Free Reply to Response to Motion - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Peter Baird (State Bar No. 001978) [email protected] Richard A. Halloran (State Bar No. 013858) [email protected] Cory A. Talbot (State Bar No. 020702) [email protected] Attorneys for Brown & Bain, P.A.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

8 Brown & Bain, P.A., an Arizona professional association, 9 Plaintiff/Counterdefendant, 10 vs. 11 John M. O'Quinn, an individual; John M. 12 O'Quinn & Associates, L.L.P., a Texas limited liability partnership; John M. 13 O'Quinn, P.C., a Texas professional corporation; John M. O'Quinn Law Firm, 14 PLLC, a Texas limited liability company; O'Quinn, Kerensky & McAninch; and Jane 15 Doe O'Quinn, 16 17 18 I. 19 INTRODUCTION Defendants/Counterclaimants.

No. CIV 03-0923-PHX-ROS REPLY IN SUPPORT OF BROWN & BAIN'S MOTION TO STRIKE DEFENDANTS/COUNTERCLAIMANTS' EXPERT REPORTS (Oral Argument Requested)

For five years, Brown & Bain worked day in and day out on McIntire v. Motorola,

20 a vast toxic tort case involving over 900 individual plaintiffs. O'Quinn paid every bill 21 without complaint and even audited those bills at the end of the relationship. Now, 22 twelve years after Brown & Bain's first bill and seven years after Brown & Bain's last 23 bill, O'Quinn proffers two experts who say that the fees O'Quinn has already paid as well 24 as the fees that O'Quinn has refused to pay are "unreasonable." 25 There is nothing in the bios of these two experts to indicate that they have ever

26 handled any complex litigation, much less a major mass tort action against the likes of 27 Motorola. Consequently, their reports do not appear to be based on any comparable 28 personal experience.
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Nor did these experts do any comparative analyses. They did not compare Brown & Bain's hours to the hours of other lawyers in similar cases. They did not make any task comparisons either, such as researching how many hours it would typically take, for example, to handle the depositions that Brown & Bain covered or to write the briefs that Brown & Bain prepared. Moreover, they made no effort to find out what challenges Brown & Bain faced from Motorola's defense team led by Kirkland & Ellis, from Chicago. Instead, this is how O'Quinn's experts prepared their reports: A. They assumed that the reasonableness standard of ER 1.5 applied to contracts between lawyers and to fees charged to lawyers. But that standard only applies to fees charged to clients, not to lawyers. B. They opined on matters of law and experts cannot do that. C. They reached legal conclusions on issues that Judge Bolton has already adjudicated against O'Quinn and they cannot do that either. D. They did not even glance at the 80 plus boxes of McIntire litigation materials and Brown & Bain work product. Thus, they do not know the circumstances surrounding Brown & Bain's efforts or how vigorously Motorola defended the case. ER 1.5's REASONABLENESS REQUIREMENT DOES NOT APPLY TO CONTRACTS BETWEEN LAWYERS. Both experts assume that ER1.5's reasonableness standards apply to the contract between the Brown & Bain and O'Quinn law firms. On page 7 of his report, Toothman states that, because Brown & Bain's bills represent the work of legal professionals, they must satisfy "requirements beyond those imposed on most commercial vendors." For his part, Hazard states at page 6 that "Brown & Bain's ethical obligations under Arizona Rules of Professional Conduct ER1.5 limit any compensation to a reasonable amount..." Hazard says the same thing again at pages 7 and 12.

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Shame on Professor Hazard because, as he knows full well and as he wrote in his own treatise, ER 1.5's reasonableness requirement does not apply to contracts between lawyers or to fees charged by lawyers to other lawyers. In his treatise, The Law of Lawyering, § 8.2 at 8-6 to 8-7 (3rd ed. Supp.), Hazard states that, "lawyers are generally held to their contract as between themselves, so long as the total fee paid by the client is not unreasonable." (Emphasis added). Not surprisingly, Hazard's treatise comports with the case law on this issue. See Frost v. Lotspeich, 30 P.3d 1185, 1194 (Or. App. 2001) (Model Code equivalent of ER 1.5(a) "applies to the reasonableness of fees charged to a client and not to the reasonableness of fees divided between lawyers"); Vogelhut v. Kandel, 517 A.2d 1092, 1095 (Md. App. 1986) (Model Code equivalent of ER 1.5(a) is "plainly limited to fee agreements between a client and his attorney. Where, as here, the agreement is between two attorneys and the agreement has no effect on the fee the client contracted to pay [the rule] is inapposite"). Moreover, Judge Bolton could not find any clear authority that a fee agreement between lawyers "should be treated as anything other than an ordinary business contract for the purposes of resolving a dispute between the lawyers over funds due under the agreement." (Order at 17-18, attached as Exhibit 1 to Brown & Bain's Separate Statement of Facts in Supp. of Its Mot. for Partial Summ. J.). This is particularly true, she said, "where, as here, the agreement between the lawyers has absolutely no impact on the amount that the client pays for legal services or on the amount that the client receives from the litigation." Id. The exception that Hazard refers to--when fees charged to the client are unreasonable--has no application here. Although ER 1.5(e) requires that the total fee paid by a client be reasonable, O'Quinn does not contend that the fee he charged the McIntire plaintiffs was excessive. In Sedgwick v. O'Quinn where some of the McIntire plaintiffs have alleged that O'Quinn's fee was unreasonable, O'Quinn specifically denied that his fee was unreasonable. (See Sedgwick v. O'Quinn Second Am. Compl. ¶¶ VIII, XI & XII; O'Quinn's Answer ¶¶ 9 & 10, attached as Ex. 7 to Brown & Bain's Separate
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Statement of Facts in Supp. of Its Mot. for Partial Summ. J.). Furthermore, Judge Bolton, considered O'Quinn's arguments -- that the Engagement Agreement violated the proportionality and joint responsibility requirements of ER 1.5 -- and she wrote that "there was no violation of ER 1.5(e)". (Order at 16: 5-6, attached as Ex. 1 to Brown & Bain's Separate Statement of Facts in Supp. of Its Mot. for Partial Summ. J.). III. THE EXPERTS' LEGAL CONCLUSIONS. Federal Rule of Evidence 702 only permits the admission of expert testimony that will assist the trier of fact in understanding the evidence or determining a disputed issue of fact. In the Ninth Circuit, "[r]esolving doubtful questions of law is the distinct and exclusive province of the trial judge." U.S. v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993) (emphasis added) (quoting U.S. v. Brodie, 858 F.2d 492, 496 (9th Cir. 1988)). Courts thus exclude expert testimony that draws improper legal conclusions. See, e.g., U.S. v. Rosales, 7 Fed.Appx. 766 (9th Cir. 2001) (affirming district court decision to exclude tax expert "only offered to prove a legal conclusion" because his opinion would not assist the trier of fact to understand the evidence or determine a fact issue as required under Rule 702); The Pinal Creek Group v. Newmont Mining Corp., 352 F.Supp.2d 1037, 1042 (D. Ariz. 2005) (precluding or limiting the opinions of four experts determining the law and applying it to the facts). Nevertheless, in opining that Brown & Bain's fees were unreasonable, Hazard and Toothman make a series of inadmissible conclusions of law. For example: A. Toothman opines, "No matter how the issue of legal fees arises, the burden is always on the lawyer to establish that his or her fees and expenses are reasonable, necessary, and consistent with legal standards." He goes on to explain that "defects in documentation are a basis for denying legal fees because, absent the documentation, the lawyer has not met the burden." (Toothman report p. 11). Toothman's opinions are all improper legal conclusions about who has the burden to prove reasonableness, what is sufficient to satisfy that burden and what the consequences are when the burden is not met.
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B. With respect to Brown & Bain's withdrawal from McIntire, Hazard concludes that Brown & Bain's "quitting was a breach of its contractual obligations to O'Quinn" and constituted an "abandonment." (Hazard opinion, at 10, 11 [emphasis added]). Yet Judge Bolton has already ruled that Brown & Bain's withdrawal did not breach the contract and was not wrongful. As she wrote, that argument was "unavailing" because "Brown & Bain's withdrawal did not divest it of any entitlement to fees." (Order at 17, attached as Ex. 1 to Brown & Bain's Separate Statement of Facts in Supp. of Its Mot. for Partial Summ. J.). C. With respect to the Engagement Letter, Hazard makes the legal conclusion that O'Quinn's "[c]harging those costs [i.e., for experts and travel, etc.] to itself has the result of reducing the basis on the Brown & Bain's claim." (Hazard opinion, at 8 [emphasis added]). Yet, Judge Bolton has already ruled against O'Quinn on this very point and decided that O'Quinn's increased costs and consequential loss of profit has no bearing on Brown & Bain's entitlement. According to Judge Bolton, the issue "is not whether O'Quinn made or lost money on the McIntire litigation..." (Order at 13-14, attached as Ex. 1 to Brown & Bain's Separate Statement of Facts in Supp. of Its Mot. for Partial Summ. J.). D. With respect to the expense of O'Quinn's Phoenix office, Hazard makes the legal conclusion that the costs for that office were properly charged as costs to the plaintiffs and Brown & Bain. (Hazard opinion, at 9-10). Again, Hazard has no business making these legal judgments. E. As already noted, Hazard also makes the legal conclusion that the reasonableness requirement of ER 1.5 applies to contracts between lawyers and to fees charged to lawyers. (Hazard opinion, at 6:6-9). Yet again, Hazard is impermissibly opining on issues of law and, as his own treatise makes clear, he is dead wrong.

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IV.

TOOTHMAN DID NOT LOOK AT THE McINTIRE FILES. Brown & Bain gave O'Quinn's counsel more than 80 boxes of McIntire materials

and Brown & Bain work product. Even though Toothman says in his report at page 7 that, in order to determine whether fees meet the legal standards, "one must look beyond the face of the bills . . . [and] this requires consideration of the bill in its legal context," he did not even peek at the 80 boxes to determine what the "legal context" was for Brown & Bain's motions, briefs, depositions, interviews, research, oral arguments and appeals. Instead of actually looking at the "context" of Brown & Bain's work, Toothman states at page 6 that "our review is limited to the face of the bills, without access to underlying documentation...." (Id. at 6 [emphasis added]). We have no idea why O'Quinn's counsel did not give Toothman "access" to the 80 boxes. However, without poking around in those files, Toothman could not possibly have known the "legal context" for Brown & Bain's bills. For example, Brown & Bain's bills alone would not tell anyone how vigorously Motorola defended the case and how Motorola's defensive actions would have impacted Brown & Bain's work. Nevertheless, from the "face of the bills" alone, Toothman opines that Brown & Bain wasted $2 million worth of time in McIntire. (Id. at 6). He divines this by comparing "what [Brown & Bain] says it accomplished" against "the amount of time that [it] should have taken." (Id. at 3. [emphasis added]). According to Toothman, he knows the amount of time that Brown & Bain's work "should have taken" because "67.4% of the entries [in Brown & Bain's bills] exhibit one or more material problems as discussed below." (Id. at 6). Thus, from Brown & Bain's billing entries alone and without knowing their context, Toothman presumes to know the amount of time, for example, that depositions, witness interviews, oral arguments and appellate briefs "should have taken." From Brown & Bain's billing entries alone, Toothman also presumes to know what Motorola's defensive measures were that Brown & Bain had to deal with. Toothman's presumptions are absurd.
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The point is: criticizing bills is vastly different from figuring out "the amount of time that [a task] should have taken." Even if ER1.5 (a) somehow applied, the issue would not be whether the billing entries were reasonable. Rather, the issue would be whether the time in was reasonable and Toothman has neither the personal experience nor the necessary data to know "how much time [Brown & Bain's tasks] should have taken." V. HAZARD DID NOT LOOK AT THE 80 BOXES EITHER Since Hazard did not opine about how much time Brown & Bain's work "should have taken," he has a better excuse than Toothman for not looking at the 80 boxes. Nevertheless, it is inconceivable that Hazard would not have benefited from reviewing at least some of those 80 boxes. Looking at Brown & Bain's work product and evaluating Motorola's defenses, Hazard would have had a much better understanding of what Brown & Bain did and why they did it and how reasonable it was to have done it. Amazingly, Hazard states that Brown & Bain's work product, research, motions, letters and briefs in those 80 boxes "would have been redundant and irrelevant." (Hazard Decl. ¶ 4). How can Hazard possibly know such a thing unless he had laid eyes on those materials? Evidently, Hazard not only has a license to contradict his own treatise but is also an extrasensory seer of the unseen. VI. CONCLUSION As a matter of law, neither the Toothman report nor the Hazard report is relevant and admissible because they both rely on the reasonableness requirement of ER 1.5 which does not apply to contracts between lawyers. Making their reports even more irrelevant and inadmissible are these realities: A. Toothman and Hazard cannot render legal conclusions; B. Many of Hazard's legal conclusions have already been adjudicated against O'Quinn by Judge Bolton; C. Neither Toothman nor Hazard has any personal experience handling cases like McIntire against the likes of Motorola.
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D. Neither expert bothered to look at the 80 boxes of case material and work product to ascertain the context of Brown & Bain's work; and E. Neither expert made any comparison to similar cases, similar tasks or similar circumstances. We respectfully request that Brown & Bain's motion to strike the expert reports be granted. DATED: November 10, 2005. LEWIS AND ROCA LLP

By

s/ Peter D. Baird Peter D. Baird Richard A. Halloran Cory A. Talbot Attorneys for Plaintiff Brown & Bain, P.A. CERTIFICATE OF SERVICE I hereby certify that on November 10, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic filing for the following CM/ECF registrants: Peter D. Baird Leo R. Beus Linnette Rachel Flanigan Richard Henry Herold, Jr. Cory Alan Talbot s/Diana Clauser [email protected], [email protected] [email protected], [email protected], [email protected] [email protected] [email protected], [email protected] [email protected], [email protected]

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