Big v. Small

Marty Dolan, principal at Dolan Law and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness,” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

A federal judge in the U.S. District Court for the District of Columbia recently ruled that a small firm’s work is worth less than the work of biglaw. Alan Gura, who was 32 when he took it on, won a case before the Supreme Court, overturning D.C.’s handgun ban. Gura, who works in the two-attorney practice of Gura and Possensky, dedicated at least 1,500 hours of his life to the case over six years with no guarantee of ever getting paid a cent and prevailed against a vastly experienced Supreme Court litigator in Walter Dellinger of O’Melveny Myers who usually makes $1 million from a Supreme Court case alone.

Gura was representing D.C. residents who wanted to own handguns and felt the district’s ban on possession violated their Second Amendment rights. The U.S. District Court denied the claim before the U.S Court of Appeals for the D.C. Circuit overturned the decision, ruling the ban was unconstitutional, and the Supreme Court eventually upheld the appellate court’s decision in District v Heller. But in a ruling on the fee petition at the end of 2011, Judge Sullivan of the U.S. District Court for the District of Columbia took two thirds off the fee amount requested by Gura. While Gura will still see around $600,000 himself, Judge Sullivan’s ruling reveals a bias against smaller firms.

First, the judge, acknowledging the argument made by the district’s attorneys, noted that he had to scrutinize closely the plaintiff’s fee petition to determine what fair, reasonable, and just compensation was because he was “sensitive to the fact that the fees in this case will be paid by the taxpayers.” This is unusual given that Gura was simply living up to his oath to defend the constitution and, of course, the fact that the district’s lawyers (and Judge Sullivan himself) are also paid by the taxpayer. However, the most objectionable part of the judgment relates the reasoning behind the decision to give the plaintiffs a lesser award.

The judge reasoned that since Gura works for a small firm, he has lower overhead and, therefore, he was not entitled to charge similar rates that a larger firm could charge. It is of course true that Gura had to work without the support of researchers, IT staff and support staff of every kind which a biglaw firm enjoys. But that seems illogical to me. Surely lower overhead should be encouraged and not punished. Further, litigation of any kind, but particularly complex federal litigation has a major impact on smaller practices; almost all of a small firm’s efforts are focused on the trial. And Gura forewent six weeks of potentially billable time while working on the case which can also really hurt small firm.

Whatever your position on gun control or the outcome of the underlying case, it seems unfair that the work a small firm attorney who took a big risk and devoted a huge amount of time to see the constitution defended is deemed less worthy of being rewarded than similar work done by a biglaw firm.

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