Advanced Arms Dynamics v. Comprehensive Prosthetic Services et al. (2011)

SUPPLEMENTAL MEMORANDUM OF DECISION AUG 12, 2011 CORRECTING JULY 6, 2011 DECISION BY COURT

In its July 6, 2011 decision awarding attorneys fees in this case the court relied on the widely accepted test set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 174 (eA5, 1984).   That case sets forth eight factors that should be considered by a court which the court broke down into twelve separate factors.   One of the factors is the preclusion of other employment.   The court said at page 12 of its decision:

“(4) Preclusion of other Employment

This was a fairly lengthy trial and that factor plus the time consumed with and preparing for discovery disputes and post trial matters have detracted from counsel's ability to work on other cases.   Attorney Rydell's affidavit indicates he worked exclusively on the plaintiff's case since it came into the office in 2007.”  (Emphasis now by court)

This statement was incorrect;  attorney Rydell's affidavit indicated he worked extensively on the case since it came into the office.   Attorney Rydell has brought this error to the court's attention acting in the highest traditions of our profession which the court is not surprised at considering that lawyers of the highest caliber appeared on both sides of this case.

However, the court does not conclude that this error on the court's part should change its calculation of the appropriate attorneys fee.   The court had the 46–page time sheet submitted by plaintiff's counsel which it examined closely.   If the bottom of page 5 though page 6 is read, it is clear that the court was cognizant of the actual hours spent by Attorney Rydell on this case which it could hardly assume constituted an exclusive preoccupation of his time.

Also see the Time Limitations factor at number 7 of the Johnson criteria, where the court noted three lawyers at the firm spent the bulk of the time on the case.   The court quoted Johnson to the effect that “Priority work that delays the lawyer's other work is entitled to some premiums.”  488 F.2d 718.   The court said:  “Unless these three lawyers planned or were instructed by managing partners to handle only this case, the (tasks involved with trial preparation) created their own priorities and ongoing deadlines ․” The necessary implication of this in the context of the Time Limitations factor is that none of the attorneys worked exclusively on this case.

The first page of the time sheets listed hours spent on the case by partners and associates of the firm.   It indicates the time period covered was from August 11, 2007 through August 26, 2010,-a period in excess of three years.   Associates spent 605.9 hours on the case in that time period with 605.5 hours being spent by Attorney Rydell.   A total of 1,237 hours was spent by lawyers of this firm on this case over a three-year period.   Whether or not Attorney Rydell, in particular, worked “exclusively” on this case, which he never represented and explicitly says is not so now, the fact remains that an enormous amount of time was spent by lawyers in this firm which could have been spent on working on other files.

But given the size of the plaintiff's firm and the number of lawyers working there and applying the Preclusion of Other Employment Factor, it is difficult to believe the firm would have had to turn away other business because of the acceptance of this case and the court never assumed that.   In fact its observations as to the Preclusion Factor (# 4) fit more neatly into the just mentioned Time Limitations Factor (# 7), see first sentence of Preclusion discussion where court said work on this case “must have detracted from ability to work on other cases.”  That the court did not regard the Preclusion of other Employment Factor (# 4) as a key consideration is clear from an examination of the opinion.   The discussion of the first factor “Time and Labor” consumed three pages, and all the other factors required more discussion than the two sentences for the Preclusion Factor except for the one sentence on Factor 6:  “Fixed or Contingent fee.”   In any event the court confesses its error in word choice, regrets any confusion it may have caused, thanks counsel for bringing it to the court's attention, but does not change its decision.

Corradino, J.T.R.

Corradino, Thomas J., J.T.R.