Full opinion text
ORDER RE: OBJECTIONS TO MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: ATTORNEYS’ FEES CONTI, District Judge. I. INTRODUCTION Both Plaintiff Julius L. Finkelstein (“plaintiff”) and Defendants Louis P. Berg-na and the County of Santa Clara (“defendants”) object to the findings and recommendations of Magistrate Judge Wayne D. Brazil filed on July 31, 1992 (the “Recommendations”). As Chief Judge Henderson has recused himself from consideration of these motions, the matter has been referred to this court. II. FACTS This fee dispute is (apparently) the final episode in a lengthy litigation that began in 1983. The underlying suit alleged causes of action against both the defendants and three others who were subsequently dismissed. The original suit alleged a number of causes of action, many of which were subsequently dismissed in a lengthy series of motions and appeals. A jury in August of 1991 awarded plaintiffs $1,175,000, finding against the County on the due process property rights claim, and against Bergna on the two due process claims and the punitive damage claim. A post-judgment settlement reduced that award to $1,050,000, and on September 23, 1991, the court ordered that plaintiff was to recover reasonable attorneys’ fees and costs. The determination of those fees and costs was referred to Magistrate Judge Brazil, who on July 30, 1992 issued extensive findings of fact and recommendations that the court award plaintiff $578,011.35 in attorneys’ fees and $22,665.46 in costs, for a total of $600,676.81. Both parties object to portions of that recommendation. III. DISCUSSION The plaintiff objects to Magistrate Brazil’s recommendations in several regards. First, he objects to the recommended hourly rates for both Mr. Exelrod, who performed the vast majority of the work on plaintiff’s behalf, and Ms. Dutton, who was an associate of Mr. Exelrod’s early in the litigation. Second, he objects to the magistrate’s recommendation that both costs and fees associated with one of two mock trials conducted by plaintiff’s counsel be disallowed. Third, he objects to the recommended disallowal of certain miscellaneous costs. The defendants, on the other hand, object to the magistrate’s recommendation that fees be allowed for work done on theories of liability upon which the plaintiff did not ultimately prevail, arguing that the award should be reduced to reflect time spent on those theories. Additionally, both sides address the question, not considered by the magistrate, of whether interest on the fees and costs should accrue as of the merits judgment date of September 23, 1991, or only as of the quantification of the amount of fees and costs awardable. We address each issue in turn. A. Applicable Hourly Rates In his recommendations, Magistrate Brazil has set the hourly rate for Mr. Exelrod at $250. Mr. Exelrod had requested an hourly rate of $300, which he claimed to be a reasonable 1991 rate for the work he performed. In arriving at the $250 figure, the magistrate found Mr. Exelrod’s work to have been of the highest caliber, and thus that he was entitled to compensation at the prevailing rate for similar services rendered by the top members of the field. The difficulty, as the magistrate recognized, lies in determining what the relevant “field” is for purposes of assessing the prevailing rate. This determination is not as straightforward as it may seem. Where, as here, the relevant specialty (in this case, civil rights actions) consists entirely of cases governed by fee-shifting statutes, there is no “control group” market for non-contingent services. Thus the court, by necessity, must select an analogous field from which to draw comparable rates. The magistrate in this case, after exhaustive analysis, found that Exelrod’s work should be compensated at “hourly rates that the best civil litigators can attract in our community when they are involved in truly complex cases.” Recommendations at 12. We find this reasoning persuasive, and concur in the finding that a rate of $300 per hour (or even $330) is reasonable in the San Francisco market for senior partners of Mr. Exelrod’s experience in complex litigation. The analysis does not stop there, however. As the magistrate emphasized, Mr. Exelrod is (for the most part) a solo practitioner, and as such performed not only work that, in’ a large-firm environment, would be billed at premium rates, but also work that, in such a firm, would be handled by junior associates or non-lawyers at considerably lower rates. While a rate of $300 for a senior partner . is reasonable, it is reasonable only in an environment where that senior partner participates only in higher-level tasks, and delegates more mundane tasks to lower-paid employees. In other words, the relevant inquiry is not “what would the senior partner bill if this case had been handled by a large firm?” but rather “what would a large firm with a $800 top rate bill, in the aggregate, for the work performed?” The answer to that question is properly found, as the magistrate held, by reference to the “blended” rate for all tasks charged by such firms. Plaintiffs own exhibits, as summarized at page 15 of the Recommendations, reveal that firms with a top rate of $300 per hour bill, in the aggregate, closer to $200 per hour on complex litigation. As such, even the alleged gains in efficiency by having one attorney do all the work, coupled with the unbilled work allegedly done by the plaintiff himself, do not justify a rate in excess of $250 per hour for Mr. Exelrod’s time. Plaintiffs claim that no large firm in fact was willing to take this particular case does not alter the calculus; the court must nonetheless approximate the market rate for the services. Nor does United States v. City and County of San Francisco, 748 F.Supp. 1416 (N.D.Cal.1990) compel a different result. While in that case the court questioned the efficiency of the “pyramidal staffing pattern” of larger firms, the issue in that case was whether individual attorneys should be compensated at varying rates for differing work appropriate to their own abilities. Much of the “legwork” in that case was in fact done by uncompensated or significantly less compensated law students. By analogy, the question there was whether the senior partner should bill different rates for depositions, research, and trials (all properly done by that senior partner in the first place), not whether the associates (law students) should be paid at senior partner rates. Accordingly, this court adopts the magistrate’s recommendation that Mr. Exelrod be compensated at an hourly rate of $250. Similarly, the court adopts the recommendation that Ms. Dutton’s work be compensated at the rate of $110 per hour. Her work was performed during her first year of practice, and plaintiff does not dispute that the figure of $110 per hour is in line with current rates for such associates. The court concurs with the magistrate’s opinion that this rate adequately compensates Ms. Dutton for any delay in payment. B. Hours for Claims on which Plaintiff Did Not Prevail Defendants challenge the magistrate’s recommendation that Mr. Exelrod be compensated for work done on theories of liability upon which the plaintiff did not ultimately prevail. In this case, however, all of the legal theories put forward arose from the same nucleus of operative facts, and the result obtained cannot possibly be described as a partial or limited victory. Indeed, the judgment obtained exceeded by a factor of more than three the defendants’ final settlement offer, made after determination of liability. The instant case, which “involvefs] a common core of facts or [is] based on related legal theories ... cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). The magistrate correctly found, in an extensive and well reasoned discussion (Recommendations at 21-39), that virtually all of the effort expended by Mr. Exelrod was part of a “seamless web” of interrelated claims, and that to disallow some portion as unrelated to the claim upon which he prevailed would impermissibly force plaintiffs to choose between abandoning all but their most promising claim (a choice nearly impossible except in hindsight) on the one hand, and undertaking representation for which they would likely be only partially compensated on the other. Rather than revisit that analysis here, the court adopts the magistrates reasoning and recommendation as its own. No reduction shall be made in fees based upon alternate theories of liability. C. Fees and Costs Associated with Mock Trials Plaintiff, in preparation for trial, conducted two sets of mock trials and focus groups. The magistrate has recommended that the fees and costs associated with the first of those mock trials be disallowed as not reasonably incurred. Plaintiff challenges this finding. Mr. Exelrod has stated that the first of these mock trials addressed liability questions, while the second was for assessment of damages issues. However, as the magistrate notes, at the time of the first mock trial the liability issue was all but decided, pending only a motion for reconsideration at the Ninth Circuit. As such, the prudent course would have been to forego, or at least postpone, any mock trial on liability questions. Accordingly, we concur with the magistrates reduction of fees and costs on this basis. D. Other Costs Disallowed by Magistrate Plaintiffs also challenge the magistrate’s disallowal of other costs claimed, specifically $10,417.21 in mock jury costs, $255.24 in hearing transcript costs paid to the court reporter, $1,074.54 paid for service and copying of subpoenas, and an additional $584 for service of subpoenas. Plaintiff claims that the magistrate incorrectly interpreted Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240 (9th Cir.1982). Under Thornberry, plaintiff maintains, he should be compensated for all costs that would normally be paid by the client, unless specifically prohibited by statute. This contention, however, overstates the holding in Thornberry; such costs are recoverable only if they would be paid by the client to the attorney as part of the “overhead implicit in the attorney’s hourly fee.” Burt v. Hennessey, 929 F.2d 457, 459 (9th Cir.1991) (holding, inter alia, costs of filing and service not recoverable). Thus, rather than “failing to articulate a coherent distinction between those costs it allows and those costs it rejects,” the magistrate’s recommendation correctly distinguishes between those costs which are part of the overhead implicit in an attorney’s fees, and those that are merely a “pass-through” of payment for third-party services. The magistrate correctly disallowed the amounts in question. E.Interest on Fees The magistrate’s recommendations do not include any determination of the date from which interest on the fees and costs is to run. Plaintiff maintains that interest should run from September 23, 1991, the date of the initial judgment finding plaintiff entitled to an unspecified amount of fees. At that time, the question of the appropriate amount was referred to Magistrate Brazil. Defendants maintain that interest should not run until the exact amount of fees is set, and thus that no interest should accrue until the entry of this order (or perhaps until resolution of any appeal of this order). While no case in this circuit has squarely addressed this question, the weight of authority from other circuits is clearly on plaintiff’s side. The case most on point is Jenkins by Agyei v. Missouri, 931 F.2d 1273 (8th Cir.1991). In a case squarely bn fours with this one, that court held that “[ijnterest on an attorney fee award ... runs from the date of the judgment establishing the right to the award, not the date of the judgment establishing its quantum.” Id. at 1276 (quoting Mathis v. Spears, 857 F.2d 749, 760 (Fed.Cir.1988)). Similarly, the court in Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.1983) stated (quoting earlier fifth circuit opinions), “[t]he awarding of interest is in no sense a windfall. Because a dollar today is worth more than a dollar in the future, ‘the only way [a party] can be made whole is to award him the interest from the time he should have received the money.’ ” (citations omitted). That case involved an award of fees that had been denied initially; only upon appeal were fees awarded, and yet the court applied interest from the date of the original judgment. While these opinions are not controlling, the court finds their reasoning persuasive. More to the point, a finding that no interest is available between the judgment on the merits and the determination of the amoünt of fees would be both incongruous and contrary to the policies governing rate-setting, As noted above and in the magistrate’s recommendations, fees are customarily awarded based upon current billing rates, in order to compensate the prevailing attorney for the delay in obtaining payment. Similarly, interest on fees is available after the determination of the amount for precisely- the same reason; to compensate for any delay in payment. Were we to accept defendants’ contentions here, it would create a bizarre situation in which compensation for delay in payment was available both before and after, but not during, the time period between judgment and Setting of fees. The same policy considerations must apply in that intervening period; the prevailing attorney, having not been compensated for work that another attorney would have long since billed and collected upon, must be compensated for that delay, in order to put civil rights plaintiffs on an equal footing with other potential clients in seeking representation. The authorities cited by defendants do not hold differently. Defendants overstate the holding in Fleming v. County of Kane, 898 F.2d 553 (7th Cir.1990) citing it for the proposition that, subsequent to a determination of eligibility but prior to quantification, a “claim for unpaid attorney’s fees [is] unliquidated, and as such, not entitled to interest.” Id. at 565. In fact, the court in that case was reviewing an award that allowed interest on fees from the date the services were rendered, not from the merits judgment date. While that court held interest to be payable from the date of quantification, it did so without any discussion or consideration of the third alternative — interest from the date of entitlement. Nor does Bernardi v. Yeutter, 754 F.Supp. 743, 749 (N.D.Cal.1990) (Conti, J.) support defendants’ position. In that case, the decision as to entitlement to fees and the determination of the amount of fees were on the same day; the court held that interest was to run from that date rather than the date of the earlier recommendation (on both issues) by a magistrate. Accordingly, the court finds that interest on the attorney’s fees awarded in this case is to run from September 23,1991, the date on which Chief Judge Henderson found plaintiff to be entitled to attorneys’ fees in this matter. IV. CONCLUSION In accordance with the foregoing, it is hereby ORDERED that: (1) The recommendations of Magistrate Wayne D. Brazil are adopted in their entirety, and plaintiff is hereby awarded $578,011.35 in attorneys’ fees and $22,-665.46 in costs for work performed up to and including November 4, 1991, for a total of $600,676.81; (2) Interest on the above fees and costs shall be calculated from September 23, 1991; and (3) The issue of fees and costs for work on the merits performed after November 4, 1991, and for “fees for fees” work, is reserved for future negotiations and/or proceedings as may be necessary. IT IS SO ORDERED. FINDINGS AND RECOMMENDATIONS RE ATTORNEYS’ FEES BRAZIL, United States Magistrate Judge. Chief Judge Henderson referred this matter to the undersigned to make findings and develop recommendations about the amount of attorneys’ fees and costs to which plaintiff is entitled as a prevailing party under 42 U.S.C. section 1988. Plaintiff seeks attorneys’ fees totalling $733,074.29 plus a 1.9 enhancer on the portion of these fees that were contingent. Plaintiff also seeks $40,120.22 in costs (exclusive of expert witness fees, to which plaintiff concedes he is not entitled under current law). Having considered the parties’ oral and written submissions, the undersigned submits the RECOMMENDATIONS that follow. I. ATTORNEYS’ FEES Title 42 U.S.C. section 1988 provides that, in federal civil rights actions, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” Hensley v. Eckerhart, 461 U.S. 424, 426, 103 S.Ct. 1933, 1935, 76 L.Ed.2d 40 (1983). Pursuant to section 1988, a court should award a prevailing plaintiff attorneys’ fees “unless special circumstances would render such an award unjust.” Id. at 429, 103 S.Ct. at 1937. It is not and cannot be disputed that plaintiff in this action is a “prevailing party” under section 1988. Moreover, defendants have not argued that an award of attorneys’ fees to plaintiff would be unjust. Instead, defendants vigorously dispute the reasonableness of the amount of fees sought by plaintiff. A reasonable attorneys’ fee is determined by calculating the “lodestar,” which is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433, 103 S.Ct. at 1939; United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403, 406 (9th Cir.1990). Although, in exceptional circumstances, the lodestar may be adjusted by reference to factors outlined in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), the generally accepted wisdom now is that most (if not all) of the Kerr factors are taken into account (either explicitly or implicitly) during the initial calculation of the lodestar. See Burlington v. Dague, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-49, 79 L.Ed.2d 891 (1984); Cunningham v. Los Angeles, 879 F.2d 481, 487-88 (9th Cir.1988). Thus, in the sections that follow we will focus separately on each of the two components of the lodestar calculation: (1) what hourly rates are reasonable in this case and (2) what hours were reasonably expended on the litigation. A. Reasonable Hourly Rates. 1. Alan Exelrod. We focus first upon the reasonableness of the hourly rate sought by attorney Alan Exelrod, who performed the lion’s share of the work in this case. Mr. Exelrod requests fees at a rate of $300 per hour, which he claims to be a reasonable 1991 rate for the work he has performed. At the outset, we note our agreement with applying a 1991 rate. It is true that plaintiff originally engaged Mr. Exelrod in 1984. (Exelrod decl. para. 14 (11/22/91).) Thus, much of the work performed by Mr. Exelrod was performed at a time when his rate would have been somewhat lower than his 1991 rate. However, we apply the current rate to roughly adjust for inflation so that Mr, Exelrod is compensated for , the delay in receiving his payment. See Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711, 716, 107 S.Ct. 3078, 3081, 97 L.Ed.2d 585 (1987); D’Emanuele v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1384 (9th Cir.1990). “ ‘[Reasonable fees’ under section 1988 are to be calculated according to the prevailing market rates in the relevant community.” Blum, supra, 465 U.S. at 895, 104 S.Ct. at 1547. In demonstrating the reasonableness of a requested rate, “the burden is on the fee applicant to produce satisfactory evidence ... that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Id., at 896, n. 11, 104 S.Ct. at 1547. We thus identify three interlocking elements we must consider in determining the reasonableness of the requested rate: (1) the prevailing rate (2) for similar services (3) by lawyers of reasonably comparable skill, experience, and reputation. We consider the final element listed above first. The fact that we are required to assess the reasonableness of a requested rate by reference to rates charged by lawyers of comparable skill, experience, and reputation undercuts defendants’ argument that the rate should be set at the level simply of attorneys of average competence. See pp. 4-5 of defendants’ letter brief filed February 11, 1992. In fixing rates courts are to focus on the skill, experience and reputation of the attorneys who actually litigated the matter, not on some (probably unknowable) hypothetical “average” attorney. If an attorney representing a civil rights client is among the most skilled and experienced in his profession, then he or she is to be compensated at a rate that prevails for top-notch attorneys of comparable skill and experience rather than attorneys of average competence. To hold otherwise would discourage the better lawyers from representing plaintiffs in civil rights cases, thus jeopardizing the enforcement objectives of § 1988. Plaintiff has submitted substantial credible evidence that Mr. Exelrod’s skills and reputation are of the highest order and are comparable to those of the best civil litigators in the Bay Area. See declarations of Paul A. Renne (filed 2/11/92 — para. 5); James C. Sturdevant (filed 1/16/92 — para. 11); Alan Carlson (filed 2/11/92 — paras. 3-4) (“[I]f I were in need of a plaintiff’s attorney myself, Mr. Exelrod would be the first attorney I would call to take my case.”); Jonathan H. Sakol (filed 2/11/92— paras. 4-5); Sanford J. Rosen (filed 11/22/91 — para. 18); Mark S. Rudy (filed 11/22/91 — para. 7); Laura Stevens (filed 11/22/91 — para. 11); and Alan B. Exelrod (filed 11/22/91 — paras. 2-13). Defendants do not challenge the inferences supported by these declarations; defendants do not argue that Mr. Exelrod is less skillful than the senior civil litigators in this geographic area. Nor do defendants challenge the claim that Mr. Exelrod is very experienced, having been in practice in a range of settings on a full time basis since 1968. Thus, we find that the reasonableness of Mr. Exelrod’s requested rate must be measured by reference to the rate prevailing among the most skilled and highly regarded Bay Area attorneys having an experience level comparable to Mr. Exelrod’s. We turn next to the “prevailing rate” and “similar services” factors. Because of the arguable (at least partial) interdependence of these factors, it is important to set forth clearly how we are proceeding analytically with respect to these matters. We begin by exploring the meaning of the concept of “similar services.” As we make clear in subsequent sections, the concept of “similar services” has more than one dimension, but one of those dimensions is exposed by the observation that, before we can think reliably about what rates are “prevailing,” we must ask: prevailing where? And the “where” (within a given geographic area) could be defined variously by subject matter of litigation and/or by the level of complexity and/or magnitude/value of the interests at stake. In other words, by what criteria should we identify the relevant market? What should the ‘sphere of reference’ be for assessing the reasonableness of Mr. Exelrod’s hourly rates? Should it be complex civil litigation generally (in the Bay Area), as plaintiff contends, or, as defendants urge, should it be the sub-world of employment litigation (again, in the Bay area); or should it be civil rights litigation in the Bay area, regardless of the level of complexity involved or the magnitude of the stakes? We have found no opinion from either the Supreme Court or the Court of Appeals for the Ninth Circuit that squarely addresses this issue or that offers us meaningful guidance about how to approach it. There is an opinion on point from a panel in the Eleventh Circuit: Perkins v. Mobile Housing Board, 847 F.2d 735, 737-38 (11th Cir.1988). That opinion clearly indicates that the two appellate and one district judge who heard the matter believe that the relevant market should consist of representations of “similar clients in similar cases” within the specific geographic area. Expressly rejecting the suggestion that the relevant market consisted of “the total range of fees for all federal civil litigation” within a given geographic area (in that case Mobile, Alabama), the Perkins court insisted that the “proper focus” would include “the type of case” or “the type of litigation at bar.” Id., at 738. Unfortunately, the Perkins opinion offers no reasoning to support or explicate its vigorous pronouncements. It adverts to no legislative history, no social policy, no other cases. Similar limitations accompany the only other opinion from a court of appeals that cuts in the same direction, Buffington v. Baltimore County, 913 F.2d 113 (4th Cir.1990) (indicating, at page 130, that the relevant market should be defined by “comparable cases,” in that setting “civil rights litigation in the Baltimore community.”). Given these limitations, and the fact that we are not bound by cases decided by courts of appeal outside the Ninth Circuit, we elect to approach the matter afresh. Because the policy implications of how this matter is resolved are substantial, we resort to policy to find our answer. Our thinking starts with our understanding of how the lawmakers have valued civil rights. It is our judgment that the framers of the Constitution and the national legislators who have enacted civil rights statutes have chosen to place civil rights at the very top of our society’s value hierarchy. Moreover, our lawmakers have understood that civil rights are peculiarly fragile, that to protect them and give them reality we must institutionalize a constancy of vigilance by making truly useable means of enforcement readily available to many millions of people. Given the great importance of civil rights, and their known fragility, we believe it highly unlikely that Congress, in enacting § 1988, would have intended courts to define the relevant market for determining “similar services” in a way that would reduce the quality or availability of lawyers willing to serve as counsel for persons harmed by offenses to the nation’s civil rights norms. Stated differently, we believe that Congress intended the courts to define the relevant market in the way that is likely to contribute the most, within sensible bounds, to advancing the goals of the civil rights laws. We also believe, however, that Congress did not expect courts to approach the task of market definition in ways that would unjustly enrich (create windfalls for) lawyers who represent plaintiffs in civil rights actions. Congress presumably wanted courts to be sensitive to market realities, and to fashion market definitions that would provide reasonable assurance that each potentially meritorious civil rights claim would receive a level/quality of legal service commensurate with (and not appreciably more sophisticated or elaborate than) the needs of that claim. This consideration supports the view that in defining the relevant market courts should pay considerable attention to the level of complexity of the case and to the magnitude of the interests implicated in it. We find unrealistic the implicit suggestion (or assumption) in Buff-ington, supra, that the universe of civil rights cases is monolithic, that all civil rights cases reflect the same level of complexity and implicate interests of the same importance. Rather, from first hand experience on the bench we know that civil rights cases cover a wide range of complexity, some are quite simple, some as dense (conceptually and factually) as virtually any kind of litigation that surfaces in federal court. To ignore that reality would risk either underpaying lawyers who take on complex civil rights actions (thus partially defeating the purpose of § 1988 by reducing the likelihood that plaintiffs in such cases will be able to find lawyers to represent them) or overpaying lawyers who take on simple civil rights cases, creating an unjustifiable windfall. We believe that the approach to market definition that simultaneously is responsive to this consideration and to Congress’ valuation of civil rights generally (as discussed above) focuses primarily on the relative complexity of the case in which fees are sought and looks to hourly rates for cases of roughly comparable complexity across the full spectrum of case types in federal court litigation, not just to the rates associated with civil rights cases or some other sub-world of case type, e.g., employment cases. This approach is superior to a simpler case-type approach based on “civil rights litigation” within the relevant geographic area in at least two respects. First, it contributes more toward advancing the goals of civil rights legislation generally by increasing the likelihood that lawyers will be found to service the truly complex and demanding civil rights cases, the kinds of cases which deliver civil rights benefits to the greatest numbers of people and contribute most to development of the law in this subject area. Second, it reduces the conceptual and evidentiary difficulties created by the fact that for at least some kinds of civil rights cases there is no real “market”, meaning that the plaintiffs don’t really pay the attorneys, and the attorneys don’t really “compete” (at least as that term would be used in a capitalist economic model) to be hired by the plaintiffs. Much of the funding for much of the civil rights litigation comes from public institutions or from defendants against whom judgments are entered. These facts so distort the “economics” of civil rights litigation that it is quite misleading to suggest that there are meaningful market “rates charged for civil rights litigation”, as suggested in the Buffington opinion. Id., at 130. See, e.g., Burlington, supra, — U.S. at -, 112 S.Ct. at 2642 (there is no “market treatment” for contingency fee eases). For all these reasons, we conclude that the appropriate way to identify the relevant market, or sphere of reference, is to begin by assessing the relative complexity of the case at bar, to consider the magnitude of the interests' implicated in it, and then to determine what rates generally are paid to civil litigators in federal court in cases of roughly comparable complexity and significance, regardless of case type (meaning that we should look not only to complex civil rights cases, but also to complex cases in other subject areas as well, e.g., securities, intellectual property, commercial contract, antitrust, etc.) Despite defendants’ protestations to the contrary, the case at bar was indisputably complex. It was not fungible with run of the mill employment litigation. While the event sequences were not as dense as in some settings, their details were far from clear (and those details were important). Moreover, probing for evidence of motive or for explanations of the conduct that occurred was quite a subtle undertaking, given the unusual circumstances, the environment of administrative rules and professional relationships, and political barriers. Nor were the damages issues straightforward, as evidenced by the dense motion work in this area and the unorthodox strategies devised by counsel. See, e.g., infra, at ---. But the arena where the complexity was arguably the most challenging and important was in the law, especially the law related to the first amendment claims and the immunity defenses. That complexity is clearly evident in the parties’ trips to the court of appeals. Given the complexity of the underlying action, and the level of skill and experience we have found that Mr. Exelrod brought to this matter, the appropriate ‘sphere of reference’ for conducting the first and most important dimension of our analysis of the “similar services” factor is the hourly rates that the best civil litigators can attract in our community when they are involved in truly complex cases. Plaintiff has submitted substantial evidence that numerous senior Bay Area attorneys charged rates in 1991 for their services comparable to those sought by Mr. Exelrod here. Arguably most compelling (in part because most obviously disinterested) is the articles from the “California Law Business” section of The Recorder, dated January 27, 1992,.. pp. 15-22, which report that numerous San Francisco firms billed 1991 rates of $300 or more for the work of senior level partners. See Exhibit 1 to the decl. of Samuel Miller filed Feb. 11, 1992. Plaintiff has also submitted orders entered in other cases by both state and federal judges granting senior attorneys 1991 rates comparable to those sought here by Mr. Exelrod. See Plaintiffs’ Separate Appendix of Evidence filed 11/22/91, exhibits 1, 2 (using 1990 rates), 5. Finally, plaintiff has submitted numerous declarations supporting his claim that many senior Bay Area attorneys charged 1991 rates comparable to the $300 per hour sought herd by Mr. Exelrod. See declarations of Stephen Bomse (filed 2/11/92 — para.. 6); James C. Sturdevant (filed 1/16/92 — para. 7-9); Fred Altshuler (filed 1/16/92 — paras. 5-7); Jack Knebel (filed 1/16/92 — para. 5); Sanford J. Rosen (filed 11/22/91 — paras. 33-34); Guy Saperstein (filed 11/22/91 — paras. 6-8); Warren E. George (filed 11/22/91— paras. 4-6); Mark S. Rudy (filed 11/22/91 — paras. 15-16); Laura Stevens (filed 11/22/91 — paras. 21-23). Defendants’ counter-submissions focus for the most part (but not exclusively) on rates charged within the employment litigation sub-world. While not wholly irrelevant, evidence that is confined to that sub-world is of limited value and fails to controvert the evidence adduced by plaintiffs about rates charged in other parts of the complex civil litigation market. Having considered all of the evidence presented by both sides, we find that plaintiffs have proven, by at least a preponderance of the evidence, that a rate of $300 (and even $330) is indeed prevailing for high-level, senior partners in Bay Area firms who have been in practice 20 years or more. At this juncture we turn to another dimension of the concept of “similar services” as that phrase is used in fee litigation under § 1988. The kind of comparison suggested by this phrase requires, as a necessary first step, a careful examination of the specific character of the services for which compensation is being sought. Courts must be sure that there is nothing unusual, i.e., out of sync with the norm in the market to which comparison is invited, before concluding that “similar services” have in fact been rendered. We must be sure, in short, that we compare apples to apples. It is in this respect that Mr. Exel-rod's submissions fall short. Plaintiff has provided no direct evidence that a solo practitioner performing the bulk of the work on a complex case himself could survive in the Bay Area market charging an hourly rate of $300. Plaintiff has provided no declaration from a solo practitioner stating that he or she charges that much for all work performed on a case. Those attorneys who have submitted declarations stating that they charge rates comparable to $300 per hour (i.e. Mr. Stur-devant, Mr. Altshuler, Mr. Knebel, Mr. Sa-perstein, Mr. George, Mr. Rudy, and, of course, Mr. Rosen) all are partners in firms and, presumably, do not regularly perform basic, detail level legal work. It is one thing for a partner in a firm to charge a premium rate for putting in a relatively limited number of well focused hours, serving largely as a director for and supervisor of junior partners or associates who do most of the work and whose time is billed at appreciably lower hourly rates. It is quite another thing for a solo practitioner to charge a premium rate for doing by himself much of the “legwork,” e.g., reviewing documents and transcripts, taking routine depositions, doing factual or legal research, drafting written discovery and responses to discovery requests from opponents, etc. A partner in a firm can survive in the marketplace charging a premium because the client is paying the premium rate for only a relatively small percentage of the total hours for which he is being charged. For example, in the order filed October 2, 1991 in the case Toussaint v. Gomez, No. C-73-1422 SAW (JSB) (attached as Exhibit 1 to Plaintiffs Appendix of Evidence filed 11/22/91) (“the Toussaint order”), although Mr. Rosen was awarded $330 an hour for the 83 hours he worked on the case, the average rate for all the attorneys in his firm was $198 per hour (for a total of 402.1 hours), and the total average rate for all the attorneys whose hours were reflected in the order was $210.70. Likewise, in the order filed on November 1, 1991 in the state case of Estes v. McCarthy, (Marin Superior Court No. 127247) (attached as Exhibit 5 to Plaintiffs Appendix) (“the Estes order”), the total average rate awarded was $173, despite individual rates of $330 for Mr. Rosen and $305 for Mr. Schlosser. Absent clear proof to the contrary (which plaintiff has not provided), we must infer that fee paying clients simply would not tolerate being charged a premium rate for work done by a senior lawyer that could be done on a much more cost-effective basis by less senior and less pricey counsel. Although it is true, as plaintiff argues, that there will be some time saving by having the more experienced attorney do all the work himself, this factor is not sufficient to overcome the obvious inefficiencies that accompany an approach in which a very highly paid lawyer does all the detail work. There is only so much time that can be shaved from the defending of a deposition. And a senior litigator cannot read reams of documents, e.g., in a privilege screening, or even in a search for relevant material, a whole lot faster than a junior partner. More to the legal point, Mr. Exelrod had failed to carry his burden of proving that the substantially higher rate he seeks can be justified by a.compensating substantial reduction in the number of hours spent on the case. From the evidence we have been presented it appears that Mr. Exelrod performed most of the work in this case himself. He is requesting compensation for 2,265.62 hours. Exhibit 1 to plaintiffs Reply, filed 1/16/92. By contrast, Karen Dutton is seeking compensation for only 378.25 hours, the vast majority of which she spent on motion work during a six-month period in 1987. Id., exhibit C to deck of Exelrod file 11/22/91. The Rosen firm claims only 66.4 hours. Exhibit 1 to Reply. And while it appears that plaintiff himself committed substantial time to the case, Exelrod deck I, para. 27, we have no evidentiary basis for determining how much time, relative to Mr. Exelrod’s, plaintiff contributed to the core lawyering work. Nor is it clear what efforts were taken to coordinate or integrate the work by plaintiff and his lawyer. Knowing little about the number of hours plaintiff spent on the case, and considering the very large proportion of the recorded time that Mr. Exelrod claims, we feel constrained to infer that a fair portion of the time for which Mr.. Exelrod seeks a premium rate was spent doing work that, at least in a firm environment, would have been performed by an associate for a substantially lower rate. Because an award of attorneys’ fees under Section 1988 must be based on prevailing market rates, and because plaintiff has failed to demonstrate that the market could bear a rate of $300 per hour for most of the work performed on one complex case, we must reject Mr. Exelrod’s requested rate as not being reasonable. Having decided that the rate requested by Mr. Exelrod is not. reasonable, we are left with the task of fixing an appropriate hourly figure. There is no caliper to point us to the precisely correct number. Rather, we consider the various round numbers (e.g., $200, $225, $250, $275) that the evidence suggests might be appropriate and select the figure that seems the most reasonable given all the circumstances. For a variety of reasons, we recommend that the district court fix Mr. Exelrod’s rate at $250 per hour. One way to get some leverage on this issue is to consider the average hourly rate for all the lawyering work done on similar cases. As we noted above, attorneys were awarded an average 1991 rate of $210 per hour in the Toussaint order. See Tous-saint order, pp. 2-4. In the Estes order an average rate of $173 was awarded. Senior attorneys in both cases were awarded premium fees of $300 or more (which, as we found above, is a rate to which Mr. Exelrod is entitled for the more sophisticated work he has had to do on this case). The average awards in those cases provide a floor beneath which it clearly would not be appropriate to go with respect to Mr. Exel-rod’s time. The more difficult question is how far above those averages is appropriate. Given the indisputably high quality of Mr. Exelrod’s lawyering skills, the depth of his experience, the excellence of the results he achieved on behalf of his client, and the fact that Mr. Finkelstein’s efforts relieved Mr. Exelrod of having to perform some of the basic, detail legal work that was involved in this case, we recommend that the district court fix Mr. Exelrod’s hourly rate at $250. A couple of additional considerations support this recommendation. First, Mr. Exel-rod actually charged clients $250 per hour in 1991 for basic consultation services. See Exelrod deck (11/22/91) at para. 39. Although actual rates charged by attorneys are not dispositive in section 1988 fee litigation, they can be considered as evidence. Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.1987), cert. denied, 484 U.S. 990, 108 S.Ct. 480, 98 L.Ed.2d 509 (1987). The fact that Mr. Exelrod charged this rate in 1991 is some evidence that his own valuation of his legal services is in line with the court’s figure. Finally, the rate we choose is within the range (albeit at the high end) suggested by defendants. Although defendants argue that the rate should be in the middle of their proposed range of $200 to $250, they do so in part on the ground that plaintiff is only entitled to a rate that is sufficient to attract counsel of average competence, an argument we already have rejected. To repeat, then, we recommend that Mr. Exelrod be compensated at the rate of $250 for the work he has performed on this case. 2. Karen Dutton. Plaintiff requests that Ms. Dutton be awarded fees at a rate of $150 per hour for the work she performed on this case in 1987. Defendants challenge this request, contending that at the time Ms. Dutton performed the work she was a first year associate and that $150 is an excessive 1991 rate for work done by an attorney as a first year associate. Plaintiff counters that $150 is more than reasonable because it is lower than Ms. Dutton’s current (1991) actual rate of $180. Defendants clearly have the better of this argument. Again, the reason for granting fee awards at present rates for work done years in the past is to compensate for the delay in receiving payment. As defendants point out, however, a court may “refuse to use current hourly rates on the grounds that increased rates reflect the attorney's increased knowledge and experience, not merely inflation.” Burgess v. Premier Corp., 727 F.2d 826, 841 (9th Cir.1984). At the time Ms. Dutton performed her work, she was a first year associate. Thus, even taking inflation into account, she should be awarded no more than a reasonable 1991 rate for a first year associate. In his fee request, plaintiff seeks 1991 rates of $110 for Katherine Sher and $100 for Stephen Liacouras, both of whom were first year associates in 1991. We accept these requests as evidence of a fair 1991 rate for a first year associate. We thus recommend that the district court fix the rate for Ms. Dutton’s work on this case at $110 per hour. 3. Attorneys from Rosen, Bien & Asa-ro. We recommend that the district court award Sanford Rosen, Andrea Asaro, Katherine Sher, and Stephen Liacouras their full requested rates. Mr. Rosen has been awarded fees in other cases at the $330 per hour figure he seeks here. See Toussaint order; Estes order. Unlike Mr. Exelrod, Mr. Rosen is not seeking this premium rate for work typically left to associates. He seeks compensation for only 9.2 of the 66.4 hours spent by his firm on the case. A review of the time runs attached as Exhibit 7 to Mr. Rosen’s 11/22/91 declaration indicates that he committed most of his time to supervising and reviewing the work of the other lawyers in his office and to coordinating their efforts with Mr. Exelrod’s. The $235 per hour rate requested for Ms. Asaro is within the range for younger partners in well-regarded firms. See Exhibit 1 to the Declaration of Samuel R. Miller, filed February 11, 1992. Ms. Asaro’s resume reflects a very high level of educational achievement, as well as significant experience in a demanding commercial firm. Compensating her at a rate appropriate for a young partner working on challenging commercial litigation is reasonable, especially since she devoted most of her time to working on the opposition to defendants’ petition for certiorari before the United States Supreme Court. Defendants do not challenge the rates requested for the work of Ms. Sher and Mr. Liacouras. B. Compensable time. We now focus on the other component of the lodestar analysis: how much of the time devoted to this litigation by plaintiff’s attorneys is compensable? In Exhibit 3 to the declaration of Martin H. Dodd (filed 1/6/92), Mr. Dodd specifically identifies numerous hours defendants contend should be excluded from the lodestar for various reasons. In the following sections, we take up each specific category of hours challenged by defendants. In addressing these categories, we bear in mind that plaintiff already has made an across-the-board 5% billing judgment reduction to account for any minor errors counsel may have made in billing. 1. Hours spent on claims against Berg-na and the County on which plaintiff did not prevail. •Defendants argue that many of the hours for which plaintiff’s counsel seeks compensation were spent on claims or damage theories on which plaintiff ultimately did not prevail. There are basically two categories of hours that defendants challenge in this respect: (i) hours spent on claims and damage theories against defendants Bergna and the County which did not bear fruit, and (ii) hours spent on claims against defendants other than Bergna or the County. We address the first of these categories in this section. We note at the outset that .the law vests the district court with substantial discretion in determining the reasonableness of the number of hours spent on the litigation. Corder v. Gates, 947 F.2d 374, 377 (9th Cir.1991); see also, Hensley, supra, 461 U.S. at 437, 103 S.Ct. at 1941. As noted earlier, section 1988 authorizes the court to award reasonable attorneys’ fees to plaintiffs who prevail in civil rights litigation. The Supreme Court held in Hensley, supra, 461 U.S. at 434-35, 103 S.Ct. at 1939-40, that courts generally should not award attorneys’ fees incurred on claims upon which the plaintiff did not prevail and which were “unrelated” to claims upon which the plaintiff did prevail. In elaborating on the meaning of the term “unrelated,” the Court stated that, where a plaintiff presents in one lawsuit “distinctly different claims for relief that are based on different facts and legal theories, ... work on an unsuccessful claim cannot be deemed to have been ‘expended in pursuit of the ultimate relief achieved.’ ” Id. (emphasis added); quoting Davis v. Los Angeles, 8 E.P.D. ¶ 9444, 1974 WL 180 (C.B.Cal.1974). In such a case, plaintiff should not be awarded fees incurred on the unsuccessful claim. The Court has made it very clear, however, that there are circumstances in which a plaintiff may be awarded fees for time reasonably spent on some claims or lines of case development on which plaintiff ultimately did not prevail. In Hensley, for example, the court noted that often a plaintiff will present numerous claims for relief that are not unrelated but that “involve a common core of facts or [that are] based on related legal theories.” Id. 461 U.S. at 435, 103 S.Ct. at 1940. In such a case, “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult .to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. Hensley and other cases interpreting § 1988 inform our understanding that courts are to consider the following factors when they decide whether counsel for plaintiff should be compensated for hours spent on “claims” that did not directly yield relief: (1) the relative reasonableness of pursuing the kinds of claims on which no relief was secured (this is an inquiry, vaguely akin to the kind currently undertaken under Rule 11 of the Federal Rules of Civil Procedure, into the reasonableness of counsel believing, at the various junctures he pressed forward with a particular cause of action, that it held a sufficient promise of viability, both legally and factually), (2) the relationship in legal theory between the claims on which plaintiff obviously “prevailed” and the claims on which he did not formally recover, (3) the relationship in factual underpinnings between the two kinds of claims, (4) the relative fullness of the damages and/or other kinds of relief plaintiff achieved (i.e., how much of the relief he sought under all of his theories did he end up achieving), and (5) the relationship between the magnitude and/or significance of the relief plaintiff actually achieved and the size of the legal bill his counsel generated in obtaining that relief. We also read the law under § 1988 as acknowledging, within reasonable boundaries, certain fundamental facts of litigation life in our adversary system and in our legally complex society. Courts like Hensley recognize that it is not only common but in many cases necessary for counsel to plead several different claims or “causes of action” arising out of one integrated set of facts or one interconnected series of events. Counsel who do not plead all theoretically available legal theories are subject to after the fact criticism by their clients, even malpractice actions. More important, at the time they file their complaints counsel often (understandably) cannot foresee exactly what evidence the discovery process will turn up and how the evidence, as it evolves, will “play” against what is sometimes a mobile and conceptually dense legal landscape, especially in civil rights law, where courts and legislatures “move” the law regularly, sometimes in unpredictable directions. As noted by the Ninth Circuit: Rare, indeed, is the litigant who doesn’t lose some skirmishes on the way to winning the war. Lawsuits usually involve many reasonably disputed issues and a lawyer who takes on only those battles he is certain of winning is probably not serving his client vigorously enough; losing is part of winning. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir.1991). Given these realities, courts would frustrate the purposes of § 1988 if they created an environment in which lawyers seeking to protect fundamental civil rights were actively discouraged from pleading alternative and conjunctive legal theories by the spectre of judges, after the fact, penalizing counsel economically because some of the theories they pled did not result in relief. Creating such an environment would force civil rights attorneys to be much more conservative in attempting to articulate different legal bases for relief than are other attorneys, thus diluting enforcement of our civil rights laws and retarding evolution of legal doctrine. Given the courts’ general acknowledgement of these facts of litigation life, we read the case law as indicating that while all of the five factors listed above have roles to play, at least in some settings the first, third, and fourth may be weightier than the other two. We are reinforced in' this inference in part by the fact that no court seems to have explicated in a comprehensive way the meaning of the second factor, and, without such an explication, we are unsure how to think reliably about whether given legal theories are “related.” In addition, we note that there is at least some authority for the proposition that fees may be deemed “reasonable” even if they are way out of proportion to the economic value of the relief achieved, suggesting that, at least in some settings, the fifth factor also may not loom as large as some of the others. With these general principles as our guide we turn to the case at bar. Plaintiff’s counsel pursued relief against the County and Bergna on several different legal bases. We have concluded, in part for reasons elaborated below, that at the outset of a case like this one, where the factual setting was complex and unclear, where the conduct and status of some of the defendants was quite unusual, where some of the relevant law was by no means clearly established, where the stakes (political, personal, and economic) were high, and where it was arguable that issues of principle of the first order of magnitude in a democratic society were implicated, it was in no sense unreasonable for plaintiffs lawyer to plead several different federal and state law theories arising out of the same common core of facts. The legal theories pressed on plaintiffs behalf essentially fell into five categories: violation of due process rights, violation of free speech rights (arising both under the Constitution and under state and local law), defamation, invasion of privacy, and conflict of interest. In the paragraphs that follow we consider briefly each of the kinds of claims which formally yielded no relief in this litigation. i) The First Amendment claim against Bergna was dismissed on a legal ground (qualified immunity) so complex that the Ninth Circuit had to consider the issues implicated here twice before ultimately dismissing this claim. Given the obviousness of the fact that defendant’s conduct implicated First Amendment values, the importance to plaintiff of interests invaded by that conduct, and the conceptual density of the legal ground on which the claim ultimately was terminated, it clearly was not unreasonable for plaintiff to pursue relief on this legal theory. ii) A much stronger argument can be made against the reasonableness of pursuing the First Amendment claim against the county in plaintiffs second amended complaint (filed April 17, 1987), after Judge Henderson had granted the county’s motion for summary judgment on that claim almost a year earlier. See order filed June 23, 1986. While counsel for plaintiff argued in opposition to the county’s subsequent motion to dismiss that new facts had come to light that the court had not been in a position to eonsider in ruling on the earlier motion for summary judgment, ■ Judge Henderson obviously found this line of argument unpersuasive. See opposition filed May 18, 1987; order filed July 17, 1987. If the objective reasonableness of replead-ing this claim against the county were the only factor in our analysis, we would conclude that counsel for plaintiff should not be reimbursed for time devoted only to this claim after the initial entry of summary judgment on it, even though this claim was closely related both legally and factually to other claims that it clearly was reasonable for plaintiff’s counsel to continue pursuing. But the reasonableness of pursuing this claim, viewed in isolation, is not the only factor in our analysis. There are four others, and, for reasons detailed below, the full analysis called for by the case law supports the conclusion that the hours invested in this claim are compensable. Our conviction that this is the appropriate disposition of this aspect of this fee dispute is increased by the relatively small number of hours involved here. The only appreciable time devoted solely to this claim after the June 23 entry of summary judgment was spent opposing the County’s 12(b)(6) motion. Of the 38 pages of opposition brief that plaintiff filed on May 18, 1987, only 3.5 (i.e., 9%) were spent arguing the First Amendment issue against the county. We thus roughly estimate that 9% of plaintiff’s work on the 12(b)(6) opposition was spent on this issue. Mr. Exelrod spent a total of 15.9 hours on the opposition, 9% of which is 1.43 hours. Karen Dutton spent 77.35 hours on the opposition, 9% of which is 6.96 hours. Thus, the total hours excludable on this issue would be about 8.4, which we find small enough to be subsumed under plaintiff’s across-the-board 5% billing judgment reduction, iii)The state and local law analogues to this First Amendment claim were not dismissed until 1991 on the grounds of exhaustion of administrative remedies. See order filed Feb. 12, 1991. If these claims were so obviously meritless for this reason,, we suspect that the County would have realized that and filed its motion to dismiss on that ground much sooner. iv) We certainly cannot conclude that it was unreasonable for plaintiff to assert the defamation claim in his initial complaint. Judge Henderson dismissed that claim some three years later on the ground that plaintiff had been unable to develop significant evidence that supported the inference that Bergna actually knew (or had strong reason to suspect) at the time he held the fateful press conference that his statements about plaintiff were false. The district court ruled that without such evidence plaintiff would not be able to prove the “actual malice” required in these circumstances. See order filed June 23, 1986. Given the relationship between Bergna and plaintiffs opponent in the election, and the timing of the press conference, however, it was well within the bounds of reason for counsel for plaintiff to believe, at the time the complaint was filed and for a considerable period thereafter, that discovery would turn up evidence of actual malice. It is of some moment in this regard that, in the end, plaintiff was able to convince the jury that Bergna’s behavior warranted a very large punitive damage award. v) The invasion of privacy claim appears to have been based on fairly novel legal theories interpreting California’s relatively new constitutional provision protecting its citizens’ privacy. See plaintiff's briefs filed May 18, 1987 and November 20, 1989. Although Judge Henderson eventually rejected plaintiff’s arguments and disposed of this claim on grounds paralleling his disposition of the ‘ defamation claim, we cannot say that it was unreasonable to pursue this theory. It certainly was not frivolous to suggest that defendant’s conduct implicated interests that this new constitutional provision was intended to reach. And since there was so little law interpreting this provision, it was appropriate for plaintiff’s counsel to conclude that there was some meaningful possibility that the trial court would frame a cause of action under this new law that plaintiffs could generate sufficient evidence-to support, vi)For somewhat similar reasons, we reject the suggestion that it was unreasonable for plaintiff to pursue a claim based on Bergna’s alleged conflict of interest. The facts of this case were extraordinary, in some ways unprecedented. This was not, as defendants would hav