his response to the petition for review, Assistant Attorney General David Rice filed a 21/2 page letter with the Court. The 58 hours spent by Attorney White working on the response to ST's petition for review, seems out of line with what would be expected for a response which properly focuses on whether the criteria for review are met (as opposed to whether the Court of Appeals decision was correctly decided). The commission concludes that only 40 hours of time should be allowed for Attorney White on this part of the case.

With respect to Attorney Carlson's billed hours relating to response to the petition for Supreme Court review, there are a couple of hours (Sep. 5-8, 2006) billed for review of the petition for Supreme Court review and consultation with Attorney White as well as AAG Rice about responding to that petition, that could be argued to be duplicative of the same tasks being billed for by Attorney White at that time. However, the billing records show that the main work Carlson did on this issue was 3.75 hours (on Sep. 11, 2006) for "draft brief edits for response to petitioner's petition for review to supreme court" - in other words, it appears that he was editing and revising the work that had been done by Attorney White on drafting a response. The commission concludes that this is reasonable. L&C achieved efficiency by having most of the work on the response to the petition for Supreme Court review done by White, a less-experienced attorney with a correspondingly lower hourly rate, with the more experienced (and more expensive) Carlson overseeing the work to some extent and, as part of that, actually editing the response. While such an approach may appear to involve duplication of effort, the commission concludes that overall the efficiency in overall cost which is achieved justifies it.

As noted, Attorney Arellano billed for 2.75 hours of work during the period of time that the response to the petition for Supreme Court review was the matter on the table. Considering the participation of both Attorney White and Attorney Carlson in the process, it is difficult to see the necessity of this added layer. In the commission's view, certain time entries by Arellano in this period - 1 hour on Aug. 28 to review opposing counsel's "appeal brief" (presumably, he meant the petition for Supreme Court review), 0.5 hours on Sep. 6 for a conference with Attorney Carlson and Attorney Rice, 0.25 hours on Sep. 12 to review a letter to the Court from AAG Rice (presumably, this was Rice's Sep. 11 letter response to the petition for Supreme Court review), and 0.25 hours on Sep. 20 to "review amicus brief" - all entail unnecessarily duplication of work which was being done at or around this same time, at a lower rate, by Attorneys Carlson and White. The commission will thus disallow these hours.
 

Reasonableness of hours on S.Ct. briefing -- Attorney Carlson billed for 118.75 hours relating to the briefing to the Supreme Court (this figured as the period of time from the point at which the Court granted the petition for review on November 6, 2006, to when the brief was filed with the Court, which occurred on January 9, 2007). Attorney White also billed for 50.75 hours, and Attorney Arellano billed for 5 hours, during this period of time (Nov. 7, 2006 - Jan. 8, 2007). This amounts to a total of 174.5 hours of attorney time. In addition, L&C requested 5.5 hours of time by paralegal Hartung for this part of the case.

ST contends that a total of only 35 hours (the number of hours billed by Attorney Blythe for the Court of Appeals brief) was reasonable for this briefing. Its arguments in this regard are similar to those discussed above with respect to the time spent responding to the petition for Supreme Court review, i.e., it contends that the hours claimed are much greater than those of attorneys briefing earlier phases of the case; much of the work had been done already by those other attorneys; and there was duplication of effort between Attorneys Carlson and White.

With respect to ST's arguments about the supposed excessiveness of the hours and the proposed comparison to a mere 35 hours, the commission's views are the same as discussed above: the comparison to past stages of the case is not apt, and the notion that much of the work had already been done is not persuasive.

In terms of efficient allocation of work between various attorneys of the firm, it was reasonable to have Attorney Carlson take over as principal counsel at the briefing stage of the case, notwithstanding his higher hourly rate, because it was justified by the advantage his greater experience would bring to the briefing, which is fundamentally more important than the response to the petition for Supreme Court review. For this reason, in looking at the claim that there was a duplication of effort between Attorney Carlson and Attorney White in the briefing process, the commission has focused more on the hours billed by Attorney White.

On Nov. 15, 2006, both White and Carlson billed for what appears to have been the same telephone conference with the client. Curiously, White billed 0.5 hours while Carlson billed 0.25 hours. Seeing no need for White's time on this, the commission will disallow those hours.

On Nov. 27, White billed for 1 hour for drafting a memo for Carlson summarizing the case materials. This was presumably of utility to Carlson in his subsequent work and the commission sees no reason not to allow it. On Nov. 29 and Dec. 7 and 8, White billed a total of 9.5 hours to "research LIRC decisions", "analyze and review brief", and "research". The information he developed was presumably shared with Attorney Carlson on Dec. 8 and 15, for which Carlson has billing entries reflecting communication with Attorney White (curiously, Attorney White has no billing entries for these days apart from a billing for 2 hours "research" on Dec. 8). Again, it is reasonable to assume that work product developed by Attorney White in his research on these days was of utility to Attorney Carlson, so this time will be allowed as well.

Thereafter, however, there are a number of billing entries by Attorney White (on Dec. 16 and 17 and January 2, totaling over 9 hours) generically identifying "research" for the brief, without any further elaboration -- and without any further entries by either Attorney Carlson or Attorney White indicating that they spent any time communicating with one another about the case. There then follow more billing entries by Attorney White (Jan. 3-8, totaling over 30 hours) noted as involving "drafting" of the brief. During this same time period (from Dec. 16 through Jan. 8), and indeed mostly on the same days, Attorney Carlson also billed for a large amount of time - almost 117 hours - much of which was described generically as "review" of law for the brief, or "work on" the brief, or "drafting" the brief. There is nothing in either attorney's billings which provides any indication of time spent in contact with the other attorney in which the results of the "research" by Attorney White worked could be provided to Attorney Carlson. There is also nothing in either attorney's billings which provides any indication that in their "drafting" of the brief they were working on different issues or different sections of the brief. For this reason - that is to say, the lack of anything to put to rest the reasonable question as to whether Attorney Carlson and White were not in fact researching and writing on the same legal issues, and thus duplicating one another's work - the commission concludes that the hours of Attorney White from December 16 through January 8 (this totals 39.75 hours) should be disallowed. The total allowed for Attorney White with respect to briefing would thus be 10.5 hours.

This still leaves the question of how to evaluate the very substantial number of hours (118.75) by Attorney Carlson devoted to the briefing to the Supreme Court. The 50-page brief covers three main issues (standard of review, termination "because of" disability, reasonable accommodation) all of which were both important and complex, and it is dense with law and analysis. Notwithstanding this, the commission still feels strongly that the almost 120 hours Carlson spent on this brief is excessive. It will reduce the amount of time deemed reasonable for work by Attorney Carlson in briefing to the Supreme Court by 28.75 hours, thus allowing a total of 90 hours as to this work.

The 5 hours billed by Attorney Arellano during the time that the case was at the briefing stage, consisted of: on Nov. 7, 0.25 hours reviewing the Supreme Court's order granting review; on Dec. 26, 1 hour for "review brief - petition for review" and 0.25 "review correspondence from court"; on Jan. 7, 2.5 hours for reviewing the brief to the supreme court and conferencing with associate counsel regarding changes and "miscellaneous issues"; and on Jan. 8, 1 hour reviewing the final draft of the brief and conferencing by telephone with associate counsel about the brief;. The Court's order granting review was routine and in any event it is not clear why Arellano would need to review it if, as soon became clear, he was not really going to be doing any significant amount of work on the brief; the commission will disallow this time. Arellano's time reviewing the brief on Dec. 26 occurred when it was still at a relatively early stage (the bulk of the time ultimately devoted by Carlson to it had not yet been expended), and there is no indication in anyone's billing records that Arellano gave any feedback to Carlson about what he reviewed at that point, calling into question the utility of his "review"; these hours will be disallowed as well. In that it is unable to find anything in the WSCCA Case History that seems to correspond to the "correspondence from the court" that Arellano billed for reviewing on Dec. 26, the commission will thus disallow that as well. In contrast to the foregoing, the time Arellano billed on Jan. 7 and 8 will be allowed. There is definite utility in having a senior, experienced counsel spend some time reviewing the final draft of a brief in a significant case before the Supreme Court and providing feedback to the principal drafting attorney. The amount of time allotted to this is reasonable. In sum, the foregoing amounts to reducing Attorney Arellano's time on briefing from 5 to 3.5 hours. 
 

Reasonableness of hours on oral argument preparation - Attorney Carlson billed for 120.5 hours relating to preparation for oral argument (this figured as the period of time after the point at which the brief was filed with the Court, which occurred on January 9, 2007, to and including the actual oral argument, which occurred on March 7, 2007). Attorney White also billed for 6.5 hours, Attorney Arellano for 1.25 hours, and Attorney James Olson for 1.5 hours, during this period of time.

The commission will address the contributions of White, Arellano and Olson first.

Attorney White's billed hours during this time, all occurring on Feb. 20, were for "review amicus briefs", "review petitioner's reply brief", and "review briefs". Certainly, familiarity with what was in these briefs would be of utility in preparing for oral argument, but of course it was Carlson who was going to be doing the oral argument. It is not clear from the billing records whether White conferred with Carlson or spent any time writing anything for him to convey whatever White learned in his review of those briefs. He did log hours after this point (for which no request for fees was made) concerning drafting of a "case digest" and a "memorandum-case digest" and indicating that he reviewed the oral argument outline, but nothing in the very vague entries logged by Attorney Carlson during this period of time (generally such things as "prepare for oral argument") provides any basis for certainty that he had the benefit of the review work done by White. It is difficult to believe, especially given the amount of time he spent, that Carlson did not himself read ST's reply brief and all briefs of amici. Given the excessive number of hours spent by Carlson on his preparation, the commission is reluctant to see these hours allowed when there are questions about their necessity as well. Therefore, these hours of Attorney White will be disallowed.

Attorney Arellano's billed hours during this time for which a fee is now sought were for: 0.50 hours on Jan. 9 for reviewing correspondence and motion papers regarding participation of amici; 0.25 hours on Jan. 11 for reviewing email from associate counsel regarding participation of amici; 0.25 hours on Jan. 17 "reviewing oral argument notification"; 0.25 hours on Jan. 29 reviewing correspondence from the Court and also ST's brief (presumably, its reply brief, filed that date); 0.25 hours on Jan. 31 to "review acknowledgements of filing of brief from court"; and 0.25 hours on Feb. 2 to review the brief of amicus Wisconsin Manufacturers & Commerce. Conspicuously lacking here, and in Carlson's billing records as well, is any indication of any consultation between Arellano and Carlson which would have allowed Arellano to give Carlson the benefit of anything Arellano acquired during his review of materials (such as briefs) that might bear on the approach to be taken in oral argument. As far as these records show, Arellano's work was not only duplicative of what Carlson was almost certainly doing in his many hours of "prepar[ation] for oral argument", but was effectively pointless as well in that it was not shared with Carlson, the counsel who did the oral argument. These hours will be disallowed.

Attorney James Olson billed for 1.5 hours on March 1, 2007 for "attendance at mock argument". ST argues that mere "attendance" at mock argument by an attorney who has no substantive role in the case should not be recoverable.

A "moot court"-style practice session is a routine, if not essential, part of preparation for oral argument, and it is certainly reasonable. If it is to be effective, it requires at least one person serving as the "justice" who can pose questions to the practicing counsel that test their ability to respond to the kinds of questions they will face from the court. That person needs to be a competent attorney with some familiarity with the issues presented in the case. Time expended by such an attorney in serving as a questioning "justice" in such mock argument would certainly be reasonably expended.

The problem here, is determining whether Attorney Olson played this role, or if he was merely observing. Presumably, if the use of the word "attendance" in the billing statement was merely a poor choice of words, and in fact Attorney Olson had played an active role in the mock argument, it might have been expected that this would be cleared up in L&C's responsive argument. However, in its reply brief in support of its fee petition, L&C only increased the uncertainty about exactly what Attorney Olson did by stating, "his presence at a mock trial exercise and the modest amount of time he billed were reasonable" (emphasis added).

The question of who actually participated in this "mock argument" on March 1, 2007 is puzzling for other reasons. Attorney Carlson's billing entry shows that there was "post argument discussion". With who? No other L&C attorney who had had any involvement with the case, including White and Arellano, showed any billing entry for participation in "mock argument" on that date or any other. If Attorney Olson was merely "present", "in attendance" at the mock argument, then who was asking Attorney Carlson questions, and who did he have his discussion with?

The serious question as to whether Attorney Olson did anything but sit as an onlooker warrants disallowing his request for time for this.

By far the main issue as to oral argument preparation time is the over 120 hours sought by Attorney Carlson. As noted above, ST's argument on this issue points to the fact that Carlson ceded some of his oral argument time to Dave Rice, to Bablitch's opinion that the time spent by Carlson in preparation for oral argument was "grossly excessive and unnecessary", and to the assertion that ST's counsel Amy Bruchs spent only 25 hours in preparation for oral argument.

The argument about Carlson having ceded some of his time is unpersuasive. As L&C points out, this is essentially irrelevant: notwithstanding that counsel may agree to split oral argument time, or even (as also occurred here) to concentrate on different issues, the fact remains that the justices may question any counsel, about any issue, at any time, for as long as they care to - and they frequently do. It would be completely reasonable for both counsel in such a shared argument to conclude that they would each need to be fully prepared to address each and every issue presented in the case to whatever depth was necessary.

The commission is also not much persuaded by Bablitch's opinion on this issue, for reasons discussed above (doubt as to whether Bablitch's position as a Justice actually gave him a good basis to know how much preparation time was reasonably necessary for an attorney standing in the very different role of an advocate on the other side of the bench, and doubt as to whether Bablitch's opinion should be given much weight when he asserted no familiarity with the issues which were presented in the case).

Attorney Bruch's assertion that she spent only 25 hours in preparation for oral argument does give reason to pause when considered in comparison to the hours claimed by Attorney Carlson. The commission does not believe that the fact that she spent only 25 hours is sufficient to justify a reduction of Carlson's hours to the same level (which is what ST seeks), but by the same token it does reflect such a different approach to oral argument preparation that it raises questions about that 120 hours.

"A reasonable fee for hours spent preparing for a legal argument should be limited to hours reasonably necessary for a lawyer to become familiarized with the facts and the law pertaining to the issue to be argued, an analysis of the opponent's argument, and questions anticipated to be posed by the court." Maldonado v. Houstoun, 256 F.3d 181 (3d Cir. 2001). This principle underlies one of the central, recurring observations often made in discussions of the reasonableness of fees claimed for preparation for oral argument: an attorney's work in briefing a case generally serves to provide them with some of the preparation they need for subsequent oral argument. See, e.g., American Petroleum Inst. v. EPA, 315 U.S. App. D.C. 268 (DC Cir. 1996) (116 hours for oral argument preparation rejected; "given [counsel's] obvious familiarity with the case from his work on motions and briefs, it would have been reasonable for him to have spent two weeks (80 hours) preparing for oral argument); Kennecott Corp. v. EPA, 256 U.S. App. D.C. 218 (DC Cir. 1986) ("[g]iven the substantial amount of time that already had been committed to researching and writing the briefs, 93 hours seems an excessive amount of time to prepare for oral argument").

Attorney Carlson devoted a large amount of time to briefing - time which, according to his own billing records, involved such things as review and analysis of the opponent's arguments, previous decisions in the case, and case law. Even if consideration is given only to the 90 hours of briefing time which the commission has found to have been reasonable, rather than the almost 120 hours which he actually spent, this is still a very significant amount. Even with the lesser amount, of 90 hours devoted to legal research and analysis, it seems clear that he would have approached the preparation for oral argument with a great deal of familiarity with the record, the law, and the issues, all of which would have been directly relevant to his oral argument. Of course, additional preparation would have been required, if only because subsequent to his briefing of the case there was a reply brief filed by ST and also three amicus briefs filed; but to seek over 120 additional hours seems clearly excessive.

An apt observation was made by the First Circuit Court of Appeals in a case in which it had to decide on (among other things) the reasonableness of a claim for attorneys' fees for preparation for oral argument in a First Amendment case, in which one of the attorneys was the justly renowned Professor Laurence Tribe. The court stated:

[T]he brief having been completed, [Professor Tribe] then spent from 5 to 7 hours a day for 11 days preparing for oral argument in this court -- a total of 66 hours for a case in which the total argument of both sides would occupy less than one hour. This time... is perhaps the clearest example of a basic assumption underlying Grendel's fee applications: that the standard of service to be rendered and compensated is one of perfection, the best that illimitable expenditures of time can achieve. But just as a criminal defendant is entitled to a fair trial and not a perfect one, a litigant is entitled to attorney's fees under 42 U.S.C. § 1988 for an effective and completely competitive representation but not one of supererogation. It is simply not conceivable to us that the ablest of lawyers, having covered the same ground in arguments in the district court, would have required the equivalent of a full week and a half of billable hours to prepare for oral argument. Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 53-54 (1st Cir. 1984) (emphasis added)  (12)

Considering all of the foregoing, the commission concludes that a reasonable allowance of time for work by Attorney Carlson in preparing for oral argument to the Supreme Court would be 60 hours. 
 

8. Costs for 2nd Ct. App. proceedings and 2nd Sup. Ct. proceedings -

L&C seeks a total of $616.95 in costs for the case. ST argues that only $279.90 should be allowed, because only this amount was actually taxed and allowed by the Supreme Court after its decision.

The commission does not agree with ST's argument for reducing the costs. The rationale and legal authority for the taxation of costs in appeals to the Supreme Court, are completely separate from the rationale and legal authority for determining "make whole" relief under the Wisconsin Fair Employment Act. Whether or not the Supreme Court allows certain costs to be taxed by the successful party in a matter that went to the Supreme Court does not change the fact that the expenses sought to be claimed were in fact incurred. ST did not cite any authority for the proposition that the Court's decision on what costs it will allow to be taxed, also controls the question of whether those costs may be ordered reimbursed by the commission as part of a remedy provided to a successful complainant under the WFEA. The commission does not see why it should control that question.

Since ST's only objection to the claim for $616.95 in costs is based on its theory that the costs allowable in the present context are controlled by what the Supreme Court allowed to be taxed, a theory the commission rejects, it will allow the claimed amount. 
 

9. Attorneys' fees for the current proceedings concerning the amount of fees --

It is well-established that attorney time spent in establishing entitlement to fees is itself normally recoverable. See, Donovan v. Graebel Van Lines (LIRC, May 23, 1990); Chmill v. Friendly Ford-Mercury of Janesville, 154 Wis. 2d 407, 414, 453 N.W.2d 197 (Ct. App. 1990) (adopting the federal approach which allows reasonable fees and disbursements incurred to litigate fees under a fee-shifting statute). For this reason, in a situation like this one which involves determination of attorneys' fees for an extended litigation, the very last "chapter", so to speak, is normally the determination of the fees due for counsel's work on the fee determination itself.

Attorney Schwartz has not filed a supplemental petition for fees seeking an award for the work spent on his argument to the commission concerning his fees and those of Attorney Haber. In the absence of such a supplemental petition, the commission makes no further award for that work.

Lawton & Cates' request for fees for time spent on the attorneys' fee issue is discussed below. 
 

a. L&C - time spent from S. Ct. decision to the point of the initial fee petition - With regard to time spent on this case from July 17, 2007 (the date of the Supreme Court's decision, which made the issue of liability final) through to the filing of the initial fee petition, analysis of L&C's fee request is complicated by the fact that Geen's counsel were spending time on things that could be considered to be in a number of different categories. Some time of both Attorneys Carlson and Thal was spent on back pay issues, and some on attorneys' fee and costs issues. There was also some time spent relating to the possibility of a motion for reconsideration, and of settlement. (13)

For that entire time period, the initial fee petition filed by L&C contained a request for a total of 21 hours for Attorney John Carlson Jr., 20.75 hours for Attorney Richard Thal, 0.25 hours for Attorney Victor Arellano, 1.0 hour for paralegal Brian Hartung, and 29.95 hours for law clerk Maggie Hogan.

In evaluating the reasonableness of the request for time during the period when the initial fee request was being compiled, it must be borne in mind that the extensive arguments which were made in ST's eventual response had not yet been raised and therefore no need had arisen to work on argument supporting the fee request apart from what was incorporated in the supporting affidavits.

In response to L&C's initial request for fees, ST contends that L&C "grossly and unnecessarily overcharged in their fee petition for time spent in calculating back pay and attorney's fees". It argues that all that was necessary with respect to attorneys' fees and costs is to print off the attorneys' bills.

ST contended, in its response to L&C's initial fee request, that all that was necessary with respect to determining back wages was to fill out the ERD's back pay computation worksheet. It also suggests that the back pay due was calculated and communicated to Attorney Petranech at an earlier stage of the case. Here, L&C has a better argument. Relatively little of the attorney time expended in the period leading up to the filing of the initial fee request related to the back pay issue; instead, it appears that L&C made the reasonable and efficient decision to have much of what it did be handled by a law clerk with a lower billing rate. Furthermore, the supporting materials submitted by L&C persuasively establish that the question of what would constitute sufficient compliance with the back pay order had not been fully resolved, that it was more complex than simply entering extant figures into a worksheet because there was no actual pay schedule for ST to work with and estimation was therefore necessary, and that there was an additional issue as to compensability of out-of-pocket expense which would have been covered by insurance available to Geen as an employee. The commission believes that the potential complexity of the issues in regard to back pay was such as to make the number of hours expended on that reasonable. For this reason, it makes no reduction in the time sought for law clerk Hogan.

With respect to the compilation of the attorney's fee request, it does seem true that this should have been a relatively inconsequential part of the process - L&C had contemporaneous time records, entered into a computerized time management and billing system, and it has not contended that assembling the detailed billing record (Attachment A to the Carlson Affidavit) required any attorney time. However, focusing merely on this understates somewhat what was involved, in that it ignores the time that was necessarily involved in drafting the supporting affidavits. That said, it must also be acknowledged that the affidavits do not appear to reflect the necessity of over 30 hours of attorneys' time. In addition, the commission notes that L&C's billing materials do not actually identify which attorney (i.e., Carlson or Thal) may have drafted which supporting affidavit(s) - or even, in the case of the affidavits of White, Arellano, Blythe, and Olson whether they were drafted by them at all, as opposed to being drafted by the affiants themselves.

In addition, a certain amount of attorney time was required to participate in the process of settling on the scope and procedures to be followed in the current commission review of the fee issue. That said, it must then be recognized that this involved merely a little bit of correspondence and brief phone calls. Here again, there is a shortcoming in the billing records in that they do not indicate whether Thal or Carlson was involved in such interactions.

L&C has not actually cited the tasks of preparing the supporting affidavits or dealing with the commission concerning the process, as justifications for the hours expended on the initial fee petition. L&C's only specific argument in that respect is, in its entirety, as follows:

As is now apparent, Stoughton Trailers is not willing to pay anything near the amount of attorneys' fees that it owes. Given Stoughton Trailers' positions, Thal and Carlson needed to carefully consider the arguments presented and they needed to review the authorities on which Stoughton Trailers relied in its various responses to Geen's request that it pay the attorneys' fees owed.

The problem with this line of argument being used in service of the claim for hours spent preparing the initial fee petition is that, as noted above, at the time those hours were being expended ST had not yet articulated any arguments or relied on any authorities in regard to the question of what fees were appropriate. Unless L&C was engaging in legal research and drafting in anticipation of arguments which might be made by ST in its response to the initial fee petition - something L&C does not claim - the "careful consideration" and "review of authorities" which L&C invokes here would not have been happening yet at the time the more than 30 hours of attorney time were being expended on the initial fee petition.

Considering all of the foregoing, the commission does not find it reasonable to allow L&C the full 21 hours of attorney time at $200/hour (for Carlson) and another 20.75 hours of attorney time at $300/hour (for Thal) for this period of time in which preparation of the initial fee petition was the task on the table. Considering the tasks presented, the drafting of the relatively brief petition and the supporting affidavits, it will reduce the number of hours allowed for Carlson during this period by 9, to 12, and reduce the number of hours allowed for Thal during this period by 8.75, to 12. It will also disallow the 0.25 hours Arellano spent on August 23 reviewing the Supreme Court's remittitur. The 1.0 hour of time of paralegal Hartung for compiling information about costs is reasonable and will be allowed.

ST also asks, in the course of summing up its argument with respect to the claimed time for work on the attorneys' fee petition, that 1 hour of time claimed for Attorney Christopher Blythe be cut. However, the only hours attributable to Attorney Blythe identified in L&C's fee petition are hours in 2004. Of these, 1 hour on October 14, 2004 is described as being for "Review documents; calculate damages". This apparently corresponds to an entry on the same date for .75 hours by paralegal Hartung for "Review salary information. Calculate wage loss. Conference with CJB regarding same". This time really does not relate to the general question of whether time working on the fee petition in 2007-08 was appropriate. The commission sees no reason to disallow this hour of Blythe's time.
 

b. L&C - time spent on the reply to ST's response to the initial fee petition - The scope of this part of the fee claim is easily identified, if not easily resolved. L&C filed a reply brief to ST's response to the initial fee petition -- and with it, additional billing records effectively requesting 50.5 hours of time for Attorney Carlson, and 4 hours of time for Attorney Thal, all of which was attributable to that reply brief.

The reply brief in question is 37 pages long, not including additional supporting affidavits which were attached to it. It reflects a significant amount of legal research, citing several dozen court decisions and perhaps a dozen commission decisions. It addresses a number of distinct issues which were effectively raised by ST's brief, including the general standards for evaluating fee requests, the significance of MB&F's non-disclosure (with one limited exception) of its own hours, MB&F's manner of arguing the combined times of Carlson and Blythe, the question of how the apportionment of oral argument time did or did not affect the amount of preparation necessary for the argument, the weight to be given the Bablitch affidavit, and the question of whether work done on earlier stages of the case did or did not make it unnecessary for L&C to do as much work later on (which also involved discussion of the underlying substantive issues in Geen's claim at various points during the litigation). Notwithstanding all of this, the commission still concludes that Attorney Carlson's claim for 50.5 hours for this reply brief is simply too high. It seems to the commission to reflect the same kind of "supererogation" (in the words of the Grendel's Den court) that is seen in other elements of Carlson's claimed hours. The commission believes that a reasonable allowance for Carlson's work on this brief would be 40 hours.

The commission notes that the brief is signed solely by Attorney Carlson. However, the attached billing materials for Attorney Thal expressly represent that he drafted "a portion" of that brief. It is a reasonable inference from this, that he worked on a distinct portion of the brief other than the portions which Carlson worked on. Thus, the commission sees no basis for concluding that there was any duplication of effort between them, and it therefore allows the full 4 hours that Attorney Thal billed for the fee petition reply brief.
 

Summary - reductions to hours claimed by Lawton & Cates - The following chart summarizes the foregoing findings and conclusions of the commission as to the amounts which will be allowed as reasonable attorneys' fees for Lawton & Cates:

Based on the foregoing, and pursuant to the April 26, 2004 ruling and the May 6, 2004 remand mandate and order of the Dane County Circuit Court, the commission now makes the following:

1. That the respondent shall pay to the complainant his reasonable attorney's fees for the initial agency proceedings before the ALJ in this matter, which are determined to be as follows:

a) To Attorney Darcy C. Haber, $15,732 for attorneys fees for the proceedings up to the point of the ALJ's decision. This amount should be paid by way of check made out jointly to Haber and complainant and delivered to Haber. This amount is separate from and in addition to the $2,068.75 for attorneys fees for the initial petition for commission review proceedings, ordered paid to Haber in the commission's order of September 11, 2003, which part of that order is now final.

b) To Attorney Paul F. X. Schwartz, $15,706.25 for attorneys fees for the proceedings up to the point of the ALJ's decision. This amount should be paid by way of check made out jointly to Schwartz and complainant and delivered to Schwartz. This amount is separate from and in addition to the $3,387.50 for attorneys fees for the initial petition for commission review proceedings, $2,300.19 for costs for the initial proceedings before the ALJ, and $42.87 for costs for the initial petition for commission review proceedings, ordered paid to Schwartz in the commission's order of September 11, 2003, which parts of that order are now final.

2. That the respondent shall pay to the complainant his reasonable attorney's fees for the proceedings in this matter subsequent to the issuance of the commission's August 21, 2000 decision, which are determined to be as follows:

a) To Lawton & Cates, S.C., $98,927.50 for attorneys' fees and $616.95 for costs, amounting to a total of $99,544.45, which should be paid by way of check made out jointly to Lawton & Cates and complainant and delivered to Lawton & Cates.

3. That within 30 days of the date on which this order becomes final, either by virtue of expiration of time within which an appeal may be taken herein or by final denial of or refusal to hear any such appeal, respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § 111.395, 103.005(11) and (12).

Dated and mailed August 8, 2008
geendou . rrr : 110 :

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc:
Attorney Richard Thal
Attorney Paul F. X. Schwartz
Attorney Darcy C. Haber
Attorney Amy O. Bruchs

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) Specifically, the petition by Attorney Haber requested a rate of $110/hour for 29.45 hours of work through September 2, 1998, $125/hour for 120.45 hours of work thereafter, and $62.50/hour for 1 hour of work on November 19, 1998 (meeting with Attorney Mary Kennelly "re: case strategy and review"); the petition by Attorney Schwartz requested a rate of $125/hour for 148.75 hours of work, and $62.50/hour for 1 hour for the same meeting with Attorney Mary Kennelly identified in Haber's petition.

(2)( Back ) The ALJ also eliminated the requested 1 hour for each attorney, at $62.50/hour (1/2 their normal $125/hour rate), for the 1 hour meeting with Attorney Kennelly on November 19, 1998, finding this expenditure of time unreasonable in the absence of a fuller explanation as to why it was necessary.

(3)( Back ) Attorney Haber did not claim any costs.

(4)( Back ) Actually, Schwartz's letter misstates the relevant amounts slightly. He states the costs awarded for the proceedings before the ERD as having been $2,343, and then separately refers to the costs awarded for the proceedings before LIRC as having been $42.87. In fact, as noted above, the costs awarded for the proceedings before the ERD were $2,300.19. The figure of $2,343 (actually $2,343.06) which is referred to in LIRC's order reflected the addition of the allowed costs for both phases of the case (i.e., $2,300.19 for ERD costs + $42.87 for LIRC costs = $2,343.06). Schwartz's mistake has the effect of including the LIRC costs twice.

(5)( Back ) That provision of the code states:

(4) Computation of interest. Interest on any award made pursuant to this subchapter shall be added to that award and computed at an annual rate of 12% simple interest. Interest shall be computed by calendar quarter.

(6)( Back ) When he began working on this case, Petranech was a partner in another firm, Kelly & Petranech. Later, that firm merged with L&C, and Petranech brought Geen with him as a client. Petranech died in 2005, and L&C as a firm is now pursuing the claim for an award of fees related to his work on the case.

     A footnote in the reply brief submitted by L&C suggests that at one point, ST was taking the position that L&C was not entitled to receive fees for the work done by Attorney Petranech when he was with Kelly & Petranech. As the footnote notes, ST is not currently taking any such position.

(7)( Back ) For the sake of convenience, the commission may refer in this decision to positions and arguments being taken and made "by" Lawton & Cates or Attorneys Schwartz and Haber. Although the benefit of an award of attorneys' fees will effectively run to those attorneys, it is of course Geen who is the actual party in this matter, not the attorneys who have appeared on his behalf. All references in this decision to positions taken and arguments made by those attorneys should thus be understood as referring to them in their roles as counsel for Geen, and not as parties in their own right.

(8)( Back ) In Attorney Bruch's "Declaration" appended to ST's response to the fee request, only 34 out of the 37.5 total hours claimed for Attorney Blythe are identified as being related to the briefing to the Court of Appeals, and these 34 hours are also referred to in the Bablitch "Declaration". However, this appears to be intended merely to establish what ST contends to be a benchmark for time on Court of Appeals briefing. As noted, there is no contention raised that the other 3.5 hours claimed for Attorney Blythe were not reasonably expended in the representation of Geen.

(9)( Back ) These are not affidavits made consistent with the requirements of Wis. Stat. Ch. 887, but rather "declarations" made pursuant to 28 U.S.C. § 1746, which provides that "[w]herever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law" any matter is required or permitted to be supported by a sworn statement, it may be supported by a statement by a declaration which states that it is made under penalty of perjury. Questions might be raised as to whether use of these kinds of "declarations" is appropriate in this proceeding, which is one entirely under state law, but Geen has not raised any such questions so the commission will treat the declarations as being functionally equivalent to affidavits.

(10)( Back ) In first noting its reliance on Bablitch's declaration, ST's brief identifies him solely as "former Wisconsin Supreme Court Justice William Bablitch", without any mention of the fact that he was and had been since 2003 a partner and member of the Litigation and Legal Practice Area of MB&F. That fact is disclosed, it should be noted, in Bablitch's declaration itself.

(11)( Back ) "The amount of an attorney fee award typically is left to the discretion of the circuit court, given that court's greater familiarity with the locality's billing norms and its firsthand opportunity to witness the quality of the attorney's representation." Stuart v. Weisflog's Showroom Gallery, Inc., 2008 WI 22, ¶14, 746 N.W.2d 762, citing, Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶22, 275 Wis. 2d 1, 683 N.W.2d 58; Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, ¶15, 303 Wis. 2d 258, 735 N.W.2d 93; Anderson v. MSI Preferred Ins. Co., 2005 WI 62, ¶19, 281 Wis. 2d 66, 697 N.W.2d 73.

(12)( Back ) It is worth noting that here, too, one sees the court giving consideration to counsel's time spent on earlier briefing of the issues as a factor in assessing the reasonableness of oral argument preparation time.

(13)( Back ) Of these hours sought for Carlson, approximately 1.0 identifiably relate to back pay issues, 18.25 relate to attorneys' fees and costs issues, and 2.0 relate to other matters (including client contact, possible reconsideration motion, settlement). Of the hours sought for Thal, approximately 5.5 identifiably relate to back pay issues, and 14.25 relate to attorneys' fees and costs issues. Arellano's 0.25 hours on August 23 relate to "review[ing] correspondence from court", and it appears that the only thing he would have been reviewing from the Supreme Court at this time would have been the remittitur, which the court issued on August 22. The 1.0 hour sought for paralegal Hartung was for preparation of an itemization of photocopy expenses for the case. Of the hours sought for law clerk Hogan, approximately 26.45 identifiably relate to back pay issues, and 3.50 relate to attorneys' fees and costs issues.

(14)( Back ) The total sought for White reflects L&C's request for only 90% of the logged time.

(15)( Back ) $300 x 9.75 = $2,925. The $3,050 sought in the petition appears to reflect a math error in the amount shown in the entry of Aug. 23, 2007.

uploaded 2008/08/11