Lenard v. Argento

Citation808 F.2d 1242
Decision Date20 February 1987
Docket NumberNo. 85-1786,85-1786
PartiesBennie LENARD, Plaintiff-Appellee, v. Robert ARGENTO and Joseph Sansone, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Stephen E. Sward, Rooks, Pitts & Poust, Chicago, Ill., for defendants-appellants.

Edward T. Stein, Singer & Stein, Chicago, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, and CUMMINGS and POSNER, Circuit Judges.

POSNER, Circuit Judge.

In 1977 Bennie Lenard brought this civil rights suit against an Illinois municipality and four of its police officers, seeking damages for events growing out of an arrest. He claimed that the officers had beaten him; and that the officers and the municipality had conspired to deprive him of his right to equal protection of the laws (because he is black), had prosecuted him maliciously, and had conspired to prosecute him maliciously (and thereby to "obstruct justice"). A jury trial resulted in a judgment for $360,000 in damages, and the district judge awarded Lenard $181,000 in attorney's fees under 42 U.S.C. Sec. 1988. (All dollar figures in this opinion are rounded off to the nearest $1,000.) The defendants appealed from both the judgment and the fee award. We reversed the judgment, ordering all but the equal protection claim and all defendants except officers Argento and Sansone dismissed, and remanding for a new trial to determine the damages due Lenard on that claim. 699 F.2d 874 (7th Cir.1983). We vacated the award of attorney's fees and suggested that on remand the district court should reduce it since Lenard had not prevailed in his suit to the extent the court had thought when it awarded the fees. Id. at 899.

On remand, with the case now assigned to a different district judge, Judge McMillen, who has since retired from the bench, there was a four-day damage trial to a jury, resulting in a judgment for Lenard of $267,000 in damages, from which the defendants have not appealed. The judge awarded Lenard $327,000 in attorney's fees, from which the defendants have appealed. They also challenge an item of costs, but the challenge is frivolous and requires no discussion.

The defendants resist the award of attorney's fees on several grounds: because it is larger than the first award, even though this court in effect told the district court to cut down that award; because (a related point) the district court cut only 251 of the 3,399 hours requested by Lenard's lawyers for the entire time put in on the case, including time put in on the claims that failed; because the award exceeds the judgment; because it exceeds the fee to which Lenard's lawyers are entitled by their contingent-fee contract with Lenard (the contract provides for a 50 percent fee in the event of a retrial, and 50 percent of $267,000 is only $134,000, which is little more than a third of the fee award); because Lenard turned down a settlement offer of $250,000; because Lenard was represented at trial by three lawyers; and because the district judge did not make adequate findings to sustain such a large award of fees. The defendants say the highest award to which Lenard conceivably is entitled is $90,000.

Their argument about Lenard's refusing a settlement offer of $250,000 is frivolous. (There was also an offer of a "structured" settlement, i.e., one to be paid over time, of $425,000, but we are told neither the details of the offer nor its discounted present value.) The offer, made on the eve of the retrial, was inclusive of fees. Lenard went on to obtain a judgment for damages and fees that, combined, is more than twice as large as the offer. He would have been foolish to accept the offer--the judgment alone is larger. The defendants should not have wasted our time with this argument, nor with complaining that Lenard was represented by three lawyers. The defendants were also represented by three lawyers, and while we do not lay down a flat rule that it is always reasonable for one side to have as many lawyers as the other side, neither shall we lay down a flat rule of one plaintiff's lawyer per case. The number of Lenard's lawyers is relevant only to whether the district judge made adequate findings to justify the large fee that he awarded. In addition, the defendants' claims that a contingent fee contract places a ceiling on the fee that can be awarded under section 1988 and that the fee award cannot exceed the award of damages were both scotched by the Supreme Court in City of Riverside v. Rivera, --- U.S. ----, 106 S.Ct. 2686, 2694-97, 2700, 91 L.Ed.2d 466 (1986), though, as will appear, the existence of such a contract and the relationship between the fee award and the damages award are relevant to the reasonableness of the former.

The defendants' complaint that the district court disobeyed this court by refusing to cut the original award (instead the district court nearly doubled it) has merit, however--though less than the defendants think, because they ignore a change in law since the first appeal. At that time this circuit required a plaintiff to allocate lawyer time among his different theories and reduce his fee request if one or more theory failed. See 699 F.2d at 899 ("attorney's fees should be awarded only for the preparation and presentation of claims on which the plaintiff has prevailed"), and cases cited there. The defendants argue that since this court rejected three out of Lenard's four theories of liability, the fees allocable to the liability phase of the case should be cut by three-fourths. The results would be dramatic. Of more than 3,000 hours in lawyers' time for which the district judge awarded fees, only 250 were incurred in connection with the retrial, when only the viable theory remained in the case; all the rest related to the first trial, the post-trial motions, and the first appeal.

But the mechanical claim-chopping approach advocated by the defendants was rejected by Hensley v. Eckerhart, 461 U.S. 424, 436 n. 11, 103 S.Ct. 1933, 1941 n. 11, 76 L.Ed.2d 40 (1983). The Supreme Court changed the axis of inquiry from successful-unsuccessful to related-unrelated. "[U]nrelated claims [must] be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." Id. at 435, 103 S.Ct. at 1940 (footnote omitted). But in many cases "the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Id. at 435, 103 S.Ct. at 1940. For tactical reasons and out of caution lawyers often try to state their client's claim in a number of different ways, some of which may fall by the wayside as the litigation proceeds. The lawyer has no right to advance a theory that is completely groundless or has no factual basis, but if he presents a congeries of theories each legally and factually plausible, he is not to be penalized just because some, or even all but one, are rejected, provided that the one or ones that succeed give him all that he reasonably could have asked for.

The standard set forth in Hensley supplants that of our previous opinion in this case, and a change of law is a reason not to apply the doctrine of law of the case. We shall give Lenard the benefit of Hensley, and therefore not reduce the award merely because most of his theories were rejected--if the theories on which he won and those on which he lost were related and if his overall success in the lawsuit justified the hours his lawyers spent on the case.

Lenard passes the second test. Even after losing his beating claim in this court, his conspiracy-to-obstruct-justice (by prosecuting him maliciously) claim, and his malicious prosecution claim, so that he was down to just his equal protection claim, Lenard managed to obtain on retrial a damages judgment three-fourths the size of the original judgment. The difference between the judgments, moreover, may be due entirely to the vagaries of trial by jury rather than to the loss of three claims.

But we must also consider the first criterion in Hensley, which is whether the claims are related. The beating claim and the claim of a conspiracy to deny Lenard the equal protection of the laws are related to each other, because they both grow out of the beating. The claims of malicious prosecution and of conspiracy to prosecute maliciously are similarly related to each other, but are not related to either the beating claim or the equal protection claim. The beating and equal protection claims relate to the conduct of the police after they arrested Lenard (both immediately after the arrest and later on, at the police station). The malicious prosecution claims relate to the question whether the police had probable cause to arrest him. The former pair essentially states a claim for excessive force; the latter for false arrest. False arrest and excessive force are unrelated except in forming a sequence. Arresting a person on probable cause does not justify beating him up, and the beating does not invalidate the arrest. These forms of misconduct thus are independent conceptually as well as in time. Compare Garrity v. Sununu, 752 F.2d 727, 734-35 (1st Cir.1984). And, unlike the situation in ...

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