Ramos v. Lamm , 713 F.2d 546 ( 1983 )

LOGAN, Circuit Judge.

This appeal involves the award of attorney’s fees and expenses to the plaintiffs in a civil rights 'class action in which the district court held that conditions in the maximum security unit of the Colorado State Penitentiary at Canon City deprived prisoners of rights protected by the Eighth and Fourteenth Amendments. Ruling on applications submitted by the plaintiffs pursuant to 42 U.S.C. § 1988, the court awarded $709,933.50 in attorney’s fees and $32,782.43 in expenses allowable as costs. The defendants have appealed that judgment, arguing that the court abused its discretion in awarding those amounts. The plaintiffs have cross-appealed, claiming that an additional $73,939.16 in out-of-pocket expenses should have been allowed.

Plaintiff Fidel Ramos filed a pro se complaint in November 1977 challenging the constitutionality of conditions in the maximum security unit of the penitentiary. The American Civil Liberties Union Foundation of Colorado, the National Prison Project, and the Colorado Coalition of Legal Services entered appearances as counsel for the plaintiff in March 1978 and obtained certification of the case as a class action on behalf of all maximum security prisoners. Following extensive discovery and a five-week trial, the district court ruled that the conditions at the facility deprived the prisoners of constitutional rights. Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.1979). The district court held the following conditions at the prison to be unconstitutional: (1) an inadequate physical environment because of lack of sanitation, heat, ventilation, lighting, and plumbing; (2) lack of prisoner safety because of the physical layout of the prison and inadequate staff supervision; (3) idleness and lack of exercise; (4) inadequate medical attention; (5) an arbitrary classification system; (6) overly broad visitation restrictions; (7) excessive restrictions on correspondence; and (8) insufficient access to the courts because the law library was inadequate and insufficient time was permitted for library use.

The conditions at the maximum security unit had been the subject of inquiry prior to the filing of this suit. In 1973 the facility was found to be “outdated” and “unmanageable” by a task force of the American Correctional Association. A report by the Attorney General of Colorado in 1975 concurred in that finding. In February 1977 a plan submitted to the Colorado legislature recommended that use of the facility be phased out. Prior to commencement of this suit the legislature had made initial appropriations to build a new maximum security prison, which was to be completed in January or February 1981. The district court noted the steps that the state had taken toward building a new facility, but ruled that these steps did not eliminate the constitutional infirmity of the conditions under which the prisoners were being held. The court also noted that some of the violations would continue in the new facility. The court ordered that the prison be closed unless immediate steps were taken to remedy the existing constitutional violations.

The defendants appealed the judgment and order of the district court. This Court affirmed the judgment with regard to: (1) the physical environment — including considerations of shelter, sanitation, and food preparation; (2) prisoner safety because of physical layout and staff supervision; (3) medical care; (4) correspondence; and (5) access to the courts. We vacated the district court’s conclusion regarding visitation and the portions of the court’s remedial order relating to idleness, motility, and classification. We remanded for reconsideration of the remedy in light of the progress being made on the new facility. Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980). Both the plaintiffs and the defendants unsuccessfully petitioned for writs of certiorari from the Supreme Court. 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). On remand, in August 1981, the district court affirmed its order of closure, noting that the facility remained unfit for human habitation. The court also issued an order approving the stipulations of the parties concerning remedies for the shelter, sanitation, safety, and medical care violations. Ramos v. Lamm, 520 F.Supp. 1059, 1062 (D.Colo.1981) . No appeal was taken from this order.

In December 1979, immediately after the original trial, the plaintiffs submitted a request for an interim allowance of attorney’s fees; the request was updated several times before the court made its award in March 1982. In this appeal the defendants claim that the trial court abused its discretion by awarding fees for too many hours and by applying an excessive rate of compensation. They also claim that certain of the expenses allowed by the district court were improper. The plaintiffs assert in their cross-appeal that they should have been reimbursed all out-of-pocket expenses.

In its opinion the district court extensively reviewed Tenth Circuit and other decisions involving attorney’s fees. It criticized the opinions for being inconsistent and pleaded for specific guidelines for district courts to apply in setting fee awards. Ramos v. Lamm, 539 F.Supp. 730 (D.Colo.1982) . We agree that more specific guidelines are necessary, and we proceed to set forth standards for district courts to follow in this and similar cases. In this endeavor we are aided by the Supreme Court’s recent decision in Hensley v. Eckerhart,-U.S. --, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

I

At the outset we dispose of two of the defendants’ main contentions in this appeal. First, the defendants argue that fee awards to public interest lawyers, those employed by public interest organizations or those in private practice who donate their services to such organizations, should be calculated differently than awards to lawyers in private practice who would personally receive the benefit of the awards. We reject this contention. We agree with most courts that have considered the issue that calculating attorney’s fees for public interest lawyers and private firm lawyers in the same manner furthers the legislative intent underlying 42 U.S.C. § 1988. See, e.g., Copeland v. Marshall, 641 F.2d 880, 899 — 900 (D.C.Cir.1980) (en banc); Palmigiano v. Garrahy, 616 F.2d 598, 601-03 (1st Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980); Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir.1978); Torres v. Sachs, 538 F.2d 10, 13-14 (2d Cir.1976); see also New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 70 n. 9, 100 S.Ct. 2024, 2034 n. 9, 64 L.Ed.2d 723 (1980); Love v. Mayor of Cheyenne, 620 F.2d 235, 237 (10th Cir.1980) (citing Reynolds v. Coomey). When Congress enacted § 1988 it made no distinction between the compensation to be awarded to private lawyers and that to be awarded to lawyers working in public interest law firms. The Senate Report accompanying the bill cited with approval two cases holding that the fees should be calculated in the same manner. Sen.Rep. No. 1011, 94th Cong., 2d Sess. 6, reprinted in 1976 U.S. Code Cong. & Ad.News 5908, 5913 (citing Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C.1975); Davis v. County of Los Angeles, 8 Empl.Prac.Dec. (CCH) ¶9444 (C.D.Cal.1974)). The court in Swann noted that reasonable fees should be awarded in civil rights cases without regard to the lawyer’s status as a “salaried employee[ ] of a legal aid agency.”. 66 F.R.D. at 486. The court in Davis was even more explicit:

“In determining the amount of the fees to be awarded, it is not legally relevant that plaintiffs’ counsel ... are employed by the Center of Law In The Public Interest, a privately funded nonprofit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys’ fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys’ fees.”

8 Empl.Prac.Dec. ¶19444, at 5049.

Section 1988 contemplates that both public interest lawyers and private law firms be provided with incentive to prosecute civil rights actions; the fee awards provide this incentive by increasing the ability and willingness of both groups to finance litigation they would otherwise be unable or unwilling to afford. To pay public interest firms less than private firms could frustrate the prosecution of civil rights litigation. Potential liability for full value fee awards can deter violations of the civil rights laws, especially in situations in which the fee award represents a significant portion of a defendant’s financial exposure. Establishing a lower fee when public interest lawyers represent plaintiffs will reduce the incentive to eliminate violations, and will provide defendants with less incentive to settle and more incentive to engage in dilatory tactics than would be present if private firm lawyers were involved. See Copeland v. Marshall, 641 F.2d at 899. The legislative history and the general purposes underlying the awarding of attorney’s fees indicates that congressional intent is best fulfilled by calculating the fees for these groups in the same manner.

The defendants’ second contention is that attorney’s fees should be decreased when the fees will come from public funds and hence ultimately from the taxpayers. This contention has already been rejected by this Court. See Battle v. Anderson, 614 F.2d 251, 257-58 (10th Cir.1980); see also Love v. Mayor of Cheyenne, 620 F.2d 235 (10th Cir.1980) (by implication). Much as the legislative history of § 1988 makes no distinction among parties who collect attorney’s fees, so it makes no distinction among parties who pay them. See Sen.Rep. No. 1011. When Congress enacted the attorney’s fee statute, it chose to award fees against governmental entities. Many civil rights actions are brought pursuant to 42 U.S.C. § 1983. Violations of this statute require action under color of state law; thus, a governmental entity will often be responsible for the payment of the fee. Reducing the potential award for a large group of defendants would counteract the congressional intent to induce civil rights enforcement in the same way reducing the awards for certain types of plaintiff’s lawyers would frustrate that intent. We hold, therefore, that attorney’s fees awarded against governmental units should be calculated in the same manner as those awarded against private parties. See generally Copeland v. Marshall, 641 F.2d at 894-95.

II

In recent decisions we have referred to the factors for computing attorney’s fee awards set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) (cited with approval in Sen.Rep. No. 1011). See, e.g., Battle v. Anderson, 614 F.2d 251, 258 (10th Cir.1980); Francia v. White, 594 F.2d 778, 782 (10th Cir.1979); see also Hensley v. Eckerhart,-U.S. at ---, 103 S.Ct. at 1937-38. In part we have done this to ensure that district courts articulate specific reasons for fee awards to give us an adequate basis for review. However, we recognize that while the factors set out in Johnson are useful, some are seldom applicable, and none is self-actuating: “Simply to articulate those twelve factors ... does not itself conjure up a reasonable dollar figure in the mind of a district judge. A formula is necessary to translate the relevant factors into terms of dollars and cents.” Copeland v. Marshall, 641 F.2d at 890. Therefore, we provide guidance in assessing and applying the relevant factors to produce a monetary award.

A

“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, - U.S. at-, 103 S.Ct. at 1939.

Time

The first step in calculating fee awards is to determine the number of hours reasonably spent by counsel for the party seeking the fees.¹ In the future, district judges in this Circuit will inform lawyers that if they intend to seek attorney’s fees under § 1988 they must keep meticulous, contemporaneous time records to present to the court upon request. These records must reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks — for example, how many hours were spent researching, how many interviewing the client, how many drafting the complaint, and so on.²

The district court must determine not just the actual hours expended by counsel, but which of those hours were reasonably expended in the litigation. When scrutinizing the actual hours reported, the district court should distinguish “raw” time from “hard” or “billable” time to determine the number of hours reasonably expended.

“Compiling raw totals spent, however, does not complete the inquiry. It does not follow that the amount of time actually expended is the amount of time reasonably expended. In the private sector, ‘billing judgment’ is an.important component in fee setting. It is no less important here. Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.”

Copeland v. Marshall, 641 F.2d at 891 (emphasis in original).

In determining which hours reported were reasonably expended and hence are billable to the adversary, the court should examine the total number of hours reported by each lawyer. While some private firm lawyers bill more than 2000 hours per year, studies indicate that 1400 to 1600 billable hours per associate and 1200 to 1400 per partner represents the per annum norm that can actually be billed. See, e.g., ABA Standing Committee on Economics of Law Practice, Administrative and Financial Management in a Law Firm 2, 6 (Economics of Law Practice Series Pamphlet 10, 1965). These totals break down to six to seven billable hours per day for a five day week. During trials and other times of unusual stress the number of billable hours no doubt increases considerably. These studies reflect that normal workdays for lawyers include time to read general mail and advance sheets, to engage in nonbillable conversations with other lawyers, and to indulge in coffee breaks and other personal activities. The court should question reported time significantly in excess of the norm.

In examining the reasonableness of the hours reported, the district court should also examine hours allotted to specific tasks. First, the court should determine whether the tasks sought to be charged to the adverse party would normally be billed to a paying client. Lawyers charging fees to adversaries rather than clients may be less likely to carefully scrutinize the hours spent to determine if payment for the task performed is justified. Thus, it would not be surprising that reported hours would include time spent reading background cases, civil rights reporters, and other materials designed to familiarize the attorney with this area of the law — time that would be absorbed in a private firm’s general overhead and for which the firm would not bill a client.

When examining the hours reported for tasks that are properly billable, the district court should evaluate the hours spent on each task to determine their reasonableness. In the instant case, for example, more than 100 hours were spent drafting the complaint. While this expenditure of time may have been reasonable, it demands explanation.³ In determining what is a reasonable time in which to perform a given task or to prosecute the litigation as a whole, the court should consider that what is reasonable in a particular case can depend upon factors such as the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the maneuvering of the other side.

Another factor the court should examine in determining the reasonableness of hours

expended is the potential duplication of services. “For example, [if] three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time.” Copeland v. Marshall, 641 F.2d at 891. Similarly, if the same task is performed by more than one lawyer, multiple compensation should be denied. The more lawyers representing a side of the litigation, the greater the likelihood will be for duplication of services. More than a dozen attorneys spent time on the instant litigation for the plaintiffs; at least five attorneys spent more than 200 hours each on the case and two spent more than 2000 hours each. Perhaps this expenditure of time was necessary, but the vast number of hours reported raises the question of duplication. Leading members of the profession have criticized the bar for the burgeoning expense of modern litigation and have attributed part of the problem to the practice of using several lawyers when one would suffice. The court should assess the possibility that reported hours include duplication by reviewing with particular care the number of lawyers present at hearings, depositions, and other discovery proceedings, and by evaluating the roles played by the lawyers in the litigation generally. The court can look to how many lawyers the other side utilized in similar situations as an indication of the effort required. Because utilizing more than one lawyer may be reasonable in some situations, such as during settlement conferences or during trial,⁴ we decline to require an automatic reduction of reported hours to adjust for multiple representation or potential duplication. However, the district court should give particular attention to the possibility of duplication.

In sum, the district court must carefully scrutinize the total number of hours reported to arrive at the number of hours that can reasonably be charged to the losing party, much as a senior partner in a private firm would review the reports of subordinate attorneys when billing clients whose fee arrangement requires a detailed report of hours expended and work done.

Reasonable Hourly Rate

The first step in setting a rate of compensation for the hours reasonably expended is to determine what lawyers of comparable skill and experience practicing in the area in which the litigation occurs would charge for their time.⁵ If the lawyer seeking the fee is in private practice, his or her customary rate would be a relevant but not conclusive factor. The hourly rate should be based on the lawyers’ skill and experience in civil rights or analogous litigation. Lawyers working outside their fields of expertise may deserve an hourly fee lower than their normal billing rate because of their lack of experience in the civil rights field. Salaried public interest firm lawyers should be assigned a billing rate equal to their counterparts in expertise in private practice. The quality of the lawyer’s performance in the case should also be considered in placing a value on his or her services.⁶

The hourly rate at which compensation is • awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time the services were performed. The lawyers seeking fees usually will not have been paid for their services until the court makes its allowance. We think that awarding compensation at current rates will roughly approximate periodic compensation adjusted for inflation and interest and will obviate the necessity of guessing when periodic billings would have been made and paid in an analogous private practice situation. Generally, no prejudgment interest should be paid for the period before the fees are awarded.

Absent more unusual circumstances than we see in this case, the fee rates of the local area should be applied even when the lawyers seeking fees are from another area. In every major metropolitan area there are a substantial number of lawyers who possess the skill to handle all but the most unusual civil rights cases. More than one-sixth of all civil cases filed in federal court last year were civil rights suits. See Annual Report of the Director of the Administrative Office of United States Courts, 215-16 (1982). More than 30% of the cases appealed to the United States Courts of Appeals last year were civil rights cases. Id. at 207-08. This volume of litigation indicates that civil rights litigation has become a common specialty. We do not think that a prison conditions case such as the one at issue here is so unusual or requires such special skills that it could not be handled by reasonably competent trial lawyers in Denver or any other metropolitan area. Most other substantive areas of civil rights law have become sufficiently familiar that reasonably competent lawyers who do civil rights work should be able to function at both the trial and appellate level.

Thus, the court should establish, from the information provided to it and from its own analysis of the level of performance and skills of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits calculated as of the time the court awards fees.

B

Reductions of Fees

If a plaintiff does not prevail on all claims for relief, the court must determine whether an adjustment is necessary. The Supreme Court has declared that if a plaintiff fails to prevail on claims “unrelated” to those on which he or she succeeds, work on the unrelated unsuccessful claims cannot be compensated. Hensley v. Eckerhart, - U.S. at -, 103 S.Ct. at 1940. These claims are to be treated as if raised in a separate lawsuit that the plaintiff lost. Id.

More difficult are those cases in which the plaintiffs claims involve “a common core of facts or [are] based on related legal theories” and cannot be viewed as a series of discrete claims. Id. In such cases the court must focus on the significance of the overall relief obtained by the plaintiff. If the plaintiff has obtained “excellent results,” the attorney’s fees should encompass all hours reasonably expended; no reduction should be made because the plaintiff failed to prevail on every contention: “The result is what matters.” Id. (footnote omitted). If a plaintiff has achieved “only partial or limited success,” then even though the plaintiff’s claims were “interrelated, nonfrivolous, and raised in good faith,” an award determined by multiplying the hours reasonably expended on the whole litigation by a reasonable hourly rate may be excessive: “Again, the most critical factor is the degree of success obtained.” Id.

“There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.”

Id.

With appropriate time records we think the court will not have much difficulty determining how much time was spent on unrelated claims for which no compensation may be awarded. If a plaintiff wins but is not fully satisfied with the trial court’s grant of relief, takes an appeal, and loses, or, as here, unsuccessfully petitions for certiorari, the court must consider whether that work is on an unrelated issue that may not be compensated. Generally, we believe appeals and certiorari petitions should not be treated as unrelated if they are based upon common facts or legal theories intertwined with those on which the plaintiff has prevailed.

The hard cases will be those in which the court must determine whether “excellent results” were achieved even though some interrelated theories urged by the plaintiff were unsuccessful or whether reductions in fees are required because the plaintiff’s successes were only “partial or limited.” The members of this panel strongly believe that a number of the issues in the case before us should not have been litigated. Had the state defendants not decided to stonewall on all issues, or had the trial court taken a more restrictive view of the issues it would consider during the period before the new prison was ready, this case would have a different posture. But the question before us is whether the plaintiffs acted reasonably under the circumstances facing them and whether they achieved “excellent results” on what were clearly nonfrivolous, interrelated theories based upon a common core of facts. The plaintiffs won an almost complete victory in the district court. On appeal we reversed three of eight conclusions of the district court concerning constitutionality and vacated portions of the court’s remedial order. On remand the trial court should consider whether some adjustment will be necessary based upon the “results obtained” factor. Hensley v. Eckerhart contemplates that this decision should first be made by the district court “in light of the considerations ... identified.” -U.S. at-, 103 S.Ct. at 1941.⁷

Some courts have reduced fees when the thrust of the suit was for monetary recovery and the recovery was small compared to the fees counsel would have received if compensated at a normal rate for hours reasonably expended. We reject this practice. The amount of the monetary recovery is not as significant as the policy being vindicated. Section 1988 was designed to encourage private enforcement of the civil rights laws. Parties acting as private attorneys general should be reasonably compensated for their vindication of the public policy even if they themselves do not receive a large financial benefit. If the court has the impression that a plaintiff spent an excessive amount of lawyer time and simply overwhelmed the defendant in a case in which the litigation onslaught was unnecessary, the court should consider this factor in determining what amount of time was reasonably expended in the litigation. It should not be expressed as a requirement that the fee award have a particular relationship to the amount of the monetary recovery.

C

Enhancement of Normal Fees

The Court in Hensley v. Eekerhart acknowledged that an enhanced fee award could be made in cases in which the success achieved was exceptional.⁸ We think the Court does not foreclose enhancement above that given for an “excellent result” in cases in which plaintiff did not win on all issues. “Exceptional success” justifying an enhanced fee may be based upon the performance of counsel — for example, victory under unusually difficult circumstances or with an extraordinary economy of time — or upon the result achieved — total victory or establishment of significant new law.

We do not discount the possibility that in a particular case the plaintiff’s lawyers may have performed so brilliantly that extraordinary compensation is warranted. But we think that this genius factor diminishes and eventually disappears as the number of hours expended on the case increases. A brilliant idea may shortcut one aspect of the case and save many hours, but in protracted litigation a lawyer is also likely to pursue blind alleys and expend many unproductive hours. In a case such as the one at bar, in which more than 9000 hours were reported, we do not believe that any adjustment for extraordinary performance could be warranted. We also believe that the greater the number of attorneys involved on a side, the less likely it is that an extraordinary performance bonus is appropriate. Here the plaintiffs utilized 12 attorneys, 5 of whom expended more than 200 hours. In such a case it is unlikely that the genius of one lawyer will so affect the case that a bonus would be warranted. Furthermore, in awarding a genius bonus the district court should take care not to duplicate the skill reflected in the attorney’s billing rate. Thus, we believe that bonuses or multipliers of the normal fee because of the extraordinary skill of counsel should be rarely awarded, and should be confined to cases in which the bulk of the work was done by a single attorney who exhibits extraordinary skill or to cases in which the work was done well in a relatively short time given the complexity of the task.

Another enhancement factor often mentioned is the undesirability of the case. Because civil rights cases now comprise a large part of all federal trial and appellate litigation, a significant portion of the bar is regularly participating in civil rights litigation; thus, no real stigma remains associated with these cases. Situations in which great courage is required to undertake a case, like that confronting the fictional lawyer in To Kill a Mockingbird, may still exist. But a bonus for the social stigma assumed by a lawyer participating in civil rights litigation should rarely be given.

The contingency factor as a basis for enhancement also must be viewed with caution. Some courts appear to give a multiplier or bonus simply because the lawyers would have received nothing had they not won and some chance of losing always exists. The court should first determine, by-requiring the party to reveal the fee arrangement, whether the lawyers really would have recovered fees only if they prevailed or whether the client would have paid some fee regardless of the outcome. Lawyers who are to be paid whether they win or lose have a weak claim to a multiplier based on the risk of loss.⁹ Second, when the court has decided to award fees for hours spent on theories a plaintiff has pressed unsuccessfully, in a sense it is giving something of a contingency bonus and should remember that when contemplating a multiplier or additional bonus. Third, when determining whether to give a contingency bonus, the trial court should view the litigation as it reasonably should have appeared to the lawyers at the outset of the litigation. In the instant case, given the existing law and the legislative and administrative recognition of the deplorable conditions at the prison, the plaintiffs had little risk of not prevailing on some of the issues. The real controversies and uncertainties lay in litigating the remedy that the district court might impose. Thus, some measure of success on the merits was fairly certain, and no bonus for contingency appears warranted in this case.

Finally, the contingency factor should be assessed separately for the various stages of the litigation. Once a case has been won in the district court, the risk of nonrecovery diminishes greatly, even though there may be an appeal. In the instant case, recovery of some attorney’s fees was certain after our appellate decision. A contingency bonus should not be given for hours expended in the district court after remand for work on the remedy or for time expended to establish the amount of the attorney’s fee award.

No doubt in some unusual situation a factor we have not addressed in this opinion ¹⁰ will be considered by a district court to warrant adjustment of the fees awarded. We do not mean to preclude such an adjustment. We do require the court to identify the factor and articulate its reasons for including the factor in the fee award.

D

Law Clerks and Paralegals

We recognize the increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks. The district court must determine whether law clerk and paralegal services are normally part of the office overhead in the area, and thus already reflected in the normal area billing rate the court has established in the case. If those services are not reflected in the area rate, the court may award them separately as part of the fee for legal services. The court should scrutinize the reported hours and the suggested rates in the same manner it scrutinizes lawyer time and rates.

Other Expenses as Fees

Items that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in civil rights cases if reasonable in amount. However, because there is no need to employ counsel from outside the area in most cases, we do not think travel expenses for such counsel between their offices and the city in which the litigation is conducted should be reimbursed. Departure from this rule should be made in unusual cases only. Thus, the district court properly disallowed travel costs to and from Denver for counsel based in Washington, D.C. The district court properly allowed reimbursement for the expense of travel between Denver and the Canon City prison, given its finding that such costs would normally be billed to a private client.

Although some firms separately itemize and bill long distance telephone charges, copying costs, and some other expenses, these kinds of expenses should be allowed as fees only if such expenses are usually charged separately in the area. In the instant case, we believe the district court properly found such costs are normally absorbed as part of the firms’ overhead, and correctly refused reimbursement for photocopying, postage, telephone, books, and overtime secretarial work.

The district court reimbursed the plaintiffs for expert witness fees. Subsection 3 of 28 U.S.C. § 1920 allows fees to be awarded for “witnesses” and subsection 6 allows “[cjompensation of court appointed experts.” The law in this Circuit is clear, however, that expert witness fees are not allowed under § 1920, CleveRock Energy Corp. v. Trepel, 609 F.2d 1358, 1363 (10th Cir.1979), cert. denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261 (1980); Euler v. Waller, 295 F.2d 765, 766 (10th Cir.1961), and this appears to be the rule in the majority of jurisdictions that have decided the issue. See, e.g., Illinois v. Sangamo Construction Co., 657 F.2d 855, 865 (7th Cir.1981). However, out-of-pocket costs not normally absorbed as part of law firm overhead may be reimbursed under 42 U.S.C. § 1988:

“Some expenses are included in the concept of attorney’s fees, as ‘incidental and necessary expenses incurred in furnishing effective and competent representation,’ and thus are authorized by section 1988.... The authority granted in section 1988 to award a ‘reasonable attorney’s fee’ included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.”

Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 639 (6th Cir.1979). Cf. Thornberry v. Delta Airlines, 676 F.2d 1240, 1244-45 (9th Cir.1982) (out-of-pocket expenses awardable in civil rights litigation); Fairley v. Patterson, 493 F.2d 598, 607 (5th Cir.1974) (same). The fees and costs of expert witnesses hired in a case are not normally absorbed as overhead in private firm litigation. Even if a firm advances such costs in a contingent fee case, reimbursement from the client’s recovery in addition to the attorney’s contingent fee is usually expected. Therefore, if the district court concludes that expert testimony was reasonably necessary, it may reimburse reasonable expert witness fees under § 1988. Accord Berry v. McLemore, 670 F.2d 30, 34 (5th Cir.1982); Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d 201, 206 (3d Cir.1981); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981).¹¹

Costs

For items not reimbursable as attorney’s fees under § 1988, the general costs statute, 28 U.S.C. § 1920, is controlling. Section 1920 allows certain costs to be taxed against the losing party, including “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case” and “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.” 28 U.S.C. § 1920(2), (4). Courts have generally held that the cost of taking and transcribing depositions fits within subsection 2. See Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir.1982); Sun Ship, Inc. v. Lehman, 655 F.2d 1311, 1318 n. 48 (D.C.Cir.1981); Economics Laboratory, Inc. v. Donnolo, 612 F.2d 405, 411 (9th Cir.1979); SCA Services, Inc. v. Lucky Stores, 599 F.2d 178, 181 (7th Cir.1979); Keyes v. School District No. 1, 439 F.Supp. 393, 417 (D.Colo.1977). When copies of the depositions are reasonably necessary to the litigation of the case, the costs of those copies are allowed pursuant to subsection 4. See Sun Ship, Inc. v. Lehman, 655 F.2d at 1318 n. 48; SCA Services, Inc. v. Lucky Stores, 599 F.2d at 181. The district court in this case found that the depositions taken and the copies made of those depositions were reasonably necessary to the prosecution of the action. We find no abuse of discretion in the taxing of those items as costs.

III

We believe a remand is necessary in the instant case, even though the district court appears to have employed standards close to those articulated in this opinion in making its fee and cost determinations. In particular the court will have to reassess whether the plaintiffs obtained results warranting a fully compensatory fee in light of the standards set forth in Hensley v. Eckerhart. We are also unsure whether the district court’s adjustment of hourly rates for “risk, overhead, delay and inflation,” 539 F.Supp. at 747, approximates the award that would result under our direction to establish such rates by local standards as of the date the fee award is determined. The trial court’s articulate and detailed opinion indicates it considered some of the concerns we have expressed with respect to total hours reported and their reasonableness, but we believe the court should again review the record in the light of the guidelines we have set forth above. Therefore, we REMAND for further proceedings consistent herewith.

1 . The court below stated that most lawyers do not work on an hourly basis. This may be true for certain tasks, such as forming a small corporation, handling a simple divorce, or performing other often-repeated transactions for which the time commitment may be reasonably estimated and the lawyer may benefit by a flat fee arrangement. But when the matter is likely to require an extended and difficult-to-estimate time commitment and has an uncertain result, almost all lawyers will require an hourly fee, a share in the possible recovery, or a combination of the two. Thus, a fee award based on a calculation of hours expended is appropriate in civil rights cases.

2 . We recognize that in the instant case, and in other cases pending in this Circuit, some lawyers will not have kept contemporaneous time records. We do not forbid, retrospectively, the use of reconstructed time records and do not demand that the reconstructed hours be arbitrarily reduced. We impute no evil motive to lawyers who reconstruct their time records, but we believe that reconstructed records generally represent an overstatement or understatement of time actually expended. Even with the aid of pleadings, memoranda, and phone bills, lawyers often forget small increments of chargeable time such as telephone calls or short conferences with other counsel. On the other hand, lawyers who remember spending the entire day working on a case are likely to overstate the hours worked by forgetting interruptions and intrusions unrelated to the case. In the instant case, for example, Ms. Wiesenberg’s reconstructed time records for May 3, 1980 to May 23, 1980 show the following hours of her time expended on the appeal: 10, 12.25, 14.05, 12.85, 13, 15, 5.5, 6.75, 20.75, 13.5, 9.65, 11.8, 13.05, 8.85, 14, 18, 0, 15.5, 11.85, 15.9, and 15.4. R. I, 172. We consider it doubtful that one lawyer, briefing an appeal, would work 20 days of a consecutive 21-day period, never spending less than 5.5 hours on the case and spending between 11.80 hours and 20.75 hours on 15 of those days. The district court should give special scrutiny to any reconstructions or estimates of time expended and make reductions when appropriate. See Hensley v. Eckerhart, -U.S. at-, 103 S.Ct. at 1939.

3 . Here again the experience of counsel in civil rights litigation may play a role. If the complexity of a case demands an extraordinary number of hours to perform a task, those hours are properly billable. If the inexperience of counsel requires the unusually large number of hours, the adversary should not be required to pay for more than the normal time the task should have required.

4 . However, we think that the presence of more than two lawyers during trial or the presence of more than one lawyer at depositions and hearings must be justified to the court. No fees should be awarded for hours reported by lawyers or law clerks who are present at depositions, hearings, or trial for the purpose of being trained and who do not participate in or contribute to the proceedings.

5 . We do not reject the possibility the normal local rate might be different for trial time and other time. See Palmigiano v. Garrahy, 466 F.Supp. 732, 741 (D.R.I.1979), aff’d, 616 F.2d 598 (1st Cir.), cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980).

6 . While the district court will need evidence of local hourly rates, we agree with the court below that the practice of presenting experts to testify to the total fee that should be awarded in a given case is not very helpful. The trial court noted that the testimony of reputable lawyers as to the proper fee in the instant case differed by approximately $500,000.

7 . The Court expressly rejected the use of “ ‘a mathematical approach comparing the total number of issues in the case with those actually prevailed upon.’ ” - U.S. at -, 103 S.Ct. at 1940-41. We note that a mathematical approach ignores many relevant factors, including the relative importance of the issues.

8 . That case states:

“Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.”

-U.S. at-, 103 S.Ct. at 1940.

9 . We express no opinion as to the limiting effect of a contingent fee arrangement on the total award that may be made for attorney’s fees in a civil rights case. That matter is under consideration by this Court after en banc argument. Cooper v. Singer, Nos. 81-2016, 81-2113 (10th Cir. argued May 19, 1983).

10 . Most of the factors listed in Johnson v. Georgia Highway Express, Inc., including time and labor expended, novelty and difficulty of the questions, attorney skills required, the customary fee, contingency factors, undesirability of the case, and the experience and ability of the attorneys, are considered in making the determinations we have set forth above. We comment here on the remaining Johnson factors. Time constraints imposed upon counsel will seldom be a factor in a civil rights case, at least one involving hundreds of hours of attorney time. We do not see why the length of the professional relationship with the client should have anything to do with the appropriate fee in these kinds of cases. The time committed to an extended civil rights case will of course preclude the expenditure of that time for other remunerative work, but this fact alone should not require an adjustment because the time is being compensated at a reasonable rate.

11 . The defendants rely upon Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), in urging the contrary rule, but we do not find that case to be controlling. There the Court held that § 1983 and 28 U.S.C. § 1927 could not be read together to tax attorney’s fees in addition to costs against an attorney. Section 1927 at that time allowed costs to be awarded against an attorney who unreasonably multiplied the proceedings and was subsequently amended to allow attorney’s fees as well as costs to be awarded in those situations. Neither the Court’s reasoning nor its holding dealt with whether costs not expressly provided under § 1920 could be awarded pursuant to § 1988.