89-994 -- DISSENT VIRGINIA UNIV. HOSPITALS, INC. v. CASEY, page 6
Justice Stevens, with whom Justice Marshall and Justice Blackmun join, dissenting.
Since the enactment of the Statute of Wills in 1540, [n.1] careful draftsmen have authorized executors to pay the just debts of the decedent, including the fees and expenses of the
attorney for the estate. Although the omission of such an express authorization in a will might indicate that the testator had thought it unnecessary, or that he had overlooked the point, the omission would surely not indicate a deliberate decision by the testator to forbid any compensation to his attorney. In the early 1970s, Congress began to focus on the
importance of public interest litigation, and since that time, it has enacted numerous fee-shifting statutes. In many of these statutes, which the majority cites at length, see ante, at 4-8, Congress has expressly authorized the recovery of expert witness fees as part of the costs of litigation. The question in this case is whether, notwithstanding the omission of such an express authorization in 42 U.S.C. 1988 Congress in- tended to authorize such recovery when it provided for "a reasonable attorney's fee as part of the costs." In my view, just as the omission of express authorization in a will does not preclude compensation to an estate's attorney, the
omission of express authorization for expert witness fees in a fee-shifting provision should not preclude the award of expert witness fees. We should look at the way in which the Court has interpreted the text of this statute in the past, as well as this statute's legislative history, to resolve the question
before us, rather than looking at the text of the many other statutes that the majority cites in which Congress expressly recognized the need for compensating expert witnesses.
I Under either the broad view of "costs" typically assumed in the fee-shifting context or the broad view of "a reasonable attorney's fee" articulated by this Court, expert witness fees are a proper component of an award under 1988. Because we are not interpreting these words for the first time, they should be evaluated in the context that this and other courts have already created. [n.2]
The term "costs" has a different and broader meaning in fee-shifting statutes than it has in the cost statutes that apply to ordinary litigation. [n.3] The cost bill in this case illustrates the point. Leaving aside the question of expert witness fees, the prevailing party sought reimbursement for $45,867 in disbursements, see App. to Pet. for Cert. C-1, which plainly would not have been recoverable costs under 28 U.S.C. 1920. [n.4] These expenses, including such items as travel and long-distance telephone calls, were allowed by the District Court, and were not even questioned by respondent. They were expenses that a retained lawyer would ordinarily bill to his or her client. They were accordingly considered proper "costs" in a case of this kind.
The broad construction typically given to "costs" in the fee- shifting context is highlighted by the Chief Justice's con- trasting view in Missouri v. Jenkins, 491 U.S. 274 (1989), in which he argued that paralegal and law clerk fees could not even be awarded as "costs" under 28 U.S.C. 1920. One of the issues in Jenkins was the rate at which the services of law clerks and paralegals should be compensated. The State contended that actual cost, rather than market value, should govern. It did not, however, even question the propriety of reimbursing the prevailing party for the work of these nonlawyers. Only the Chief Justice -- in a lone dissent the reasoning of which is now endorsed by the Court -- advanced a purely literal interpretation of the statute. He wrote:
"I also disagree with the State's suggestion that law clerk and paralegal expenses incurred by a prevailing party, if not recoverable at market rates as
'attorney's fees' under 1988, are nonetheless recoverable at actual cost under that statute. The language of 1988 expands the traditional definition of
'costs' to include 'a reason- able attorney's fee,' but it cannot fairly be read to
authorize the recovery of all other out-of-pocket expenses actually incurred by the prevailing party in the course of litigation. Absent specific statutory authorization for the recovery of such expenses, the prevailing party
remains subject to the limitations on cost recovery imposed by Federal Rule of Civil Procedure 54(d) and 28 U.S.C. 1920 which govern the taxation of costs in federal
litigation where a cost-shifting statute is not applicable. Section 1920 gives the district court discretion to tax
certain types of costs against the losing party in any federal litigation. The statute specifically enumerates six
categories of expenses which may be taxed as costs: fees of the court clerk and marshal; fees of the court reporter; printing fees and witness fees; copying fees; certain docket fees; and fees of court-appointed experts and
interpreters. We have held that this list is exclusive. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987). Since none of these categories can possibly be construed to include the fees of law clerks and
paralegals, I would also hold that reimbursement for these expenses may not be separately awarded at actual cost." Id., at 297-298.
Although the Chief Justice argued that charges for the work of paralegals and law clerks were not part of the
narrowly defined "costs" that were reimbursable under 1920, nor were they part of an "attorney's fee" reimbursable under 1988, the Court did not reach the Chief Justice's point about costs because it held in Jenkins that such expenses were part of a "reasonable attorney's fee" authorized by 1988, and thus, could be reimbursed at market rate. In the Court's view, a "reasonable attorney's fee" referred to "a
reasonable fee for the work product of an attorney." Id., at 285. We explained:
"[T]he 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; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the
'reasonable attorney's fee' provided for by statute should compensate the work of paralegals, as well as that of attorneys." Ibid.
In Jenkins, the Court acknowledged that the use of paralegals instead of attorneys reduced the cost of litigation, and " `by reducing the spiraling cost of civil rights litigation,
further[ed] the policies underlying civil rights statutes.' " Id., at 288. If attorneys were forced to do the work that
paralegals could just as easily perform under the supervision of an attorney, such as locating and interviewing witnesses or
compiling statistical and financial data, then "it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of
litigation." Id., at 288, n. 10.
This reasoning applies equally to other forms of specialized litigation support that a trial lawyer needs and that the client customarily pays for, either directly or indirectly. Although reliance on paralegals is a more recent development than the use of traditional expert witnesses, both paralegals and ex- pert witnesses perform important tasks that save lawyers' time and enhance the quality of their work product. In this case, it is undisputed that the District Court correctly found that the expert witnesses were "essential" and "necessary" to the successful prosecution of the plaintiff's case, [n.5] and that their data and analysis played a pivotal role in the attorney's trial preparation. [n.6] Had the attorneys attempted to perform the tasks that the experts performed, it obviously would have taken them far longer than the experts and the entire case would have been far more costly to the parties. As Judge Posner observed in a comparable case:
"The time so spent by the expert is a substitute for lawyer time, just as paralegal time is, for if prohibited (or deterred by the cost) from hiring an expert the lawyer would attempt to educate himself about the expert's area of expertise. To forbid the shifting of the expert's fee would encourage underspecialization and inefficient trial preparation, just as to forbid shifting the cost of
paralegals would encourage lawyers to do paralegals' work. There is thus no basis for distinguishing Jenkins from the present case so far as time spent by these experts in educating the plaintiffs' lawyer is concerned . . . ." Friedrich v. Chicago, 888 F. 2d 511, 514 (CA7 1989).
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