Schoolcraft v. The City Of New York et al
Filing
623
REPLY AFFIRMATION of John Lenoir in Support re: 559 MOTION for Attorney Fees , Costs and Disbursements.. Document filed by Adrian Schoolcraft. (Smith, Nathaniel)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ADRIAN SCHOOLCRAFT,
Plaintiff,
-v-
10-cv-6005 (RWS)
REPLY AFFIRMATION OF
JOHN LENOIR
CITY OF NEW YORK, et al.,
Defendants.
-------------------------------------------------------X
JOHN LENOIR, declares under penalty of perjury under the laws of the
United States of America as follows:
1.
I am one of the attorneys for Plaintiff Adrian Schoolcraft (“Plaintiff”)
2.
I am aware of the facts and circumstances relevant to this matter.
in this action.
3.
I submit this declaration in further support of Plaintiff’s motion for
attorneys’ fees, costs and disbursements.
4.
As set forth in my initial declaration dated December 2, 2015,1 my
hourly rate in this case is five hundred and seventy-five dollars ($575) per hour,
and two hundred eighty-seven dollars and fifty cents for travel time. I recorded a
total of 1310 hours expended on this case from February 2013 to September
2015, of which 58 hours were for travel which I billed at the one-half rate. I
1
Exhibit E - Declaration of John Lenoir, Esq., Dkt. #560-6.
accept the City defendants’ recalculation of my hours to accommodate the travel
math to 1281 hours at base rate. My total invoice was $736,575.00.
5.
I have reviewed Defendants’ opposition papers and participated in
discussions with defendants’ counsel and the settlement conference conducted by
Magistrate Judge Freeman. As a result of these negotiations, I and my colleagues
of the Smith Group propose to reduce or eliminate certain hours billed, and in my
case, to discount my rate applied in depositions conducted by both Smith and
myself. These adjustments, detailed below, result in a revised invoice reduced by
$30,093.50 for a total of $706,481.50.
Lenoir’s experience supports his billing rate, especially for this case.
6.
City Defendants object to my billing rate as not supported by relevant
experience, which counsel misrepresents as limited to the past two years. 2 As my
original declaration in support of this fee application pointed out, I have thirty
years' experience as a trial lawyer. In 1980, I was appointed an assistant district
attorney in New York County by Robert M. Morgenthau. In six years assigned to
the Trial Bureau, I was on the “Homicide Chart” and tried many complex and
high profile cases.
7.
Later I specialized in police misconduct investigations and
prosecutions representing the Government as plaintiff in my capacity as an
assistant United States attorney. As an AUSA in the Southern District of Texas,
Iwas Chief of the Civil Rights Division. In that capacity I reviewed all allegations
“Lenoir also has very limited experience as a plaintiff’s civil rights lawyer – his only work in the field appears to
have occurred in the last two years.” (City Memorandum p. 69)
2
of police excessive use-of-force and other civil rights complaints, made charging
decisions and led prosecutions of federal civil rights indictments.3 I also served as
local counsel in Department of Justice civil litigation of Voting Rights and
Section 1983 cases. Later as an AUSA in the Eastern District of New York, I was
trained and designated as an EEO Investigator for the U.S. Department of Justice
Executive Office of U.S. Attorneys. In that capacity I investigated civil rights
complaints by or against assistant U.S. attorneys throughout the United States.
8.
After government service I continued my work in police misconduct
investigation as a Managing Director at Kroll Government Services in New York.
In that role, I was appointed as part of the Federal Monitor team for the Los
Angeles Police Department and reviewed police use of force reports for
compliance with law and LAPD protocols. In addition, I was part of a three-
person team that conducted independent investigations of police shootings for the
City of Austin, Texas. I also led investigations into allegations of civil rights
abuse at the Federal Law Enforcement Training Centers for the Department of
Homeland Security, and conducted sensitive internal investigations of civil rights
complaints within the police force of the United States Mint.
9
My experience in trial litigation and in compliance monitoring of
police department practices and investigations into allegations of civil rights
abuses by and within police agencies has been highly relevant in this case, which
involved extensive circumvention and convenient interpretation of NYPD policies
by individual NYPD defendants. In a similar case in this District, an attorney’s
I led one criminal civil rights prosecution in which the defendant Laredo TX police sergeant received over 60
years for attempted murder of a Mexican woman to cover up his earlier sexual assault. U.S. v. Contreras, 950 F.2d
232 (5th Cir. 1991).
3
experience in criminal litigation was found to be “essential” to litigating a police
officer’s section 1983 civil rights claim against NYPD, and justified a rate of
$575.00 per hour.4
The billing rate is appropriate for the nature of my participation in this
matter.
10.
The City defendants misunderstand, or at least misrepresent my role
in prosecuting the Schoolcraft case, which defendants characterize as functioning
“as Smith’s senior associate, assisting Smith in the handling of depositions.”
(Memorandum p. 69). While Nathaniel Smith served as lead counsel, we had coequal retainer agreements with plaintiff and worked together as two solo
practitioners bringing complimentary skills and experience to the prosecution of
plaintiff’s case.
11.
I was initially asked by the plaintiff in February 2013, to consult and
assist in evaluating the case and in preparing the matter for trial. Soon after, in
April 2013, plaintiff executed a retainer agreement with me and Nathaniel Smith
to represent him as his attorneys in prosecuting his case through trial. Since that
time, the two of us have been working closely together on every aspect of this
case. We fashioned our responsibilities initially on the understanding that we, the
two of us, would try the case to a jury. Our trial preparation involved conducting
and defending depositions of 37 individuals, and reviewing an enormous volume
of documentary and audio/visual discovery with a view that we would share
witnesses and responsibilities of opening and summation. It was important that
Zahrey v. City of New York, Slip Op. 98-cv-4546 at p. 22; Dkt. # 264 (DCP) (JCF) (S.D.N.Y. June 8, 2010) (report
and recommendation by MJ Francis); (“… a thorough understanding of criminal investigation and prosecution was
essential to litigating Mr. Zahrey’s civil rights claims.”)
4
each of us understood the full scope and complexity of the witnesses and evidence
so that we could effectively allocate responsibilities of presenting the case at a
trial that the City Defendants estimated would last 40 trial days or two full months
Billing rate discounted for participation at 25 depositions, and hours
adjusted for “Substitution of Counsel” and “Lobbying” categories.
12.
Despite the importance of co-counsel jointly participating in
depositions of witnesses and parties in this case, I respect the observations of
Magistrate Judge Freeman expressed to me that attorneys billing at partner rates at
depositions is not standard practice at law firms. I have identified 25 depositions
on my invoiced billing in which I participated with Smith at a deposition in which
Smith was lead counsel. I propose to discount my rate by $100 per hour for the
189.5 hours billed for these depositions. That will deduct $18,950 from my
invoice.
13.
During the first few months in 2013, Nathaniel Smith and I became
the senior lawyers on the case through retainer agreement with plaintiff. We had
a short amount of time to become proficient in the facts of the case, the discovery
material on hand, and the status of discovery. This was essential preparation for
lawyers who were engaged to represent plaintiff exclusively in prosecuting the
case for trial. Accordingly, there were several hours that the Smith Group spent
reviewing the file to get up to speed. Defendants argue that these hours are not
compensable as they relate to substitution of counsel and are duplicative. The
Smith Group has each agreed to adjust initial file review hours to accommodate
this objection. In my case, this substitution time is estimated to be 6.25 hours. In
addition, the Smith Group has agreed to adjust the time billed contacting law
enforcement agencies to address defendants’ objections that this time is not
compensable. Accordingly, an additional 13.13 hours of my invoiced time will be
subtracted from my adjusted billing. With the 19.38 hours of these categories
deducted from my billed hours, my adjusted invoice is 1072 hours billed at $575
per hour or $616,469.00; 189.5 hours billed at $475 per hour or $90,012.50. The
total invoice is adjusted to $706,481.50.
Lenoir’s time journal reflects a billing practice that recorded only significant
events and work efforts.
14.
City defendants complain that “Lenoir never billed anything in .10,
used .20 only once and everything else was billed as having lasted more than
thirty (30) minutes (with 30 minutes by far the most popular increment at 64%).”
(Memorandum p. 38).
15. I do not dispute the defendants’ analysis, and point out that it was
unnecessary for the defendants to do this math. I stated in my declaration of
December 2, 2015, that I neither recorded nor billed solitary events of less than
fifteen minutes, such as emails read or written, ECF notices reviewed and short
telephone calls.5 This is a practice learned through a career as a salaried attorney
in government service. It is ironic that defendants argue that I should be
penalized with a fee reduction because I did not bill for hundreds of short email
and ECF reviews and ten-minute telephone conversations.
16.
Defendants also point to variances in time journals maintained by me
and by others who participated in external events as a deviation from acceptable
billing practices. Defendants’ analysis is fundamentally invalid because their
“expert” included time entries by the Norinsberg group with her analysis of the
5
P. 6, Dkt. #560-6.
Smith group journal entries. (Rpt pp. 56, 59). In one instance the error noted in
my time journal was only in listing the date of a 1.75-hour deposition event. 6 The
error in recording this single billable event and work was limited to transposing
dates. The events listed occurred, the work was done as stated, and the time spent
and billed are valid and unchanged.
Conclusion
For the past four years, Nathaniel Smith and I have provided thorough,
competent and diligent representation to Adrian Schoolcraft who was seriously
damaged by the actions of defendants. Our ultimately successful representation of
Schoolcraft reflects the intent and purpose of the fee shifting provision of Title 42
Section 1988. Accordingly, I respectfully requested that this application for
attorneys' fees be granted.
Dated:
New York, New York April 28, 2016
The invoice of billable hours submitted as incorporated in his Fee Application of December 2, 2015 lists five
discrete Lenoir’s events for 10/16/2013. One of these events listed was “co-counsel at deposition of Dfnt Bernier –
111 Broadway-by H. Suckle” for 1.75 hours. This event was incorrectly included as a 10/16/2013 event and
should have been recorded as the sole 10/25/2013 event. This deposition was terminated at its outset by counsel for
Bernier on his complaint about plaintiff counsel videotaping the deposition. The original invoice listed for
10/25/2013 “Appearance in court re attorney video of deposition—Bernier.” This event should have been listed as
11/13/2013.
6
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