Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-1996

Washington v. Phila Cty Ct
Precedential or Non-Precedential:

Docket 95-1613




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         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                  No. 95-1613
                   __________


             MARTIN O. WASHINGTON,


                      v.

   PHILADELPHIA COUNTY COURT OF COMMON PLEAS

                           Martin Washington,
                                      Appellant

                  __________

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
            (D.C. Civ. No. 92-3637)
                   __________

   Submitted Under Third Circuit LAR 34.1(a)
             Monday, March 11, 1996

          Before: NYGAARD, SAROKIN,
         and ALDISERT, Circuit Judges
                  __________

         (Opinion filed July 9, 1996)


                    David Rudovsky
                    Kairys, Rudovsky, Kalman & Epstein
                    924 Cherry Street, Suite 500
                    Philadelphia, PA 19107

                    Alan B. Epstein
                    Jablon, Epstein, Wolf & Drucker
                    The Bellevue, Ninth Floor
                    Broad and Walnut Streets
                    Philadelphia, PA 19102

                    Attorneys for Appellant

                    A. Taylor Williams
                    Administrative Office of PA Courts
                    1515 Market Street, Suite 1414
                    Philadelphia, PA 19102

                    Attorney for Appellee
                       ____________________

                       OPINION OF THE COURT
                       ____________________


SAROKIN, Circuit Judge:
     Appellant filed various claims against his former employer
alleging racial discrimination and retaliatory harassment and
discharge as a result of his pursuit of discrimination claims in
agency proceedings. He eventually prevailed on the retaliation
claim, though not on the claim of pre-retaliation discrimination.
At the conclusion of the proceedings, Appellant petitioned for
attorneys' fees, and his request was reduced by the district
court by more than eighty percent. He now appeals the reduction
of the fee award.

                I. Facts and procedural posture

     On June 22, 1992, Martin Washington filed an action in the
United States District Court for the Eastern District of
Pennsylvania against his former employer, the Philadelphia County
Court of Common Pleas (the "County Court" or the "Court"). Mr.
Washington's nine-count complaint alleged racially discriminatory
acts with respect to employment under both federal and state
statutes; retaliatory harassment and discharge after he filed an
administrative claim of racial discrimination with the Equal
Employment Opportunity Commission and the Pennsylvania Human
Rights Commission, under both federal and state statutes; civil
rights violations under federal and state statutes; violation of
Pennsylvania's public policy and common law; and breach of
contract of employment.
     Five of the nine counts were dismissed on summary judgment
in June 1993. The case eventually went to trial in November
1993. At the conclusion of the trial, the jury found that the
County Court did not discriminate against Mr. Washington on the
basis of race. The jury did find, however, that the Court had
unlawfully retaliated against Mr. Washington for filing his
administrative claims, and awarded him compensatory damages of
$25,000. After the jury verdict, the district court granted a
post-trial Motion for Judgment as a Matter of Law to the County
Court setting aside the jury verdict.
     Mr. Washington appealed to this Court. We reversed the
district court's order granting the post-trial motion, and
reinstated the jury verdict. Washington v. Philadelphia County
Court of Common Pleas, 

(3d Cir. 1995) [table]. On
remand, judgment was entered for Mr. Washington on the verdict.
     At the conclusion of these proceedings, Mr. Washington's
lead attorney, Alan B. Epstein, filed a Petition for Attorneys'
Fees claiming that Mr. Washington was the "prevailing party" and
seeking a total award of $175,987.50 in attorneys' fees for
himself and two colleagues at the firm of Jablon, Epstein, Wolf
and Drucker. Mr. Washington also sought fees of $3060 for
Lanier B. Williams, his attorney in the administrative
proceedings, as well as $7973.87 in plaintiff costs. Plaintiff's
Petition for Attorneys' Fees and Reimbursement of Costs of
Litigation, Washington v. Philadelphia County Court of Common
Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 3, 1995) [hereinafter
Petition] (JA 12). The County Court challenged, inter alia, the
sum requested for Mr. Epstein and his colleagues, asserting that
both the hourly fees and hours requested were excessive.
Objections of Defendant, Court of Common Pleas of Philadelphia
County to Plaintiff's Petition for Attorneys' Fees and
Reimbursement for Costs of Litigation, Washington v. Philadelphia
County Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. Apr. 28,
1995).
     On June 30, 1995, the district court entered a memorandum
and order on the fee request. Washington v. Philadelphia County
Court of Common Pleas, No. 92-CV-3637 (E.D. Pa. June 30, 1995)
(mem.) [hereinafter Memorandum]. The court decreased the number
of hours allowable by one half, finding Mr. Epstein's claim
"excessive and unreasonable," 

8, and by an
additional fifty percent because Mr. Washington "hardly won a
decisive victory in this case." 

however, did not
extend the fifty-percent reduction to hours claimed in
preparation of the fee petition.
     Regarding the hourly rates sought by Mr. Epstein and his
colleagues, the district court deemed it "impossible to consider
[them] as bona fide hourly rates." 

11.
Instead, the court concluded that "a reasonable hourly rate for
[Alan B.] Epstein is $175 per hour. A reasonable rate for
[Thomas D.] Rapp is $100 per hour. A reasonable rate for [Nancy]
Abrams is $85 per hour." 

12.
     Based on its various assessments, the court calculated the
amount of the award for Mr. Epstein and his colleagues at
$30,389.63, roughly seventeen percent of Mr. Epstein's request.

13. In addition, the court disallowed any fee
for Mr. Williams, "who unsuccessfully represented Washington at
his PHRC hearing," 

$7973.97 for plaintiff
costs. 

is now appealing the district court's order
reducing the counsel fees. He argues that:
     The district court erred as a matter of law in its
     reduction of the hourly rate for plaintiff's counsel
     and in its reduction of the compensable hours
     reasonably expended by counsel in this litigation. On
     both issues the district court applied erroneous legal
     standards; further, on the compensable hours issue, the
     court made clearly erroneous factual determinations.
Brief of Appellant at 12.

                         II. Jurisdiction

     This action was commenced pursuant to the Civil Rights Act
of 1964, as amended, 42 U.S.C.   2000e et seq. The district
court had jurisdiction pursuant to 42 U.S.C.   2000e-5(f)(3) and
28 U.S.C.    1331 and 1343. Plaintiff's various state claims
were properly before the district court pursuant to the doctrine
of supplemental jurisdiction as codified at 28 U.S.C.   1367(a).
     The district court issued a final order on Plaintiff's
petition for attorneys' fees on June 30, 1995. We have
jurisdiction over an appeal from this order pursuant to 28 U.S.C.
  1291.

                          III. Analysis

     We review the reasonableness of an award of attorney's fees
for an abuse of discretion. Rose v. Dellarciprete, 

, 1182 (3d Cir. 1990). The question of what standards to
apply in calculating an award of attorneys' fees is a legal
question, and therefore we exercise plenary review over this
issue. Keenan v. City of Philadelphia, 

, 472 (3d
Cir. 1992).
     The matter of an attorney's marketplace billing rate is a
factual question which is subject to a clearly erroneous standard
of review. Student Public Interest Research Group v. AT & T Bell
Laboratories, 

, 1442 (3d Cir. 1988) (citing Black
Grievance Committee v. Philadelphia Electric Co., 

,
652 (3d Cir. 1986) (citation omitted), vacated on other grounds,

(1987)). More generally,
     the appellate court may not upset a trial court's
     exercise of discretion on the basis of a visceral
     disagreement with the lower court's decision.
     Similarly, the appellate court may not reverse where
     the trial court employs correct standards and
     procedures, and makes findings of fact not clearly
     erroneous. In sum, "[i]f the district court had
     applied the correct criteria to the facts of the case,
     then, it is fair to say that we will defer to its
     exercise of discretion."
Northeast Women's Center v. McMonagle, 

, 475 (3d Cir.
1989) (quoting Lindy Bros. Builders, Inc. of Philadelphia v.
American Radiator & Standard Sanitary Corp., 

(3d
Cir. 1976) (in banc) (citation omitted)), cert. denied, 

(1990).

                    A. The law of the lodestar

     The Supreme Court has held that "[t]he most useful starting
point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate." Hensley v. Eckerhart, 

, 433 (1983); see also 

(same). The
result of this computation is called the lodestar. The lodestar
is strongly presumed to yield a reasonable fee. City of
Burlington v. Dague, 

(1992).
     In this instance, the district court rejected Plaintiff's
claims with regard to both the billing rates of his attorneys and
the numbers of hours reasonably expended on the litigation. We
review each element in turn.
                       B. The billing rates

     The general rule is that a reasonable hourly rate is
calculated according to the prevailing market rates in the
community. Blum v. Stenson, 

, 895-96 n.11 (1984);
Student Public Interest Research Group, 

(adopting the community market rule). The prevailing party bears
the burden of establishing by way of satisfactory evidence, "in
addition to [the] attorney's own affidavits," 

n.11, that the requested hourly rates meet this standard.
     In the instant matter, counsel Alan Epstein sought hourly
fees of $250 and $275 for himself; fees of $140 and $165 per hour
for an associate, Thomas D. Rapp; and fees of $140 and $150 per
hour for another associate, Nancy Abrams. Petition, typescript
at 10. In support of the request, the lawyers submitted numerous
documents, including a "Verification" (in effect, an affidavit)
from Mr. Epstein for the fees cited, affidavits from various
Philadelphia lawyers practicing in employment discrimination
cases suggesting fees comparable to Mr. Epstein's, and billing
statements in the case.
     As the district court accurately noted, "[t]he issue of
determining the reasonable hourly rate for an attorney, and the
specific issue of determining a reasonable rate for Epstein and
his associates are not unchartered waters in the district,"
Memorandum, typescript at 9. On two earlier occasions, the
district court had considered similar requests from Mr. Epstein.
Griffiths v. Cigna Corp., No. CIV. A. 91-2356 (E.D. Pa. Oct. 6,
1994) (VanArtsdalen, J.) (Memorandum and Order); Oliver v. Bell
Atlantic Corp., No. CIV. A. 92-751 (E.D. Pa. June 30, 1994)
(Robreno, J.) (Order Memorandum). In both cases, the court
rejected Mr. Epstein's claim and lowered his fee from the
requested $250 an hour to a "reasonable hourly rate" of $175 per
hour. Griffiths, 

, *2; Oliver, 

,
**4-5. It is worth noting that the court's determination in
Oliver was based on Judge VanArtsdalen's analysis in Griffiths.
     The court in the instant case rejected Mr. Epstein's request
as well and concluded:
     I will follow the rulings made by Judge VanArtsdalen in
     Griffith [sic] and Judge Robreno in Oliver. I find
     that a reasonable rate for Epstein is $175 per hour. A
     reasonable rate for Rapp is $100 per hour. A
     reasonable rate for Abrams is $85 per hour.
Memorandum, typescript at 2.
     Those rulings, however, are no longer valid. This Court
recently vacated the district court's decision in Griffiths on
the very issue of hourly rates. Griffiths v. Cigna Corp., Nos.
94-2090 & 94-2091 (3d Cir. Nov. 30, 1995) (unpublished). In
rejecting the district court's determination, we explained:
          As the prevailing party, Griffiths had the burden
     of demonstrating "the community billing rate charged by
     attorneys of equivalent skill and experience performing
     work of similar complexity." See 

. We find that he did sustain that burden as to
     Mr. Epstein's requested rate of $250 per hour, by
     submitting the affidavits of Harold Goodman, Alica
     Ballard, and Lorrie McKinley, attorneys in the
     Philadelphia area who represent plaintiffs in civil
     rights litigation. These affidavits stated that Mr.
     Epstein's requested hourly rate of $250 was reasonable
     and within the range of prevailing rates charged by
     Philadelphia attorneys with Mr. Epstein's skill and
     experience. The opposition submitted by CIGNA failed
     to rebut plaintiff's submissions on this point, both
     because CIGNA's affidavits focused on the market rates
     of defense attorneys, and because CIGNA did not
     otherwise effectively challenge the content of
     plaintiff's affidavits.

          Where, as here, the plaintiff has met his prima
     facie burden under the "community market rate" lodestar
     test, and the opposing party has not produced
     contradictory evidence, the district court may not
     exercise its discretion to adjust the requested rate
     downward. Accordingly, we will vacate the attorneys'
     fee award with respect to the hourly rate allowed for
     Mr. Epstein's services, and direct that his services be
     compensated at the $250 rate that plaintiff's
     uncontroverted proofs established.

          By contrast, plaintiff did not meet his prima
     facie burden of proof with respect to the rates of
     plaintiff's other attorneys, Mr. Rapp and Ms. Adams.
     Specifically, Griffiths failed to demonstrate that the
     requested rates were the prevailing rates in the
     community. In the absence of such a showing, the
     district court must exercise its discretion in fixing a
     reasonable hourly rate. This court cannot say that
     $100 and $85 per hour are unreasonable, and accordingly
     the district court's award based on these rates will be
     affirmed.

14-16.
     Our reasoning in Griffiths applies with equal strength in
the instant matter. (It is worth noting that the same attorneys
filed affidavits in support of Mr. Epstein's claim, and the
district court even noted that Ms. Ballard "apparently filed an
identical affidavit before Judge VanArtsdalen in the Griffith[sic]
case."). See also Black Grievance 

(district court is not free to disregard attorney's
affidavit when the other party "filed no affidavit and offered no
testimony contesting the accuracy of [the attorney's] statement
with respect to charges by comparable practitioners"); Cunningham
v. City of McKeesport, 

, 268 (3d Cir. 1985) (no
material issue of fact when affidavit is uncontradicted), vacatedon other
grounds, 

(1986).
     Therefore, we vacate and remand to the district court to
reconsider the appropriate hourly fee for Mr. Epstein's services
in light of Griffiths, and we affirm the district court's
reduction of Mr. Rapp's and Ms. Adams's hourly fees.

                      C. The number of hours

     In support of the petition, Mr. Epstein submitted forty
pages of itemized records specifying the date when the work was
performed, the attorney performing the work, the nature of the
work (e.g., "Prepare complaint," "Conference with Alan Epstein
regarding liability issues"), the amount of time spent and the
hourly rate charged for that particular task. JA 90-129.
     The district court dramatically reduced the hours allowed.
First, in spite of the documentation submitted by Mr. Epstein,
the district court found that the hours set forth were "not
properly documented." Memorandum, typescript at 5. As the court
explained,
     [i]t would be fair to say that most of the entries are
     vague and identified only by non-descriptive statements
     such as "research", "review", "prepare", "letter to",
     and "conference with." Descriptions such as this do
     not suffice in establishing the reasonableness of a fee
     petition.

     Second, the court found that "many of the billable hours
requested are redundant, unnecessary or excessive." 

gave various examples of what it considered excessive,
including that "Epstein, an experienced litigator, claims 69.6
hours for unspecified 'trial preparation', an amount of time
approximately twice as long as the trial itself." 

6.
     Third, the court found that "requesting that this Court
approve an expenditure of over $175,000 in fees to obtain a
$25,000 verdict is nonsensical." 

7.
     On the basis of these concerns, and following the lead of
Judge Robreno in Oliver, the district court decreased the number
of hours to be billed by one-half "on the grounds that they are
excessive and unreasonable." 

8. In addition,
the court decreased the hours by another fifty percent on the
basis that "Washington hardly won a decisive victory in this
case." 

pointed out that five of Mr. Washington's
nine claims were dismissed on summary judgment, that he did not
prevail on "his primary claim," racial discrimination, and that
the jury had awarded him far less than the $661,756.02 in damages
and $103,000 in lost wages he initially sought. 

     We first review the district court's conclusion that Mr.
Epstein did not adequately document the hours claimed. Attorneys
seeking compensation must document the hours for which payment is
sought "with sufficient specificity." 

.
More specifically, our jurisprudence has established that "[a]
fee petition is required to be specific enough to allow the
district court 'to determine if the hours claimed are
unreasonable for the work performed.'" 

(citing 

(citation omitted)). It is an established
proposition of law that "[w]here the documentation of hours is
inadequate, the district court may reduce the award accordingly."
Hensley v. Eckerhart, 

, 433 (1983). This
proposition, however, only begs the question of what constitutes
adequate documentation.
     In answering this question, we do not operate in a legal
vacuum. On several occasions, this Court has considered the
proper degree of specificity required of a party seeking
attorneys' fees. In particular, we recently undertook such a
review in Rode v. Dellarciprete, 

(3d Cir. 1990).
We explained that specificity should only be required to the
extent necessary for the district court "to determine if the
hours claimed are unreasonable for the work performed." 

(citing Pawlak v. Greenawalt, 

, 978 (3d Cir.
1983), cert. denied sub nom. International Broth. of Teamsters,
Chauffeurs, Warehousemen and Helpers of America v. Pawlak, 

(1984)). Specifically,
     a fee petition should include "some fairly definite
     information as to the hours devoted to various general
     activities, e.g., pretrial discovery, settlement
     negotiations, and the hours spent by various classes of
     attorneys, e.g., senior partners, junior partners,
     associates." However, "it is not necessary to know the
     exact number of minutes spent nor the precise activity
     to which each hour was devoted nor the specific
     attainments of each attorney."

(citing Lindy Bros. Builders, Inc. of

).
     Because we found that the district court had applied too
exacting a standard in reducing hours for lack of specificity, we
vacated its determination. The party seeking counsel fees had
submitted various documents as evidence of the hours spent on the
case, including a "computer-generated chronological list of the
tasks performed and the time devoted to those tasks by the two
attorneys, the paralegal and the law clerk who worked on the
case." 

The district court found fault with the
presentation of the records in simple chronological order, but we
rejected the court's imposition of a requirement that records be
kept by task -- e.g., for each motion, issue or part of the case.

The district court also found that the list did
not "provide[] adequate and specific descriptions of services and
the time devoted to those services." 

. In fact,
     [e]ach entry provided the general nature of the
     activity and the subject matter of the activity where
     possible, e.g., T (Dusman); CF (client); R (re
     appeals), the date the activity took place and the
     amount of time worked on the activity.

     We concluded that the submissions in support of the petition
"provided enough information as to what hours were devoted to
various activities and by whom for the district court to
determine if the claimed fees are reasonable." 

.
     We recently reaffirmed our Rode holding, noting that the
Court in Rode "found sufficient specificity where the computer-
generated time sheet provided 'the date the activity took
place.'" Keenan v. City of Philadelphia, 

, 473 (3d
Cir. 1992). In Keenan, we found that "computer-generated
summaries of time spent by each attorney and paralegal met the
standards of Rode." 

lists submitted by Mr. Epstein and his
colleagues clearly meet the standards that we found satisfactory
in Rode and Keenan. Therefore, as we did in Rode, we find that
the district court applied erroneous legal standards when it
concluded that the hours were not properly documented.
                            2. Excess
     We now turn our attention to the district court's conclusion
that the hours are "excessive and unreasonable." Memorandum,
typescript at 8. The court gave seven separate examples of the
alleged "outrageousness" of Mr. Epstein's claim, having to do
with hours claimed for the review of an entry of appearance filed
by the County Court's counsel, discovery planning, research on a
motion to compel filed by the Court, review of the Court's motion
for summary judgment and preparation of the response, trial
preparation, review of trial tapes, and preparation of post-trial
motions. The court found that "[t]hese figures are not merely
excessive, they border on the outrageous." 

7.
     Mr. Epstein challenges the court's conclusions regarding
these various examples. In the first instance, the court deemed
as "redundant, unnecessary or excessive" 5.5 hours for research
on a motion to compel filed by the County Court. Memorandum,
typescript at 6. The motion was apparently to compel Mr.
Washington to submit to an examination by a psychologist and,
according to Mr. Epstein, certainly required the number of hours
claimed:
     Plaintiff filed an answer and an eight-page memorandum
     of law. The trial court does not explain why 5.5 hours
     is excessive on this less than ordinary discovery
     issue. To the contrary, research and drafting of these
     papers would likely take a lawyer the 5.5 hours
     claimed.
Brief of Appellant at 24.
     The second example given by the district court to which Mr.
Epstein objects is time amounting to 158.2 hours spent in
preparing for and litigating the County Court's motion for
summary judgment. Mr. Epstein justifies the number of hours on
the length of the County Court's motion, the number of issues it
raised, the voluminous record and the length of his reply
memorandum. 

     Third, the court stated that "Epstein, an experienced
litigator, claims 69.9 hours for unspecified 'trial preparation',
an amount of time approximately twice as long as the trial itself
($17,400)." Memorandum, typescript at 6. Mr. Epstein argues in
response that "this ratio is quite reasonable and that
experienced and successful trial lawyers spend substantially more
time in preparation than they do in the courtroom." Brief of
Appellant at 25.
     Fourth, the court stated that "Epstein claims 26.1 hours in
reviewing tapes of the trial for the preparation of post-trial
motions, an amount of time almost as long as a minute-by-minute
replay of the entire trial, from voir dire to verdict ($6,525)."
Memorandum, typescript at 6. Here again, Mr. Epstein offers a
detailed explanation for the time:
     The motion for judgment as a matter of law was based on
     the argument that there was insufficient evidence to
     support the jury's verdict. To properly respond to
     this motion, plaintiff was obligated to marshall every
     fact and every piece of evidence that a reasonable jury
     could have relied upon to reach its verdict. This in
     turn required a detailed and exact review of all of the
     testimony in the case to assemble the relevant evidence
     that supported the verdict.
Brief of Appellant at 26.
     Finally, Mr. Epstein challenges findings by the district
court regarding "some very minor categories" on the ground that
"each is reasonable." 

     Our task is not to determine whether, sitting as a court of
first instance, we would have reached the same conclusion as the
district court did. Rather, we only review the court's finding
that the hours claimed by Mr. Epstein are "excessive and
unreasonable" for clear error. While Mr. Epstein offers
persuasive arguments to support the hours he and his colleagues
spent on the various parts of the trial, we conclude that these
arguments fall short of satisfying our exacting standard of
review and therefore conclude that the district court's
conclusion is not clearly erroneous.
                        3. Proportionality
     The district court stated that "[b]y any standard,
requesting that this Court approve an expenditure of $175,000 in
fees to obtain a $25,000 verdict is nonsensical." Memorandum,
typescript at 7. Mr. Epstein challenges this statement on the
ground that the court's position violates Third Circuit law
against proportionality analysis to determine the reasonableness
of counsel fees. Brief of Appellant at 29.
     It is true that this Court has expressed serious concerns
with the practice of limiting an award of attorney's fees to
maintain proportionality between the fees and the amount of
damages awarded. See, e.g., Cunningham v. City of McKeesport,

, 52-54 (3d Cir. 1986), cert. denied, 

(1987); Northeast Women's Center v. McMonagle, 

, 474-
75 (3d Cir. 1989), cert. denied, 

(1990). However,
before considering the legal propriety of the district court
conducting a proportionality analysis, we must first determine
the significance of the court's statement. This statement,
standing alone, is somewhat ambiguous. On the one hand, it can
certainly be read, as Mr. Epstein does, as suggesting that the
district court was concerned with the ratio between the damages
awarded Mr. Washington and the fees sought by Mr. Epstein and his
colleagues, and that it cut down the fees accordingly. The
statement could, on the other hand, reflect the court's opinion
that Mr. Epstein failed to exercise "billing judgment." SeeHensley v.
Eckerhart, 

, 437 (1983) ("The applicant
should exercise 'billing judgment' with respect to hours
worked").
     There is some support for this alternative reading. The
court's statement came directly after its conclusion that the
figures presented by Mr. Epstein "are not merely excessive, they
border on the outrageous." Memorandum at 7. After making this
finding, the court went on to explain:
     If they were actually sent to a client who was expected
     to pay for them, the bill would possible [sic] result
     in that client either going bankrupt or, at a minimum,
     finding a new attorney. By any standard, requesting
     that this Court approve an expenditure of over $175,000
     in fees to obtain a $25,000 verdict is nonsensical."

then cited the court's conclusion in Oliverregarding the
same issue that "the petition tendered by
plaintiff's counsel is woefully deficient of the billing judgment
that should have animated its preparation." 

v. Bell, No. CIV. A. 92-751 (E.D. Pa. June 30, 1994) (Order
Memorandum)).
     Nonetheless, in light of the district court's earlier
comment, made while discussing the history of the case, that
"[h]aving won a verdict of $25,000, Washington's attorney . . .
now asks that attorneys' fees be approved in excess of seven
times the amount of that award, $175,987.50," Memorandum at 3, we
find the interpretation suggested by Mr. Epstein persuasive, and
conclude that the district court did consider proportionality as
a factor in its analysis. The two comments taken together seem
no accident.
     We now turn to the legal propriety of the court's action.
Our review of the jurisprudence commences with the edicts of the
United States Supreme Court on the issue at hand. The preeminent
case on the subject is City of Riverside v. Rivera, 

(1986). City of Riverside, however, offers no clear direction.
Based on an analogy with private tort actions, the municipality-
petitioner in that case had suggested that attorney's fees in
civil rights lawsuits "should be proportionate to the amount of
damages a plaintiff recovers." 

(Brennan, J.,
plurality). Justice Brennan, writing for a plurality of four,
rejected the analogy, noting that
     [u]nlike most private tort litigants, a civil rights
     plaintiff seeks to vindicate important civil and
     constitutional rights that cannot be valued solely in
     monetary terms. . . . Regardless of the form of relief
     he actually obtains, a successful civil rights
     plaintiff often secures important social benefits that
     are not reflected in nominal or relatively small
     damages awards.

(citation omitted) (emphasis added).
     In other words, the monetary amount awarded to the plaintiff
would not be an accurate measure of the success achieved by the
attorneys in the case, and therefore attorney's fees assessed in
proportion to the damage award would not adequately compensate
the attorneys for their labor, which the plurality compared to
that of a "private attorney general." 

(citation
omitted). The plurality concluded that "[a] rule of
proportionality would make it difficult, if not impossible, for
individuals with meritorious civil rights claims but relatively
small potential damages to obtain redress from the courts," id.at 578, and
for this reason rejected such a rule.
     Justice Powell concurred in the judgment, because he saw no
basis to reject the district court's detailed findings of fact.
But the emphasis of his concurrence was markedly different from
that of the plurality opinion:
     Where recovery of private damages is the purpose of a
     civil rights litigation, a district court, in fixing
     fees, is obligated to give primary consideration to the
     amount of damages awarded as compared to the amount
     sought. In some civil rights cases, however, the court
     may consider the vindication of constitutional rights
     in addition to the amount of damages recovered.

(Powell, J., concurring in the judgment). In a
footnote that received substantial attention, the Justice added,
"[i]t probably will be the rare case in which an award of privatedamages
can be said to benefit the public interest to an extent
that would justify the disproportionality between damages and
fees reflected in this case." 

n.3. Finally, then-
Justice Rehnquist dissented, joined by three other Justices,
including Chief Justice Burger, who also wrote a separate
dissent.
     Shortly after the Supreme Court issued its opinion, this
Court tackled the difficult task of sorting through City of
Riverside's muddled outcome in Cunningham v. City of McKeesport,

(3d Cir. 1986), cert. denied, 

(1987)
[hereinafter Cunningham II]. After noting that "the Supreme
Court plurality rejected a proportionality rule," 

we
considered what import to give to Justice Powell's concurrence:
          . . . Justice Powell's opinion might be read to
     suggest that disproportionality justifies a negative
     multiplier.

          We refrain from inferring such a view from City of
     Riverside, however. First, this interpretation
     represents at most the view of a lone Justice and was
     not endorsed by any of the other eight. . . . Second,
     we have doubts about Justice Powell's statement that
     only the rare case justifies disproportionate fee
     awards. The facts of City of Riverside seem similar to
     those of a number of   1983 cases that we have seen. .
     . . Finally, we consider application of Justice
     Powell's reasoning problematic. The opinion sets out
     no method or standards by which a court might calculate
     the public interest served by a case, evaluate that
     interest in light of a disproportionality between
     damages and fees, and eventually settle upon a
     particular negative multiplier. In the absence of an
     explicit mandate, we are reluctant to begin the
     difficult task of developing standards by which we
     might incorporate proportionality principles into the
     attorney's fee calculus.
Cunningham 

(footnote omitted); see alsoNortheast
Women's 

(noting that the
"Supreme Court in City of Riverside [rejected] the
proportionality rule in the civil rights context.").
     For the reasons articulated by the plurality in City of
Riverside and by this Court in Cunningham II, we hold today that
a court may not diminish counsel fees in a section 1983 action to
maintain some ratio between the fees and the damages awarded.
This is not to say that the amount of damages is irrelevant to
the calculation of counsel fees. To the contrary, we recently
recognized that "the amount of the compensatory damages award may
be taken into account when awarding attorneys' fees to a civil
rights plaintiff." Abrams v. Lightolier, 

, 1222 (3d
Cir. 1995). But as the context of our statement in Abrams makes
clear, the reason why the damage amount is relevant is not
because of some ratio that the court ought to maintain between
damages and counsel fees. Rather, the reason has to do with the
settled principle, which we discuss hereinafter, that counsel
fees should only be awarded to the extent that the litigant was
successful. The amount of damages awarded, when compared with
the amount of damages requested, may be one measure of how
successful the plaintiff was in his or her action, and therefore
"may be taken into account when awarding attorneys' fees to a
civil rights plaintiff." 

Court attempts to refute Mr. Epstein's arguments
on two grounds. First, it argues that the district court did notapply a
"strict proportionality test": "[h]ad the lower court
followed the strict 'proportionality' rule discussed in Abrams,
the court would not have awarded fees in excess of the damage
award." Brief of Appellee at 23. By a "strict proportionality
test," the County Court apparently refers to a rule whereby
counsel fees cannot exceed the amount of damages awarded. This
Court clearly rejected such a test in 

("there is no rule that the fees award may be no larger than the
damages award") (citing Hensley v. Eckerhart, 

(1983)), and it is clear that the district court did not apply
such a test. Today we embrace the broader proposition that the
district court cannot adjust counsel fees to maintain a certain
ratio between the fees and damages -- to insure, for instance,
that fees not exceed three times the amount of damages. That is
just the type of analysis into which the district court seems to
have entered.
     The second argument advanced by the County Court is that
even if the district court did conduct a proportionality analysis
(albeit not what it calls a "strict" one), it did so correctly.
In support of this proposition, the County Court suggests that
"[u]nder Hensley, the district court is required to consider 'the
relationship between the extent of success and the amount of the
fee award.'" Brief of Appellee at 23 (quoting 

). But Hensley does not stand for the proposition that the
court should adjust counsel fees to reflect a certain ratio
between fees and damage awards; rather, it stands for the
proposition, which we discussed in an earlier paragraph, that the
amount awarded in counsel fees should reflect the extent to which
the litigant was successful. See 

("A
reduced fee award is appropriate if the relief, however
significant, is limited in comparison to the scope of the
litigation as a whole.") (emphasis added).
     It is clear that the district court, in the disputed
statement, concluded that it was "nonsensical" to award fees of
$175,000 for a judgment of 25,000 because the request was
disproportionate with what the court considered a more
appropriate ratio. (Indeed, the court turned to the "success"
analysis substantially later in its opinion.) We hold that the
court's consideration of the proportionality of the damages to
the fee award was legal error. Therefore, as this legal error
affected the district court's determination to "decrease the
hours by one-half on the grounds that they are excessive and
unreasonable," Memorandum at 8, we must remand to the district
court for it to make only such part of that reduction as was not
due to proportionality. Above, we also concluded that we must
remand this same determination so that any reduction due to
specificity can also be eradicated.
                            4. Success
     Finally, the district court diminished Mr. Epstein's counsel
fees by another fifty percent on the basis that "Washington
hardly won a decisive victory in this case." Memorandum,
typescript at 8. As the court explained,
     Five of Washington's nine claims did not survive a
     summary judgment motion. At the time of trial,
     Washington requested a total of $661,756.02 in damages,
     a figure which did not include mental anguish, punitive
     damages, and prejudgment interest, and also did not
     include the $103,000 Washington claimed in lost wages.
     The jury ruled against his primary claim, racial
     discrimination, and awarded him what amounted to a
     nominal recovery of $25,000 on his retaliation claim.

the district court did not apply the reduction
to the time spent in preparation of the fee petition, but fully
disallowed time claimed for preparation of a motion to amend the
judgment to this Court which was denied. 

9.
     Mr. Epstein contends that the court's analysis is based on a
"clear error of law" because "by persuading the jury to find for
the plaintiff on the racial retaliation claim, plaintiff
prevailed on a central theory of his case." Brief of Appellant
at 30. Mr. Epstein further argues that the initial claim of
racial discrimination "was so clearly related to the winning
claim, that as a matter of law, there can be no reduction of fees
for the work done since the time was necessarily spent on both
issues." 

As he explains,
     [A]ll of the evidence that was produced regarding the
     race discrimination claim was necessary in the
     litigation of the retaliation claim. The retaliation
     was undertaken to punish plaintiff for his assertion of
     race discrimination, and to properly show to the jury
     the nature of the retaliation, the full context,
     including the alleged race discrimination, had to be
     proven.

     Finally, Mr. Epstein argues that "the fact that the jury
awarded $25,000 is not a proper basis for reducing the hours or
the lodestar on the theory that the result was not a good one for
the plaintiff." 

unconvinced by Mr. Epstein's arguments. It is well
established that "the court can reduce the hours claimed by the
number of hours 'spent litigating claims on which the party did
not succeed and that were "distinct in all respects from" claims
on which the party did succeed.'" 

(quoting Institutionalized Juveniles v. Secretary of Public
Welfare, 

, 919 (3d Cir. 1985) (quoting 

)). Notwithstanding Mr. Epstein's contentions, we
conclude that the district court did not commit error when it
reduced Mr. Epstein's fees for his failure to prevail on one of
his two central claims, that of discrimination. In addition, the
alleged relatedness between the two general claims is too tenuous
to support a finding of error. Therefore, we conclude that the
court was well within its broad discretion when it discounted the
fees by fifty percent for partial lack of success.

                          IV. Conclusion

     In light of the foregoing, we will vacate the district
court's award of attorneys' fees and remand for further
consideration consistent with this opinion. In particular, we
will vacate the district court's assessment of Mr. Epstein's
hourly rate, and remand for a new calculation in accordance with
this opinion; in addition, we will vacate the district court's
reduction of the number of hours by one half for their being
"unreasonable and excessive," and direct the court to consider
anew whether that reduction is warranted in light of our
decision.
Washington v. Philadelphia County Court of Common Pleas, No. 95-
1613

ALDISERT, Circuit Judge, Concurring and Dissenting.
     Following our seminal attorneys' fees cases in Lindy Bros.
Builders, Inc. v. American Radiator & Standard Sanitary Corp.
(Lindy I) , 

(3d Cir. 1973), and Lindy Bros.
Builders, Inc. v. American Radiator & Standard Sanitary Corp.
(Lindy II), 

(3d Cir. 1976) (in banc), this court
carefully articulated the standard of review in attorney's fees
cases:
     [A]n award of reasonable attorneys' fees is within the
     district court's discretion. Thus our standard of
     review is a narrow one. We can find an abuse of
     discretion if no reasonable man would adopt the
     district court's view. If reasonable men could differ
     as to the propriety of the action taken by the trial
     court, then it cannot be said that the trial court
     abused its discretion. We may also find an abuse of
     discretion when the trial court uses improper standards
     or procedures in determining fees, or if it does not
     properly identify the criteria used for such
     determination.
Silberman v. Bogle, 

, 64-65 (3d Cir. 1982) (quotations
and citations omitted); see also Deisler v. McCormack Aggregates
Co., 

, 1087 (3d Cir. 1995). What divides this panel
is not the selection of this standard of review as the governing
legal precept; here, there are no competing precepts. SeeMajority
typescript at 6 ("We review the reasonableness of an
award of attorney's fees for an abuse of discretion.") (citation
omitted). In agreement on the controlling major premise, then,
we differ only as to what it means. Such interpretation,
however, implicates questions of both legal philosophy and
jurisprudence.
     At bottom, this case is about whether an appellate court
appreciates the allocation of competence between trial courts and
reviewing courts. To be sure, statements of deference by
appellate courts to district judges appear in this court's
dispositions. See, e.g., Majority typescript at 6. But quoting
a standard of review and respecting it are different matters.
See, e.g., Majority typescript at 11-13, 17-25. We must be
vigilant of this court's increasing proclivity to deny
substituting its judgment for that of the district court, but
then to proceed with the tack that it expressly renounces. In
this regard I am reminded of Byron's account of Julia: "And
whispering 'I will ne'er consent' -- consented." Byron, Don
Juan, Canto I, St. 117 (quoted in R. Aldisert, The Judicial
Process 717 (2d ed. 1996)).

                                I.
     I first indicate those portions of the majority's opinion of
which I am in accord. I agree that the district court did not
clearly err in finding that the hours claimed by Mr. Epstein were
"excessive and unreasonable." Majority typescript at 17. I also
agree "that the district court was well within its broad
discretion when it discounted the fees by fifty percent for
partial lack of success." Majority typescript at 27.
     Further, I agree that in light of the district court's
reliance on the district court opinion, subsequently reversed by
Griffiths v. Signa Corp., Nos. 94-2090 and 94-2091 (3d Cir. Nov.
30, 1995) (unpublished), we should remand for reconsideration of
the attorney's reasonable hourly rate. Thus, I concur in the
remand order.
     Upon careful examination of the attorneys' time sheets, seeA91-A129,
I too have trouble with the district court's conclusion
that "[m]any of the hours set forth in the fee petition are not
properly documented." Dist. Ct. Op. at 5. Indeed, I agree with
the majority's reading of Rode v. Dellarciprete, 

(3d Cir. 1990), which held that billing records such as those at
issue here need not document "the exact number of minutes spent
nor the precise activity to which each hour was devoted nor the
specific attainments of each attorney." 

(quotation
and citation omitted); see Keenan v. City of Philadelphia, 

, 473 (3d Cir. 1992); see also Majority typescript at 13-
15.   However, the statement of the district court giving rise to
this discussion of specificity, reprinted in the margin,
appears in a single paragraph of a much larger discussion under
the heading "HOURS REASONABLY EXPENDED". That section of the
district court opinion contained an independent alternative
justification for reducing the number of hours -- "that many of
the billable hours requested are redundant, unnecessary or
excessive." Dist. Ct. Op. at 5. The majority has no quarrel
with this alternative basis. See Majority typescript at 17
("[W]e only review the court's finding that the hours claimed by
Mr. Epstein are 'excessive and unreasonable' for clear error.
While Mr. Epstein offers persuasive arguments to support the
hours he and his colleagues spent on the various parts of the
trial, we conclude that these arguments fall short of satisfying
our exacting standard of review and therefore conclude that the
district court's conclusion is not clearly erroneous."). Thus,
although the majority remand based on the District Court's
criticism of the specificity of the documentation, in light of
the alternative justification for reducing the number of hours, I
dissent from the remand order based on specificity.

                               II.
     I turn next to the majority's contention that the district
court "diminish[ed] counsel fees ... to maintain some ratio
between the fees and damages awarded." Majority typescript at
22. For the reasons that follow, I do not agree that the
district court impermissibly considered the proportionality of
the damages in diminishing the requested fee.
     I turn first to the statement of the district court upon
which the majority premise their reasoning. The district court
stated that "requesting that this Court approve an expenditure of
$175,000 in fees to obtain a $25,000 verdict is nonsensical."
Dist. Ct. Op. at 7.
     To be sure, this court has expressed serious concerns with
the practice of limiting an award of attorneys' fees to maintain
proportionality between the fees and the amount of damages
awarded. See, e.g., Cunningham v. City of McKeesport, 

, 53-54 (3d Cir. 1986), cert. denied, 

(1987);
Northeast Women's Center v. McMonagle, 

, 474-75 (3d
Cir. 1989), cert. denied, 

(1990). Although the
district court's statements, in and of themselves, have the
potential of being interpreted as implying that the district
court improperly reduced the fees to maintain proportionality, we
must consider the context in which the district court made them.
     The district court offered the "nonsensical" description
after concluding that the fees submitted by Appellant "are not
merely excessive, they border on the outrageous." Dist. Ct. Op.
at 7. The district court explained that:
     If the[se figures] were actually sent to a client who
     was expected to pay for them, the bill would possibl[y]
     result in that client obviously going bankrupt or, at a
     minimum, finding a new attorney.
Dist. Ct. Op. at 7. Accordingly, taken in context, the district
court's statement also reflects a determination that Appellant
failed to exercise "billing judgment." See Hensley v. Eckerhart,

, 437 (1983) ("The applicant should exercise 'billing
judgment' with respect to the hours worked."). Indeed, after
making these statements, the district court added that "the
petition tendered by plaintiff's counsel is woefully deficient of
the billing judgment that should have animated its preparation."
Dist. Ct. Op. at 7 (citing Oliver v. Bell, No. CIV. A. 92-751
(E.D. Pa. June 30, 1994) (Order Memorandum)).
     The majority agree that alternate inferences can be drawn
from the ambiguous statement of the district court. See Majority
typescript at 18 ("The statement could, on the other hand,
reflect the court's opinion that Mr. Epstein failed to exercise
'billing judgment.' There is some support for this alternative
reading..."). Yet, given two reasonable interpretations of an
ambiguous statement, the majority reject one reasonable
interpretation, in favor of another reasonable interpretation.
This a reviewing court may not do. Indeed, "[i]f reasonable
people could differ as to the propriety of the action taken by
the trial court, then it cannot be said that the trial court
abused its discretion." 

(quotation and
citation omitted).
     Moreover, even using the majority's preferred reasonable
interpretation of the district court's statement, the majority do
not identify how the district court deployed the forbidden ratio.
And indeed, even after the reductions, the fee awarded by the
district court still exceeded the damages by a ratio of 1.216 to
1 ($30,389.63 to $25,000.00). This hardly bespeaks a rigid
mathematical calculation by the district court.
     Furthermore, the majority construct an unworkable -- if not
implausible -- schemata for determining attorneys' fees. They
condemn any relationship between fees and recovery, while making
it clear that the relationship between fees and recovery remains
extremely relevant in considering the plaintiff's success. SeeMajority
typescript at 23; see also Lindy 

("In
evaluating the quality of an attorney's work in a case, the
district court should consider ... the amount of recovery
obtained."). Although the majority purport to announce a new
rule of law that forbids consideration of proportionality between
the damage award and attorneys' fees, the currency value of this
initial public offering is seriously discounted by recognizing
that at least three clear exceptions inhere in it: one, in
measuring success, see Abrams v. Lightolier, 

(3d
Cir. 1995); Majority typescript at 22; two, when considering
billing judgment, Hensley v. Eckerhart, 

(1983); and
three, as recounted above, in evaluating the quality of an
attorney's work.
     Thus, the majority's new offspring is born with at least
three bar sinisters on its escutcheon, and staggering through its
uneasy fledgling steps, will no doubt cause confusion within
district courts and, most assuredly, will generate litigation.
Especially troubling here is that the majority fail even to
disclose where or how the district court employed a
proportionality ratio. To borrow from Lord Devlin, "I confess
that I approach the investigation of this legal proposition with
a prejudice in favour of the idea that there may be a flaw in the
argument somewhere." St. John Shipping Corp. v. Joseph Rank, 1
Q.B. 267, 282 (1957). Accordingly, I dissent in all respects
from the majority's conclusion on proportionality.

                                III.
     I do not come as a stranger to attorney fee jurisprudence in
this court. Twenty years ago, I authored the in banc opinion in
Lindy II, wherein I stated the views of our court at that time:
     We find it necessary also to observe that we did not
     and do not intend that a district court, in setting an
     attorneys' fee, become enmeshed in a meticulous
     analysis of every detailed facet of the professional
     representation. It was not and is not our intention
     that the inquiry into the adequacy of the fee assume
     massive proportions, perhaps even dwarfing the case in
     chief. Once the district court determines the
     reasonable hourly rates to be applied, for example, it
     need not conduct a minute evaluation of each phase or
     category of counsel's work.
Lindy 

.
     Whatever had been the intention of the full court in 1976,
the history of the past decades demonstrates that our district
judges today have "become enmeshed in a meticulous analysis of
every detailed facet of the professional representation," as
evidenced by the opinions in this case. So also this court has
become enmeshed. Perhaps the time has arrived for us to have
the full court revisit basic concepts of our attorneys' fees
jurisprudence in order to furnish clearer guidance, and
hopefully, minimize the atrocious fulmination of these cases,
here and in the district court.
     Drawing from my personal experience of almost 30 years on
this court, and my current practice of sitting in three or four
circuits each year, I beg indulgence to permit a personal
expression of what troubles me in examining pertinent cases.
Appellate courts seem to have lost respect for the narrow review
encompassed in reviewing an exercise of discretion. Either
because they have a hunger to get involved in the action, or
because they disagree viscerally with fees set by the district
courts, appellate judges introduce a devious device to broaden
appellate review: new standards or criteria for district courts
to follow meticulously.
     What has emerged is what Holmes called "Delusive exactness
[,] a source of fallacy throughout the law." In this practice,
newly created "standards and criteria" wag the tail of genuine
exercise of discretion. And to argue against this, as I do, is
to inveigh against Mom and Apple pie because everybody knows that
"standards and criteria" are good for you. As indeed they are in
most circumstances, but not if they destroy the exercise of
discretion. These standards and criteria create an environment
where an appeal is taken every time a district judge fails to
kiss the book or to genuflect properly.
     Most importantly, appeals challenging deviations from these
standards and criteria arrive in the appellate court with a
fundamental difference: the standard of review is not a limited
review of exercise of discretion or the more restricted clear
error, but plenary. See Keenan v. City of Philadelphia, 

, 472 (3d Cir. 1992) (the question of what standards to apply
in calculating an award of attorney's fees is a legal question
subject to plenary review). Thus, instead of playing a limited
role in the determination of attorneys' fees in limited review of
discretion, the appellate courts, like the proverbial camel, have
not only stuck their noses under the district courts' tent, but
they are fully inside ranging around in turf that properly
belongs to the district courts.
     Almost 40 years ago a youthful Charles Alan Wright,
America's premier federal courts expert, now president of the
American Law Institute, wrote a very perceptive law review
article entitled The Doubtful Omniscience of Appellate Courts
in which he decried the development in "which trial courts [are]
losing most of their power [and] the appellate courts have drawn
unto themselves practically all the power of the judicial
system." Professor Wright noted:
     The principal consequences of broadening appellate
     review are two. Such a course impairs the confidence
     of litigants and the public in the decisions of the
     trial courts, and it multiplies the number of
     appeals.... Every time a trial judge is reversed, every
     time the belief is reiterated that appellate courts are
     better qualified than trial judges to decide what
     justice requires, the confidence of litigants and the
     public in the trial courts will be further impaired.
     Under any feasible or conceivable system, our trial
     courts must always have the last word in the great bulk
     of cases. I doubt whether there will be much
     satisfaction with the judgments of trial courts among a
     public which is educated to believe that only appellate
     judges are trustworthy ministers of justice.
     I associate fully with Professor Wright's observations and
find his commentary apropos and germane to current attorneys'
fees jurisprudence. I believe that we should return to the basic
concepts of discretionary review we set forth in Lindy II: "If
reasonable men could differ as to the propriety of the action
taken by the trial court, then it cannot be said that the trial
court abused its 

, and cease the
manufacturing of "standards and procedures" in order to bring
about an abuse of discretion as a matter of law because the
district courts failed, directly or indirectly, to cross every
"t" and dot every "i" to the satisfaction of an appellate judge.
We should free the district courts in attorneys fees cases from
the solemn high mass ritual as is now required in the reception
of guilty plea under Criminal Rule 11, or the judiciary's nit
picking version of the USGA rules of golf---Sentencing
Guidelines. As Professor Wright comments, "If trial judges are
carefully selected, as in the federal system, it is hard to think
of any reason why they are more likely to make errors of judgment
than are appellate judges."
     Indeed, there are several reasons why district judges are
much more capable of exercising broad discretion. They are on
the scene. They smell the smoke of battle. Indeed, Professor
Maurice Rosenberg has identified four reasons that support
vesting discretion in trial courts. The first three are lesser
reasons:

    One is the plain urge to economize on judicial
          energies. Appeal courts would be swamped to the
          point of capsizing if every ruling by a trial
          judge could be presented for appellate review.
          * * *


    A second reason is maintaining morale. A trial
          judge ... would have an oppressive sense that
          appellate Big Brothers [and Sisters] were ever
          watching, peering over the trial bench, waiting
          for the harried and hurried trial judge to lapse
          into mortal fallibility.


    The third reason is ... finality. The more
          reverse-proof the trial judge's rulings, the less
          likely the losing party is to test them on appeal
          and the sooner the first adjudication becomes
          accepted and the dispute tranquilized.
Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed
From Above, 22 Syracuse L. Rev. 635, 660-61 (1971). Then follows
what he calls the most pointed and helpful reason:

    [T]he superiority of his [or her] nether position.
          It is not that he [or she] knows more than his [or
          her] loftier [brothers and sisters]; rather [the
          trial judge] sees more and senses more. In the
          dialogue between the appellate judges and the
          trial judge, the former often seem to be saying:
          "You were there. We do not think we would have
          done what you did, but we were not present and we
          may be unaware of significant matters, for the
          record does not adequately convey to us all that
          went on at the trial. Therefore, we defer to you."

So long as the jurisprudence has conferred
discretionary power in the district courts, we should respect it.
We should not construct obstacles to its use in the form of
artificial standards and criteria, the breach of which we deem an
abuse of discretion as a matter of law, thereby creating a
philosophical oxymoron by savaging traditional notions of
discretionary powers.
     It is for the foregoing reasons that I dissent from the
majority approach, except in those areas set forth above, in
which I concur.