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County's bid to avoid attorney fees for paraplegic detainee backfires

Wednesday, June 13, 2018
Chicago Daily Law Bulletin
by Patricia Manson

A federal judge blasted Cook County and Sheriff Thomas J. Dart for trying to wriggle out of an agreement to pay attorney fees to a paraplegic detainee whose statutory rights were violated.

In a written opinion last week, U.S. District Judge Matthew F. Kennelly awarded $170,312 in fees and $6,451 in expenses to lawyers who represented Donnell Flora.

Kennelly noted he was making the award as part of an agreement resolving a lawsuit Flora filed under the Americans with Disabilities Act and the Rehabilitation Act.

The suit maintained Flora was denied access to toilets and showers designed to accommodate people in wheelchairs when he was a pretrial detainee in the Cook County Jail for five months beginning in May 2014.

Kennelly granted summary judgment in favor of Flora on most of his claims against the county and sherriff’s office in May 2017.

Kennelly set the case for trial on damages as well as on Flora’s remaining claims.

On the morning of trial, the county and the sheriff’s office agreed to pay $2,500 to settle the suit.

The agreement also called for the parties to jointly request that Kennelly withdraw his ruling granting summary judgment in favor of Flora.

The county and the sheriff insisted on that provision, Kennelly wrote in his opinion Friday, “presumably to avoid having an adverse precedent on the books.”

And the settlement agreement called for Kennelly to determine the appropriate amount of attorney fees and expenses to award Flora’s legal team.

When Flora moved for attorney fees and expenses, Kennelly wrote, “the defendants took the rather outrageous position that due to Flora’s agreement to vacate the [c]ourt’s summary judgment opinion, Flora was no longer the prevailing party and was not entitled to a fee award.”

Kennelly described that stance as “ridiculous.”

The county and the sheriff’s office backed off after he pointed out they had agreed to let him award attorney fees and had not disclosed they intended to rely on his order vacating his opinion to avoid paying those fees altogether, Kennelly wrote.

“Thus it is undisputed,” he wrote, “as it should have been all along, that Flora was the prevailing party in this case.”

Kennelly determined the lodestar — the number of hours reasonably spent on the case multiplied by reasonable hourly rates for the attorneys and paralegal who did the work — was $212,891.

Kennelly rejected the defendants’ argument the lodestar should be cut in half because of what they contended was Flora’s lack of success on the merits.

Flora’s success was more than minimal, Kennelly wrote.

“The litigation involved significant legal issues regarding ADA compliance, and it served a significant public purpose: [T]he defendants run a very large institution in which there are, at any given time, significant numbers of inmates with disabilities,” he wrote.

“Suits like this one encourage Dart and the [c]ounty to ensure that the jail has enough accessible facilities available to accommodate them — an issue on which the defendants (at least via the lawyers who represented them in this case) were resistant throughout this litigation, until literally the morning of trial.”

Kennelly reduced the lodestar by 20 percent in light of the “modest” settlement Flora accepted.

Kennelly made the award to attorneys who included Patrick W. Morrissey and Thomas G. Morrissey of Thomas G. Morrissey Ltd.

Kennelly determined Patrick reasonably spent 309.48 hours on the case and Thomas reasonably spent 194.6 hours.

“We’re pleased with the court’s ruling,” Patrick Morrissey said.

Also receiving part of the award were Kenneth N. Flaxman and Joel A. Flaxman, both of the Law Offices of Kenneth N. Flaxman P.C., who represented Flora in the early stages of the case before withdrawing.

Defense attorneys include Cook County Assistant State’s Attorneys Anthony E. Zecchin and James E. Nichols.

Dart also is represented by Daniel E. Raymond and Terance A. Gonsalves, both of Steptoe & Johnson LLP.

Cook County also is represented by Elaine C. Davenport and Gerald M. Dombrowski, both of Sanchez Daniels & Hoffman LLP.

Neither the defense lawyers nor representatives of the sheriff’s office or state’s attorney’s office could be reached for comment.

In his opinion, Kennelly wrote it might seem “incongruous” for Flora’s attorneys to seek a six-figure fee award after settling the case for $2,500.

“It would be even more incongruous, however, to allow the defendants to litigate the case to the hilt and then successfully argue that the plaintiff should have prosecuted it more cheaply,” Kennelly wrote.

He noted outside counsel retained by the county after he granted summary judgment in favor of Flora spent a little more than 250 hours on the case — and most of that work was performed over only the seven weeks before the damages trial was to begin.

Outside counsel retained by Dart after the grant of summary judgment worked on the case for 190 hours over three weeks, Kennelly wrote.

And unlike Flora’s attorneys, he wrote, neither of the two sets of outside defense counsel “had to spend a minute of time preparing a complaint or answer, conducting discovery, dealing with motions to compel discovery or briefing the summary judgment motion.”

The case is Donnell Flora v. Thomas Dart, et al., No. 15 C 1127.



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