When he took on Dick Heller’s case, it likely seemed like a lost cause. A good cause, perhaps, but an uphill fight the whole way. Up the steepest hill you can find. The steepest hill that never ends. Yet Alan Gura took it on, and because he did, the Supreme Court reversed its view of the Second Amendment to the Constitution, restoring it to a fundamental right, in District of Columbia v. Heller.
For his efforts, District Court Judge Emmet Sullivan smacked him. From the Blog of Legal Times :
It took six years for the attorneys for Dick Heller to win the D.C. resident, and all Washington residents, the right to possess handguns in their homes. The U.S. Supreme Court made its landmark decision in District of Columbia v. Heller in 2008.
It’s taken another three years for those attorneys, after a lengthy court fight with the District of Columbia, to be awarded their attorney fees.
In a ruling released Friday, U.S. District Judge Emmet Sullivan in Washington awarded Heller’s attorneys, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, just over $1.1 million, about one-third of what they had requested.
To the uninitiated, a fee award of $1.1 million may seem like winning the lottery. That’s because law is easy and it’s all wrapped up in an hour, like a television show. They neither see nor grasp the reality, that Gura has dedicated nine years of his life to this case, without any assurance of either winning the point or being awarded a dime. Regardless of whether you love or hate the fundamental personal right to keep and bear arms, you can’t ignore the accomplishment.
D.C.’s argument against Gura’s fee request in Heller was a diabolically curious one:
Sullivan noted in his 65-page ruling that lawyers for the city had claimed Gura’s team shouldn’t be allowed to “enrich themselves at the expense of the taxpayers” in a time of financial crisis. The judge made it known that he, too, was cognizant of the issue.
“Sensitive to the fact that the fees in this case will be paid by the taxpayers, this Court is left with the difficult task of closely scrutinizing plaintiff’s fee petition to determine what is fair, reasonable, and just compensation for the legal services of plaintiff’s attorneys,” Sullivan wrote.
The lawyers representing the District are paid from the taxpayer’s fisc, but lost no sleep at night. So is Judge Sullivan. Gura, they argued, was trying to “enrich” himself, that greedy fellow. Given that the Supremes concluded that Dick Heller was right about the Second Amendment, the government’s use of the rhetoric of evil to characterize the lawyer who fulfilled his oath the protect and defend the Constitution is worse than disingenuous. If they were concerned for the taxpayer in a time of financial crisis, they should have given back their salaries, as no government lawyer should be paid to argue against the Constitution.
The Heller legal team claimed 3,270 hours of work went into the case. It was cut down by Judge Sullivan based on sloppy timekeeping by three attorneys who came from nonprofits, Clark Neily III of the Institute for Justice, and Robert Levy and Gene Healy with the Cato Institute. No doubt they reconstructed their hours after they won, being neither used to keeping time nor winning and being required to provide a bill for a fee award.
But Gura’s hours, more than 1500, could not be questioned. What could, however, was their value.
Both sides argued to Sullivan that various matrixes and formulas should be used to determine the correct hourly rate. The plaintiffs’ team concluded that the rates should be $589 per hour for all of the attorneys except Huff, who had less experience. They argued Huff should be compensated at a rate of $361 per hour.
Sullivan called those rates “extraordinary” and not appropriate for this case. “[T]he Court is unwilling to award the high rates requested by plaintiff absent specific evidence that those rates are, indeed, the prevailing market rates for attorneys engaged in complex federal litigation outside of the District of Columbia’s largest law firms,” Sullivan wrote.
Gura’s rate was cut to $420, producing an award of about $662,000 for the six compensable years (but nine total years) he fought for Dick Heller. That Judge Sullivan called the higher rate “extraordinary” has first year biglaw associates rolling on the floor laughing. Their paralegals get nearly that much an hour for fetching them coffee. Plus a bonus this time of year.
The matrix employed to determine what, in Judge Sullivan’s words, is “fair, reasonable, and just compensation,” bears no relation to the real world. From this fee comes the expenses of the case, from copy paper to rent to dial tone. As this had to be paid all along, since lawyers aren’t given free rent until their ship comes in, Gura financed the defense of our constitutional rights.
And most importantly, he did so with no assurance that he would win, and ever be compensated for his work. Not impressed? Well, Gura’s family probably likes to eat every day, just like yours, and the supermarkets don’t let Gura walk out without paying any more than they do you. Get the picture?
Regardless of whether you think the Heller decision was the greatest defense of the Constitution in a generation, or the worst thing to happen to society since the invention of the Taser, is irrelevant. The message here is that an outsider fighting the status quo in the defense of constitutional rights not only does so on his own dime, but does so without much expectation of compensation even if he prevails. This is an incentive to lawyers to stay clear of big cases, hard arguments, the overarching constitutional issues that need a champion. What Judge Sullivan tacitly told Gura is champions go hungry.
For all the zealots who find it simple to spill a few thousand words on how clear and easy it is the scream about constitutional rights, somebody, some lawyer, has to be the grunt who actually makes it happen. The risk he takes to secure your rights is enormous, enough to crush a person in spirit as well as financially. You make silly noise about it. The lawyer puts in the hard work, long hours, personal risk, that actually accomplishes something.
Yet Alan Gura, for better or worse, accepted the responsibility of defending your rights. For his efforts, he was taught an expensive lesson by Judge Sullivan. For those of you who delight at his accomplishment, rather than send him a love note and your undying appreciation, send him a check, and send another one to the nonprofits who stood beside him. This may be your entitlement, but its Gura’s work. If you love your constitutional rights, show it by your willingness to pay the people who defended them for you.