By Andrew Keshner, From New York Law Journal

A judge has awarded $4.9 million in legal fees and costs to the attorneys for two men who won a $36 million jury verdict in a malicious prosecution case against Nassau County.

Attorneys at Neufeld Scheck & Brustin were entitled to the sum for their years of work representing John Restivo and Dennis Halstead in a hard-fought civil rights litigation, Eastern District Judge Joanna Seybert determined Monday.

Restivo and Halstead were convicted for the 1984 rape and murder of a teenage girl. Yet they and another man, John Kogut, were freed in 2003 when DNA from the victim’s body did not match the three defendants.

Kogut had initially admitted to the crime but later said he was forced into a false confession. He was the only member of the trio to be retried; in 2005, he was acquitted at a bench trial.

In 2006, Restivo and Halstead filed one lawsuit and Kogut filed another. They were later joined.

Among other claims, the suits contended evidence fabrication, police suppression of exculpatory evidence and intentional mishandling of the investigation.

The civil case for the three men went to trial in 2012, lasting 31 days over an 11-week period. A jury found for the county.

In 2013, Seybert said Restivo and Halstead deserved another trial because of the admission of Kogut’s confession and related defects with the jury charge that may have caused jurors to “improperly consider the Kogut confession in connection with Halstead and Restivo’s malicious prosecution claim.”

Kogut appealed Seybert’s refusal to grant him another trial, but the U.S. Court of Appeals for the Second Circuit in May affirmed Seybert.

Meanwhile, at a 17-day retrial last year for the other two plaintiffs, jurors gave Restivo and Halstead each $18 million. The sums awarded to Restivo and Halstead equaled $1 million for every year spent in prison.

The verdict was against the county and the deceased lead detective. The county is appealing the verdict and the damages.

In the fee litigation, Neufeld Scheck & Brustin noted the length and complexity of the litigation. They sought $4.5 million in fees, contending they were entitled to the Southern District’s prevailing hourly rates, not the Eastern District rates. The firm, represented in the fee litigation by Leon Friedman of Manhattan, also sought about $320,000 in costs and $97,000 for the cost of the fee petition.

Nassau County said a proper fee and cost award would be $2.1 million, arguing the firm should receive the Eastern District rate and not be compensated for time spent on claims that were either dismissed, withdrawn or abandoned.

Moreover, the county complained the firm put too many lawyers on the case, billed travel time as attorney time and spent excessive time on calls and meetings.

Seybert said when courts were faced with requests for higher, out-of-district rates, there was a presumption for in-district rates that could be overcome with a showing that a “reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.”

Seybert said the firm overcame the presumption here, noting its expertise in pressing federal wrongful conviction suits and the county’s own acknowledgment that the firm, at one point “might have held a monopoly on ‘DNA law.'”

Judge Seybert

Judge Seybert

NYLJ/Rick Kopstein

She waved off arguments that the firm could not be paid for arguments that ultimately did not carry the day, noting case law that said when claims were not meritorious but involved a “common core of facts or [are] based on related legal theories,’ they are compensable.”

She said the county raised a legitimate concern about travel time but noted the firm, in response, asked to strike the problematic entries.

The county said between two and five attorneys represented the plaintiffs in the five-year discovery phase from 2006 to 2011 while eight attorneys staffed the first trial and six attorneys and one law clerk worked on the second trial.

Still, Seybert said, “tallying the number of attorneys who worked on a case is not enough to prove the case was overstaffed.”

As for purportedly excessive meetings and calls, the judge said if the county hired the firm as its counsel and received monthly bills, maybe the length of meetings and calls would be a relevant matter worth questioning.

“But at the conclusion of this litigation saga, rendering an opinion on how long a strategy meeting should take in a complicated case does not seem productive,” Seybert said.

In an interview, Nick Brustin, a partner at Neufeld Scheck & Brustin, said they were pleased that Seybert “recognized the intense effort that went into the case, the complexity of the issues and the necessity for ensuring that civil right lawyers who make commitments to cases involving the most serious police misconduct can be properly compensated.”

Brustin tried the second case with partners Peter Neufeld and Anna Benvenutti Hoffmann, as well as Josh Dubin of Dubin Research & Consulting.

In a statement, Nassau County Attorney Carnell Foskey said the county is “currently examining the fee decision and will determine whether a separate appeal is warranted. However, the county believes that the original jury verdict, finding that there was no liability by the county or any police officer, was correct and will ultimately be reinstated by the Second Circuit.”

Louis Freeman, Lee Ginsberg and Nadjia Limani of Freeman, Nooter & Ginsberg in Manhattan appeared for the county on the fee litigation.

The county is now represented by Daniel Bartoldus, Amy Bedell and Annemarie Susan Jones of Lewis Johs Avallone Aviles in Islandia.

The case is Restivo v. Nassau County, 06-cv-6720.

For more on this story go to:: http://www.newyorklawjournal.com/id=1202743737755/Firm-Is-Awarded-5-Million-in-Malicious-Prosecution-Case#ixzz3tB1FFNky