performance in this litigation was impressive. Neverthess, his talents and experience are amply reflected in his high hourly rate, and his hard work is expressed in the hours expended. The lodestar thus takes into consideration his strong performance.
Plaintiff cites Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992) in support of his argument that the "scorched earth," "Stalingrad Defense" tactics of his adversary warrant an additional enhancement. None of the attorneys in this case, including plaintiff's, have made it a point to extend professional courtesies to their adversaries. The conduct of the defense was no worse in this respect than that of the plaintiff; certainly it was not so egregious as to warrant an enhancement. Moreover, the aggressiveness of the litigation is reflected in the hours billed and is thereby incorporated into the lodestar.
A contingency enhancement may not be granted at all under the federal fee-shifting statutes. City of Burlington v. Dague, 505 U.S. 557, 120 L. Ed. 2d 449, 112 S. Ct. 2638 (1992). In spite of Dague, however, the New Jersey Supreme Court has held that in suits under the NJLAD, a contingency enhancement must be considered. Rendine v. Pantzer, 141 N.J. 292, 661 A.2d 1202 (1995). Defendants argue that we should disregard Rendine because we are a federal court, and also because our "hybrid" jury charge failed to establish liability under the NJLAD.
The argument that a federal court applying state law through supplemental jurisdiction may simply ignore the supreme court of the state in which it sits merits no discussion. It is patently wrong. The argument concerning the jury charge merits minimal discussion. We have said from the beginning that we see no significant differences between Title VII and the NJLAD as applied to this case and for purposes of charging the jury. We view the jury's verdict as a finding of liability under Title VII and the NJLAD (although not necessarily under § 1983, which imposes a higher standard for liability than that provided in the charge). That liability was established under the NJLAD is further demonstrated by the jury's finding of liability against Madamba, who faced only NJLAD claims, and by the jury's imposition of punitive damages on the ACPD, a remedy which is available only under the NJLAD.
We conclude, therefore, that we are required to conduct a Rendine analysis. Rendine requires us to take into account the prevailing attorney's risk of nonpayment in all contingency cases. Rendine suggested that contingency enhancements should ordinarily range between five and fifty percent of the lodestar fee, with the enhancement most often falling between twenty and thirty-five percent. In the present case, Mr. Van Syoc agreed to represent plaintiff on a contingency basis, his payment to depend entirely on eventual success and the fee-shifting statutes.
The parties never came close to settling the case, so Mr. Van Syoc was provided with little opportunity to minimize his downside risk. Hurley's damages were based entirely on her pain and suffering; there was no concrete element. The risk of nonpayment in this case was thus reasonably high. On the other hand, plaintiff's case was strong. The concrete evidence of sexual harassment was there. And plaintiff was never willing to reduce her own ambitious settlement demands meaningfully. Under these circumstances (and following the example set by the Rendine court, 141 N.J. at 345) we find that a contingency enhancement in the amount of one-third of the lodestar fee is warranted in this case.
The final issue before us is the question of pre-judgment interest. Plaintiff moves for pre-judgment interest on the compensatory damages award only. There is some dispute between the parties as to whether or not pre-judgment interest may be applied against a municipality. Although we need not reach the issue because of our decision not to award such interest as a matter of discretion, infra, we note that pre-judgment interest probably is an available remedy under the NJLAD, even against a municipality, for the same reason that we determined in our summary judgment opinion in this case that punitive damages are available. N.J.S.A. 10:5-13; Abbamont v. Piscataway Bd. of Educ., 138 N.J. 405, 425-432, 650 A.2d 958 (1994); Milazzo v. Exxon Corp., 243 N.J. Super. 573, 580 A.2d 1107 (Law Div. 1990). Of course, Madamba would not enjoy immunity from pre-judgment interest even if the ACPD does.
An award of pre-judgment interest lies within the discretion of the trial court. Pressler, 1995 N.J. Court Rules 4:42-11(a); Ambromovage v. United Mine Workers, 726 F.2d 972 (3d Cir. 1984). The purpose of an award of pre-judgment interest is to compensate the plaintiff for the defendants' use of plaintiff's money after the cause of action accrued but before judgment was entered. In the case at bar, plaintiff has received adequate compensation for her injuries. She has also received $ 700,000.00 in punitive damages. Indeed, the punitive damages award is pure windfall. We decline to exercise our discretion to increase the size of that windfall. To do so would indeed result in an "unusual inequity." Brock v. Richardson, 812 F.2d 121, 127 (3d Cir. 1987). Accordingly, no pre-judgment interest will be awarded.
Because the jury's findings were adequately supported by the evidence presented at trial, and because there was no prejudicial legal error, the various parties' motions for a new trial will be denied. Defendants' motion for remittitur of compensatory damages will be granted, but the jury's punitive award will stand. The motions by defendants Mooney and Rifice for counsel fees will be denied. Plaintiff's motion for counsel fees will be granted, subject to the submission by plaintiff's counsel of revised timesheets striking hours expended in pursuit of failed claims and parties. An appropriate order will enter on even date herewith.
JOSEPH E. IRENAS
Dated: July 12th, 1996