EXHIBIT B - Moritz College of Lawmoritzlaw.osu.edu/electionlaw/litigation/documents/DfdntCull.ExhB... · EXHIBIT B Expert Report of ... parts of the transcript of the September 2011

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SHANNON PEREZ et al., § § Plaintiffs, § § v. § CIVIL ACTION NO.

§ 5:11-CV-0360-OLG-JES-XLR STATE OF TEXAS et al., § § Defendants. §

EXHIBIT B Expert Report of Scott Brister

Case 5:11-cv-00360-OLG-JES-XR Document 864-2 Filed 08/19/13 Page 1 of 32

AUS:669820.7

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

SHANNON PEREZ, et al. § § v. § C.A. NO. SA-11-CA-360 § (consolidated cases) STATE OF TEXAS, et al. §

EXPERT REPORT OF SCOTT BRISTER

I. QUALIFICATIONS

I am a partner in the law firm of Andrews Kurth LLP, a law firm of

about 400 lawyers founded in Houston in 1902. I am the attorney in charge of

the firm’s appellate section, but I practice in both trial and appellate courts. I

am Board Certified in Civil Trial Law, Civil Appellate Law, and Personal

Injury Law by the Texas Board of Legal Specialization. I have been licensed to

practice law in Texas since 1980, and have been admitted to practice before all

state and federal courts in Texas and the United States Supreme Court.

I served as a state judge in Texas for 20 years, beginning in 1989 as

Judge of the 234th District Court of Harris County, Texas. In my 11 years as a

trial judge, I presided over 670 trials to verdict, including 454 jury verdicts.

During part of that time I also served as the Administrative Judge for the 25

Harris County Civil District Courts.

EXHIBIT BCase 5:11-cv-00360-OLG-JES-XR Document 864-2 Filed 08/19/13 Page 2 of 32

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In 2000, I was elected to serve as a Justice on the First Court of

Appeals. Six months later, I was appointed as Chief Justice of the Fourteenth

Courts of Appeals. Both of these courts possess intermediate appellate

jurisdiction of civil and criminal appeals in ten counties including and

surrounding Houston. During my three years on these courts, I authored 442

opinions, including 194 signed majority opinions.

In 2003, I was appointed as a Justice of the Supreme Court of Texas,

where I served for six years. In addition to serving as the court of last resort

in all civil matters, the Supreme Court has sole authority for licensing

attorneys, is responsible for the lawyer discipline system in the state, and

promulgates various professional rules including the Texas Disciplinary Rules

of Professional Conduct. During my six years on the Supreme Court, I

authored 122 opinions for the Court, as well as 16 concurring and 21

dissenting opinions.

With respect to recovery of attorney’s fees, I have published two articles

in legal journals or periodicals: Proof of Attorney’s Fees in Texas, 24 ST. MARY’S

L.J. 313 (1993), and Proving Up Attorney’s Fees at Trial, 28 HOUSTON LAWYER

29 (1990). I have also authored opinions on the issue, including the opinion of

the Texas Supreme Court in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d

299 (Tex. 2006), which addresses segregation of attorney’s fees.

I have published numerous articles and editorials in legal journals and

newspapers urging reforms to make litigation in Texas more efficient and less


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expensive, including: The Decline in Jury Trials: What Would Wal-Mart Do?,

47 SOUTH TEX. L.R. 191 (2005); Lonesome Docket: Using the Texas Rules to

Shorten Trials and Delay, 46 BAYLOR L.R. 525 (1994); The O.J. Trial: What We

Learned, THE HOUSTON CHRONICLE (February 9, 1997); Speed Up Pace of Texas

Justice, THE HOUSTON CHRONICLE (July 23, 1995); and Living With Shorter

Trials, THE TEXAS LAWYER (October 11, 1993).

II. SCOPE OF REVIEW

I was engaged by the Office of the Attorney General of the State of

Texas to render opinions as an expert witness in this case regarding

reasonable and necessary attorney’s fees and expenses claimed by certain

Plaintiffs and Intervenors under federal law. See 42 U.S.C. §§ 1973(e) & 1988.

I was not asked to address whether all requests for interim fees should be

denied (which I understand the State plans to urge on several grounds), but

merely to address reasonable and necessary interim fees and expenses should

the Court decide to award them.

I have reviewed the motions requesting fees, selected pleadings in the

case, parts of the transcript of the September 2011 trial in San Antonio, and

the opinions and orders by this Court granting interim relief in February and

March of 2012.

III. ANALYSIS APPLICABLE TO ALL FEE CLAIMS

Section 1973l(e) of the Voting Rights Act and Section 1988 of the Civil

Rights Attorney’s Fees Award Act afford a district court discretion to award


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reasonable attorney’s fees to prevailing parties in redistricting and voting-

rights cases. In calculating attorney’s fees, the district court first calculates

the lodestar, multiplying the number of hours reasonably expended on the

litigation by a reasonable hourly rate in the local community.1 Next, the

district court must consider the factors articulated in Johnson v. Georgia

Highway Express, Inc.2

A. Lodestar: Reasonable Rates in San Antonio, Texas

The motions here assert hourly rates for attorneys up to $875. In my

opinion, reasonable market rates for voting-rights cases in San Antonio are

lower than most of those claimed, and rarely exceed $350 per hour.

The relevant hourly rates here are those for voting-rights cases in San

Antonio, the community in which the Court sits.3 Although other markets

may have higher rates, those rates are not the starting point for the lodestar

without proof that hiring a non-local attorney was a necessity.4

The most recent survey by The Texas Lawyer of hourly billing rates in

Texas found that average hourly rates in San Antonio run from $200 to $353

per hour (see Tab B-1)5:

1 McClain v. Lufkin Indus., Inc., 649 F.3d 374, 380-81 (5th Cir. 2011).

2 488 F.2d 714, 717–19 (5th Cir. 1974).

3 McClain, 649 F.3d at 381.

4 Id. at 382.

5 2013 Salary & Billing Survey, THE TEXAS LAWYER, July 29, 2013, at 22-24.


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City Partners Associates

equity nonequity 7th year 4th year 1st year

Austin/San Antonio $353 $355 $295 $245 $200

Dallas/Fort Worth $499 $405 $345 $295 $230

Houston $388 $348 $300 $260 $200

Other $299 $224 $175 $203 $160 The same survey also shows that rates are substantially higher at large

firms than they are at smaller ones, with average rates at firms with fewer

than 30 attorneys again falling in the $200 to $350 per hour range:6

Firm Size Partners Associates

equity nonequity 7th year 4th year 1st year

100+ $558 $463 $392 $337 $265

50-99 $430 $340 $325 $245 $200

30-49 $370 $353 $241 $251 $175

< 30 $350 $325 $225 $225 $175 Hourly rates charged by major law firms often reflect items like prime lease

space, recruiting, marketing, charitable contributions, employee pensions, or

malpractice rates that small firms may not have to match. As almost all of the

law firms involved here are much smaller than 30 lawyers, their hourly rates

should fall in the same $200 to $350 range.

A range of $200 to $350 is also consistent with recent awards by federal

courts in Texas voting-rights cases. In 2010, a three-judge panel of this Court

6 2013 Salary & Billing Survey, THE TEXAS LAWYER, July 29, 2013, at 22-24.


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found $250 a reasonable hourly rate for such cases in this community.7 And in

June 2013, Judge Fitzwater found $200 to $350 per hour a reasonable fee in

such cases for lawyers affiliated with the litigation boutique Bickel & Brewer.8

Redistricting litigation is important and often complex, but as this case

shows there are many attorneys and firms eager to participate in them. Such

cases necessarily involve politics, the public interest, and a lot of publicity in a

large state like Texas. Those factors and others multiply the pool of lawyers

who are willing to take them, even at lower hourly rates. They also attract

political parties, public interest groups, and legal aid attorneys (including

several here) who generally charge or accept lower rates due to the public-

service nature of their work. For example, Paul Clement, one of the most

heralded advocates in the country, represented the State in its appeal to the

United States Supreme Court in this case at an hourly rate of $520.9 Just as

judges or lawyers for the State accept lower salaries due to the importance of

their work, the importance of this litigation is in part the very reason that

hourly rates are typically low.

7 See Lulac of Texas v. Texas, No. SA–08–CA–389, 2010 WL 9435141, *2 (W.D. Tex. April 7, 2010).

8 See Fabela v. City of Farmers Branch, Tex., No. 3:10–CV–1425–D, 2013 WL 2655071, *5 (N.D. Tex. June 13, 2013).

9 See Tab A-2 to Rios Declaration [Dkt. #845-1]; see also http://www.texastribune.org/ texas-redistricting/redistricting/abbott-elections-should-use-legislatures-maps/ (“Abbott hired Paul Clement, a noted Supreme Court advocate, to help his office with the case (at a rate of $520 an hour, which he called ‘a steep discount’).”); http://www.burntorangereport.com/ diary/11585/abbott-hires-520-per-hour-lawyer-asks-supreme-court-to-block-interim-maps (“Abbott Hires $520 per Hour Lawyer, Asks Supreme Court to Block Interim Maps”).


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Two of the fee claims cite an affidavit I signed in LULAC V. City of

Boerne, Civ. Action # 96-cv-808, which quoted reasonable hourly rates of $750

for the late Greg Coleman (noted advocate and former law clerk to Justice

Clarence Thomas), and $360 to $550 for other attorneys at his firm, Yetter

Coleman, LLP (see Tab B-2). But I was asked in that case only for an affidavit

relating to fees generally charged by such firms; I was not retained as an

expert and reviewed none of the files, so my opinion was not intended to

address voting-rights fees specifically.10 As the Court awarded no fees in that

case,11 it does not change my opinions stated above.

Certainly, reasonable clients could agree to pay hourly rates higher than

$200 to $350.12 But the question here is customary fees in the area. Like any

other service, market rates are not governed by measures of intrinsic value;

they are governed by the laws of supply and demand. As there is a large

supply of attorneys willing to appear in redistricting cases at or below

customary rates, it is my opinion that the customary and reasonable rates for

attorneys in the San Antonio area for cases like this generally fall in the range

from $200 to $350 per hour.

10 See, e.g., Fabela, 2013 WL 2655071, *4 (“[T]his court does distinguish between civil rights cases and complex commercial litigation”).

11 See Civil Action No. SA-96-CV-808-XR [Dkt. #93].

12 See Pugach v. M & T Mortg. Corp., 564 F.Supp.2d 153, 157 (E.D.N.Y. 2008) (“[C]ourts have acknowledged that a judicial determination of what is ‘reasonable’ for purposes of a fee award to be paid by the losing party to the prevailing party in a litigation is not the same as the reasonableness of a bill that a law firm might present to its own paying client.”).


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B. Lodestar: Reasonable Hours Expended

1. Duplication

The motions here seek fees for 38 attorneys from 17 different firms.13 In

the private sector, economic forces naturally limit this kind of overstaffing:

clients will not pay for 38 lawyers when 3 or 4 will do. But in public-interest

litigation like this, where attorneys count on court-ordered fees for part or all

of their recovery, the absence of an independent client who is paying all the

bills removes some of the disincentives to duplicative work.

In calculating the number of hours reasonably expended, the Court

“must eliminate excessive or duplicative time.”14 It is natural that advocacy

groups and officeholders want their own attorneys in a redistricting case, but

the number of people interested in and affected by redistricting in Texas is

limited (if at all) only by the entire population. Even if 30 or 40 attorneys

agree to work cooperatively on a redistricting case, that does not make it

reasonable and necessary for the defendant to pay for all of them when most of

the claims made by the independent parties are the same.

The fee applications do not dispute that their substantive claims in this

lawsuit were duplicative. Some frankly admit that they litigated their claims

“in tandem with other plaintiffs,15 “essentially tried their cases together,”16 or

13 The number of attorneys included in each fee claim are: Rodriguez (9), MALC (7), TLRTF (6), NAACP (6), Perez (5), Quesada (3), Cuellar (1), and Texas Democratic Party (1).

14 LULAC No. 4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1231 (5th Cir. 1997).

15 Perez Motion [Dkt. #843] at 4.


9 AUS:669820.7

that they focused on only parts of the case.17 Filing duplicative claims was

their choice, but the State should not have to pay for duplicative work.

For example, the attorneys divided duties in the September 2011 trial,

yet all seek fees for the whole trial. Though many of them rarely spoke, their

fee claims are not always commensurate with their limited roles:

Party Examination/Argument % of Trial Fee Claim

for Trial18 State of Texas 420 pages 22.7% --

NAACP 436 pages 23.6% $ 112,420

TLRTF 296 pages 16.0% 107,856

MALC 225 pages 12.2% 174,823

Rodriguez 158 pages 8.5% 28,457

LULAC 131 pages 7.0% --

Perez 122 pages 6.6% 107,369

Quesada 63 pages 3.4% 58,825

Cuellar 27 pages 1.5% 24,492

Democratic Party 0 pages 0.0% 29,888

TOTAL 1,878 pages 100.0% $ 644,128 Splitting up the trial was reasonable to the extent it avoided duplication of

effort. But it would be unreasonable to award fees to so many attorneys for

sitting in trial and watching someone else try the case.

16 NAACP Motion [Dkt. #854] at 4.

17 Perez Plaintiffs’ Post Trial Brief [Dkt. #401] at 1 (“Our brief will focus, as has our evidence, on Texas House seats.”).

18 These figures include all time billed on the days of trial. As many attorneys used block-billing that stated only “attend trial” or included “trial prep,” it is impossible in most cases to segregate these figures more precisely.


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Of course, attorney’s fees should not be awarded based solely on who

uses up the most time, nor can an attorney go work on other matters while an

opposing party presents its case. But it is obvious from the chart that some of

the firms claiming the biggest trial fees did a smaller share of the work.

The Voting Rights Act does not require that a governmental entity pay

for dozens of attorneys to file similar motions or appear at trial when

considerably less would do. It may have been reasonable for officeholders or

groups representing minority voters to hire their own attorneys, but it was not

necessary that they hire as many different law firms as participated here.

Accordingly, the fees claimed should be reduced for the more peripheral

claimants.

2. Lack of success

Only prevailing parties are entitled to recover fees in redistricting and

voting-rights cases.19 Thus, the parties here are entitled to recover fees only

for claims on which they prevailed, not claims on which they didn’t. Without

trying to account for every claim made, the following is a nonexhaustive list of

the most important proceedings and issues on which these claimants did not

prevail, and thus should not have included in their fee claims.

Preclearance claims rendered unconstitutional. All claimants filed or joined

the preclearance claims under section 5 of the Voting Rights Act as applied to

19 42 U.S.C. § 1973l(e); Wilson v. Mayor & Bd. of Alderman of St. Francisville, 135 F.3d 996, 998 (5th Cir. 1998).


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Texas under the coverage formula in section 4(b) of the Act. In Shelby County

v. Holder, the Supreme Court held the coverage formula unconstitutional. As

none of the claimants can prevail under the coverage-formula theory on which

they based their preclearance claims until recently, they have not prevailed on

that claim and should not be reimbursed for that work.

Permanent relief rendered moot. All claimants sought permanent relief

against the redistricting plans adopted by the 82nd Legislature in 2011. In

June 2013, the 83rd Legislature adopted new plans that render the 2011 plan

moot. Except to the extent the 2013 plan incorporates changes pleaded by the

claimants, their requests for permanent relief are now moot.

Claims rejected or not reached. Before trial, the Court dismissed claims

under the 15th Amendment, claims alleging partisan redistricting, claims

against Lieutenant Governor David Dewhurst and Speaker Joe Straus, and

claims based on where prisoners “reside.” The Court also rejected claims

relating to House district 33 and Congressional district 27 in Nueces County,

and claims relating to Congressional districts 25 and 35 between Travis and

Bexar counties. Furthermore, the Court did not find it needed to reach many

of the claims raised in their pleadings and briefs. As it is undisputed that no

claimant prevailed on claims they lost or that were never reached, fees should

not be awarded for work done on them.

In many instances it is impossible to segregate fees related to these

losing or unreached claims, as the time entries are too vague or indefinite to


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identify them. Because the fee applicants had the burden to adequately

document their fee claims, the Court may reduce or eliminate some of these

fees on the ground that the documentation is vague or incomplete.20

3. Fees for work before the Legislature acted

Every one of the fee applications seeks fees for periods before the

Governor signed the new Texas House district map (on June 17, 2011) or

Congressional map (July 18, 2011). Until the new maps were adopted, any

litigation about them was premature. Research, negotiations, and lobbying as

part of the legislative proceedings that drew up the maps were not part of the

judicial proceedings that followed. Accordingly, it is my opinion that fees are

not recoverable for work done before the new plans were adopted and thereby

created something to litigate about.

4. Fees for work after this Court acted

The only ground on which anyone claims to be a prevailing party is the

interim relief granted by this Court regarding the 2012 elections. Those orders

were entered on or before March 19, 2012. Accordingly, it is my opinion that

fees and expenses incurred thereafter are not recoverable as they occurred

after the only relief on which the claimants prevailed had been granted, and

thus could not have contributed to it. Regarding aspects of this case that

remain pending, any fee claims related thereto are premature as the

prevailing party is not yet known.

20 See LULAC No. 4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1231 (5th Cir. 1997).


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C. Analysis of remaining Johnson factors

There is a strong presumption that the lodestar method yields a

reasonable fee.21 But before making any fee award, courts also consider the

following factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,

717-19 (5th Cir. 1974).

1. time and labor required. My opinions on this factor are set out in

part III(B) above and in the individual analyses of each claim in part IV below.

2. novelty and difficulty of the questions. The huge changes in the

Texas population and the creation of four new Congressional districts made

the redistricting process complex, perhaps to an unprecedented degree.

Similarly, the statewide nature of the case made it more complex than one

that involved only a local jurisdiction. But as all those issues were thoroughly

researched and analyzed in the legislative proceedings, that should have

simplified them for the judicial proceedings.

3. skill requisite to perform the legal service properly. The skill needed

by a single attorney or firm to handle every aspect of this case was substantial.

But the skill needed by 30 or 40 attorneys to adopt pleadings, motions, or

claims made by other parties, or to watch co-counsel examine a witness, was

minimal.

4. preclusion of other employment. A few motions include claims that

work in this case precluded other employment, but none state any particulars.

21 See Perdue v. Kenny A., 559 U.S. 542, 130 S. Ct. 1662, 1672–73, 176 L.Ed.2d 494 (2010).


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Merely spending hours on this case rather than some other is not “preclusion

of other employment,” as that would merely duplicate the time-and-labor-

expended factor.22

5. customary fee. My opinions on this factor are set out in part III(A)

above.

6. fixed or contingent fee. A contingent fee may be higher than a fixed

fee because of the risk of non-recovery. But reasonable fee awards are common

in redistricting or voting-rights cases if a party prevails. For the reasons

stated in part III(A) above, many attorneys appear to be willing to participate

in suits like this despite the risk and the lower hourly rates because of the

political and public-interest implications involved in the result.

7. time limitations imposed by the client or circumstances. Like most

redistricting cases, this one had to be handled on an expedited basis. New

districts drawn by the Texas Legislature are generally effective for the next

election, which is rarely more than a few months away. In my opinion, the

fees here should be no higher than in other redistricting cases, as the

exigencies are usually the same.

8. results obtained. My opinions on this factor are set out in part III(B)

above, and in the individual analyses of each claim in part IV below.

22 See Shipes v. Trinity Indus., 987 F.2d 311, 321-22 (5th Cir. 1993) (“If, for example, [plaintiff]’s attorney worked on nothing but this case, then this potential loss of income in refusing other employment is compensated for in the number of hours she billed in the instant case.”).


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9. experience, reputation, and ability of the attorneys. Some of the

attorneys included here are among the most experienced and well-known

counsel involved in redistricting and voting-rights cases, both in Texas and

beyond. Yet as indicated by the rate charged by Paul Clement,23 it does not

appear that exceptional experience, reputation, and ability translate into

anything like the fees that would be expected in other types of cases.

10. undesirability of the case. Given the politics, publicity, and profile

of redistricting cases, redistricting cases do not appear to be undesirable to

anybody, except perhaps the defendants.

11. nature of the professional relationship. Many of the attorneys and

law firms in this case serve regularly as counsel for politicians, interest

groups, or community groups like those they represent here. Accordingly, they

are in some respects similar to the “captive” law firms often used by insurers,

which bill at reduced rates in return for a steady flow of business.24 These

long-term relationships would probably not exist if these attorneys did not

charge rates equal to or lower than other firms of comparable ability.

12. awards in similar cases. My opinions on this factor are set out in

part III(A) & (B) above.

23 See part III(A), supra.

24 See, e.g., Unauthorized Practice of Law Committee v. Am. Home Assur. Co., 261 S.W.3d 24, 27 (Tex. 2008).


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IV. ANALYSIS OF INDIVIDUAL FEE CLAIMS

A. MALC

The Mexican American Legislative Caucus claims fees and expenses of

$2,544,163.81. For a number of reasons that claim appears to be inflated.

First, MALC seeks not only substantial fees for seven different

attorneys, but counts one of them twice. Ricardo G. Cedillo’s declaration

claims fees of $88,875, but MALC’s motion double-bills him.25

Second, more than half of MALC’s attorneys claim hourly rates from

$550 to $800 per hour. As indicated in part III(A) above, those are not the

customary rates for redistricting or voting-rights cases in Bexar County. Even

assuming every hour all seven attorneys billed was reasonable and necessary,

reasonable rates would reduce MALC’s claim by $819,933.26

Third, MALC claims fees of $354,494 for time expended before the

Legislature acted along with $6,314.49 in costs associated with this work.

MALC seeks $139,472.50 in fees and $4,148.12 in costs for periods after this

25 MALC’s memorandum [Dkt. #844-1] at 22-23; Cedillo Declaration [Dkt. #844-5], ¶ 2.

26 Claim Rate Reas. Rate Hours Reduced Claim Savings Jose Garza $550 $350 2,225.44 $778,904 $445,088 Joaquin Avila $800 $350 321.7 $112,595 $144,765 Martin Golando $250 $200 1,131.76 $226,352 $55,942 Ricardo Cedillo $750 $350 116.6 double bill $87,450 Ricardo Cedillo $750 $350 118.5 $41,475 $47,400 Mark Kiehne $350 $350 510.3 $178,605 $0 Laura Clark $275 $205 293.4 $60,147 $20,538 Pamela Karlan $725 $350 50.0 $17,500 $18,750 TOTAL $819,933

Mr. Golando’s reduced rate is based on his declaration that he has “limited expertise in litigation generally and voting rights cases specifically.” Golando Declaration, ¶9. Ms. Clark’s fees were for work largely performed while she was a first-year associate. The billing discount used by Messrs. Garza and Golando is applied in this chart and to all adjustments to MALC’s fees in this report.


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Court’s March 19, 2012 orders. For the reasons stated in part III(B)(3) and (4)

above, these are unrecoverable.

Fourth, a substantial part of MALC’s fees consists of simply monitoring

what other lawyers were doing. For example, the billing records contain over

500 entries by Mr. Cedillo in increments of 0.1 to 0.3 hours for reviewing email

or documents he received. Then on August 20, 2011, five MALC attorneys

attended a meeting with other parties and a subsequent conference among

themselves, altogether billing $26,005 for this one day of meetings.27 Two

MALC attorneys (Jose Garza and Martin Golando) discounted their time 20%

for “potential duplication” and for “unrelated or unnecessary legal or factual

issues”;28 three others say they reduced “certain hours” to avoid duplication.29

But there were no discounts for the remaining MALC attorneys, or any

explanation why these discount are sufficient given the large number of MALC

attorneys involved throughout the case.

Fifth, MALC’s claim includes $129,512 for fees and $44,402.33 for costs

(including expert witness fees) relating to the preclearance lawsuit in

Washington, D.C. For example, Mr. Golando billed 125 hours for trial and

travel (including a return trip from D.C. of 30.5 hours). Those fees would be

recoverable in that case rather than this one, and are not recoverable in that

27 Attachment 2 to Garza Declaration [Dkt. #844-2] at 29.

28 See Ex. 2 to MALC motion [Dkt. #844-2] at 2.

29 See Ex. 5 to MALC motion [Dkt. #844-5] at 2. The declaration of Joaquin Avila does not make any similar reductions.


18 AUS:669820.7

case either as MALC did not ultimately prevail when the judgment was

vacated as a result of Shelby County.

Sixth, MALC claims $173,662 for time relating to the appeal to the

United States Supreme Court in this case along with $7,894.57 in costs.

MALC of course was not the prevailing party in that appeal.

Seventh, MALC attorneys also claim at least $43,225 for time spent on

other redistricting cases not consolidated into this case.30 As most of MALC’s

fee entries are not specific as to case, this number may be significantly higher.

Eighth, MALC billed 129.5 hours (mostly block-billing) on two responses

to a motion to dismiss, a substantial part of which was spent unsuccessfully

trying to keep Lieutenant Governor Dewhurst and Speaker Straus as

defendants in this case.

Ninth, MALC includes 77.3 hours ($61,840) for time Seattle lawyer

Joaquin Avila spent travelling to Texas (much of it block-billed) and

$17,190.22 in associated costs. As there is no evidence in the motion showing

why hiring a Seattle lawyer was a necessity, those fees and costs should not be

included for the reasons stated in part III(A) above.

Tenth, MALC’s claim includes 50 hours ($36,250) for Pamela Karlan for

“Supreme Court prep.” No time sheets or invoices document this claim, nor

30 These cases include: Teuber, et al. v. Texas, et al., Cause No. 5:11-cv-572-OLG-JES-XR (W.D. Tex., filed Feb. 10, 2011); and Mexican American Legislative Caucus v. Texas, et al., Cause No. 7:11-cv-144 (S.D. Tex., filed April 5, 2011). See also Notice of Related Litigation [Dkt. #22].


19 AUS:669820.7

did Ms. Karlan provide a declaration in support. As the State prevailed in the

Supreme Court, fees related thereto are unrecoverable.

Finally, most of the MALC lawyers used block-billing that makes it

impossible to tell how much time they spent on a listed task. Further, many of

the entries are vague and incomplete. For example, Joaquin Avila’s bill lists 4

hours for “legal research; review of docs”; that is inadequate for the Court to

tell which case he was working on (the D.C. case, this case, or other MALC

redistricting cases not at issue here), what he did, or whether the work he

performed was on claims as to which MALC was the prevailing party.

B. TLRTF

Texas Latino Redistricting Task Force claims fees and expenses of

$1,212,876, about half that of MALC. Unlike most of the other Claimants,

TLRTF’s time records are generally specific about what work was done on

which case. The pleadings, briefing, and trial record also reflect that TLRTF’s

attorneys often took the leading role in this litigation, so their time entries

reflect a higher percentage of substantive work and a lower percentage of

merely monitoring the work of others.

TLRTF’s lead attorney (Nina Perales) claims hourly rates from $525 per

hour, well above the customary rates indicated in part III(A) above. Again,

assuming every hour she billed was reasonable and necessary, a top hourly

rate of $350 would reduce TLRTF’s claim by $239,041.25.


20 AUS:669820.7

Nevertheless, TLRTF’s claim includes $164,169.75 for fees related to the

preclearance trial in Washington, D.C. and $2,065.92 in associated costs.31

TLRTF also seeks $80,802.75 for fees and $11,201.77 in costs related to the

appeal in this case to the United States Supreme Court. Those sums are

unrecoverable for the reasons stated in part III(B)(2) above.

Similarly, TLRTF’s claim includes $25,778 for fees incurred before the

Legislature adopted any maps for the 2012 elections, and $68,407.75 for fees

incurred after this Court adopted the interim maps that governed the 2012

elections. For the reasons stated in part III(B)(3) & (4) above, those fees are

unrecoverable.

C. Perez

The Perez Plaintiffs claim fees and expenses of $1,032,499. As an initial

matter, the most striking thing about this claim is its comparative size.

Unlike several of the parties, the Perez plaintiffs actively challenged only the

Texas House district maps, not the federal Congressional maps. Yet the size of

the Perez claim is comparable to that TLRTF and almost double that of the

NAACP ― groups that challenged all the maps and appeared to play a more

active role in the litigation. For example, the Perez attorneys’ active

contributions during trial were small compared to most of the other parties, as

shown by the chart in part III(B)(1) above. Their briefing and other filings

show the same pattern.

31 This figure includes $ 4,751.50 in fees requested for GIS assistant Sara Evans.


21 AUS:669820.7

Additionally, the Perez parties’ primary attorneys (David Richards and

Richard E. Gray, III) claim hourly rates from $550 per hour. As indicated in

part III(A) above, those are well above the customary rates for redistricting

and voting-rights cases in Bexar County. Even assuming every hour these

attorneys billed was reasonable and necessary, a top hourly rate of $350 would

reduce this claim by $332,480.

The Perez parties’ claim also includes $60,248.50 for fees related to the

appeal in this case to the United States Supreme Court. Those fees are

unrecoverable for the reasons stated in part III(B)(2) above.

Finally, the Perez parties’ claim includes $59,906.50 for fees incurred

before the Legislature adopted any maps for the 2012 elections, and

$74,357.50 for fees incurred after this Court adopted the interim maps that

governed the 2012 elections. For the reasons stated in part III(B)(3) & (4)

above, those fees are unrecoverable.32

D. NAACP

The NAACP parties claim fees and expenses of $533,026. This is

substantially lower than some other claims in part because the rates alleged

are closer to the customary rates noted in part III(A) above. Only one attorney

(Anita Earls) charged an hourly rate above $350, and due to her limited

involvement reducing her rate to $350 reduces the fee claim by only $3,663.

32 While the Perez Plaintiffs request $53,618.36 in costs, they provide no documentation or even explanation to support this claim. Thus it is not possible to determine which of these costs are related to the above-referenced categories.


22 AUS:669820.7

However one attorney with an out-of-state public-interest group billed

for her time travelling between North Carolina and Texas. At her hourly rate

of $250, that amounted to $21,625. She also incurred an additional $4,896 in

travel expenses. The State should not have to pay for these extra fees and

expenses without a showing by the NAACP that it could not have used local

attorneys to do the same work.

The NAACP claim includes $41,150 for fees and $6,408 for costs related

to the appeal in this case to the United States Supreme Court. Those fees and

costs are unrecoverable for the reasons stated in part III(B)(2) above.

The NAACP claim also includes $14,920 for fees and $1,063 in expert

costs for fees incurred before the Legislature adopted any maps for the 2012

elections, as well as $25,809 in fees and $10,630 in travel and expert costs that

were incurred after this Court adopted the interim maps that governed the

2012 elections. For the reasons stated in part III(B)(3) & (4) above, those

amounts are unrecoverable.

E. Cuellar

Congressman Cuellar seeks fees and expenses of $328,448. His lead

counsel (Rolando L. Rios) claims an hourly rate of $520 per hour. As indicated

in part III(A) above, that is well above the customary rates for redistricting

and voting-rights cases in Bexar County. Again, assuming every hour billed

was reasonable and necessary, a top hourly rate of $350 would reduce this

claim by $88,468. The claim also includes $31,750 for a “GIS” named “SS” at


23 AUS:669820.7

$125/hour without any explanation of who this is or why this rate is

reasonable.

While Congressman Cuellar and his counsel claim to have played a

substantial role in drawing up a compromise map similar to the one this Court

adopted for the 2012 elections, most of fees claimed appear to be unrelated to

drawing up that map. For example, the billing records contain 174 entries for

Mr. Rios in increments of 0.3 hours or less for reviewing email, and many more

that surpass that small increment only because review of several emails was

combined.

The Cuellar claim also includes $52,165 for fees and $1,240.24 for costs

incurred before the Legislature adopted any maps for the 2012 elections, and

$84,309 for fees incurred after this Court adopted the interim maps that

governed the 2012 elections. For the reasons stated in part III(B)(3) & (4)

above, those amounts are unrecoverable.

F. Quesada

The Quesada Plaintiffs claim fees and expenses of $257,581. They

reduced the hours they actually expended by 50%, conceding that their “main

focus” was a new minority district in the Dallas-Fort Worth metroplex, and

that by always going last during trial they usually did not have to add much.

But as other parties asserted the same complaints regarding the metroplex, it

is unclear why another set of attorneys was reasonable or necessary at all.


24 AUS:669820.7

The rates sought for the Quesada counsel ― $875 per hour for Paul M.

Smith, $650 per hour for J. Gerald Hebert, $435 per hour for Caroline D.

Lopez ― are substantially higher than customary fees in San Antonio. See

part III(A) above. Again, assuming every hour billed was reasonable and

necessary, a top hourly rate of $350 (and $245 for Ms. Lopez33) would reduce

this claim by $83,158.

One of Quesada’s attorney’s also offices out-of-state. Although he did

not bill his travel time between his Virginia office and Texas, he did submit

discounted travel expenses of $20,198.75. The State should not have to pay for

these travel expenses without a showing by the Quesada plaintiffs that they

could not have used a local attorney to do the same work.

The Quesada claim includes $65 for fees incurred before the Legislature

adopted any maps for the 2012 elections, as well as $29,368.16 for fees and

$4,473.84 for travel and expert costs that were incurred after this Court

adopted the interim maps that governed the 2012 elections. For the reasons

stated in part III(B)(3) & (4) above, those amounts are unrecoverable.

G. Rodriguez

The Rodriguez Plaintiffs claim fees and expenses of $191,064. All of

these attributable to the Perkins Coie LLP firm in Seattle and Washington,

D.C. Their hourly rates are markedly above customary rates in Bexar County,

especially considering their very limited involvement at trial (Austin attorney

33 Ms. Lopez was apparently a third-year associate at the time she worked on this case.


25 AUS:669820.7

Renea Hicks, primary spokesman for the Rodriguez Plaintiffs at trial, has not

made a fee claim). There is neither a claim nor proof that local attorneys were

not available to perform the same work. Again, assuming every hour billed

was reasonable and necessary, a top hourly rate of $350 would reduce this

claim by $29,287.34

Unlike many of the other Claimants, the Rodriguez claim does not

include fees related to the preclearance lawsuit in Washington, D.C., or to the

appeal in this case to the United States Supreme Court. As the supporting

declaration states, every entry related to those proceedings “has been removed

from these billing records.”35 That is the way all of the fee claims here should

have been prepared.

But the Rodriguez claim does include $1,434.80 for fees incurred before

the Legislature adopted any maps for the 2012 elections, and $24,523 for fees

incurred after this Court adopted the interim maps that governed the 2012

elections. For the reasons stated in part III(B)(3) & (4) above, those fees are

unrecoverable. Further, the Rodriguez claim includes 15.6 hours ($4,758) for

34 Claim Rate Reas. Rate Hours Reduced Claim Savings Devaney $490/550 $350 18.4 $6,440 $3,650 Elias $550/635 $350 27.8 $9,730 $5,900 Frost $385 $260 17.2 $4,472 $2,150 Hamilton $480 $350 13.0 $4,550 $1,690 Khanna $305/375 $245/260 147.2 $36,073 $8,865 Manheim E. $375 $280 8.4 $2,352 $798 Manheim N. $305 $245 37.7 $9,065 $2,220 Mrazik $295 $230 6.5 $1,495 $422.50 Purcell $300/370 $245/260 51 $12,538 $3,591.50 TOTAL $29,287.00

35 Elias Declaration [Dkt. #853-1] at 2.


26 AUS:669820.7

time Seattle lawyer Abha Khanna spent travelling to Texas along with

$2,983.69 in associated costs. As in the case of fellow Seattle lawyer Joaquin

Avila, these travel costs are not reasonable given the absence of any showing

that local counsel was not available for the work.

H. Texas Democratic Party

The Party claims fees and expenses of $95,344. Lead counsel (Chad

Dunn) claims an hourly rate of $375 per hour. Reducing that to an hourly rate

of $350 would reduce this claim by $6,535.

But in fact, no claim was reasonable or necessary here because all the

Party’s claims against the State defendants were dismissed on September 2,

2011;36 the Party asked the Court to reconsider that ruling, but as it was never

reinstated it was not prevailing party.

Conceding that it “did not carry the heavy lifting” in this case,37 the

Party says it has substantially reduced its claim. Yet Mr. Dunn billed

$29,887.50 for preparing for and attending every day of trial in this case, even

though he never said anything after announcing his appearance. The motion

claims entitlement to fees because Mr. Dunn was the one “preparing orders

concerning the election calendar.”38 But helping conduct elections is part of a

36 Order [Dkt. #285] at 26.

37 Party’s Motion [Dkt. #847] at 6.

38 Id. at 5.


27 AUS:669820.7

political party’s duties in Texas;39 that does not make it a prevailing party in

this litigation.

The Party’s claim includes $8,662.50 for fees related to the appeal in

this case to the United States Supreme Court. Those fees are unrecoverable

for the reasons stated in part III(B)(2) above.

The Party’s claim also includes $375 for fees incurred before the

Legislature adopted any maps for the 2012 elections, as well as $20,009.54 for

fees and $809.54 for travel that were incurred after this Court adopted the

interim maps that governed the 2012 elections. For the reasons stated in part

III(B)(3) & (4) above, those amounts are unrecoverable.

CONCLUSION

The fee claims here seek almost $6.2 million in reimbursement for 38

attorneys working at 17 different firms. Even in the most complex of cases, it

would be impossible to avoid substantial duplication with this many different

attorneys and firms involved. Due to the vague and general time entries many

of them used, it is impossible to quantify the extent of duplication, or even

segregate work on successful from unsuccessful claims given the mixed results

achieved. The Court should consider this difficulty and general background

before making any fee award.

39 See, e.g., TEX. ELEC. CODE §§ 172.028-.029 (requiring party chair to certify candidates for ballot); id. §§ 172.082-.084 (describing party’s role in preparation of ballot); id. § 172.111 (making party executive committee responsible for supervising conduct of primary elections); id. §§ 172.113-.117 (authorizing party to tabulate primary results and certify party’s nominee).



;:,ource: :u rtrms

HouRLY BILLING RATES

Source: 92 firms

TAB B-1Case 5:11-cv-00360-OLG-JES-XR Document 864-2 Filed 08/19/13 Page 30 of 32

Exhibit C

UNITED STATES DISTRICT COURT FOR THE WESTERN l)ISTRICT OF TEXAS

SAN ANTONIO DIVISION

LEAGUE OF UNITED LATIN § AMERICAN CITIZENS, DISTRICT 19, §

Plaintiff, § §

~ § §

CITY OF BOERNE, ET AL., § Defendants, §

§ and §

§ MICHAEL R. MORTON, §

Intervenor. §

CA NO. SA-96-CV-808-XR

AFFIDAVIT OF SCOTT A. BRISTER

STATE OF TEXAS § §

COUNTY OF TRAVIS §

BEFORE ME, the undersigned Affiant personally appeared, who, by me first duly sworn

on oath, deposed and stated as follows:

1. "My name is Scott A. Brister. I am over the age of 21 years and am competent to testify in this cause. I have never been adjudicated an incompetent. I have personal knowledge of the facts stated herein and they are true and correct. My personal knowledge was obtained through my 32 years of practicing appellate and trial law.

2. I am an attorney licensed to practice law in the State of Texas. I was licensed to practice in 1980 and do so around the state, in both state and federal courts. Following my graduation cum laude from Harvard Law School, I clerked on the Texas Supreme Court, and worked in private practice. I also served as a judge or justice at all levels of the Texas court system, to include the Texas Supreme Court. During my 32 years of practice and judicial experience, I have presided over and participated in numerous trials and appeals in state and federal court, including proceedings involving elections. I am boardcertified in civil appellate, civil trial, and personal injury trial law.


3. As a result of my experience, I am familiar with the reasonable and necessary fees and prevailing rates charged by attorneys in the State of Texas, including in the Western District of Texas.

4. Based on my experience, it is my opinion that the prevailing rate for similar services by an attorney with 18 years of experience and credentials similar to Greg Coleman is $750; by an attorney with 11 years of experience and a background similar to Chris Ward is $550; by an attorney with 7 years of experience and a background similar to Rich Farrer is $430; by an attorney with 6 years of experience and a background similar to Ryan Bates is $400; and by an attorney with 5 years of experience and a background similar to Kevin Terrazas is $360.

FURTHER AFFIANT SAITH NOT.

SUBSCRIBED AND SWORN TO BEFORE ME on this

KAREN DIXON MY COMMISSION EXPIRES

Ma!ch22, 2015


Documents

EXHIBIT B - Moritz College of Lawmoritzlaw.osu.edu/electionlaw/litigation/documents/DfdntCull.ExhB... · EXHIBIT B Expert Report of ... parts of the transcript of the September 2011