A recent Law 360 story by Chris Villani, “Firms Seek $2.3M Fee for $484K Award in Cop Back Pay Suit” reports that Lichten & Liss-Riordan PC and Fair Work PC have asked a Massachusetts federal judge for $2.3 million in fees and costs after helping a group of minority police officers who lost promotions because of a discriminatory exam win a $484,000 back pay judgment against the city of Boston. The firms told U.S. District Judge William G. Young that their request for $1.67 million in fees and $665,359 in costs was merited in part because the case, which began in 2012, will have a "profound" impact on police promotional examinations. They also cited Boston's insistence on fighting even after a judge found years ago that the test in question was biased against minority candidates.
"As is the case in most civil rights cases, the small group of 10 minority police officers who brought this successful challenge to the city's use of a discriminatory promotional exam could never have afforded to pay the related litigation costs," the motion argues. "This was precisely the kind of case, therefore, where a small group have been able to further the public good even though the related litigation costs would have normally prevented them from bringing this case, much less litigate it for eight years," the attorneys added.
Lawyers from Lichten & Liss-Riordan and Fair Work said they logged a total of 1,880 hours over eight years of litigation. The case included two trials — one over whether the test was discriminatory and another to determine damages — as well as a remand from the First Circuit. Judge Young ruled that the exam had a racially disparate impact on Black and Latino officers and stuck with that ruling in 2017 after the First Circuit upheld a fellow Massachusetts federal judge's findings in a parallel case which wound its way through the court system contemporaneously with the case led by Bruce Smith.
The same lawyers worked on that parallel case, Lopez v. City of Lawrence et al., in which U.S. District Judge George A. O'Toole ruled that a similar exam was legal. The Lopez case, filed in 2007, is the "foundation" for the Smith litigation, the attorneys argued. "The same attorneys persevered through 18 days of trial, two trips to the First Circuit, and one half million dollars in costs, (which the firm paid out itself), only to lose 2 to 1 in the First Circuit (despite the US Justice Department filing an amicus in support of reversal) and received no compensation for that five years of work," according to the filing.
In a May order, Judge Young awarded back pay to the officers in the Smith case, rejecting an argument by the city that the officers' poor performance in a 2014 exam shows that the 2008 test, even if unfair, was not the only reason many of the officers failed to be promoted.
The officers' attorneys quoted the judge's ruling in making the point that the overall impact of the case has been "profound" and extends well beyond the 10 plaintiffs. "As a result of this litigation, the city used a multi-component promotional examination in 2014, will be using a multi-component test for the next promotional examination, and appears to be committed to not using the multiple-choice again in the future" the document states.
The fair market rate for the lawyers who represented the officers is $700 per hour for Lichten & Liss-Riordan's Harold Lichten and $450 and $350 per hour for the firm's Benjamin Weber and Zachary Rubin, respectively, the motion said. Fair Work's Stephen Churchill has a market rate of $600 per hour, the lawyers added. "The hours expended here were necessary where the city vigorously contested the litigation for eight years," the motion states.