“The Court assumes familiarity with the facts and procedural history of the case” Judge Joanna Seybert writes in the opening sentence of Restivo v. Nassau County, 06-CV-6720 (E.D.N.Y. Nov. 30, 2015), but it is difficult to appreciate fully the outcome – the award of $5 million in attorneys’ fees and costs to the well-known plaintiffs’ civil rights firm, Neufeld Scheck & Brustin LLP (“NSB”) – on the basis of the short summary that the Court provides to resolve the fee motion. This much shorter blog entry will necessarily do the matter even less justice, but here goes: plaintiffs John Restivo and Dennis Halsted were wrongly convicted in 1985 for the rape and murder of a Long Island teenager named Theresa Fusco. They spent 18 years in prison, until 2003, when they were finally released based on exculpatory DNA evidence and the help of attorneys from the “Innocence Project” (which was founded by named NSB partners, Barry Scheck and Peter Neufeld).
In 2006, NSB filed a § 1983 civil rights action on behalf of Restivo, Halsted and a third-man, John Kogut, who had initially confessed to the crime but was acquitted in a 2005 re-trial based on evidence that the lead Nassau County detective on the case, Joseph Volpe, had manufactured evidence and had obtained the confession improperly. The issue in § 1983 action was whether Volpe and Nassau County had unconstitutionally deprived the plaintiffs of their right to a fair trial. The plaintiffs also sued for malicious prosecution. A first trial ended in 2012 in a verdict for defendants. NSB moved for a new trial for Restivo and Halsted on the ground that they were prejudiced by the jury’s receipt of evidence of Kogut’s confession, which tainted its consideration of the degree to which the defendants had probable cause to suspect Restivo and Halsted. Judge Seybert granted a new trial in her joint decision in Kogut v. County of Nassau, 06 CV 6695, and Restivo v. Nassau County, 06-CV-6720 (EDNY, July 22, 2013). In the second trial, which ended in 2014, the jury awarded Restivo and Halsted $18 million each — $1 million for each year of their wrongful incarceration.
Judge Seybert’s fee decision recites impressive numbers of deposition and trial days, expert reports and Daubert challenges over the course of eight years of civil litigation, including two trials. It is clear that the facts and the results, not nuance in the law on attorneys’ fees, drives the award. Nevertheless, there are a few legal tidbits for practitioners who are fond of the law of lawyering. First, the Court found that counsel could overcome the presumption in favor of “in-district” hourly fee rates and granted the application for higher SDNY partner rates of $700/hour on the ground that “no lawyers with primary offices in the [EDNY] have obtained a successful jury verdict in a § 1983 wrongful conviction suit, as NSB did here” Slip Op. 7. Second, the Court refused to dock the application for time spent on “dismissed, withdrawn and abandoned claims” quoting the Second Circuit for the proposition that “[e]specially in a complex case, competent counsel is entitled to raise ‘alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.'” Slip Op. 11 (quoting Green v. Torres, 361 F.3d 96, 100 (2d Cir. 2004)). Third, the Court declined to fault NSB for “block billing” entries on their time sheets (i.e., failure to itemize how much time was spent on each task covered in a multi-task description), noting that the practice “is pervasive in the legal industry” and was not prohibited in this Circuit. Slip Op. 13. Indeed, the only “haircut” to the application was the “legitimate concern” raised by Defendants to “instances in which NSB lawyers billed travel time as attorney time.” Slip Op. 13. NSB wisely took that issue off-the-table by agreeing to omit those entries. Id. In the end, the Court awarded $4.58 million in attorneys’ fees for the 1983 actions, $320,000 in costs and $97,132.50 for the time and costs of preparing the fee application itself. The total is $4,997,914.55.
- Editors’ Note: For more casual, but detailed reading about the underlying criminal case against Restivo, Halstead and Kogut, their acquittals, the subsequent civil rights trials and the jury’s $18 million award to each of Restivo and Halstead, see “The Price of a Life” in the April 13, 2015 issue of The New Yorker.