If Haddonfield's John J. Marquess feels a burning sensation around his ears, it's got to be because of the blasting he received from Philadelphia Court of Pleas Judge Mark I. Bernstein in the Wal-Mart Stores Inc. wage and hour case. We've all read lots of dull opinions by judges, but this one, handed down today, is definitely not one of them.
Marquess of Legal Cost Control Inc. in Haddonfield is the expert that Wal-Mart Stores Inc. asked to opine on what legal fees would be reasonable for the plaintiffs' attorneys, led by Donovan and Searles LLP in Philadelphia. They won $141 million for 186,000 Wal-Mart workers in Pennsylvania who did not get paid for their breaks or for certain time worked off the clock, a jury found in Oct. 2006. You can read our coverage of the case here, including the most recent article about attorneys' fees.
To put it mildly, Marquess did not overwhelm Bernstein with his expertise. In fact, Bernstein puts the word "expert" in quotes in his opinion and prints page after page of dialogue in which Marquess can't remember whether he read a page of testimony or a volume or what he considered in how he came to the conclusion about what the plaintiffs' attorneys should get -- which was not the $49.2 million the judge ordered.
"Apparently Mr. Marquess makes no effort to ascertain a factual basis grounded in the litigation for fee cutting. No part of Mr. Marquess’s business includes any participation, control or even monitoring of litigation itself. He claims no expertise in reducing costs by the efficient management of litigation and makes no cost-saving suggestions to his client or litigation counsel. Mr. Marquess’s only function is to criticize the bills of attorneys who actually face a Judge and jury," wrote Bernstein.
Marquess did not even know the name of the case, Bernstein pointed out.
There's more fun stuff in this opinion. Bernstein describes the incredible amount of work involved in the case which went on for five years from the first filing in March 2002.
"Having presided over this litigation for years, this Court can personally confirm the extensive work, time, and effort devoted by both sides and specifically plaintiffs’ lawyers, pre-certification, at certification, pre-trial, trial and post-trial. The reasonableness of Plaintiffs’ fee request is established by its detailed documentation and the observations," he said.
Bernstein asked Wal-Mart to document its legal costs, and then figured that the plaintiffs' work would be harder because of the complications involved in dealing with, for example, 186,000 plaintiffs.
The court docket numbered 183 pages. "The defense forced plaintiffs to file innumerable successful motions to compel discovery," he wrote, adding, "Finally, on the Saturday before trial, Defendant Wal-Mart served notice on Plaintiffs of sixty never previously identified fact witnesses who they intended to call at trial."
In the end, Bernstein wrote, it took 26 lawyers and 17 paralegals to handle the plaintiffs' case over the five year period. And by the way, it's not over. Wal-Mart plans to appeal and must post a $250 million bond within 30 days.
