West Virginia University Hospitals, Inc. v. Casey – Oral Argument – October 09, 1990

Media for West Virginia University Hospitals, Inc. v. Casey

Audio Transcription for Opinion Announcement – March 19, 1991 in West Virginia University Hospitals, Inc. v. Casey

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Robert T. Adams:

I don’t have an answer for you.

Certainly not, Your Honor.

There are a lot of experts there and it’s been a fee-shifting statute that’s been on the books a long time.

Robert T. Adams:

[Laughter]

But you don’t know what the answer is there?

Well, absent any legislative history, would you say the language is ambiguous?

Robert T. Adams:

I really do not.

If–

But… you’re arguing that, you know, gee, you can’t have an attorney without… without all these experts.

Absent any legislative history?

It would really apply across the board to every other kind of statute as well.

Robert T. Adams:

–If there was no legislative–

That’s true, but you know there is one unique distinction about 1988 in comparison to all these other fee-shifting statutes that we have.

None.

Robert T. Adams:

And that is, to the best of my knowledge, 1988 is a statute which addresses not only violations of Federal statutory law that is the… in place to address constitutional violations.

–history.

We have one in this case, a violation found by the district court of the equal protection clause.

It was just this statute, I would probably not be sitting here today.

And I find it somewhat amazing that you could have a fee-shifting statute that, granted, is part of a very important national policy for the environment which covers the experts, but when you get to the area of constitutional violations, Congress was somehow inept and didn’t cover fees in that arena?

So you say it would not be ambiguous?

Robert T. Adams:

It just doesn’t make sense, with all due respect.

If there were not this legislative history–

Well, maybe it thought… you know, when you think of environmental litigation, you think of experts right away.

Yes, yes.

When you think of civil rights cases, as I think civil rights cases meant… what civil rights cases meant to Congress, you don’t as automatically think of expert witnesses.

Robert T. Adams:

–if there were not this set of contemporaneous circumstances–

That may be true, but as a matter of fact today if we are to give honor to this notion of work product, this intensely practical doctrine, I think the court ought to.

So you say this is a plain language case and I lose.

But I would… you would then be making the same argument in… on… in any other fee-shifting statute which simply said the prevailing plaintiff in this kind of a case is entitled to recover reasonable attorney’s fees.

Robert T. Adams:

–If all you do is look to the four corners of this statute, if you are not willing to ask the additional question of what else was Congress trying to do, yes, I think I do lose.

If it had the same legislative history as–

Of course, you’d lose the paralegal case, too, wouldn’t you?

No, no, no, no, no, no, no.

Robert T. Adams:

Yes.

Just attorney’s fees.

Yeah.

I thought you were really arguing that reasonable expenses that were… that… that are necessary for the attorney to represent the client can be compensated under attorney’s fees.

Robert T. Adams:

And I think that’s the significance of this Court’s beginning of its analysis in the Missouri v. Jenkins case.

–My case is only about a civil rights violation under section 1988.

Because in the very initial part of that decision, it’s apparent to me that this Court considered and rejected the plain language argument that’s being advanced by the Commonwealth of Pennsylvania today.

You mean you’re going… if we don’t… if we don’t think the legislative history is that potent, you lose, is that it?

In fact, we rejected it 8 to 1, didn’t we?

Robert T. Adams:

I think that is correct, Your Honor.

I believe it was 7 to 1.

Mr. Adams.

Robert T. Adams:

I believe that Justice Marshall–

Yes, sir.

No, I think it’s 8 to 1 on the question whether any paralegals were allowed.

Somebody that works with you 2 years, working up questions and answers and all, and that’s a witness?

Only the Chief Justice ruled and said, no fees at all for paralegals.

Robert T. Adams:

In this case, we were fortunate that the people–

–I will defer to you, Justice Stevens.

You haven’t used any other experts to work up your cases?

Robert T. Adams:

I believe Justice Marshall took no part in that decision.

–Yes, sir.

I hope to get his vote today.

Yes, Your Honor.

[Laughter]

And you get fees for that?

But I suppose there’s quite a difference between paralegals and expert witnesses.

Robert T. Adams:

Yes, Your Honor.

Paralegals are in essence doing part of the attorney’s work, are they not?

Or can you get fees for only testifying?

Robert T. Adams:

They clearly are and so are–

You should get fees for both functions.

And expert witnesses are perhaps more like independent contractors in a sense.

You do?

They’re outside a law office and the lawyer’s work.

Robert T. Adams:

Yes, Your Honor.

–With respect, I would disagree.

That’s what our position would be.

I think you are… I think with… that you’re trying to draw a distinction based upon employment relationships and I think Judge Posner’s decision for the Seventh Circuit is particularly good in explaining that if you really examine that, that doesn’t seem to be a very appropriate basis for a distinction.

I just… the only trouble… I said what is a fact?

Robert T. Adams:

You can have… you’ve got a… you pay for a paralegal in order to make this fully complete remedy, but you don’t pay for the expert and yet the expert probably provides a far more valuable service and the attorney needs access to his services more than he does his own paralegal.

What is a fact?

Well, then you disagree with Missouri v. Jenkins, because that was the rationale of Justice Brennan.

Robert T. Adams:

Yes, until, until the courts–

He said that attorney’s fees include secretaries, those that are integral to the operation of the office.

It’s these people who work up a case with you, and I would consider that legal work.

And it seems to me that, page 2470, that that’s all he means.

Robert T. Adams:

–You’re exactly right, Your Honor.

With respect, I would disagree.

Well, if you call one of your lawyers as a witness, would that be an expert witness?

Robert T. Adams:

I read… I read that his decision as indicating that any person whose labor has contributed to the work product of the attorney ought to have–

Well, Your Honor, I guess it would depend on what he was testifying about, but, yes, I guess he could qualify as an expert witness.

No, for which an attorney bills the client.

William H. Rehnquist:

Thank you, Mr. Adams.

–bills the client.

William H. Rehnquist:

The case is submitted.

Before the attorney can bill his client for a successful prosecution of a civil rights claim, he has got to work with that expert.

He cannot even seriously consider taking the case unless he knows there is some reasonable expectation in a meritorious civil rights case of being able to pay that expert.

When you refer to civil rights cases, uh, you obviously refer to your own case here where the West Virginia University Hospital sued the State of Pennsylvania or sued the Governor of Pennsylvania on a statute where it claimed it had some entitlements.

So you’re really not talking about civil rights in any narrow sense.

You’re talking about any plaintiff who has a claim under Federal law.

Robert T. Adams:

–As broadly as this Court has construed that.

In my particular situation, of course, Your Honor, your… this Court–

And you aren’t talking about somebody who couldn’t independently… wouldn’t independently have the money to pay the expert.

Robert T. Adams:

–I think I am talking–

Why?

Robert T. Adams:

–about the person, because if you were to decide this case against my client, it would seem to me that you have established a precedent, not just for my client who had the fortune of having some kind of cash flow, but you’d have also set a precedent for the individual who did not have–

Well, that may be but your client has the money to pay the expert.

Robert T. Adams:

–Not true, Your Honor, and let me explain why.

I would direct the Court’s attention to page B48 in the petition’s… appendix.

There the district court discusses the testimony of Dr. James Vertrees, who was the Commonwealth of Pennsylvania’s expert.

And the reason the district court was discussing that particular testimony was that Dr. Vertrees had clearly testified that the imposition of Pennsylvania’s payment system on a hospital such as my client had the potential, the real potential of bankrupting a large university teaching hospital.

And that’s particularly serious in a Medicaid program, because if you examine the legislative history to the Social Security Act you will find that Congress had an express concern for these large teaching hospitals that… to put it bluntly… are the dumping grounds of… for poor patients.

And so my client as I said… it had a cash flow, but I would respectfully submit my client did not have a deep pocket that was unending.

So, it’s very important if we’re going to continue to deliver… in my client’s case… needed health care to our indigent citizens that they are able to recover what it costs them to vindicate their rights in Federal court.

I would point out to the Court with respect that this Court has not shied away from rejecting plain language arguments when it has come to section 1988.

Missouri v. Jenkins was not the first time this Court so held.

I would point you specifically to the Christiansburg Garment case where you rejected that kind of argument because it would have frustrated Congress’ intend.

Likewise in related fee-shifting statutes, EAJA, for example, the Clean Air Act shifting statute, you have not given any credence to arguments based on minor variations in language between one statute and another.

You have been more concerned about ensuring that Congress’ intent behind those statutes was followed.

Yeah, except that, you know, if we ignore the plain language of what the statute and says and goes to what Congress intended, I doubt whether very many members of Congress thought that civil rights actions consisted of suits by hospitals, for-profit hospitals, some of them, for millions of dollars that were wrongfully withheld under a statute for Medicaid treatments.

I don’t… how many members of Congress do you think would consider that a civil rights action.

That’s what they had in mind when they were talking about civil rights actions?

I doubt very many.

Robert T. Adams:

Your Honor, I don’t know really how to answer that other than to–

Well, the way to answer it is the statute says what it says and it describes this kind of an action and that’s good enough.

Robert T. Adams:

–I disagree, because I think if Congress was truly serious about making any kind of promise to the American people it had to be a substantial promise not a hollow promise, and I would submit it is a hollow promise if expert witnesses cannot be made available to all civil rights litigants.

I would also respectfully submit that the adoption of the construction that we are proffering to the Court is fully consistent with the notion that we are dealing with a remedial statute that is entitled to a broad construction.

Furthermore, we believe that that notion of a broader construction than the one being offered up by Pennsylvania is also consistent with the notion of work product as we find that mentioned in the Jenkins case, because this Court has said that the work product doctrine is an intensely practical doctrine grounded in the realities of litigation, and experts are a reality of litigation whether we like it or not.

West Virginia’s construction, we believe, is fully consistent with every expression of legislative intent that we can find.

I suppose you can also make the same argument about private investigators and private detectives?

Robert T. Adams:

If an–

Here’s a case… here’s a case that a lawyer wants to hire an investigator to find out the facts and find some witnesses, and he just won’t get off the ground without him?

Robert T. Adams:

–A qualified yes, Your Honor, and let me explain the qualification.

As we understand the legislative history behind section 1988, Congress intended to restore the courts to what their practice had been in fee-shifting prior to the Alyeska decision.

I am not here to suggest that that means that we should vest into the Federal courts the ability to further expand whatever that equitable fee-shifting policy was.

Instead I’m suggesting whatever it was in 1975 that’s what Congress intended to give back.

Now, if investigators… which are not a part of this case… but if investigators had been considered a part of the appropriate fee shifting under pre-Alyeska practice, yes, I would give you the… I… a yes answer to that.

Do you think prior to Alyeska it was an accepted practice to shift… shift the cost for expert witness fees to the loser?

Robert T. Adams:

Yes, sir, and the court exercising its discretion, and if you examine our footnote 15 on page 18 of the opening brief, you’ll see what we hope is a fairly complete list of the reported cases on that point.

We have certainly found no reported case that suggests otherwise nor have we seen any case cited by the Commonwealth of Pennsylvania for a contrary position.

Well, we believe that the construction that we would offer to you today is consistent with the intent to encourage the private enforcement of civil rights.

We think it’s consistent with the notion of creating a broad remedy.

We think it’s consistent with the purpose of equalizing the resources between the litigants and we do think it is fully consistent with a continuation of the pre-Alyeska practice.

Mr. Adams, I suppose in any event if these witnesses were to testify in court that the Crawford case would limit the payment to $30 a day.

Robert T. Adams:

I’ve given that a great deal of thought, Your Honor, and I can say that, yes, you can probably construct an argument where you could draw the line in that fashion, but I don’t really think that’s the correct place to draw the line.

The reason being–

Crawford said at least in the opinion that expert witnesses are limited by the statute to $30 a day, absent explicit authorization to the contrary.

Robert T. Adams:

–Yes, ma’am… yes, Your Honor, but two responses to qualify my answer.

Number one, if you examine the provisions of section 1821 which was the subject matter of Crawford, clearly Congress… there’s a clear recognition that Congress might come in with some other fee-shifting statute to supplant 1821, 1920, and 54.

And we believe 1988 is such a statute.

And my second point has just gone out of my head and I apologize for that.

But going back to Pennsylvania’s arguments.

We believe when you examine their arguments that they are plainly inconsistent with the expressions of legislative intent that we can find for this statute.

It would not encourage private enforcements at least in those cases where the civil rights plaintiff does not have the means to proceed.

It’s not a fully complete remedy.

Robert T. Adams:

It’s an incomplete remedy.

There certainly would be no level playing field between a State actor who can access the State treasury and the private litigant.

And lastly, the pre-Alyeska practice simply is not restored.

We think in the final analysis reasonable attorney’s fee is a term of art.

It’s just as Judge Posner described it in the Friedrich case.

It’s a shorthand expression.

And I can only go back and iterate the point that I made earlier, that Congress did–

Well, it’s the shorthand expression for what?

Robert T. Adams:

–I think the way he phrased it is it’s a shorthand expression for what the courts were doing, what was taken away from them, and what Congress then restored to them.

And that’s why I would go back to the point where if we try to draw lines between testimonial and nontestimonial services, it seems to me that really the better approach is to look at what pre-Alyeska practice was, and I don’t believe that line drawing took place at that time.

I see that my time is about up.

I’d like to reserve the balance for rebuttal, if I may.

Very well, Mr. Adams.

Mr. Koons, we’ll hear now from you.

Calvin R. Koons:

Thank you, Mr. Chief Justice, and may it please the Court:

We believe the starting point for the Court’s analysis in this case should begin with the Crawford decision rather than the Missouri v. Jenkins opinion.

In Crawford the court specifically said that the $30 a day limit for attendance fees for witnesses in Federal court was fully applicable to expert witnesses and further said that this limitation would be respected or had to be respected by Federal courts unless there was some explicit statutory authorization which would modify the limit.

The court went on to say that repeals by implication were not favored and that it would not likely infer that the limitations of the $30 a day limit would be repealed absent some statute or authority explicitly referring to witness fees.

Quite simply, 1988… section 1988 upon which petitioner relies to shift the cost of expert witness fees contains no specific authorization.

It contains no specific authorization either in the plain language of the statute, which refers to a reasonable attorney’s fee and not a witness fee, nor does it contain any explicit statutory authorization in the legislative history which contains in the comments and the floor debates no reference to witness fees whatsoever.

And finally,–

Excuse me, may I ask you a question about your interpretation of the plain language, just focusing on the language for a minute?

Do you read the statute as saying it authorizes the prevailing party in the discretion of the court to recover, one, attorney’s fees; and secondly, where it says costs, does that mean taxable costs to you?

What does the word costs mean?

And, of course, the witness fee of $30 a day would be a taxable cost.

Calvin R. Koons:

–What I read the statute 1988, Justice Stevens, as saying is that a reasonable attorney’s fee is allowed as part of the costs.

I interpret that as adding to section 1928 U.S.C…. 1920… another item of taxable cost in the form of–

So, it’s… other than attorney’s fees and those items that are taxable by statute is cost, that’s it?

Calvin R. Koons:

–That’s the way I interpret it.

I’m putting aside for a moment the paralegal problem because I… what about things about Justice White indicated investigators, telephones, xerox, transportation to depositions, a lot of things that are not taxable as costs but are commonly billed by lawyers to their clients as expenditures or disbursements and I noticed in this case there are $45,000 of disbursements that you did not challenge, most of which were not taxable costs.

Calvin R. Koons:

That’s correct, Your Honor, we did not challenge them in this case.

However,–

Why didn’t you if the language was as plain as you say it is?

Calvin R. Koons:

–Well, Your Honor, we wanted to choose our issues, and the decision was simply made that we would not contest those expenditures.

You’re just giving the State’s money away, weren’t you, under your view of the case?

Calvin R. Koons:

Well, Your Honor, we made a decision as to–

Right, but under view of the case you could have challenged most of the $45,000?

Calvin R. Koons:

–I think some of those expenditure we may have been able to challenge.

Well, including cab fare for the attorney to get to the deposition?

Calvin R. Koons:

Well, Justice–

I thought you meant by attorney’s fees anything that the attorney would normally bill to the client for his work in the case, which would include that stuff–

Calvin R. Koons:

–Justice–

–including xeroxing.

Calvin R. Koons:

–Excuse me, Justice Scalia, I think that many of those items probably would have been better looked at as cab fare and so forth as items which the attorneys would absorb on terms of overhead rather than billing directly to the client.

Well, some attorneys bill them separately.

Let’s assume you have… just as some attorneys bill paralegal time separately and some don’t.

You can either bump your rate up or you can show it separately.

But let’s assume that an attorney shows in his billing… shows travel expenses separately as many do, airfare… I’m not sure about cab fare, but airfare–

–And as they did in this case.

And as they did in this case.

You wouldn’t consider that to come within attorney’s fees?

Calvin R. Koons:

What I would consider to be within attorney’s fee, Your Honor, in conjunction with the Court’s decision in Missouri v. Jenkins, is work which is performed by an attorney, work which is… monies which can be incorporated into overhead in terms of the lawyer’s office, what it takes him to run his office, and that, I think, would be it.

And not anything else that’s necessary for him to do his part of the case.

Calvin R. Koons:

Well, Your Honor, there might be a few things… no, I would have to say that that’s the best… correct–

William H. Rehnquist:

We’ll hear argument now in No. 89-994, West Virginia University Hospitals v. Robert Casey.

I would think–

William H. Rehnquist:

Mr. Adams.

Calvin R. Koons:

–The other items I think would have to be absorbed in perhaps the attorney’s rate.

Robert T. Adams:

Thank you, Mr. Chief Justice, and may it please the Court:

–Are you answering Justice Scalia… are you now reading the statute differently than when you answered my question?

Robert T. Adams:

The issue in this case is whether experts’ fees are compensable under the provisions of 42 U.S.C. section 1988.

What about xerox, just xerox expenses, long distance telephone, travel to a deposition?

Robert T. Adams:

West Virginia University Hospitals asked the Court to decide this issue in the only way that would achieve Congress’ stated intent to give civil rights litigants the opportunity to recover what it cost them to vindicate their rights in court.

Those are not taxable as costs but now you’re saying they are part of attorney’s fees.

Robert T. Adams:

The fee-shifting provision in section 1988, intended by Congress to be a full and complete remedy, enables the Federal courts to return to their pre-Alyeska fee-shifting practices, and those practices included the shifting of experts’ fees.

Calvin R. Koons:

Your Honor, I think perhaps they could be in connection with those types of things that are done in the office for the attorney to present the case, although I point out–

Well, Mr. Adams, what the statute says I guess is that court may allow the prevailing party a reasonable attorney’s fee as part of the costs.

Well, what if the… what if there’s a normal practice in a particular community?

Now do you say expert fees are attorney’s fees or do you say they are other parts of the costs?

The lawyer normally hires (a) an investigator, (b) an expert to just help him on reading Forbes documents, say, and he normally bills the clients, disbursement, expert to help reading Forbes documents and that’s the normal practice of that community.

Robert T. Adams:

We say that expert fees are part of the attorney’s fee, because they are part of the work product.

Does he recover it or not under your view?

Robert T. Adams:

In other words, reasonable attorney’s fee is a term of art.

Calvin R. Koons:

–I think not, Your Honor, because I think that the phrase reasonable attorney’s fee has to be given some kind of meaning.

Even though concededly experts are not attorneys.

Calvin R. Koons:

To say… to say simply–

Robert T. Adams:

Concededly–

Not the meaning Justice Scalia has described to us.

And they don’t do attorneys’ work.

Calvin R. Koons:

–To say simply that it means all expenses of litigation is really to deprive it of any meaning whatsoever.

Robert T. Adams:

–Concededly they are not, but before the… before the attorney can do his work, he’s got to work with that expert so he knows how to present his client’s case and how to prove it.

Calvin R. Koons:

I think, Justice Stevens–

Well, that would be true of any witness.

No, but his suggestion was it means all expenses normally charged by an attorney in performing the routine work of an attorney in trying a lawsuit.

Robert T. Adams:

But with respect to expert witnesses, it’s particularly important because when you’re dealing with civil rights litigation, it’s a rare case when you can have that kind of litigation go forward without an expert.

Calvin R. Koons:

–Well, Your Honor, if accepted that earlier, I reject it because if… if we get to the level of investigator and that sort of thing–

Robert T. Adams:

I think the thing that drives that–

Can I reject it, too?

Well, that’s true of… you can say that about any… you can’t win a lawsuit without a witness unless it’s just a question of law.

I didn’t say that.

Robert T. Adams:

–That’s true, but if you have fact witnesses you subpoena them and they come to trial and they’re going to testify.

[Laughter]

Robert T. Adams:

Expert witnesses unfortunately have rents to pay, college tuitions to pay and they normally will request some fee for their services.

Calvin R. Koons:

–Thank you, Your Honor.

Robert T. Adams:

But I think the point that drives us home is the fact that when Congress enacted the fee-shifting provision in section 1988, it did not sail into uncharted waters.

I said, normally charged by an attorney for his work in the suit.

Robert T. Adams:

Instead, it selected the language of title VII’s–

If it’s charged for somebody else’s work… I mean, and that’s where paralegals are different because that’s his work.

Well, an attorney… an attorney can certainly get… they can get attorney’s fees and they can recover a fee that reflects the time the attorney spent with an expert witness.

He can do it himself or he can have somebody else do his work and bill that… anyway, so–

If he… he goes and finds them and he forks him up, and he knows his testimony.

–But I’m still not sure–

He can get him an attorney’s fee for that.

–Don’t include me in your condemnation.

But you say that included in the attorney’s fees is the separate sum that he must pay the expert?

[Laughter]

Robert T. Adams:

–Yes, sir, I do.

I’m still not clear whether long distance telephone, travel, and depositions and so forth is included or not, or a secretary.

Robert T. Adams:

We would respectfully submit–

You have to hire a secretary to do work late at night.

And he… and the expert is a witness?

Calvin R. Koons:

Well, Your Honor, I think if you’ve suggested in Missouri… or it has been suggested in Missouri v. Jenkins that that might be an item that would be includable at least as overhead, although I don’t know that it would be separately billable.

Robert T. Adams:

–The expert can be a witness.

Calvin R. Koons:

But in any case, in this case we do have a statute which specifically–

Robert T. Adams:

Sometimes he is not.

Well, I’m thinking of items that are not overhead.

Robert T. Adams:

In this particular case it turned out that all of our experts ended up testifying.

They’re work that is especially required for a particular piece of litigation, which lawyers regularly charge and they list in their disbursements and normally get them.

Uh-huh.

And you had them in this case, $45,000 worth that you didn’t challenge.

Robert T. Adams:

We would respectfully submit to the Court that the starting point for this Court’s analysis of this issue ought to be the same starting point that this Court employed in the case of Missouri v. Jenkins.

Calvin R. Koons:

–Well, Your Honor, we did… that did actually represent a compromise of a claim.

But you would… you would be making the same argument even if these experts did not testify?

Calvin R. Koons:

We did… we did negotiate a settlement–

Robert T. Adams:

I would be making the same argument.

But you didn’t challenge… you disagreed as to certain items I know, but you didn’t challenge the general principle.

Robert T. Adams:

Yes, sir.

Calvin R. Koons:

–Well, we didn’t challenge it in this case, Your Honor.

I guess that’s… because you say the $30 provision just doesn’t cover this.

Calvin R. Koons:

We think that the argument of the Petitioner really boils down to this that they’re asking the Court to rewrite the language of the statute because they say that its purpose would be better served and that it would be a better law.

Robert T. Adams:

Just doesn’t pay and quite candidly, Your Honor, in today’s litigation the attorney I think most often goes out, finds the experts, gets them acquainted with the case so they can do their work, and in most instances, even though there may be the initial expectation that the fee is going to be paid for by the client, I can assure you that that expert is going to look to that lawyer in the law firm to makes sure that he bill gets paid to some extent.

Calvin R. Koons:

It would effectuate Congress’ purpose better if it included more things.

Robert T. Adams:

And that’s very important to a lawyer, because if he is able to find quality people to be experts and all of a sudden his experts don’t get paid, I would submit that it’s going to be very hard for that attorney to attract that expert again or other experts of like quality when they hear that their fee is going to go unsatisfied.

Calvin R. Koons:

We think that it is certainly true that Congress intended to promote private enforcement of civil rights laws, but that it did not intend to write a blank check.

Mr. Adams, I guess there are a number of Federal statutes where there is express provision made for expert witnesses?

Calvin R. Koons:

It chose a very specific means to do that.

Robert T. Adams:

Yes, Your Honor.

Calvin R. Koons:

The means that it chose was to award a reasonable attorney’s fees and to shift that major expense of litigation in favor of the prevailing party.

And their fees?

Calvin R. Koons:

It did this also to make legal representation available to civil rights plaintiffs.

Robert T. Adams:

Yes, Your Honor.

Calvin R. Koons:

It’s certainly true that Congress could have done more.

And that was not done in section 1988.

Calvin R. Koons:

Congress could have said that it wanted to provide all expenses of litigation.

Should that be a concern to us?

Calvin R. Koons:

It could have said it wanted to award treble damages or liquidated damages, but it did not.

Congress knows how to provide for them expressly.

Calvin R. Koons:

Now, clearly all of those things would have done more to encourage private enforcement of civil rights actions.

Robert T. Adams:

I think that is probably the best argument that the Commonwealth of Pennsylvania has.

Calvin R. Koons:

But Congress did not choose those avenues, and it would be no more proper to write into the law an expert witness fee as part of the cost than it would be to include those items as well.

Robert T. Adams:

But I think when the argument is examined, it doesn’t wash and for a couple of reasons, Your Honor.

Calvin R. Koons:

We say that the Court should respect the limits of the language that Congress used, which deserve certainly as much respect as the ends, as well as respect the limits that Congress set on taxable costs in 1920 and 1821.

Robert T. Adams:

First of all, just as an initial matter, you would have to completely ignore the legislative intent behind the fee-shifting provision in section 1988.

Calvin R. Koons:

Secondly, we say that the legislative history does not show that Congress meant to include expert witness fees.

Robert T. Adams:

Secondly, what you’re really suggesting is that Congress must use particular words and particular ways every time it legislates.

Calvin R. Koons:

The fees… the only reference that petitioner can point to are several witnesses who at the subcommittee level requested that expert fees added… would be added.

Robert T. Adams:

You effectively place Congress into a legislative drafting straightjacket which is pretty much akin to the way we used to have old common law pleading, and courts and lawyers who were trained in pleading found that to be an unworkable situation.

Calvin R. Koons:

The issue of witness fees is never mentioned in any report or in floor debates and there is certainly no evidence of clear congressional intent, such as the court in Crawford said it would require, even by examining a legislative history.

Robert T. Adams:

And I would submit it would not be appropriate to place Congress in an equivalent situation.

Calvin R. Koons:

Congress specified in other pieces of litigation when it wanted to award expert witness fees as part of the costs.

Well, I guess it’s not unreasonable to think that we should apply the common ordinary understanding of the words that Congress does choose to employ.

Calvin R. Koons:

For example, in… many cases which we’ve cited at pages 34 and 37 or statutes of our brief, Congress specified reasonable attorney’s fees as well as expert witness fees.

That’s not putting Congress in a straightjacket, would you say?

Calvin R. Koons:

Some of these statutes were passed right around the time the amendments to section 1988 were being debated, the Toxic Substance Act, for example, the Natural Gas Pipe Line Safety Act, and the Resource Conservation and Recovery Act.

Robert T. Adams:

It is not.

Calvin R. Koons:

So, it does appear that Congress knew how to specify both expert fees and attorney’s fees when it wanted to do so, and here it did not.

Robert T. Adams:

But when you find plain evidence of a legislative intent to work some other result, then the result would be if you followed a plain language construction–

Calvin R. Koons:

We say, again, that the result that we’re urging is not in conflict with the court’s decision in Missouri v. Jenkins, because in that case we did not have a specific statute which governed the item of cost as we have here and in addition it is a different thing we think to say that… that attorney’s fees may include paralegal time than to say that it may include expert witness time.

Well, but it’s just a little bit of a stretch isn’t it to say an attorney’s fee includes fees paid to experts?

Calvin R. Koons:

Paralegals are a separate class of legal assistant who are trained in the law and who typically do for lawyers at a cheaper rate that kind of work that they would have to do themselves otherwise.

Robert T. Adams:

–With respect, Your Honor, I would disagree and for this reason.

Calvin R. Koons:

They do work which typically eventuates into a legal work product.

Robert T. Adams:

If you examine both the Senate report and the House report, both reports specifically comment that they are selecting title VII’s fee-shifting language and they say the reasons for that selection… they said, number 1, the courts are familiar with these terms.

Calvin R. Koons:

That’s not the case with expert witnesses or with any witness.

Robert T. Adams:

They have interpreted these terms and have given them meaning, and furthermore they cite case law that have interpreted title VII’s fee-shifting language.

Calvin R. Koons:

Witnesses are in the business of giving testimony of producing evidence, and we think that to apply the term attorney’s fee to witnesses would really be to distort it beyond all recognition and deprive it of all meaning whatsoever.

Robert T. Adams:

And when you examine that case law, they have interpreted title VII’s language to embrace experts’ fees.

Calvin R. Koons:

In conclusion, we think our construction fairly gives effect to all three statutes as Congress wrote them, is fully in accordance with Crawford and is not inconsistent with Jenkins, and respects the fact that in some statues Congress chose to shift both expert fees and attorney’s fees and in other statute it did not.

Well, and you think that every committee member who signed on to that report not only read those cases and knew that that’s what those cases said… that they covered not only attorney’s fees but also expert fees.

Mr. Koons, maybe you’ve said this… what is your position with respect to expert fees that do not result in expert testimony and were not intended to result in expert testimony.

Robert T. Adams:

I think that’s the presumption, Your Honor.

Let’s say the lawyer consults an expert to find out something about the case.

And it’s also the presumption not only that the other members of the Congress read those committee reports, but also that the other members of Congress also read those cases that were cited in the committee reports, even though the committee… as I understand it the committee reports don’t even say explicitly that experts’ fees are covered.

Calvin R. Koons:

Yes, Justice Scalia.

Robert T. Adams:

That’s correct.

Calvin R. Koons:

Our position–

All they do is cite these cases which had held that experts’ fees were covered.

Is that attorney’s fees?

Robert T. Adams:

That’s correct.

Calvin R. Koons:

–Our position would be that it would not be, because it is not work done by an attorney that results in a legal work product, although, of course, the Court would be free to resolve… reserve that issue for another day–

And the theory of the matter is that from that citation of the cases we can be sure that the whole committee and the whole Congress intended expert fees to be covered.

Uh-huh.

Robert T. Adams:

I think that’s the evidence that would be before the court, and I don’t think there’s any evidence to contradict that particularly when you examine–

Calvin R. Koons:

–as the witnesses here were purely testimonial witnesses.

Well, there’s the evidence of the language which says attorney’s fees and the evidence of other statutes which say attorney’s fees and expert fees are recoverable.

Well, supposing in like the case against Brown against the Board of Education, the lawyers decide to hire some historians to do a lot of research on the enactment of the Fourteenth Amendment and so forth, strictly to help them prepare their brief.

Now, if I’m a member of Congress and voting on that statute, I’m not going to go and read a committee report and then read the cases cited in the committee report.

Attorney’s fees or not?

I’m going to know that when we say attorney’s fees, we mean attorney’s fees and when we say attorney’s fees and expert fees, we mean both.

Calvin R. Koons:

I think not, Your Honor.

Robert T. Adams:

–Your Honor–

Calvin R. Koons:

Under our construction, it would not be work done by an attorney and it wouldn’t be… wouldn’t be compensatory.

Isn’t that much more reasonable to assume?

Well, Mr. Koons, what do you make of the language in Missouri v. Jenkins to the effect that the terms reasonable attorney’s fees must refer to a reasonable fee for the work product of an attorney.

Robert T. Adams:

–I would disagree.

The fee must take into account the work not only of attorneys but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client.

Robert T. Adams:

I’m aware that you in some of your opinions have approached legislative history in a different way than perhaps we would–

Calvin R. Koons:

We interpret that phrase, Your Honor, as referring to those people that are necessary in the running of the attorney’s office and who assist the attorney in generating the work product.

No, but this goes beyond legislative history.

Well, by its terms, it’s not so limited, is it?

This goes relying on nothing but the name of a case which you expect the members of Congress to have read.

Calvin R. Koons:

It may not be, Your Honor, but that is… that is our construction of it.

Robert T. Adams:

–But I think, Your Honor, when you look at the entire set of contemporaneous circumstances that surrounded the enactment of this fee-shifting provision, it is absolutely clear in my opinion that the Congress wanted to abrogate the effects of Alyeska with respect to civil rights litigation.

Calvin R. Koons:

Thank you, Your Honor.

Robert T. Adams:

And they were particularly concerned that when they took this legislative action that they supply something that was a meaningful and fully compensatory remedy.

Well you just… it’s just wrong to say that 1988 covers all reasonable expenses incurred by an attorney in representing a civil rights plaintiff.

Well, Alyeska just dealt with attorney’s fees.

Calvin R. Koons:

I think… that is our construction.

They didn’t deal with expert witnesses.

Thank you, Mr. Koons.

Robert T. Adams:

Well, unfortunately I think everybody concluded from reading your opinion, Justice White, that it had–

Mr. Adams, you have 5 minutes remaining.

That wasn’t my opinion.

Robert T. Adams:

Thank you.

It was the Court’s opinion.

Robert T. Adams:

With respect I would disagree with Mr. Koons’ statement that the witnesses in this case were purely testimonial.

–You’re correct, Your Honor.

That is not correct, and I believe that the bills that we have supplied to you in the appendix demonstrate that for 2 years, for 2 years before we got to trial we were working hand in glove with these experts in how to draft the pleading, and how to develop discovery strategy, and how to assess and analyze the discovery results that we were finally given in this case.

But I think everybody assumed and I believe correctly so that based upon that opinion it would be a very weak argument to suggest that that opinion did not reach to expert fees.

Does the record show they… that they were the regular counsel for the hospital, regular accountants for the hospital or that–

This presumption that the members of Congress or at least the committee have read all the cases, have we said there’s that presumption?

Robert T. Adams:

I don’t believe that the record shows that and that is not correct, because as a matter of fact it was myself and my colleague, Mrs. Krebs, who essentially located the experts for the hospital to see whether or not there was a case to bring in view of the hospital’s belief that they were not getting paid the right amount of money.

I don’t think you have said it in those terms, but I don’t think that this Court has ever abandoned the notion that legislative reports and whatever legislative… other legislative history exists is not something appropriate to look at and–

–And what about the billing?

When the statutory language is ambiguous–

Does the record reflect that the billing went directly to the client?

Robert T. Adams:

–I think in this case, Your Honor–

The record doesn’t reflect, but I will stipulate that the billing did go straight from the experts to the client after it had been approved by me.

–Do you think attorney’s fees is ambiguous, so that just reading that language it might include expert witness fees?

Robert T. Adams:

But I think the point that’s so crucial, particularly in modern civil rights litigation, is that lawyers do not sit in their ivory tower by themselves.

Robert T. Adams:

–I think to people who are aware of–

They sit there next to their experts, and if you deny the attorney access–

You can answer that question yes or no, and then you can explain your–

Mr. Koons, this is also true in the antitrust litigation.

Robert T. Adams:

–I think it is ambiguous to the uninitiated.

Do you know what the practice is with the fee-shifting provisions of the antitrust laws?

–Of whom do the uninitiated consist?

Robert T. Adams:

–Your Honor, I stayed so far away from the antitrust laws I would not even want to hazard a guess on that.