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Case number 14-70-06, Josephine McAllister at L, Appellant v. District of Columbia.

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Mr. Tirka for the appellant, Mr. Love for the appellee.

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May I please the court?

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Good morning.

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I'm Douglas Tirka, counsel for the appellants.

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I'm going to cite this below.

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I'd like to start with a quote from page 10 of the district brief in which they give, I think, a good summary of the analysis a court should apply in making this decision about the compensability of Ms.

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Millis's time.

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And what the district says is that the central question under Arlington Central and the common sense is whether Ms.

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Millis was acting as a paralegal or as an educational consultant.

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And I think the key part of that analysis is how she was acting, as opposed to any particular label in the district or anyone else.

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May I ask a question that sort of precedes it?

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Why was this brought as a motion for summary judgment?

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I didn't understand that.

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So this was what we tend to call a fees case, or sometimes it's called a fees for fees case.

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The standard procedure the court employs is to decide it per summary judgment.

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It isn't the classic use of a summary judgment, but it is a device you would use if there's an ancillary motion, and both parties agree that there's no question of fact.

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Yes, Your Honor.

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So the fact that you entitled it a summary judgment motion is simply a convenience.

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It is not the classic summary judgment.

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question of law, and we don't have any disputed issues in fact.

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We're hoping that there aren't any, yes.

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Yes, that's both sides.

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It's just a designation you use that's a little

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Yeah, it comes from the fact that this, the entire action for fees for fees is judicially created.

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It's not within the statute.

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It's judicially created.

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You're in there just to ask for the fees as opposed to the substance of the case.

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So there can't be a motion.

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There can only be a judgment.

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So what's the significance?

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You want to go back to that quote from the district's brief, but what was the significance of that to you?

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I'm sorry, Your Honor.

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I didn't hear the list.

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I'm sorry.

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What was the significance of that quote from the district's brief to you?

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Why was that so important?

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I think it's important because the district is acknowledging that what a court should be looking at is the nature of the worker's work or actions and the context of that work, as opposed to a particular label placed upon the worker.

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I agree.

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OK, good.

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Now, what's your next step then?

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Where do you go from there?

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Where we go from there is to look at this work and what the district and the district court had to say about it.

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Let's start where you want to start.

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Let's start with how she described herself, how you described her, and what she was doing.

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Isn't that what you want?

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Sure.

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Well, we describe her work as work that is contributing to the work product of the attorney.

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And that is the phrase that is used.

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But that's true of any expert.

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I disagree.

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You don't?

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Tell me why.

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Because an expert is testifying in a case that is not a direct contribution to the work product.

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So is it your theory then that the only thing that's not compensable is an expert who testifies, but an expert who works for the lawyer can be compensated?

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I would say that that which cannot be compensated is, according to the dicta within Murphy, is expert testimony, preparation for expert testimony, and other work that is geared towards the expert's assistance with testimony on the case.

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To put it another way, I think it's easier to look at it from the other side, which is to say, that which the law firm could otherwise bill for, that which the attorney could otherwise do, would be attorney work product that would be billable.

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And that's important in this case, because the district has not identified any particular task, any element of the work, that it says could not be billed by the firm.

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Wait a minute, wait a minute.

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The law firm could bill for an expert, too.

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No, they cannot.

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No, to its clients it could.

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Oh, correct.

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Seek reimbursement.

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So instead of saying billing, I'll say the district has not pointed out any task that is not compensable under fee shifting in Ms.

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Millis' work.

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What they are trying to say is Ms.

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Millis has this label, this identity.

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Therefore, anything she did is noncompensable.

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According to the district's position and that of the district court, if Ms.

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Millis were doing a draft of a motion before it was later edited by an attorney, even that,

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would not be reimbursable because she is in their view.

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I asked you to focus on, I thought it was very productive what you said.

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Let's look at what she was doing.

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Not necessarily what the district, I didn't read the district court that way, but that's okay.

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Maybe I misread it.

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I would assume that if you had an educational expert who was a

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just like this person who is doing pure paralegal work, it would be compensable.

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But I just want to make sure I understand your theory of Murphy.

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Your theory is that the only thing that's not compensable is work related to potential actual or potential testimony by an expert.

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Is that your point?

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I would say that by the dicta of Murphy, that is noncompensable.

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I think we could get into a gray area of something else that wasn't contributing to the work product.

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Well, why would a lawyer hire anybody who wasn't contributing to the work product?

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Because the expert may be contributing to the win, but that's not the same as contributing to the work product.

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And that's why the courts have taken the position, for example, regarding privilege.

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That's why there is no longer a privilege regarding attorney communications with the expert.

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They're not a direct subordinate of the attorney.

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So this particular person did testify, correct, in one of your cases?

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She testified in four out of the 23.

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Now was that time compensable?

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The record hasn't been developed on what the nature of her testimony was.

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Well, did you bill for that time?

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Yes.

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And is that included in the amount you're seeking here?

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Yes.

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Well, didn't you just tell me that Murphy says you can't get compensation for that?

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For expert testimony.

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Ms.

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Mill is frequently testified as a fact witness.

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Isn't Murphy fundamentally different than your case in that there was no attorney in Murphy, right?

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And the Supreme Court seemed to think that was critical, that you had to put the states on notice that there might be compensation being sought.

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And there was no notice.

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The states had no way of knowing that the expert there was going to be used.

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Isn't that fundamentally different from your case?

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Yes, I think that's a huge distinction.

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And not only is it distinct per se, but it causes ripples.

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In Murphy, the Court of Appeals had already stricken all time devoted to legal work.

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And so that was not even at issue in Murphy.

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The only thing at issue was work that could in no way be called attorney's fees and was therefore under the larger part of cost that was not attorney's fees.

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and the court held that there had not been notice that that could be part of costs.

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So I think it's completely different.

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I think the key distinction is whether the individual is affiliated with and acting under the direct supervision of lawyers.

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And what in Murphy tells you that that was significant to the court?

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Well, as I said, in Murphy and the facts of Murphy, the court lays out that that part of the work that would be legal work is already off the table.

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So everything that's being discussed then is then just part of it.

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And what was that?

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Was that legal work by the expert?

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Well, they call her a consultant.

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Later on in the dicta, they say expert and consultant.

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But that was work that was done by the consultant under a prior interpretation of the law that in some jurisdictions allowed non-attorneys to represent clients in these proceedings.

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Now, so may I ask a question concerning the scope of the view

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The question here is whether or not how you divide the expert from the paralegal.

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What is our scope of review of the district court's determination?

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Well, I would say that what is to be reviewed is what is the nature of... No, what is our scope of review?

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I would say that what is to be reviewed is the nature of Ms.

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Millis's work, and therefore in this case... I'm asking what the scope of review is.

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the interpretation of Murphy and the... The district court has made a determination down below.

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What is our scope of review of the district court's decision?

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Isn't it abusive discretion?

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Well, it's abusive discretion generally except in matters of legal interpretation regarding what legal standard to apply.

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So we have, with Murphy, we have

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a de novo review because it's the interpretation of Murphy, with the question of what was the nature of Ms.

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Millis' work, that's abuse of discretion.

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We contend that there was abuse of discretion.

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What's the legal error that you claim the district court?

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To my eye, it's a little... In its review of this matter?

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To my eye, it's a little difficult to understand the district court's full reasoning.

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The district court appears to do two different things.

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One is to do what we call an abuse of discretion, which is to explicitly presume the facts regarding Ms.

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Mills' work.

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The district court explicitly says, we presume she testified as an expert, explicitly presumes that all of her work was devoted to that.

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There are two presumptions here, right?

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He presumed that the testimony was expert testimony, and that was five out of 180 hours.

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and presumed that therefore the other 175 hours was also as a noncommensurable expert.

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May I finish my answer?

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Yeah, keep going.

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Now, if you can get around Murphy, I'm not certain you can, but if you can get around Murphy, can you get around West Virginia University versus hospitals versus Casey?

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That's a pretty strong case that says expert fees are not part of reasonable attorney fees.

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Non-testimonial expert fees are not part of reasonable attorney fees.

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Well, again, we're still talking about whether the work is expert work or paralegal work.

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And I think that's a fair argument that could have been made.

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The district didn't make that argument so it didn't get argued out.

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Did Ms.

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Millis have any paralegal training?

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Well, she had been working at this time, I guess it was about 15 years for special education attorneys under the direct supervision.

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She had... What happened in the Crawford case?

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The district court makes reference to the Crawford case where she was fees for her... What was the nature of her work or what happened more broadly?

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Well, I mean, you didn't succeed in getting fees for her work there.

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How was her work there any different than the work here?

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Her work there was not any different.

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It was just a matter of it being one case and not worth the trouble of appealing, frankly.

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Your concern in this case really is, as you expressed in the briefs, you think it's an anomaly that a paralegal, who is really a rather pedestrian minor extension of a lawyer, can be included in costs, but the expert, who is a more high-grade person, cannot.

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find that anomalous, right?

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Exactly.

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That's one of the problems.

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The problem is, that is exactly the line that the court has drawn.

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I disagree that that's the line they have drawn.

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I think the line that the court has drawn, because in Murphy, the court did not overrule Jenkins.

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And Jenkins makes very clear that non-attorneys are compensable.

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I don't think we can sensibly read... Those are paralegals, non-attorneys, right?

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Yeah.

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Correct, but this court is also held in the sealed case that we cited, has held that people who are more qualified than attorneys, the attorneys have that.

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It's hard for me to see how a sealed case survives West Virginia University hospitals.

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Maybe you can help me explain how it does, but it's hard for me to see that.

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I think it's a reasonable argument for the district to say, under Casey Murphy, et cetera, anything that is, quote, expert work, unquote, is non-compensable.

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I think that is a fair argument and something that could be fairly non-fribulously argued before the district court.

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She's not an expert here, you're saying.

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I'm saying that not all of her work, certainly not all of her work would go into that category.

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Well, let me ask you about that.

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That's what the district does argue, doesn't it?

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Isn't the district arguing that expert work is not compensable?

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No, they are arguing something more broad.

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They are saying because we can presume, like the court did, that some of her work was expert work.

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Again, there's nothing been pointed to in the record that was expert work.

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But they say because we can presume that some is, we will now put the label on her, call her expert, and that will say none of her work is compensable.

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at what she's done.

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Her time records are completely different from the paralegals.

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The paralegals' time records are all, what I remember, paralegals do.

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Files, organizing things, stuff like that.

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Her stuff is all educational.

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It's reviewing neurological evaluations, auditory processing.

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comprehensive psychological evaluation, speech and language, attending multidisciplinary meetings, prepared for testified at due process hearing.

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None of that sounds to me like paralegal work.

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It's important work.

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I agree with that.

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And I understand that it's critical to the lawyer's case.

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But given what the court said in Murphy, this sounds like expert to me.

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Well, let's go back to the question of whether it is contributing to the work product.

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As I would say, whether it's work that an attorney would have done otherwise.

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And that's within the EVA definition.

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Is it work that an attorney would do?

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In these cases, I myself, and less frequently, far less frequently, paralegals have attended IEP meetings or participated in them.

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Certainly, I have reviewed countless evaluations.

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I'd be surprised if these billing records did not contain those same things.

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I assume you're using her to review these.

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because of her expertise.

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She has value added, otherwise you wouldn't use her.

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It's because of her educational expertise.

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that leads you to want to use her to review auditory processing evaluations, for example.

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I mean, if you could do them, you wouldn't need her, right?

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Not true, because we bill her at a lower rate, and so everything that she has done, every single thing she has done, with the exception of testifying, is work that I can do, that I have done, and that my bills have never been cut for doing.

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Every special education attorney I know does that work.

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So let me go back just quickly to the testimony.

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You said that she would be compensable if she had testified as a fact witness.

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I believe so, yes.

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And that's one of the reasons.

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Another reason why.

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Fact witnesses are compensable?

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I don't know any case law either way on the subject.

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But I've never had that time contested.

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That is certainly not what a lawyer does.

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is not what a lawyer does now.

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But she becomes a fact witness by virtue of doing what a lawyer does.

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So she gets sent to a meeting, or she makes a... A lot of what Ms.

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Mellis did, in addition to the meetings, was she would have discussions with DCPS personnel to try to work things out outside of litigation.

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Often those conversations became the subject of later testimony.

[00:16:39] Speaker 01:
Problem with your case, counsel, is if you took

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How so, Your Honor?

[00:16:47] Speaker 04:
I don't find it.

[00:16:48] Speaker 01:
You couldn't draw the line.

[00:16:50] Speaker 04:
I think the line can certainly be drawn.

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I think one easy line to be drawn is if the person is an outside consultant not hired by the firm.

[00:16:59] Speaker 01:
Oh, well, how can that be the distinction?

[00:17:02] Speaker 01:
How can that be the distinction?

[00:17:03] Speaker 04:
I'm defining multiple classes, Your Honor.

[00:17:04] Speaker 04:
That would be one.

[00:17:05] Speaker 04:
I'm defining multiple classes.

[00:17:06] Speaker 01:
That would be one that would be one.

[00:17:07] Speaker 01:
That is a point you made in your brief, but I didn't think that was very persuasive.

[00:17:11] Speaker 01:
determination of whether someone is an expert, depending on how he or she is paid, whether she's on this payroll of the firm or not.

[00:17:20] Speaker 04:
Well, the substance of Murphy, that is all it addresses.

[00:17:23] Speaker 04:
Now, the dicta of Murphy, in those three paragraphs, they talk about expert more generally.

[00:17:27] Speaker 04:
And I would agree that within those dicta, that would certainly go beyond just the outside consultant issue.

[00:17:32] Speaker 03:
But my question was, what did Murphy tell you that that was critical to its decision?

[00:17:40] Speaker 04:
Which the expert?

[00:17:41] Speaker 03:
She was not employed by the firm.

[00:17:44] Speaker 03:
The expert.

[00:17:45] Speaker 04:
Well, to say it was critical.

[00:17:46] Speaker 03:
It's a fact, I agree.

[00:17:48] Speaker 03:
But what in the court's holdings suggests that it turned on that?

[00:17:53] Speaker 04:
Well, it was all they were deciding.

[00:17:54] Speaker 04:
I mean, all we can say is that what the court was deciding was the compensability of an outside consultant, because they, as noted, they weren't.

[00:18:03] Speaker 03:
But you can't point to any language in the decision.

[00:18:06] Speaker 03:
If you can, tell me that says, what's non-compensable here are experts not hired by the law firm.

[00:18:15] Speaker 03:
They don't say that.

[00:18:16] Speaker 03:
No.

[00:18:17] Speaker 03:
OK.

[00:18:17] Speaker 03:
So my other question, just to follow up on Judge Silverman, I mean, if you're right about that, if we were to rule that that's the distinction, then I guarantee you every law firm after that decision is going to hire the expert.

[00:18:31] Speaker 03:
So that issue's over.

[00:18:33] Speaker 03:
Every expert would then be compensable.

[00:18:35] Speaker 04:
Well, as I said, that's just one class that we would cut out on the basis of Murphy.

[00:18:39] Speaker 04:
To say that every firm would hire them, there's hiring, there's hiring.

[00:18:43] Speaker 03:
Could you just focus on Judge Silverman's question, which I thought, how?

[00:18:48] Speaker 03:
Let's assume you're right.

[00:18:51] Speaker 03:
Give me an example, and let's assume you're right generally, but wrong about the outside hiring, okay?

[00:18:58] Speaker 03:
In other words, suppose it turns on whether the person's an expert or not.

[00:19:06] Speaker 03:
So give me an example of an expert that you concede would not be compensable.

[00:19:12] Speaker 04:
And if I can understand, you're asking if the question were to turn on whether the person was an expert or if the question were to turn on whether the work was expert work.

[00:19:20] Speaker 03:
Well, why don't you just answer the question?

[00:19:22] Speaker 03:
Is that your answer?

[00:19:23] Speaker 04:
No.

[00:19:24] Speaker 04:
But I just want to understand the question.

[00:19:26] Speaker 03:
I just want to know how we're to decide this case.

[00:19:31] Speaker 03:
And don't respond by telling me what the district court said.

[00:19:36] Speaker 03:
Just tell me.

[00:19:38] Speaker 03:
Why is she an expert and what could she do that would not be expert work?

[00:19:45] Speaker 03:
Give me an example of something that she could do that would not be compensable.

[00:19:49] Speaker 04:
Oh, that would not be compensable.

[00:19:52] Speaker 04:
Testifying as an expert, without a doubt.

[00:19:54] Speaker 03:
Testifying as an expert.

[00:19:58] Speaker 04:
I can give other examples, but that would be the easiest one.

[00:19:59] Speaker 03:
That's why I asked you that question earlier.

[00:20:02] Speaker 03:
Is your point, then your answer to my first question is yes.

[00:20:06] Speaker 03:
The only thing that is uncompensable is testimony by an expert.

[00:20:13] Speaker 03:
No, you're right.

[00:20:13] Speaker 03:
That was one example.

[00:20:14] Speaker 04:
I can give other examples.

[00:20:15] Speaker 03:
Why would testimony by an expert be non-compensable, but testimony by a fact witness compensable?

[00:20:23] Speaker 04:
Because there's no notice of the availability of expert fees, which is a class of fees that have been considered by the legislature multiple times and yet not added to the statute.

[00:20:35] Speaker 04:
I mean, that is the reasoning of Murphy.

[00:20:38] Speaker 04:
Murphy reviews the record and says, yes, we understand that this was considered.

[00:20:42] Speaker 04:
And some people wanted it, but Congress did not add it.

[00:20:45] Speaker 04:
To answer the question of how the court should decide the case, and the court should decide the case by,

[00:20:51] Speaker 04:
ruling that what is relevant is the nature of the work, and I would say the work relationship, not some label we put on her.

[00:20:59] Speaker 04:
In other words, whether someone is, in a metaphysical sense, an expert or not, it does not mean that that same person's work would not be present.

[00:21:10] Speaker 02:
What do you do with Judge Tatel's line of questions that shows that from the billing records it looks like Ms.

[00:21:15] Speaker 02:
Millis was doing something

[00:21:17] Speaker 02:
qualitatively different than what your other paralegals were doing?

[00:21:21] Speaker 04:
Well, the record's undeveloped on that.

[00:21:23] Speaker 04:
I will tell the court, and as I said, I believe in these records, you will find time from me reviewing evaluations.

[00:21:30] Speaker 04:
That's almost guaranteed, because it's something I do all the time.

[00:21:32] Speaker 04:
It's necessary.

[00:21:33] Speaker 04:
It's part of what I'm doing.

[00:21:34] Speaker 04:
Having Ms.

[00:21:35] Speaker 04:
Miller's do it is just an easier route.

[00:21:37] Speaker 04:
She can look at it and summarize it for me quickly.

[00:21:39] Speaker 02:
But she was doing different work than the paralegals, right?

[00:21:43] Speaker 02:
But your answer to that is she was doing

[00:21:46] Speaker 02:
work that was like when I was doing it, right?

[00:21:48] Speaker 04:
She was generally, but not exclusively, doing work that was different.

[00:21:52] Speaker 04:
It's not that she never sent out a records request.

[00:21:56] Speaker 04:
She has sent them out many times to me.

[00:21:57] Speaker 04:
I don't know if it's in these records.

[00:21:59] Speaker 04:
It's not that no other paralegal ever went to an IEP meeting.

[00:22:03] Speaker 02:
And isn't there argument that the work that she was doing meets the ABA standard definition for peer legal work?

[00:22:08] Speaker 04:
Yes.

[00:22:09] Speaker 04:
It was always under direct supervision of an attorney, which is certainly a key part of that.

[00:22:13] Speaker 04:
And it was always work that would have been compensable and always has been compensable to the lawyer.

[00:22:18] Speaker 02:
If you had done it.

[00:22:19] Speaker 04:
And I would be obliged to do it.

[00:22:20] Speaker 04:
I mean, I would say it would be malpractice to not show up at an IEP meeting in the middle of litigation.

[00:22:26] Speaker 04:
It would certainly be malpractice not to review the evaluations of the case.

[00:22:28] Speaker 04:
So the attorney or someone in that firm has to do it.

[00:22:32] Speaker 04:
And that's the analysis I would ask the court to adopt to say, would a lawyer, would a solo practitioner be doing this work?

[00:22:39] Speaker 04:
If so, then it is compensable.

[00:22:41] Speaker 04:
If a solo practitioner would not, perhaps need not, then maybe it's not compensable.

[00:22:45] Speaker 04:
To get to the question of the testimony, yes, I suppose I would open up an area where fact testimony would not be compensable.

[00:22:51] Speaker 04:
It hadn't occurred to me before.

[00:22:53] Speaker 04:
The district had never challenged it.

[00:22:54] Speaker 04:
And again, I think that's a reasonable argument.

[00:22:58] Speaker 04:
A lot of that record about what Ms.

[00:22:59] Speaker 04:
Millis did outside of these billing records, that was never developed because the district never raised issue about the nature of her work until the appeal.

[00:23:07] Speaker 03:
So your theory then is, if in your law firm this is work that you or your partners would do, that if she does it, it's compensable, right?

[00:23:22] Speaker 04:
If she does it under our supervision, yes.

[00:23:23] Speaker 03:
Yeah, under your supervision.

[00:23:26] Speaker 03:
So you view her as sort of an expert paralegal.

[00:23:30] Speaker 03:
Would that be right?

[00:23:33] Speaker 04:
Yes.

[00:23:33] Speaker 04:
I view her as doing paralegal work and being more qualified than most.

[00:23:38] Speaker 03:
In your affidavit, you never refer to the word paralegal for her, but you do for all the others.

[00:23:45] Speaker 04:
Correct.

[00:23:45] Speaker 04:
The nomenclature that existed at the time that I started doing this work in 2003 is that there was a class of people who were called advocates.

[00:23:52] Speaker 04:
That word, to my knowledge, exists nowhere other than a handful of special ed firms.

[00:23:57] Speaker 04:
In fact, in the Superior Court, when they appoint an attorney to represent a child's interest, a special ed interest in a neglect case, they call that attorney an advocate.

[00:24:07] Speaker 04:
I don't know where that term came from.

[00:24:09] Speaker 04:
I believe it actually originated with a large firm that was doing this kind of work, and that's just the title they gave those people.

[00:24:13] Speaker 04:
So when I first met Ms.

[00:24:14] Speaker 04:
Millis, who had worked at that law firm at one point,

[00:24:17] Speaker 04:
She was called an advocate.

[00:24:18] Speaker 04:
That's what we called these people.

[00:24:20] Speaker 04:
And we never really thought about it.

[00:24:22] Speaker 04:
So I don't want to misrepresent anything about what we called her in the past.

[00:24:26] Speaker 04:
Titles were never a big deal at my firm.

[00:24:28] Speaker 04:
I didn't really care.

[00:24:29] Speaker 04:
But so we referred to her as an advocate.

[00:24:31] Speaker 04:
That is why I'm saying, again, we need to focus on what her work was.

[00:24:35] Speaker 04:
If it was all about the title.

[00:24:36] Speaker 03:
No, no.

[00:24:38] Speaker 03:
I thought you said we have to focus on what the work you and your partners do

[00:24:46] Speaker 03:
and to see whether that's what she's effectively.

[00:24:49] Speaker 03:
That's your standard.

[00:24:51] Speaker 03:
If she's doing what you would do, then it's compensable.

[00:24:56] Speaker 03:
And so how do we know that from this record?

[00:25:03] Speaker 04:
Well, unfortunately, because the district never raised an objection to any individual item,

[00:25:07] Speaker 04:
We have not had any record development on that issue.

[00:25:11] Speaker 04:
I would say the district has waived that entire question of whether it's what we would do because they never objected to it.

[00:25:25] Speaker 01:
in the future for her work?

[00:25:29] Speaker 04:
I think that's an important question.

[00:25:30] Speaker 04:
And, in fact, I already have readjusted to accommodate the possible decisions like Crawford.

[00:25:36] Speaker 04:
And you can bet that whenever Ms.

[00:25:38] Speaker 04:
Millis testifies now, she identifies herself as a special education paralegal.

[00:25:42] Speaker 04:
And, I mean, you know, if that's the name that the district insists that I put on her, that's fine.

[00:25:46] Speaker 01:
No, you don't want to, but you'd avoid... You would be better off avoiding her testifying, right?

[00:25:52] Speaker 04:
Testifying as an expert?

[00:25:54] Speaker 01:
Yes.

[00:25:54] Speaker 04:
Yes, but that's, you know, I can find other experts.

[00:25:56] Speaker 01:
The other way I've adjusted, by the way... So if you didn't, if you described her as a prior legal, and she was acting traditionally as a prior legal, and she didn't assert herself as an expert, then you would be able to get compensation, right?

[00:26:11] Speaker 01:
Well, again, I don't know about the time... If you lose on this.

[00:26:14] Speaker 04:
I don't know about the time for the testimony, but for the rest of her work, yes.

[00:26:17] Speaker 01:
Yes, in her advocacy work.

[00:26:19] Speaker 01:
And that relates to the, that relates to... So this is a one-off case for 20,000 bucks.

[00:26:26] Speaker 04:
Well, it has a significant impact actually on, more on the district than on me.

[00:26:30] Speaker 04:
When the district first stopped voluntarily paying for Ms.

[00:26:34] Speaker 01:
Melissa's time... That's sort of funny for us.

[00:26:39] Speaker 04:
Well, I'll explain why.

[00:26:40] Speaker 04:
In some ways, it's significant for my client.

[00:26:42] Speaker 04:
When I pointed out to the district back then, I said, what you're forcing me to do is to fire Ms.

[00:26:46] Speaker 04:
Millis.

[00:26:47] Speaker 04:
Because they also started saying they weren't going to pay for any paralegal time back then.

[00:26:51] Speaker 04:
You'll make me fire Ms.

[00:26:52] Speaker 04:
Millis, fire my paralegals, and do all the work myself, and hire attorneys.

[00:26:56] Speaker 04:
And our billable rate is much higher.

[00:26:57] Speaker 04:
So it's actually worse for the district.

[00:26:59] Speaker 04:
I think it's worse for my clients, because I can do less work.

[00:27:01] Speaker 01:
You can easily adjust to this.

[00:27:03] Speaker 04:
I see.

[00:27:04] Speaker 04:
I can adjust to it in, I think, an unfortunate and inefficient way.

[00:27:08] Speaker 04:
And as I said, already have largely.

[00:27:11] Speaker 03:
OK, so you're way over your time.

[00:27:13] Speaker 03:
But I want to be sure I understand your argument completely.

[00:27:20] Speaker 03:
Your point is that if in a firm like yours, which does special ed work, you and your partners are all specialized lawyers.

[00:27:31] Speaker 03:
This is what you do.

[00:27:32] Speaker 04:
I have no more partners for the record.

[00:27:33] Speaker 04:
Pardon me?

[00:27:34] Speaker 04:
I have no more partners for the record.

[00:27:35] Speaker 03:
OK, well, you.

[00:27:38] Speaker 03:
If your assistants paralegals are doing what you would do if you were a sole practitioner, they're compensable, correct?

[00:27:52] Speaker 04:
If they're doing it under my supervision.

[00:27:53] Speaker 03:
Yes.

[00:27:53] Speaker 03:
Now, so if you hire an outside expert and that expert, and you use that expert as an expert witness, not compensable, right?

[00:28:07] Speaker 04:
Correct.

[00:28:08] Speaker 03:
Okay.

[00:28:10] Speaker 03:
Suppose you have a, suppose you've gone into a particularly complex area of special ed and you decide you need internal educational expertise in understanding these reports.

[00:28:31] Speaker 03:
Not compensable, right?

[00:28:35] Speaker 04:
I'm hiring someone to do, I would say it is, I would say it is the same, it is compensable, I would say that is the same as hiring an attorney, you know, if I suddenly started having a lot of tax cases, which I wouldn't take, I would hire somebody competent to do those tax cases.

[00:28:49] Speaker 04:
You would hire a lawyer.

[00:28:50] Speaker 04:
Right.

[00:28:51] Speaker 03:
Yeah, but this is not a lawyer.

[00:28:52] Speaker 03:
I'm saying suppose you have a series of cases that involve a particular type of disability, and you've got lots of those in the DC public schools, and it requires particular expertise in a particular diagnosis, okay?

[00:29:08] Speaker 03:
And you hire in your firm someone who has the skills in that area, trained in that area, has degrees in that area.

[00:29:19] Speaker 03:
Now, that's work you couldn't otherwise do, right?

[00:29:23] Speaker 03:
You don't understand it.

[00:29:24] Speaker 03:
That's why you hired the person.

[00:29:25] Speaker 04:
Well, I personally couldn't.

[00:29:26] Speaker 04:
Well, that's my point.

[00:29:28] Speaker 04:
But an attorney who had developed that expertise could.

[00:29:32] Speaker 04:
And it would be compensable for that attorney to do it.

[00:29:35] Speaker 04:
In the same way that when I first started doing this work.

[00:29:37] Speaker 03:
See, that's got a real line.

[00:29:38] Speaker 03:
I hear your point.

[00:29:39] Speaker 03:
That's interesting.

[00:29:40] Speaker 03:
So the standard would evolve over time, right?

[00:29:43] Speaker 03:
In other words, if you had a firm where lawyers developed

[00:29:47] Speaker 03:
more refined expertise in a particular area, then the assistance they hire could be compensated, right?

[00:29:58] Speaker 03:
Because the lawyers could otherwise have done that work.

[00:30:00] Speaker 00:
Yes.

[00:30:02] Speaker 03:
Okay, let's, I think we should hear from the district, okay?

[00:30:05] Speaker 03:
We'll give you a few minutes.

[00:30:07] Speaker 00:
Okay.

[00:30:12] Speaker 00:
Good morning, I'm at the Court of Richard Love for the District of Columbia.

[00:30:17] Speaker 00:
I think two points as the court was focusing on.

[00:30:20] Speaker 00:
One, I don't think we're not relying on labels, but on the actual tasks that were performed by Ms.

[00:30:26] Speaker 00:
Millis.

[00:30:27] Speaker 00:
And I think the distinction between whether the individual is affiliated with a part of the law firm versus someone who's independent but provides the same services that really are issued and were performed here is a meaningless distinction because

[00:30:45] Speaker 00:
What Arlington or Murphy went off on was whether or not there was notice to the states that they would be responsible if they took idea money for these types of costs.

[00:31:01] Speaker 00:
it wouldn't provide any more notice to the states that they were responsible if the expert was in-house as opposed to... But isn't it much different when you have an attorney?

[00:31:11] Speaker 02:
When you have an attorney present, you expect that an attorney is going to use paralegals and others to do his or her work, right?

[00:31:19] Speaker 02:
No surprise to the district there.

[00:31:21] Speaker 00:
Yeah, paralegals have been recognized as a

[00:31:24] Speaker 02:
What is it about what Ms.

[00:31:26] Speaker 02:
Millis did that doesn't meet the definition of a paralegal under the American Bar Association standard?

[00:31:32] Speaker 00:
Well, I think Judge Tatel, when you indicated, I mean, she... Under the American Bar Association standard.

[00:31:40] Speaker 00:
She's not providing legal tasks insofar as she is hired for and provides the expertise that she provides.

[00:31:49] Speaker 00:
Yes.

[00:31:50] Speaker 00:
Anybody could read the assortment of evaluations that she does.

[00:31:53] Speaker 03:
Mr. Turka says that in his firm, she is.

[00:31:56] Speaker 03:
Because that's what he does.

[00:31:58] Speaker 03:
That's his legal practice?

[00:31:59] Speaker 03:
That's his whole legal practice.

[00:32:00] Speaker 03:
He's skilled in reading all these things, and she's just a specialized paralegal, basically.

[00:32:06] Speaker 00:
Well, I just, first of all, I think the court, the district court found that she was not a paralegal but an educational expert.

[00:32:14] Speaker 00:
I think that's not a clueless or wrong finding.

[00:32:18] Speaker 03:
I thought she said you weren't hung up on labels.

[00:32:22] Speaker 00:
I'm not hung up on labels.

[00:32:23] Speaker 00:
When you look at the tasks that she performed and you compare that with her description of her professional experiences set forth in the resume, I think it's inescapable that she is viewing those evaluations with 40 years of special

[00:32:43] Speaker 00:
education experience that can't be compared to how a lawyer, even a lawyer who has focused on a special education practice, brings to it.

[00:32:52] Speaker 00:
She does provide value-added experience and expertise based on her professional experience doing this for 40 years.

[00:33:02] Speaker 02:
Well, in sealed case, didn't we look at facts like that and say,

[00:33:07] Speaker 02:
That makes it, you know, compensable under attorney's fees.

[00:33:11] Speaker 02:
You've got a complex case, you bring in somebody who knows a lot about tax, and you educate the lawyer to do so, and in some case we said that's recoverable attorney's fees.

[00:33:21] Speaker 00:
Well, two things.

[00:33:22] Speaker 00:
One, you're dealing with a different statute.

[00:33:24] Speaker 00:
You're dealing with a statute that required or made compensable

[00:33:29] Speaker 00:
all the fees that were incurred as a result of the independent prosecutor's investigation that the individual wouldn't have incurred what for.

[00:33:42] Speaker 00:
And second, in a sealed case, you also had the accountant was a licensed attorney, and the court pointed to that as a distinction as well.

[00:33:56] Speaker 02:
So you think sealed case would have come out differently?

[00:33:58] Speaker 02:
if the tax expert consultant was not an attorney?

[00:34:07] Speaker 00:
It may have, but as I said, I don't rely solely on that.

[00:34:10] Speaker 00:
I think it's also a different statute.

[00:34:12] Speaker 00:
Here you have a statute where, as you pointed out, not only in Murphy, but in prior cases, in Casey,

[00:34:21] Speaker 00:
I mean, the court clearly said, regardless of notice, I think, and it was dealing with 1988, not shifting the statute in idea, that there's no mention of expert witness fees, and it's not compensable.

[00:34:36] Speaker 00:
And it pointed to at least 34 other statutes that similarly do that.

[00:34:42] Speaker 02:
Do you think Seale case is still good law, or has Casey

[00:34:47] Speaker 02:
eviscerated.

[00:34:48] Speaker 00:
I think that the difference in the in the way the statutes are framed would you know is a reason why it probably is still good good law but I think here

[00:35:02] Speaker 01:
You think Murphy is decisive, right?

[00:35:04] Speaker 00:
Murphy clearly is decisive, and I think that the district court did not clearly err in finding that Ms.

[00:35:12] Speaker 00:
Millis performed the work as a expert.

[00:35:15] Speaker 02:
But the problem I have with saying Murphy's clearly decisive is there was no attorney.

[00:35:20] Speaker 02:
No one was seeking attorney's fees in Murphy.

[00:35:22] Speaker 02:
There was no attorney.

[00:35:25] Speaker 00:
I understand.

[00:35:26] Speaker 02:
And here we have an allegation that we have an attorney, and we have an allegation that you have someone who's helping an attorney do his work.

[00:35:36] Speaker 02:
That's just much different than what was going on in Murphy.

[00:35:39] Speaker 00:
Well, again, you get back, as you pointed out, to Casey.

[00:35:43] Speaker 00:
But I do think all of the work, I mean, the individual in Murphy wasn't licensed, but she, I believe it was she, performed.

[00:35:55] Speaker 00:
you know, expert consulting services as well as advocating in the stead of a lawyer.

[00:36:02] Speaker 00:
So many of the, I think, you know, the rubric of that argument saying, well, that's not compensable, but, you know, is applicable here.

[00:36:15] Speaker 00:
In the work that

[00:36:17] Speaker 00:
I mean, nothing in Ms.

[00:36:19] Speaker 00:
Millis's description of her education and experience or the tasks that are identified in the billing records, and they are starkly different, as you pointed out, Judge Tateo, supports the conclusion that she was doing paralegal work.

[00:36:33] Speaker 03:
Yeah, you're totally right about that.

[00:36:36] Speaker 03:
If you look at Mr. Turk's affidavit, if you look at the billing records, if you look at her resume, it is dramatically different.

[00:36:43] Speaker 03:
I agree with that.

[00:36:46] Speaker 03:
His point is that everything she does are things that special education lawyers do.

[00:37:01] Speaker 03:
What's the answer to that?

[00:37:03] Speaker 00:
The answer to that is, as I think you've pointed out, the reason why she is there, and I think it's a fair conclusion and certainly not clearly erroneous on the part of the district court, is to lend her expertise.

[00:37:18] Speaker 03:
But the district court didn't focus on this issue at all.

[00:37:21] Speaker 03:
There's nothing in the district court's decision to suggest this issue was focused on at all.

[00:37:26] Speaker 03:
Well, I think.

[00:37:27] Speaker 03:
Maybe that's right, but there's no record on this at all.

[00:37:35] Speaker 03:
Well, I understand.

[00:37:37] Speaker 03:
Let me just ask you this.

[00:37:39] Speaker 03:
Suppose he had an affidavit in the record, which identified eight to ten categories of

[00:37:50] Speaker 03:
special educational expertise that he as a lawyer does, evaluating these reports.

[00:37:54] Speaker 03:
I've been doing this for a long time, he says.

[00:37:56] Speaker 03:
I know how to evaluate these psychological evaluations.

[00:38:00] Speaker 03:
I know what to look for.

[00:38:01] Speaker 03:
I know how to do it.

[00:38:02] Speaker 03:
These are the 10 things I do.

[00:38:05] Speaker 03:
And this is what, what's her name, Nellis?

[00:38:11] Speaker 03:
This is what she does.

[00:38:13] Speaker 03:
Now suppose there was that affidavit.

[00:38:15] Speaker 03:
Would you still say the position that, and her work lined up with that, would this still be non-compensable under your view?

[00:38:24] Speaker 00:
I think under... No, under your view.

[00:38:28] Speaker 00:
Well, under my view and my understanding of Murphy, yes, it would be not compensable.

[00:38:33] Speaker 00:
I mean, there were arguments... When does it get compensable?

[00:38:37] Speaker 02:
Excuse me?

[00:38:38] Speaker 02:
When does it get compensable?

[00:38:40] Speaker 02:
Only when you have somebody who's doing copying for the attorney?

[00:38:44] Speaker 02:
That's an awfully outdated notion of what paralegals are about.

[00:38:47] Speaker 00:
No, but I think when it's specialized work utilizing someone's expertise gathered over the course of a 40-year professional career, that is an expertise

[00:38:59] Speaker 00:
that she is applying to this case even if it concerns evaluations that another paralegal or a law student or the lawyer himself or herself would have performed.

[00:39:13] Speaker 03:
There's nothing in the record that helps us on this, right?

[00:39:16] Speaker 03:
You're describing it one way, Mr. Turk is describing it the other way.

[00:39:22] Speaker 03:
We have nothing in the record.

[00:39:25] Speaker 00:
Yes, I know.

[00:39:26] Speaker 00:
I don't agree.

[00:39:27] Speaker 00:
What do we have?

[00:39:27] Speaker 00:
Well, we know what tasks were performed.

[00:39:30] Speaker 00:
We know they're starkly different than the tasks the other paralegals performed.

[00:39:33] Speaker 00:
Yeah, but that's not his standard.

[00:39:35] Speaker 00:
That's not the standard.

[00:39:36] Speaker 00:
We also know that we have a CV that describes a professional experience that nowhere says a word about being a paralegal.

[00:39:44] Speaker 00:
that says specifically that she reviews an evaluation.

[00:39:48] Speaker 02:
But isn't the question the relationship between her work and his work as an attorney?

[00:39:53] Speaker 02:
Isn't that the focus?

[00:39:54] Speaker 00:
But an expert is always going to have some relationship to the lawyer's work, to the lawyer's case.

[00:40:00] Speaker 00:
I mean, it's impossible.

[00:40:02] Speaker 00:
I mean, they're not hiring this person because they're not bringing any value to the case.

[00:40:06] Speaker 03:
Under your theory, law firms can't really hire specialized paralegals, can they?

[00:40:13] Speaker 00:
Well, it depends what the specialty is.

[00:40:14] Speaker 00:
If their specialty is in preparing motions and conducting client interviews, in doing things that are factual.

[00:40:23] Speaker 03:
Suppose it's a firm that specializes, all they do, nothing else, is just pure, certain kind of environmental case involving the Clean Water Act, okay?

[00:40:32] Speaker 03:
That's all they do.

[00:40:34] Speaker 03:
And as a part of that, they have to review lots of meteorological and other studies about weather and everything else having to do with pollution in the waterway.

[00:40:46] Speaker 03:
That's all they do.

[00:40:50] Speaker 03:
And they have assistants who are paralegals but who go off and get special training in this area in order to be better at their job.

[00:41:02] Speaker 03:
Then they become noncompensable.

[00:41:04] Speaker 00:
Well, I think it'd be a closer call if there was a mixed, you know, they do paralegal work, but they had some special training in order to also, you know, perform some of the work that you're describing.

[00:41:19] Speaker 00:
But I think if an individual is

[00:41:26] Speaker 00:
being hired and providing their subject matter expertise, I think, per Murphy, it's not compensable.

[00:41:36] Speaker 00:
And these arguments were, I believe, raised in that case and rejected.

[00:41:42] Speaker 00:
And particularly on both because the text of the statute didn't support compensation in those situations, but also because of the requirement under the spending clause for notice.

[00:41:57] Speaker 00:
So yes, it may have some harsh repercussions, and perhaps this will result in attorneys doing work that would have been done.

[00:42:05] Speaker 01:
The paradox in this is the paradox is the more skilled the individual is,

[00:42:09] Speaker 01:
the more like an attorney the individual is, the less likely he or she can qualify as a prior legal, who is after all seen as only an extension of the lawyer doing routine, rather routine work, and is allowed to be compensated along with the lawyer because of the lawyer's compensation.

[00:42:31] Speaker 01:
There are all sorts of areas in law, or all sorts of areas in society, where experts often provide

[00:42:43] Speaker 01:
say the right words.

[00:42:45] Speaker 01:
That's the paradox in this case, which is the more skilled the individual is, the less likely he or she is seen as a parent in a way.

[00:42:57] Speaker 01:
I understand the paradox and I understand the... That's the impression I get out of Murphy, actually.

[00:43:06] Speaker 01:
It may not

[00:43:14] Speaker 00:
At any rate, I think, as we indicated, I think that Ms.

[00:43:26] Speaker 00:
Millis is not a paralegal, is not clearly erroneous, and is dispositive of the question of whether her fears are compensable, and they're not.

[00:43:39] Speaker 00:
And therefore, we'd ask this court to affirm

[00:43:47] Speaker 00:
as well.

[00:43:49] Speaker 00:
Thank you.

[00:43:52] Speaker 03:
Mr. Turkey, you're out of time, but you can take a minute.

[00:43:54] Speaker 03:
And besides, I have a question for you.

[00:43:58] Speaker 04:
Thank you.

[00:43:58] Speaker 04:
Would you like me to get to the question?

[00:43:59] Speaker 03:
No, let me just ask you my question.

[00:44:03] Speaker 03:
I'm looking at my notes here to see about your brief, and they don't really answer the question.

[00:44:07] Speaker 03:
I had understood in your brief you were arguing that she was compensable because she was supervised by lawyers.

[00:44:13] Speaker 03:
Right?

[00:44:14] Speaker 04:
I think that is a key element, yes.

[00:44:16] Speaker 03:
Yeah.

[00:44:16] Speaker 03:
But I heard you here saying something different, which is that she's compensable because she's doing what you do.

[00:44:24] Speaker 04:
Actually, at every point, respectfully, at every point when that definition has been proposed, I have added on to it under my supervision.

[00:44:32] Speaker 03:
What?

[00:44:33] Speaker 04:
She was doing what I would do, doing what a lawyer would do.

[00:44:36] Speaker 03:
That's what your brief says?

[00:44:37] Speaker 04:
Doing it under a lawyer's supervision.

[00:44:38] Speaker 03:
Your brief says that?

[00:44:39] Speaker 03:
I'm just asking.

[00:44:40] Speaker 04:
The part of supervision?

[00:44:42] Speaker 04:
Absolutely.

[00:44:42] Speaker 03:
No, I know about the part of supervision, but does it also say... Oh yes, I will, yes.

[00:44:48] Speaker 03:
Regarding the paradox... So how come then, you say that in your brief, right?

[00:44:55] Speaker 03:
Does your affidavit say that also?

[00:44:58] Speaker 03:
Does your affidavit say that she's doing work you would otherwise do?

[00:45:03] Speaker 04:
No, I don't think it phrases it that way.

[00:45:05] Speaker 03:
Yeah, I didn't think so.

[00:45:06] Speaker 04:
That was an issue that the district, again, the reason the record is so thin on this particular matter is because the district never raised it.

[00:45:11] Speaker 04:
They focused only on labels.

[00:45:13] Speaker 04:
So the district now says it's not about labels, but in both their... But since the burden's on you, right, to justify the fee.

[00:45:20] Speaker 04:
Well, in the initial affidavit, so where the burden was on me, we present that all of the work is work that was done pursuant to these cases and in the furtherance of the case.

[00:45:30] Speaker 04:
I don't remember the exact language.

[00:45:31] Speaker 04:
Okay, right.

[00:45:32] Speaker 04:
In its opposition and cross-motion, the district did not identify any task that it said, this is no good, this is no good.

[00:45:37] Speaker 04:
Had that sort of question been raised by the district, absolutely.

[00:45:41] Speaker 04:
We could have had the whole fight then, which is why I say, I consider all those arguments to be reasonable, but what happened below was that they just said, stick a label on her, nothing she has done is compensated.

[00:45:53] Speaker 03:
Okay.

[00:45:53] Speaker 03:
Now you can use your minute.

[00:45:55] Speaker 03:
Thank you.

[00:45:55] Speaker 03:
Actually, I have a question.

[00:45:56] Speaker 02:
We're two minutes.

[00:45:57] Speaker 02:
I have a question.

[00:45:58] Speaker 02:
To me, your biggest obstacle is the KC case.

[00:46:02] Speaker 02:
Because as I read Casey, I think it causes real problems for sealed case.

[00:46:11] Speaker 02:
And when you're using, at least for the non-testimonial expert, it's hard for me to see how you get out from under that.

[00:46:20] Speaker 02:
So can you help me think through how you get around or out from under West Virginia University Hospital versus Casey?

[00:46:29] Speaker 04:
I understand the question about whether a sealed case survives.

[00:46:33] Speaker 04:
And we rely less on sealed case than we do on Jenkins.

[00:46:37] Speaker 04:
I think to put Jenkins together with Jenkins, again, which Murphy did not overrule, but to put it together with Murphy and with Casey, I think we can either take a path that says we have an absurd result in which the more qualified someone becomes, the less compensable they are.

[00:46:56] Speaker 04:
And Judge Silverman would call that a paradox.

[00:47:00] Speaker 04:
unsupportable.

[00:47:00] Speaker 04:
That ought to call it a poor interpretation of the case law.

[00:47:03] Speaker 04:
So either we can take that route or we can more narrowly go to is this work that the firm

[00:47:10] Speaker 04:
could be compensated for doing, that a lawyer could be compensated for doing.

[00:47:14] Speaker 04:
And I believe Judge Tittle has suggested some hypotheticals about that.

[00:47:18] Speaker 03:
But Casey, is that where Casey's finished at?

[00:47:20] Speaker 03:
What did I suggest?

[00:47:21] Speaker 04:
If I may, my understanding was suggested some hypotheticals for situations in which that could exist.

[00:47:29] Speaker 04:
I would suggest one close to sealed case would say, well, if you had a firm that was doing all tax law, and that firm employed accountants,

[00:47:36] Speaker 04:
To help them, it's probably the case.

[00:47:39] Speaker 04:
If you have a large tax law firm, they probably have at least one CPA on staff.

[00:47:44] Speaker 04:
I propose that if there was a fee-shifting situation, that the time of that CPA would be compensable if that CPA were doing the work that the law firm had to do to make its case.

[00:47:54] Speaker 04:
And that goes back to that Jenkins language.

[00:47:55] Speaker 02:
But to make its case, did you say?

[00:47:58] Speaker 04:
It's work product, yes.

[00:47:59] Speaker 04:
As opposed to understand the case?

[00:48:01] Speaker 04:
Well, understanding and saying evaluation is, of course, part of making the case.

[00:48:05] Speaker 04:
Understanding.

[00:48:06] Speaker 04:
If we imagine the county.

[00:48:08] Speaker 02:
So if I'm an attorney and I've got a case, I've had no experience in this subject matter area before.

[00:48:13] Speaker 02:
I go out and hire an expert to come talk to me and teach me about it.

[00:48:18] Speaker 02:
And over a course of a week, she gets me up to speed, and now I'm ready for it.

[00:48:23] Speaker 02:
That's compensable?

[00:48:24] Speaker 04:
I don't think so, but for a different reason.

[00:48:25] Speaker 04:
I would say that's not compensable because the attorney took it on a case the attorney was not qualified to take, and then

[00:48:31] Speaker 04:
is actually asking for compensation for the attorney's education.

[00:48:35] Speaker 01:
That's not what we're talking about here.

[00:48:36] Speaker 01:
How about another hypothetical?

[00:48:37] Speaker 01:
Suppose a organization sets itself up as advocacy.

[00:48:43] Speaker 01:
They're advocates, they're not lawyers.

[00:48:46] Speaker 01:
They do everything lawyers do in this disability area and they're experts.

[00:48:51] Speaker 01:
Are they trying to get attorney's fees?

[00:48:54] Speaker 04:
Absolutely not.

[00:48:55] Speaker 04:
And that's well settled.

[00:48:56] Speaker 04:
I mean, that was what the circuit court had already done.

[00:48:59] Speaker 01:
Right.

[00:48:59] Speaker 01:
They can't get attorney's fees.

[00:49:01] Speaker 01:
And yet they do exactly what you do.

[00:49:03] Speaker 01:
It's because they're not working under the supervision of attorneys, which is... No, but they can do exactly what you do.

[00:49:10] Speaker 04:
But you're asking me why they're not compensable.

[00:49:12] Speaker 04:
My answer is because they're not working under the supervision of attorneys.

[00:49:14] Speaker 04:
Because the statute talks about attorneys.

[00:49:16] Speaker 04:
Because the statute talks about attorneys fees.

[00:49:17] Speaker 01:
And that was that section that was cut out by the time of... So if they're nominally working in the law firm doing exactly that work, their tax gets compensated.

[00:49:28] Speaker 04:
Well, I guess if there was an examination that determined that, in fact, it was a pre-tax, then it wouldn't be.

[00:49:33] Speaker 01:
No, no, it's not a pre-tax.

[00:49:34] Speaker 01:
I mean, you just look at her every couple of months because she is, after all, an expert.

[00:49:39] Speaker 04:
Well, I think supervision actually requires more than that.

[00:49:40] Speaker 04:
And if the record is to be developed regarding Ms.

[00:49:42] Speaker 04:
Mellis, certainly her supervision by me and by other attorneys was far, far closer.

[00:49:46] Speaker 04:
I mean, daily contact, communications before the meeting occurred, communications immediately after the meeting, sometimes during the meeting, before and after evaluations are reviewed.

[00:49:54] Speaker 04:
So we're talking constant supervision, full-time employee, very close contact.

[00:49:58] Speaker 03:
Okay, but let me go back to where you were before with the hypothetical.

[00:50:06] Speaker 03:
So suppose a law firm is engaged, I think the hypothetical that Judge Silverman started on, suppose you're engaged in a type of litigation that's highly complex, or maybe you did, the accountant question, really complicated financial stuff.

[00:50:24] Speaker 03:
And the lawyers say, look, we just don't have the financial skills to understand the flow of the money inside these corporations.

[00:50:34] Speaker 03:
So you hire an inside expert to help you with that.

[00:50:38] Speaker 03:
And this inside expert is reviewing these materials you get through discovery, explaining to you, the lawyers, where the money's coming from, how it's flowing, all this.

[00:50:49] Speaker 03:
Now, compensable?

[00:50:52] Speaker 04:
And this is someone who is a long-term full-time employee?

[00:50:55] Speaker 04:
This is not a one-shot?

[00:50:56] Speaker 03:
Yeah, yeah, it's a permit.

[00:50:57] Speaker 03:
You hire the person permanently because this is the field you're in now.

[00:51:00] Speaker 03:
And you just, the lawyer, you're lawyers.

[00:51:02] Speaker 03:
And I mean, you know, you can't, you need some, the other side has financial experts and CPAs and you just, you need it to understand these materials so that you can prepare your case.

[00:51:18] Speaker 04:
I would say it's not compensable because in those early stages, because again, those early stages, you have attorneys who are not actually working, they're just learning.

[00:51:26] Speaker 04:
So their whole role in the case is cut out, they're not even doing, they're not doing attorney work.

[00:51:33] Speaker 04:
If later on the attorneys, I would hope, would naturally acquire much of that same expertise, at that point you have a situation which is more like this one, where the CPAs, what they are doing is just a more efficient distribution of resources, doing the work that the attorneys could do, but they're billing at half the rate.

[00:51:50] Speaker 03:
So then, if we were to agree with that, your request for attorney sees you need an affidavit where you would review the work that Millis did and say, this is exactly the kind of work I do, right?

[00:52:05] Speaker 03:
I do it all the time.

[00:52:06] Speaker 03:
She just makes it more efficient.

[00:52:09] Speaker 03:
That's what you would say.

[00:52:10] Speaker 04:
I think that would be unfair of Burton to put on me retrospectively.

[00:52:13] Speaker 03:
No, I didn't say that.

[00:52:14] Speaker 03:
I said, if we were to agree with you in this case, in the future, that's what you would do, right?

[00:52:19] Speaker 04:
Yes, and I think that would have been a legitimate dispute below.

[00:52:22] Speaker 04:
I think certainly if the district had come back and it had said, again, even in the brief before this court, the district had not pointed out a single task that it said should not be compensable to the firm.

[00:52:30] Speaker 03:
And maybe more pertinently, they haven't pointed out a single task that had... But did you say in the district court that the work she does is the work lawyers otherwise would do?

[00:52:42] Speaker 04:
I put the argument to the ADA definition and did that.

[00:52:47] Speaker 04:
I did not submit an affidavit that explicitly went into that.

[00:52:51] Speaker 04:
In my reply affidavit, I addressed her long experience working directly for law firms for just 15 years.

[00:52:59] Speaker 03:
Do you want your one minute now?

[00:53:01] Speaker 03:
I'll try to keep it to less than that, if possible.

[00:53:03] Speaker 03:
You have one minute for your own time.

[00:53:05] Speaker 04:
Thank you, Your Honor.

[00:53:07] Speaker 04:
Not that it hasn't been a pleasure.

[00:53:09] Speaker 04:
To Judge Griffith's statement about the question is, when does it become compensable that the district was asked?

[00:53:16] Speaker 04:
I do think that is the key question.

[00:53:18] Speaker 04:
And I know, Judge Silverman, there was a concern about

[00:53:20] Speaker 04:
how this gets applied in the future.

[00:53:24] Speaker 04:
And I think either way the court and then the district courts will have to answer that question of when does the work of this person subordinate to an attorney, what is that window where it is compensable?

[00:53:36] Speaker 04:
We're proposing a very clear answer and I think one that fits with what the Supreme Court has said and that answer is if the law firm could have billed either a paralegal or a lawyer for doing it,

[00:53:46] Speaker 04:
than it is compensable.

[00:53:48] Speaker 04:
The line that the district is proposing, frankly, I still to this point do not understand it.

[00:53:54] Speaker 04:
So I don't know how the district would go about it in the future.

[00:53:57] Speaker 04:
It seems to me that the proposal is that in the future, a district court will say, once a person gets educated enough, they're no longer compensable.

[00:54:05] Speaker 04:
And as I said, that leads to absurd results of firing people when they become too expert or, for example, a paralegal getting a master's and then being fired.

[00:54:14] Speaker 02:
Or coming up with a different affidavit.

[00:54:16] Speaker 02:
coming up with a different affidavit.

[00:54:18] Speaker 04:
A different business model too.

[00:54:20] Speaker 04:
Okay, thank you.

[00:54:21] Speaker 04:
Thank you.

[00:54:21] Speaker 04:
This is submitted.