Schoolcraft v. The City Of New York et al

Filing 601

FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION to Strike Document No. [598-2, 598-3, 598-4] the expert report, opinion and testimony of Judith Bronsther in connection with defendants' opposition to plaintiff's fee application. Document filed by Adrian Schoolcraft.(Cohen, Gerald) Modified on 4/12/2016 (db).

COHEN & FITCH LLP
THE WOOLWORTH BUILDING
233 BROADWAY, SUITE 1800
NEW YORK, NY 10279
TEL: [phone]
FAX: [phone]

April 11, 2016
BY EMAIL & ECF
Honorable Robert W. Sweet
United States District Judge
Southern District of New York
500 Pearl Street
New York, New York 10007
RE:

Schoolcraft v. The City of New York,
10-cv-6005 (RWS) (DCF)

Dear Judge Sweet:
On behalf of all of plaintiff’s counsel, I am writing this letter pursuant to Rule
104(a) and Rule 702 of the Federal Rules of Evidence in support of the plaintiff’s motion
to strike the Declaration and Report of Judith Bronsther, Esq. The Declaration and
Report were filed in support of the City Defendants’ opposition to the pending motions
for attorneys’ fees, costs and expenses. This motion to strike should be granted because
Bronsther’s “expert” opinion about the reasonableness of counsels’ fees and their billing
practices are not proper subjects of expert testimony and cannot survive the Daubert
analysis, which is a threshold admissibility issue. 1
BACKGROUND
On April 8, 2016, the City Defendants filed their papers in opposition to the
pending motions, including a Declaration 2 by Bronsther, her resume, and her “Report.”
(Dkt. # 598-2, 598-3 & 598-4). As stated in her Report, Bronsther, who is an attorney
1

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993) (Rule 702 imposes on
trial judges a "gatekeeping" obligation that includes the "task of ensuring that an expert's testimony rests
both on a reliable foundation and is relevant to the task at hand.") Testing the foundational reliability of
expert testimony "entails a preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to
the facts in issue." Id. at 592-93. The Notes of the Advisory Committee on the 2000 amendments to Rule
702 also make clear that “the admissibility of all expert testimony is governed by the principles of Rule
104(a).
2
The Declaration was not actually filed and the City Defendants have stated they will correct the
filing error.

2
admitted to practice law in the State of New York, gives her opinion about the
reasonableness of the hours expended and whether the billing practices of the plaintiff’s
attorneys are consistent with what she labels “acceptable billing practices.” (Report at p.
1; Dkt. # 598-4.) Based on her review of the billing records and a “standard of review”
set forth in her Report, which merely summarizes in part the law under 42 U. S. C.
Section 1988 (id. at pp. 18-19), Bronsther offers dozens of opinions about the
reasonableness of the fees, expenses, and costs sought by plaintiff’s counsel. For the
reasons set forth below, we respectfully request that the Court strike these submissions.
THE BRONSTHER REPORT DOES NOT SATISFY
ADMISSION OF EXPERT TESTIMONY

THE

EVIDENTIARY STANDARD

FOR

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
testimony at trial. That Rule states:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
The City Defendants’ submissions cannot satisfy this Rule. Indeed, in their
supporting memorandum of law, the City Defendants effectively acknowledge that
Bronsther’s “opinions” are probably not admissible. In a footnote the City Defendants
state: “Even if the [Report] is not deemed admissible as expert testimony per se, it is a
useful guide for the Court to the contents of plaintiff’s submission and counsel’s billing
practices.” (Dkt. # 597 at p. 2, n. 4). Whether labeled an “expert opinion” or a “useful
guide,” the Bronsther Declaration and Report are not admissible under any standard or
rule of law.
While Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-95
(1993) sets forth a non-exclusive checklist for trial courts to use in assessing the
admissibility of expert testimony, 3 in applying the Daubert analysis, “[t]he Supreme
Court has held that the Federal Rules of Evidence ‘assign to the trial judge the task of
ensuring that an expert's testimony both rests on a reliable foundation and is relevant to
the task at hand.’” Solorio v. Asplundh Tree Expert Co., No. 02CIV8035RJS, 2009 WL
755362, at *2 (S.D.N.Y. Mar. 23, 2009). In this case, Bronsther’s opinions fail under
both prongs of the analysis.
3

The specific Daubert factors are (1) whether the expert's technique or theory can be or has been
tested -- that is, whether the expert's theory can be challenged in some objective sense, or whether it is
instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2)
whether the technique or theory has been subject to peer review and publication; (3) the known or potential
rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and
controls; and (5) whether the technique or theory has been generally accepted in the relevant community.
See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-95 (1993).

3

Ms. Bronsther’s “Expert” Report Would be of No Utility in Assisting the Court
with Resolving the Present Fee Application
Notwithstanding the inherent unreliability of Bronsther’s opinion as discussed
infra, both Bronsther’s report and her qualifications fail to establish that her report passes
the “touchstone [of admissibility],” which is “helpfulness to the trier of fact.” Sullivan v.
Ford Motor Co., No. 97CIV 0593 (RCC), 2000 WL 343777, at *6 (S.D.N.Y. Mar. 31,
2000); Dreyer v. Ryder Auto. Carrier Grp., Inc., No. 98-CV-82A(F), 2005 WL 1074320,
at *16 (W.D.N.Y. Feb. 9, 2005), objections overruled, 367 F. Supp. 2d 413 (W.D.N.Y.
2005)(“Under Rule 702, a threshold condition of admissibility is that the proffered
testimony be calculated to “assist the trier of fact to understand the evidence or to
determine a fact in issue.”).
Specifically, it is well settled that “[t]he court...is itself an expert on the question
(of attorneys' fees) and may consider its own knowledge and experience concerning
reasonable and proper fees.” Langbein v. Kirkland (In re TMT Trailer Ferry, Inc., 577
F.2d 1296, 1304 (5th Cir.1978). Proctor v. Educ. Credit Mgmt. Corp., No. 2:07-CV-839,
2010 WL 4919670, at *6 (S.D. Ohio Nov. 29, 2010)("Indeed, it is not even necessary for
defendant to provide an expert witness regarding the reasonableness of its attorney’s fees
because the court ‘is itself an expert on the question'"). “The underlying rationale is that
a ‘judge is presumed knowledgeable as to the fees charged by attorneys in general and as
to the quality of legal work presented to him by particular attorneys.’” Glenn v. Chatmon,
No. CIV.A. 87-5107, 1988 WL 11677, at *2 (E.D. Pa. Feb. 12, 1988).
In this case, apart from their conclusory suggestion that her report would be
“useful” in this Court’s determination, there is nothing to suggest – nor defendants even
attempt to articulate in what manner – that Bronsthers’ report or opinions will aid Your
Honor’s determination of the reasonableness of the fees in this case. Instead Ms.
Bronsther attempts to simply inject her own evaluation of reasonableness, which is
improper as a matter of law. See e.g., Nimely v. City of New York, 414 F.3d 381, 397
(2d Cir. 2005):
We have consistently held, in that respect, that expert testimony that
‘usurp[s] either the role of the trial judge in instructing the jury as to the
applicable law or the role of the jury in applying that law to the facts
before it,’ by definition does not ‘aid the jury in making a decision”;
rather, it ‘undertakes to tell the jury what result to reach,” and thus
“attempts to substitute the expert's judgment for the jury's.’
Id.
In addition, while Bronsther’s resume indicates that she worked as a lawyer in
private practice in the 1980s, it appears based on her website that her experience as a
lawyer was limited to corporate finance and oil and gas transactions. (See
http://www.legalbills.com/judie-bronsther). More importantly, she does not state that she
has any experience as a lawyer in litigation work, trial work or Section 1983 claims.

4
Notably, she does not in her resume or declaration point to a single federal case – let
alone a federal civil rights case – where she has actually been qualified as an expert on
the “opinions” she purports to offer. Instead, Bronsther claims to have read some of the
materials filed in the public record in this action and offers her own conclusions about the
reasonableness of the fees and bills submitted. This lack of experience alone is sufficient
to disqualify her under the Daubert analysis, thereby precluding the admissibility of her
opinions or her report in this case. See e.g., Rodriguez v. Cty. of Los Angeles, 96 F.
Supp. 3d 1012, 1026-27 (C.D. Cal. 2014):
Plaintiffs move to strike portions of the Defendants' Declaration of Robert
Bruning under Fed.R.Evid. 702 as improper expert testimony. Mr.
Bruning declares that he “specialize[s] in acting as an expert witness in
matters involving legal fees disputes” and, along with his partner, has
reviewed and audited hundreds of cases involving attorney's fee requests.
However, there is no evidence that Mr. Bruning has any experience
specific to civil rights litigation nor that Mr. Bruning has any familiarity
with attorney's fees under the PLRA… Mr. Bruning is not an expert
qualified to opine on the reasonableness of attorney's fees in the civil
rights context nor an expert on the PLRA. Further, the legal opinions
provided by Mr. Bruning in his declaration are not helpful to the Court and
are not properly considered expert testimony under Daubert.
Id.; Evans v. Lafayette Ins. Co., 2008 WL 6928250, at *1 (E.D. La. Jan. 11,
2008)(excluding attorney's fees expert because "[t]he issue of amount of attorneys' fees
will be decided by the court rather than the jury."); In re Monahan Ford Corp. of
Flushing, 390 B.R. 493, 504 (Bankr. E.D.N.Y. 2008)(“a judge, who routinely observes
and evaluates the professional performance of attorneys in bankruptcy cases, is better
situated than a law professor to judge the professional competence of debtor's counsel").
Moreover, and of greater import, is the fact that Bronsther’s Report does not
mention or cite any established or peer-based standards about which there are any
generally accepted theories or techniques. To the contrary, according to her own article,
“most attorneys” do not follow her methodology thereby making it antithetical to any
accepted standard in the legal community. “Watching the Clock” by Judith Bronsther,
Los Angeles Daily Journal, May 4, 1999 at p. 8; attached hereto.
Thus there is
absolutely no basis to simply presume – as defendants suggest this Court should do – that
her subjective “methodology” would provide any utility in Your Honor’s analysis.
Indeed, as District Judge Cote has recognized:
Mylan has not shown that Marquess' opinion qualifies as admissible
expert evidence. Marquess has no experience in patent law or complex
litigation…His work purports to apply generally accepted billing
practices, but Mylan has failed to show that there is any such standard, or
that Marquess has followed any recognized standard in preparing his
evaluation of the Takeda fee request. Thus, the Marquess report is rejected
to the extent it is offered as an expert opinion. Even if the Marquess
opinion were admissible as an expert opinion, it is singularly unhelpful.

5
Because of his lack of experience in complex litigation much less patent
litigation, his opinion about the reasonableness of the fee request here is
entitled to essentially no weight.
Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., No. 03 CIV. 8253(DLC), 2007
WL 840368, at *7 (S.D.N.Y. Mar. 21, 2007), aff'd, 549 F.3d 1381 (Fed. Cir. 2008); see
also In re Worldwide, 316 B. R. 637, 642-43 (D. Del. Bankr. 2004) (“we agree with
[movant] that the [attorney’s] fee audit report cannot be considered an expert report done
in accordance with generally accepted methodologies of performing such a report.”)
(citing Daubert)).
The Court, not a lawyer twenty years removed from practice who has no
experience in this case or in civil rights litigation, must make the determinations at issue
in this fee motion. Your Honor, based on the Court’s experience on the Bench and the
Court’s direct and personal knowledge of this action, which has been pending before
Your Honor for the past six years, has more than sufficient expertise to determine the
reasonableness of the fees at issue such that Ms. Bronsther’s report would not aid in that
analysis. See e.g., De La Paz v. Rubin & Rothman, LLC, 2013 WL 6184425, at *9
(S.D.N.Y. Nov. 25, 2013)("Plaintiff correctly argues that, to the extent that it offers legal
conclusions about Plaintiff's attorneys' bills, Professor Ross's expert letter is inadmissible.
Professor Ross's letter is also inadmissible under Federal Rule of Evidence 702(a), as his
testimony is unlikely to be of help to the Court in reaching factual (or legal)
conclusions.") (citations omitted); Sweeney v. Athens Reg'l Med. Ctr., 917 F.2d 1560,
1569 (11th Cir. 1990) ("In view of the district court's superior familiarity with the case,
there appears no reason to accept the two law professors' opinions of the fee over the
court's assessment."); In re McClanahan, 137 B.R. at 74:
[T]his Court has in the past and intends in the future to reject outright the
proposition that the ruling on the Fee Application should be based on
testimony of experts, and the role of the Judge considering the application
is merely that of a potted plant…First, under the well-recognized rules of
evidence, the justification for expert testimony is to assist a trier of fact to
understand the evidence…the term “trier of fact” is generally understood
to mean the jury, e.g., untrained lay people, and does not include a Judge
who is a trained professional…Of course, it requires no elaborate
discussion to point out that what is a reasonable fee to be allowed to an
attorney[] is not a highly esoteric, technical, or scientific subject which a []
judge would not be able to comprehend without help and assistance of an
“expert.”
Id.
Ms. Bronsther’s Report is Inherently Unreliable and Therefore is Further
Reason to Deny its Admissibility
As to Bronsther’s reliability portion of the Daubert analysis, her opinions do not

6
employ any objective factors in support of any of her opinions or conclusions, and all of
her statements are based on her own subjective views about the reasonableness of the fees
and the bills. Such purely subjective opinions are improper. See Playtex Prods. v.
Procter & Gamble Co., 2003 U.S. Dist. LEXIS 8913, (S.D.N.Y. May 28, 2003) (holding
that "heavy reliance on [a party's] subjective view, without analysis of the basis for that
party's conclusion, is wholly insufficient to survive a Daubert motion"). In fact, in Ms.
Bronsther’s own article “Watching the Clock,” Ms. Bronsther announced that “most
lawyers do not pass the auditor’s tests of efficiency, reasonableness and costeffectiveness.” “Watching the Clock” by Judith Bronsther, Los Angeles Daily Journal,
May 4, 1999 at p. 8; attached hereto. Further, the article universally criticized lawyers
across the marketplace of “routinely bill[ing] 12-hour days” and using “multiple
attorneys [to] revise each other’s briefs.” Id.
Moreover, illustrative of the lack of objective reliability of Ms. Bronsther’s expert
analysis, is Ms. Bronsther’s company, which markets its primary purpose as a means to
assist clients in “reducing their legal fees,” and “provide a solid foundation upon which to
negotiate for appropriate reductions in the legal bills.” 4 Since Ms. Bronsther’s
company’s primary purpose, as touted by her website, is to “reduce[] legal fees” her
company “stands ready to testify in support of its report” to reduce those fees. Neither
Ms. Bronsther’s report nor her company’s mission statement reflect any interest in
determining the objective reasonableness of attorney’s bills – the relevant inquiry here –
but rather to subjectively and impartially suggest, in all cases, that the fees charged
should presumptively be reduced.
Thus, under reliability portion of the Supreme Court’s test (Solorio, supra) the
Declaration and Report are inadmissible. No objective or reliable principles or methods
are used in rendering her “opinion,” and the Report simply boils down to one lawyer –
whose company has admittedly one singular agenda to “reduce” the fees – reviewing
another’s bills and offering an “opinion” about them and should therefore be excluded as
unreliable under Daubert. See e.g., In re Vernon-Williams, 343 B.R. 766, 797 (Bankr.
E.D. Va.), aff'd in part, rev'd in part and remanded sub nom. Boleman Law Firm, P.C. v.
U.S. Tr., 355 B.R. 548 (E.D. Va. 2006) (rejecting and expert opinion on attorney's fees
because "this Court cannot help but note that if White is also relying on 'minimums' in
creating supplemental fee applications, he has something to gain from convincing this
Court that the use of 'minimums' should be considered an acceptable practice."); In re
McClanahan, 137 B.R. 73, 77 (Bankr. M.D. Fla. 1992) (“This Court is constrained to
reject the testimony of these experts for several reasons. First, the testimony of Mr. Horn
is obviously self-serving because if it is accepted, it certainly would be used by Mr. Horn
as a precedent…”).
Accordingly, we request that the Bronsther Declaration and Report be held
inadmissible. We further request that the Court resolve this threshold issue on an in
limine basis so that the merits of the underlying fee motions can be expeditiously
determined.
4

See Accountability Services, Inc. website at http://www.legalbills.com/, visited April 11, 2016.

7
Thank you for your consideration of this request.

Sincerely,

_________/s________________
JOSHUA P. FITCH
GERALD M. COHEN
COHEN & FITCH LLP
233 Broadway, Suite 1800
New York, N.Y. 10279
[phone]
[e-mail]
[e-mail]
NATHANIEL B. SMITH
100 Wall Street, 23rd Floor
New York, New York 10005
212-227-7062
[e-mail]
JON L. NORINSBERG
225 Broadway, Suite 2700
New York, New York 10007
[phone]
[e-mail]
JOHN LENOIR
100 Wall Street, 23rd Floor
New York, New York 10005
212-335-0250
[e-mail]
CC VIA ECF:
Alan Scheiner
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007

:s

r+-$$

Watching the

[LmK
Some client bills show attonneys
killing, rathen than filling, time.
By Judlth Bronether
I
al t
I -^ | ebster Hubbell told his wife in a
l^/\f phone call from prison that all
7 \ lawyers overbill. He certainly could

sions of the samc brief.

r

the turbulent legal market of the 1990s, as
clients are becoming more informed purchasers of legal services. In fact, a reient
shrdy of the 1,000 largest U.S. corporations
found that auditing legal bills was the third
most prevalent method of controlling legal

Other lawyers have literary aspirations.
One lawyer billed 32.8 hours for writing an
article for the American la*yer.
r Watch out for rainmakirs. One attorney
billed two hours, at a rate of $450 an hour, for
speaking at a rainmirker lunch.
Some law firms are generous with onthejob training. A summer associate in a firm
with an outstanding reputation in bank lending transactions billed 135 hours for researching lender liability.
Who says that inflation can't be beat?
One law firm increased its rates 10 times over
a threeyear period.
One firm had 314 people
49 partrrers,
154 associates, 84 paralegals and 29 support
personnel
billing time to a bankruptcy mat-

costs.

ter.

not mean that all 863,637 lawyers in this counoverbill, could he? Having reviewed hundreds of millions of dollars of legal fees, I have
found that most lawyers do not pass the auditor's tests of efficiency, reasonableness and
costeffectiveness.
Auditing legal bills has gained impehrs in

fy

Clients often ernploy independent legal
auditing lirms because they lack the
resources to perform in-house reviews or
because they need an objective, third-party
view of any billing discrepancies. These legal
auditors are using sophisticated proprietary
softrrare to analyze legal bills in order to iderr
tify inefficient or inappropriate billing prac.
tices. However, even without an independent

audit, a client can often identify problems

r

r
r

-

-

r

Some lawyers are time bavelers and
32 hours in one day.

bill

r

One firm billed $1.610 for "after-hours
administrati're expenses," which turned out to
be air conditioning.
Some law frms ought to go into the pho
tocopying business, such as one law firm that
billed over $138,000 for photocopies, at 25

r

cents a page.

I

Although these instances are not tynical,
some firms use more subtle variations on
these themes
attorneys who routinely bill
l2-hour days, multiple attorneys who revisc
each other's briefs, "make-work" research
projects designed to keep junior associates
busn vague billing descriptions and time
sheets completed a long time after the work

I

was done (requiring time reconstruction).
Legal fees are a big expense item in most

senL

clients budgets, and lawyers should attempt
to minimize them whenever possible. Or, at
leasl order a secondgrowth variety of Bor-

merely by scrutinizing legal bills.

The following examples represent the
more egregious tlAes of overbilling:
Some lawyers like to lunch. A partner
from a New York firm took his client out for a
social lunch and ordered a bottle of 1949
l:fite Rothschild. He billed his client $1,400
for his time, the lunch and the wine.
We all know that lawyers like to talh but
to themselves? One law firm billed for 628
meetings at whidr only one person was pre

r

Some firms employ overqualified people

For instance, a photocopy attendant furned
out to have a law degree from Harr"ard and
billed his time out at $245 an hour, plus 25

centsap4ge.

':

r

Beuare ofthe legal team that can't agree.
One bill described 10 lawyers who spent?1
hours drafting and revising two different rrer-

LOS ANGELES OAILY JOURNAL

.

-

deau:< wine at lunch

-

on the

[rm.

Judlth Eronrthor, an aRomey, ls presl.
dent of Account$illty SerMces, an Inter-

natlonal legal-audltlng flrm located In
New York.

TUESDAY, MAY

4, 1999.

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