Schoolcraft v. The City Of New York et al
DECLARATION of Joshua P. Fitch (Master Declaration) in Support re: 559 MOTION for Attorney Fees , Costs and Disbursements.. Document filed by Adrian Schoolcraft. (Attachments: # 1 Exhibit A - Declaration of Jon L. Norinsberg, Esq., # 2 Exhibit B - Declaration of Nathaniel Smith, Esq., # 3 Exhibit C - Declaration of Joshua P. Fitch, Esq., # 4 Exhibit D - Declaration of Gerald M. Cohen, Esq., # 5 Exhibit E - Declaration of John Lenoir, Esq., # 6 Exhibit F - Declaration of Howard A. Suckle, Esq., # 7 Exhibit G - Declaration of Magdalena Bauza, # 8 Exhibit H - Billing Entries and Costs for Jon L. Norinsberg, Esq., # 9 Exhibit I - Billing Entries and Costs for Nathaniel Smith, Esq., # 10 Exhibit J - Billing Entries for Joshua P. Fitch, Esq., # 11 Exhibit K - Billing Entries and Costs for Gerald M. Cohen, Esq., # 12 Exhibit L - Billing Entries for John Lenoir, Esq., # 13 Exhibit M - Billing Entries for Howard A. Suckle, Esq., # 14 Exhibit N - Billing Entries for Magdalena Bauza, # 15 Exhibit O - Declaration of Jonathan Abady, Esq. in support of the hourly rate of Jon L. Norinsberg, Esq., # 16 Exhibit P - Declaration of Christopher Galiardo, Esq. in support of the hourly rate of Jon L. Norinsberg, Esq., # 17 Exhibit Q - Declaration of Afsaan Saleem, Esq. in support of the hourly rate of Jon L. Norinsberg, Esq., # 18 Exhibit R - Declaration of Michael L. Spiegel, Esq. in support of the hourly rate of Nathaniel Smith, Esq., # 19 Exhibit S - Declaration of Zachary Margulis-Ohnuma, Esq. in support of the hourly rate of Joshua P. Fitch, Esq. and Gerald M. Cohen, Esq., partners of Cohen & Fitch LLP, # 20 Exhibit T - Declaration of Irving Cohen, Esq. in support of the hourly rate of Joshua P. Fitch, Esq. and Gerald M. Cohen, Esq., partners of Cohen & Fitch LLP, # 21 Exhibit U - Declaration of Katherine Smith, Esq. in support of the hourly rate of Joshua P. Fitch, Esq. and Gerald M. Cohen, Esq., partners of Cohen & Fitch LLP, # 22 Exhibit V - Declaration of Hugh M. Mo, Esq. in support of the hourly rate of John Lenoir, Esq., # 23 Exhibit W - Declaration of Jeffrey Schlanger, Esq. in support of the hourly rate of John Lenoir, Esq., # 24 Exhibit X - Declaration of David Finkler, Esq. in support of the hourly rate of Howard A. Suckle, Esq., # 25 Exhibit Y - Declaration of Mitchell Bloch, Esq. in support of the hourly rate of Howard A. Suckle, Esq., # 26 Exhibit Z - 2013-2014 National Law Journal Billing Survey of Large Firm Billing Rates, # 27 Exhibit AA - 2013-2014 New York City Law Department Year in Review for the Special Federal Litigation Division, # 28 Exhibit BB - New York City Law Department Special Federal Litigation Homepage, # 29 Exhibit CC - Verdict Search's Top Verdicts of 2013, # 30 Exhibit DD - Super Lawyers 2015 Annual List of Top Lawyers in the New York Metro Area, # 31 Exhibit EE - Order in Bernabe v. City of New York, 13 CV 5531 (LGS) relating to Mr. Norinsberg's hourly rate)(Fitch, Joshua)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSHUA P. FITCH IN
SUPPORT OF MOTION
FOR ATTORNEYS’ FEES
10 CV 06005
THE CITY OF NEW YORK, et al.,
DECLARATION OF JOSHUA P. FITCH IN SUPPORT OF MOTION FOR
ATTORNEY'S FEES AND COSTS
JOSHUA P. FITCH declares, pursuant to 28 U.S.C. § 1746 and under penalty of
perjury, as follows:
Gerald M. Cohen and I are partners with the law firm of Cohen & Fitch
LLP, the attorney's of record for plaintiff Adrian Schoolcraft in the above-captioned
As such, I am familiar with the facts and circumstances concerning the
prosecution of this action, and I submit this declaration is support of plaintiff’s
application, pursuant to 42 U.S.C § 1988 and Fed. R. Civ. P. 54(d), for an order awarding
plaintiff attorney's fees and costs as the prevailing party in this litigation having obtained
a Judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure against
Defendant City of New York on all Federal and State law claims in this matter. (See Rule
68 Judgment, Dkt. # 541).
ATTORNEY BACKGROUND AND EXPERIENCE
I am the co-founder and partner of Cohen & Fitch LLP, with offices at 233
Broadway, Suite 1800, New York, New York.
Since June 2008, I have been a partner in the Manhattan law firm of
Cohen & Fitch LLP. Our office is located at 233 Broadway, Suite 1800, New York, New
My firm is dedicated to prosecuting claims of police misconduct and civil
rights. Specifically, Cohen & Fitch LLP specializes in litigating and trying civil rights
actions for those whose constitutional rights have been violated at the hands of state,
local officials and private individuals/entities. In addition, my firm maintains a large
criminal defense practice throughout the five boroughs and the Eastern and Southern
Districts of New York.
I am an attorney in good standing, admitted to practice law in the State of
New York, in the United States Court of Appeals for the Second Circuit and in the United
States District Courts for the Southern and Eastern Districts of New York.
THE REQUESTED HOURLY RATE OF $500 IS REASONABLE
On behalf of the plaintiff, I am seeking to recover attorney’s fees at the
hourly rate of $500 for my work in this matter. In making this request, I have assessed
the rates of other attorneys like myself who have been practicing law for eleven (11)
years, and other civil rights attorneys who have practiced for far longer who have attained
a similar level of expertise in the area of civil rights litigation in general, and police
misconduct matters in particular.
In connection with this application, Gerald M. Cohen, Esq., my partner at
Cohen & Fitch LLP, has also submitted a declaration on behalf of Cohen & Fitch LLP in
this case. (Master Decl., Ex. D).
The detailed billing records of the work that I performed in this case are
attached to the Master Declaration as Exhibit J.
Further, attached to the Master Declaration as Exhibits S through U are
the Declarations of Zachary Margulis-Ohnuma, Esq., Irving Cohen, Esq. and Katherine
Smith, Esq., who attest to the reasonableness of my hourly rate in support of the instant
application for attorneys fees.
I graduated from New England School of Law, magna cum laude, in 2004
ranked seventh (7th) in a class of 184 graduates. While in my second year of law school
I was an associate member of the New England Law Review where I authored a civil
rights case comment on the Supreme Court decision in United States v. Drayton, 536
U.S. 194 (2002), which was published in the New England Law Review and has been
cited to by five other Law Reviews across the country. See Joshua Fitch, United States v.
Drayton: Reasonableness & Objectivity – A Discussion of Race, Class and The Fourth
Amendment, 38 NEW ENG. L. REV. 97 (2003). Further in my second year on the New
England Law Review I was Editor for a Symposium on the seminal and landmark case of
Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003) that upheld the
constitutionality of same sex marriage under Massachusetts law.
Following my graduation from law school in 2004, I served as an
Assistant District Attorney in the Bronx County District Attorney’s Office. I began
practicing in 2004 under a special practice order of the Appellate Division that applies to
Assistant District Attorneys at the New York City District Attorney’s Offices and in
February 2005 I was fully admitted to practice law in the State of New York.
I was one of eight individuals in a hiring class of fifty eight (58) new hires
competitively selected to join the specialized Domestic Violence (“DV”) Bureau. The
DV bureau is a unit of the District Attorney’s office that focuses on crimes occurring in
connection with domestic violence – namely, murder, assault, weapons possession and
similar violent offenses. My entire three year commitment with the District Attorney’s
office was with the DV bureau.
Attorneys in the District Attorney’s office undergo rigorous training in all
aspects of criminal prosecution and procedure and are responsible, from inception
through trial, for an individual caseload of up to one hundred or more cases at any given
time. Our duties with respect to each case included defending motions to dismiss and
suppress evidence, and other various Constitutional challenges made by skilled criminal
defense attorneys on behalf of their clients.
Within my first year as an Assistant District Attorney I was assigned
felony cases ranging from assaults to attempted murder and I had tried five (5) cases to
During my tenure at the District Attorney’s Office, I presented dozens of
cases to the Grand Jury and tried twelve (12) cases to verdict exceeding nearly every
Assistant District Attorney in my class and many senior Assistants with years of
additional time and experience. At least two of the cases that I handled and tried were
documented on Westlaw and State Reporters. See e.g., People v. Snipe, 17 Misc. 3d 571,
841 N.Y.S.2d 763 (Sup. Ct. 2007) (on the brief); People v. Garcia, 59 A.D.3d 211, 212,
873 N.Y.S.2d 52, 52 (2009) (trial attorney).
In addition to undergoing training and handling an individual caseload, I
worked closely with detectives and police officers, gaining invaluable experience with
police procedures, policies and paperwork that has given me a distinct advantage in my
civil rights practice.
Ending in August 2007 I left the District Attorney’s Office and began to
work for a well-known general liability defense firm, Shapiro Beilly Rosenberg &
In that capacity I defended assorted personal injury and property
damage actions in all five boroughs in New York City and in state courts in Suffolk and
Nassau County. In the mere nine (9) months that I spent there I took fifteen (15) cases to
verdict – at least one of which was reported the New York Verdict Search Reporter – and
two (2) more that settled during jury selection.
In June 2008, I decided to partner with Gerald M. Cohen, my former
colleague from the Bronx District Attorney’s Office, who had gained experience with
police misconduct cases during his period of solo practice.
In June 2008, I co-founded Cohen & Fitch, LLP, since that time I have
defended hundreds of clients against criminal prosecutions and have prosecuted over one
thousand civil rights violations in Federal and state court that have ended in favorable
settlements for my clients.
Moreover, I have taken one criminal case to verdict that resulted in an
acquittal, five (5) federal civil rights trials to verdict 1 and assisted with the trial of seven
(7) additional federal civil rights matters including this case. 2 In my career I have
personally tried thirty three (33) cases to verdict and personally handled thousands of
civil rights and criminal matters.
Since forming Cohen & Fitch LLP, Mr. Cohen and myself have litigated
approximately 300 federal § 1983 cases in both the Eastern and Southern Districts of
New York. I have also handled hundreds of state court civil rights claims against the
City of New York.
Further, while according to their 2011, 2012 and 2013 reports, the special
federal litigation unit consistently brags about a 70% success rate in federal trials,
(Master Decl., Ex. AA) this figure is not representative of their success in trials in which
Cohen & Fitch LLP has been lead trial counsel. In those cases Cohen & Fitch LLP has
won 55% of the trials taken to verdict where we acted as either lead co-trial counsel.
These percentages speak to both the difficulty of the cases handled by Cohen & Fitch
LLP and the particular skill and expertise that plaintiff's counsel has at trial, which
illustrates the reasonableness of counsel's hourly rate.
In addition, of the 283 cases that my firm has litigated against the City,
defendants have only succeeded in dispositive motion practice in one of those cases 3 ,
which speaks volumes of the quality of attorneys at Cohen & Fitch LLP and bespeaks the
Nibbs v. Goulart, 10 CV 3799 (VM)(AJP); Jacquez v. Gresko, 10 CV 9314 (JSR); Rentas v. City of New
York, 10 CV 6242 (AKH); Francois v. City of New York, et al., 11 CV 5874 (WFK); Jackson v. City of
New York, 12 CV 1968 (WFK).
Marshall v. Randall 10 CV 2714 (JBW); Clarke v. Castro 10 CV 6330 (HBP); Carter v. City of New York
11 CV 2899 (WFR); Rucks v. City of New York 12 CV 4226 (KPF); Perez v. Duran, 11 CV 5399 (SC);
Brim v. City of New York, 13 CV 1082 (RER)(SJ); Samtani v. Cherukuri, 11 CV 2159 (RER).
reasonableness of the hourly rates submitted in this case especially in light of the City
usual self reported 70% success rate in dispositive motion practice in 2012. (Master
Decl., Ex. AA).
In addition, in 2012, I was admitted to the United States Court of Appeals
for the Second Circuit and since that time I have been principally involving in writing the
briefs in five (5) appeals - one (1) interlocutory - before the Second Circuit, achieving
success on two out of three with one currently pending. 4 Indeed, at least one thus far has
become an important decisions in current civil rights jurisprudence. See e.g., Marshall v.
Randall, 719 F.3d 113, 116 (2d 2013) ("This case asks us to consider what the Supreme
Court meant by “any § 1983 claim based on the witness' testimony”). I have twice argued
before the Second Circuit Court of Appeals.
In that same time, approximately forty (40) cases that I have been the
principle author on the legal brief have been reported in the State and Federal Reporters,
the New York Law Journal and Westlaw. Many of these decisions have also been relied
upon in subsequent Circuit civil rights jurisprudence. See e.g., Stinson v. City of New
York, 282 F.R.D. 360 (S.D.N.Y. 2012) (cited by 27 subsequent District Court Decisions);
Dowling v. City of New York, NGG RML, 2013 WL 5502867 (E.D.N.Y. Sept. 30, 2013)
(cited by 12 subsequent District Court Decisions); Nibbs v. City of New York, 800 F.
Supp. 2d 574 (S.D.N.Y. 2011) (cited by 14 subsequent District Court Decisions); Perez v.
Duran, 962 F. Supp. 2d 533 (S.D.N.Y. 2013) (cited by 10 subsequent District Court
Decisions); Keller v. Sobolewski, 2012 WL 4863228, (E.D.N.Y. Oct. 12, 2012) (cited by
4 subsequent District Court Decisions); Rucks v. City of New York, 96 F. Supp. 3d 138
Thomas v. City of New York, 562 Fed. Appx. 58 (2d 2014); Rentas v. City of New York, 14-2475
(decision pending), Rentas v. Ciity of New York, 14-2512 (decision pending); Stinson v. City of New
York, 12-3069 (2nd Cir. Dec. 12, 2012)(Order denying leave to appeal).
(S.D.N.Y. 2015) (cited by 3 subsequent District Court Decisions); Schoolcraft v. City of
New York, 2012 WL 3960118 (S.D.N.Y. Sept. 10, 2012) (cited by 3 subsequent District
My firm's experience in the civil rights and criminal defense field has
previously been acknowledged by this Court in Stinson v. City of New York, 282 F.R.D.
360 (S.D.N.Y. 2012) (noting that the attorneys of Cohen & Fitch LLP "are competent and
experienced in federal class action and federal civil rights litigation") and in Marshall v.
City of New York, et al., 10cv2714 (JBW) (VVP) (E.D.N.Y. 2012) (noting that "their
expertise and level of skill... [warrants] compensating them at the high end of attorneys’
As a result of my experience more experienced civil rights practitioners,
including Jon L. Norinsberg, Esq., Jon Depoala, Esq., Irving Cohen, Esq. and Jonathan
Gleit, Esq., routinely refer civil rights cases to my firm and/or request that my firm assist
in the prosecution of their own civil rights matters.
Further, in May 2010 my firm along with Jon Norinsberg, Esq. filed a
class action complaint against the City of New York in the Southern District of New
York, alleging, inter alia, that the NYPD has a pattern and practice of issuing summons to
individuals without probable cause as a result of its unlawful quota. On April 23, 2012
Your Honor certified the class and found my firm’s civil rights and criminal defense
experience to be sufficiently competent and adequate to serve as class counsel for a class
potentially exceeding half a million New Yorkers. See Stinson et al. v. City of New York
et al. 2012 WL 1450553, 10 CV 4228 (RWS) (April 23, 2012). This decision to certify
was upheld on reconsideration, on interlocutory appeal by the Second Circuit and again
when the City's motion to decertify was denied on September 24, 2014.
It should also be mentioned that defense counsel in Stinson – of all the
challenges they asserted in opposition to class certification under Rule 23 – never once
challenged my firm’s adequacy or competency in the area of civil rights litigation.
Moreover, in Stinson, we are class co-counsel to the law firm of Quinn
Emmanuel, Urquhart and Sullivan LLP (hereinafter "Quinn"), one of the largest class
action law firms in the world.
Further according to the National Law Journal’s Billing Survey for 2014,
attached to the Master Declaration as Exhibit Z, the lowest average billing rate for the
partners of Quinn is $810 ‒ $310 more per hour than the partners of Cohen & Fitch LLP
‒ which is abundant evidence of the reasonableness of the hourly rates of myself, Gerald
Cohen and Jon Norinsberg.
In addition, in November 2014 my firm along filed another action on
behalf of a class comprising of approximately ten thousand New Yorkers against the City
of New York in the Southern District of New York, alleging, inter alia, that the NYPD
has a pattern and practice of falsely arresting and prosecuting individuals for the
possession of legal folding knives under Penal Law Section 265.01(1) and 265.00(5).
Plaintiff's motion for certification in Clay, et al. v. City of New York, et al., 14 CV 9171
(RMB)(KNF) is currently pending before the Honorable Richard M. Berman.
Further, I note that two years ago, on January 24, 2013, my billing rates in
the Eastern District, which is significantly less that the Southern District Community,
were approved at a rate of 325$ dollars per hour in Marshall v. Randall, 10 CV 2714. In
that decision, Judge Pohorelsky even recognized that "Counsel’s reputations are not in
dispute," which rendered the additional evidence of their quality "unnecessary to the
court’s recommendations." Id.
As such given the additional experienced I have gained since that time -
both trial and appellate - as well inflation adjustments and the Southern District rates, I
believe $500 per hour is more than reasonable rate in this matter and are well in line with
the prevailing market rates in the community.
In matters involving claims of civil rights, I always work on a contingency
basis. None of my clients are ever asked to pay a cent of the litigation costs associated
with my firm's civil rights cases.
My firm bears all of the costs for litigating our civil rights cases and
absorbs the advanced costs in all cases where there is no recovery. For example, from
2011 through 2015, while their firm was successful in six out of the eleven trials that
went to verdict, their firm absorbed over thirty thousand dollars ($30,000.00) in expenses
in the five cases that resulted in defense verdicts. See Nibbs v. Goulart, 10 CV 3799
(VM)(AJP); Jacquez v. Gresko, 10 CV 9314 (JSR); Jackson v. City of New York, Carter
v. City of New York,; Francois v. City of New York.
Because of the high level of financial risk involved in civil rights
litigation, my firm depends on the availability of the full lodestar recovery in all the civil
rights cases in which we do prevail.
I am compensated based on the portion of any judgment or settlement
obtained, or through attorney fee petitions. The instant matter is no different. I will be
compensated on the basis of the instant fee petition.
The reasonableness of Cohen & Fitch LLP's hourly rate is exemplified by
the December 31, 2013, National Law Journal’s most recent annual survey of law firm
hourly billing rates. 5 (Master Decl., Ex. Z). The lowest average partner rate among New
York firms reporting that figure is $640 per hour, and highest average partner rates
among New York firms reported in the survey range between $815 and $1800 per hour. 6
Indeed, even the lowest average associate billing rate is $390.00 per hour,
which is all the more reason why the $500.00 per hour billing rate for Cohen & Fitch
LLP is infinitely reasonable given the significantly larger body of experience possessed
by the partners of Cohen & Fitch LLP. (Id.).
Moreover, as is the case with Mr. Norinsberg, Cohen & Fitch LLP are
currently co-counsel with Quinn Emmanuel in Stinson et al. v. City of New York, 10 Civ.
4228 (RWS). Therefore it is inconceivable that a rate of $500.00 per hour for the
partners of Cohen & Fitch LLP would be considered unreasonable when partners at
Quinn Emmanuel with as little as eight (8) years of litigation experience – three years
less than both Gerald Cohen and Joshua Fitch – are permissibly being billed at $810 per
hour. (Master Decl., Ex. Z). Thus, the billing rates of the partners of Cohen & Fitch LLP
are well within the range of rates charged by comparable law firms possessing
particularly specialized experience in their respective fields.
The survey does not cover all law firms, and it is well known that "'[t]hese numbers are probably an
underestimate given that many of the highest-billing national law firms decline to take part in
the National Law Journal Survey.'" Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 571 (2010)(Breyer
The survey is often used by federal courts to determine appropriate hourly rates. See, e.g., Skanga Energy
& Marine Ltd. v. Arevenca S.A., 2014 WL 2624762, *5 (S.D.N.Y. 2014); Thai-Lao Lignite (Thailand) Co.,
Ltd. v. Government of Lao People's Democratic Republic, 2012 WL 5816878, *6 (S.D.N.Y. 2012);
Integrated Marketing v. JEC Nutrition, 2007 WL 840304 at *2 (S.D.N.Y. Mar. 19, 2007); Banco Centrale
v. Paraguay Humanitarian Found., 2007 WL 747814 at *2 (S.D.N.Y. Mar. 12, 2007); In re Merrill Lynch v.
Research Securities Litig., 2007 WL 313474 (S.D.N.Y. Feb. 1, 2007).
Under the circumstances, and as discussed in the accompanying
memorandum of law, an hourly rate of $500 is reasonable for an attorney with eleven
(11) years of specialized experience in criminal law and civil rights litigation. Further, it
is the rate that I charge defendants when a civil rights client accepts a Rule 68 Offer of
HOURS EXPENDED ON THIS MATTER
This case proved to be a colossal undertaking from the very start occupying
and dominating much of my firms time ‒ some months requiring over 100 hours of time
devoted solely to this litigation. It was far beyond any non class action litigation that my
firm has ever handled.
Indeed due to the magnitude of this case and the amount of time that was
necessary to devote to this litigation, client communication and management, my firm ‒
on several occasions over our three year representation ‒ had to forego representing
numerous potential clients and other matters that we would have otherwise taken had we
not been so preoccupied with this particular case.
During the first two years of this litigation, I participated in all aspects of
the case. I helped draft the extensive pleadings in this matter, which was based on
numerous meetings and conversations with the client, reviewing hundreds of hours of
recordings and documents in connection with the incident and plaintiff's time at the 81st
Precinct. The effort and resources required to fully master the vast universe of relevant
facts in this case was overwhelming at times.
In addition, much of the preliminary work also consisted of meeting with
Cohen & Fitch LLP's civil rights retainer specifically contemplates a fee of $500.00 per hour in
connection with any settlement, offers of judgment or reward with respect to attorneys fees.
other whistleblower officers as well as reviewing the documentation provided by them in
connection with their own experiences with quotas and retaliation by the NYPD for
failure to meet those quotas.
There was also innumerable hours spent managing the public profile of this
case with various news and media outlets who had initially broke the story of plaintiff's
harrowing ordeal and continued to document and cover the events of the litigation at
length. This media connection was inextricable to this case providing both valuable
insight and evidence supporting plaintiff's claims against the individual defendants and
his Monell claim against the City as well as a means to discover new evidence through
former and current police officers and police experts.
Amongst the individuals who were drawn to this case through the media
surge, experts John Eterno, a former captain with the NYPD, and Eli Silverman, both of
whom have co-authored several books and articles relating to the NYPD, crime statistics
and Compstat, as well as officers Adhyl Polanco, Lt. Joe Ferrara, P.O. Frank Palestro,
P.O. Kevin Rodriguez, P.O. Chris Whitehead, P.O. Christopher Bienz, P.O. Fioranelli,
P.O.Eddie Vasquez, and P.O. Derek Miller. 8
In furtherance of the evidence gathering phase of this case, we also set up a
website on behalf of plaintiff, www.schoolcraftjustice.com, to encourage other police
officers to come forward and share their experiences about quotas and retaliation, which
ultimately proved invaluable in attracting hundreds of police officers who provided
crucial insight and evidence to support plaintiff claims.
I also participated directly in discovery production on behalf of the plaintiff,
Scores of other officers contacted and met with our firm anonymously.
including reviewing demands and interrogatories from and to all defendants, reviewing
thousands of documents provided in discovery by defendants as well as preparing
plaintiff for his deposition.
I was also was principally involved in with researching and drafting
numerous motions and oppositions dealing with discovery issues, defendant JMHC's
motion to dismiss, plaintiff's first amendment claims and several motions for
reconsideration of same.
In November of 2012, we were contacted by plaintiff informing us that he
wished to terminate our representation and hire new counsel.
However, in early 2015 my firm was again contacted by plaintiff who
rehired my firm to assist and manage trial preparation and act as co-lead trial counsel
with Jon L. Norinsberg, Esq. and Nathaniel Smith, Esq.
Over the next eight months, I directly assisted with trial preparation,
including developing strategy, reviewing the immense amount of discovery providing in
the two years of my firms absence ‒ including depositions and the NYPD investigation
file regarding plaintiff's incident ‒ preparing cross examinations for witnesses, reviewing
jury instructions and charges and drafting an extensive motion in limine to exclude
evidence at trial.
Because of the magnitude and sensitivity of the issues raised in this
litigation, over the course of the first two years and the last eight months of this
litigation, trial preparation and ultimate settlement, I had hundreds of lengthy
conversations with the client both during and outside of the office ‒ only a fraction of
which are reflected in the time records submitted in connection with this case.
My contemporaneous time records attached to the Master Declaration as
Exhibit J reflect my time from June 18, 2010, through September 16, 2015, the date of
Rule 68 offer. In addition, my records also reflect the time spent in connection with
drafting the instant application for attorney's fees.
As indicated in the contemporaneous time records, the work I performed
included the following, for which plaintiff seeks to recover his costs and reasonable
Reviewed hundreds of documents and hours of recordings regarding the
facts and circumstances of this case;
Extensively researched potential claims, defenses and legal issues set forth
in the initial pleadings;
Reviewed and researched potential labor law and employment
issues/consequences presented by plaintiff's case;
Reviewing, researched and gathered information from numerous media
outlets regarding evidence to support plaintiff's Monell claim and his
claims against the individual defendants;
Helped with the designed and launched www.schoolcraftjustice.com to
elicit help from other police officers who could confirm plaintiff's
Interviewed, spoke and met with dozens of police officer witness who had
experiences of retaliation similar to plaintiff and had experienced the
pressures from the NYPD to adhere to summons quotas;
Reviewed documents and recordings provided by those officers in order to
further support plaintiff's Monell claim;
Conducted extensive legal research regarding the conspiracy and state
action 1983 claims against JMHC and the NYPD defendants;
Numerous hours coordinating and managing the information initially
disseminated and gathered from news and media outlets regarding
plaintiff's incident, the lawsuit and the initial progress of the litigation,
including obtaining information an evidence from those same media
Had innumerable meetings with plaintiff and Larry Schoolcraft regarding
evidence, strategy, discovery and the general course of the ligation;
Had lengthy meetings, conversations and exchanged documents with
Assistant U.S. Attorneys for the Eastern District on several occasions
corruption/misconduct within the NYPD;
Involved in drafting, reviewing and organizing the information provided to
defendants in plaintiff's initial disclosures;
Was intimately involved in drafting, reviewing and editing initial
discovery demand and interrogatories;
Involved in discovery production, response to demands and interrogatories
on behalf of plaintiff provided to defendants;
Helped negotiate finalize and approve the confidentiality stipulation
governing the initial exchange of information and discovery in this case;
Reviewed the hundreds of NYPD documents and records, including the
IAB files, QAD files, and IAB recordings;
Reviewed Adrian Schoolcraft's medical records, including from the NYPD
Medical Division, Psychiatric Services, Jamaica Hospital Medical Center,
Forrest Hills, and Dr. Roy Lubbit;
Helped draft, review and edit several discovery motions and oppositions
regarding stays of discovery, the failure to produce documents by
defendants, the production of documents by third parties and allegations of
confidentiality breaches by the parties;
Travelled upstate on several occasions for full day meetings with plaintiff,
Larry Schoolcraft and Frank Serpico;
Drafted, researched and edited plaintiff's opposition to JHMC's motion to
dismiss, plaintiff's motion to amend on his First Amendment claims and
several motion for reconsideration on same;
Attended numerous court appearances to argue motions and to attend pretrial conferences;
Prepared Adrian Schoolcraft for initial deposition and attended the same;
Spent numerous hours preparing for trial, reviewing discovery provided by
the City including assisted in organizing and preparing witness
examinations and preparing the evidence to be submitted at trial;
Reviewed and researched the Summary Judgment motions filed by all
parties and the Court's decision on same;
Prepared for trial with plaintiff's team of attorneys, divided tasks, and
coordinated presentations with theory of the case;
Researched, drafted, reviewed and edited lengthy motions in limine to
exclude certain evidence and address trial management issues;
Assisted in preparing and submitting the pre-trial submissions, including
the joint pre-trial order, jury instructions and jury charges;
Throughout the course of this litigation, was involved in thousands of
correspondence regarding this case via, email phone and letter;
Based upon the attached contemporaneous time records, I have incurred
$447,375.00 in attorney’s fees on plaintiff’s behalf for the work I performed as of the
date of the verdict, which represents 894.75 hours at an hourly rate of $500.00. (Master
Decl., Ex. J).
Additionally, pursuant to 42 U.S.C. § 1988, plaintiff seeks an award of
reasonable out-of-pocket costs expended in connection with this matter. (Master Decl.,
Ex. K). This amount was submitted within the bill from Gerald M. Cohen on behalf of
Cohen & Fitch LLP. (Id.).
Defendants waited to the eve of trial before they finally made an offer that
would compensate plaintiff for his losses. Accordingly, I along with the entirety of
plaintiff's team logged the hours necessary to represent our client successfully and
provide the credible threat of trial.
In sum, all of the time I expended was reasonable and necessary to
properly represent plaintiff. On his behalf, I submit that he should be awarded costs and
attorneys’ fees totaling $447,375.00 for the work I performed on his behalf.
Dated: New York, New York
December 16, 2015
Joshua P. Fitch