Ostlings attorneys seek more than $660,000 in lawyer fees, costs from city of Bainbridge Island

Attorneys for the Ostling family have asked a federal judge to award their legal team more than $660,000 in legal fees and related costs following the $1 million judgement against the city of Bainbridge Island.

The request for attorneys' fees was filed in U.S. District Court last month by lawyers with Connelly Law Offices, the Tacoma-based law firm that represented the Ostling family in their lawsuit against the city.

"As the court knows first-hand, this was a very difficult and hard-fought civil rights case involving unique issues," attorneys with Connelly Law Offices said in their court filing, and added that the firm took on an "extraordinary risk" and had invested "countless hours and thousands of dollars" when it took on the Ostling case.

William and Joyce Ostling filed suit against the city of Bainbridge Island, Police Chief Jon Fehlman and Bainbridge Police Officer Jeff Benkert after their son Douglas Ostling was shot and killed by Benkert after he responded to a 911 call at the Ostling home in October 2010 and Ostling confronted police at his doorway with a double-bladed ax.

The jury in the federal civil rights trial found the shooting was justified, but said police had not been properly trained to deal with the mentally ill, and awarded $1 million to the Ostlings and the victim's estate.

The city has since asked for a new trial, and said the jury would have decided the case differently if Fehlman had been there to defend himself and his department. Fehlman was hospitalized before the start of the trial and has been on medical leave ever since.

In their request for attorneys' fees, the family's lawyers laid out the extensive work they had done on the case.

"This lawsuit was filed on March 22, 2011, and ... the defendants produced thousands upon thousands of pages of documents during discovery, including training records, personnel files, department manuals, documentation from other/prior calls, medical and psychiatric records, correspondence, and other documents. Nine expert witnesses were disclosed (five of them by the defense), and 21 depositions were taken (including two defense experts whose depositions occurred out-of-state). Numerous motions were filed, briefed and argued by the parties," the family's lawyers said.

Attorneys from the firm said reasonable attorneys' fees and costs should be awarded, and that the court should use the "lodestar method," which is a way to calculate fees by taking the number of hours that attorneys worked and multiplying that number by a reasonable hourly rate.

Lawyers from Connelly Law Offices said a multiplier of 1.5 should also be used, which would increase the fees of the three lawyers and paralegal used in the case from $384,645 to $576,967.

The attorneys estimated their costs at $82,657.

The combined legal fees and costs total $659,624, but attorneys for the Ostling family said in a subsequent filing on July 6 they should also be paid for another 47 hours of attorney work that came after the close of the trial.

According to court documents, Nathan Roberts, the lead lawyer for the Ostlings spent approximately 626 hours on the case, and the law firm is seeking reimbursement at $325 an hour (for a base of $203,580, or $305,370 in total).

The second chair in the trial, Julie Kays, worked roughly 293 hours on the case; her hourly rate was $350 (for a base of $102,725, or $154,087 in total).

John Connelly Jr., a consultant partner to the Ostlings' attorneys, devoted an estimated 79 hours on the case; his hourly rate was $550 (for a base of $43,890, or $65,835 in total).

Also, a paralegal spent 275 hours on the lawsuit and trial. At a cost of $125 an hour, the base fees totaled $34,450 (or $51,675 in total).

Attorneys for Connelly Law Offices said the hourly rates were reasonable and "squarely in line with the prevailing rates," and cited average hourly rates for partners at the law firm of Lane Powell at $460 an hour, and at Perkins Coie at $550 an hour.

Connelly Law Offices also said the assessment of time spent on the case was an estimate, and had been "constructed" based on a review of the court files and other documents in the case.

"The number of hours listed in the declaration is, if anything, extraordinarily conservative; countless hours were spent on phone calls, informal conferences, and miscellaneous matter and tasks were never documented and have since been forgotten (and are therefore excluded from this request)," the attorneys wrote in their request to the court.

Attorneys for the city of Bainbridge Island are fighting the request to pay the Ostlings lawyers' attorneys's fees and costs.

Brian Augenthaler, an attorney for Keating, Bucklin & McCormack, said attorneys for the Ostlings had "deceptively" included more than $57,000 that was spent on expert fees in "other charges" that they wanted reimbursed.

Augenthaler, in a response filing with the court, said the request for costs and fees was "grossly inflated" and had "been inflated by hundreds of thousands of dollars through deceptive billing and non-taxable costs."

He also said the verdict itself was invalid, and that the jury had only found in the Ostlings' favor on only one of four issues.

"The jury found Officer Benkert’s actions in shooting, searching, and rendering aid were reasonable and constitutional. However, the jury found Chief of Police Jon Fehlman and the city failed to train their police officers to deal with the mentally ill," Augenthaler wrote.

"The assessment does not account for the fact [the Ostlings] lost on a majority of their claims. And the billing statements, which were not recorded contemporaneously, are replete with 'work' for which no attorney could charge a client," he said.

Augenthaler noted that Connelly had billed at a rate of $825 per hour to watch part of the trial.

"For these three hours of 'work,' Mr. Connelly asks the court for $2,475 for his attendance at a trial in which he did not participate. Defendants should not be charged for Mr. Connelly’s moral support any more than he would ask his clients to bear that expense," Augenthaler wrote.

He also said the estimate of hours worked had been "cobbled together."

"This failure to record time contemporaneously should be fatal to the fee request," he said. "Attorneys who anticipate requesting fees should maintain detailed, contemporaneous time records that will enable a determination of the amount of time spent."

He also said the attorneys had failed to prove "the vast majority of their case" and were asking for a $200,000 premium.

Augenthaler also said the court should take into account the amount of money the Ostlings will have to pay their attorneys for their work on the case.

By his estimate of a one-third contingency fee, the Ostlings will pay Connelly Law Offices $333,333 for their work on the case.

By Brian Kelly

Source: The Bainbridge Island Review