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American Lawyer Media News Service Newark, N.J.-A defense counsel’s “obstructionist tactics and hardball strategy” have helped move a judge to raise a fee award to the winning plaintiff’s counsel by more than $300,000. Judge Edmund Bernhard of Hunterdon County, N.J., Superior Court awarded $896,555 in fees and costs in a sexual harassment case, including a 60% fee enhancement. His July 17 opinion came three months after a jury awarded Mary Ferrante $366,000 in compensatory damages in her suit under New Jersey’s Law Against Discrimination. Ferrante v. Sciaretta, No. L-584-02. Ferrante alleged that Bernardsville, N.J.’s former police chief, Thomas Sciaretta, created a hostile work environment that forced her to resign as his administrative assistant. Ferrante also claimed to have been the victim of retaliation for expressing concerns about alleged improprieties in the borough’s failure to hire her nephew. Bernhard said the 60% enhancement was justified for Ferrante’s lawyers, Lisa Manshel and Kyle Francis of Francis & Manshel in Millburn, N.J., based on the “serious hazards” of the case, which was handled on a contingency basis. At $300 an hour for Manshel and $250 for Francis, nearly 1,700 hours produced a $513,570 fee plus a $308,142 enhancement and $74,843 in costs. Uphill battle Bernhard’s opinion laid out the efforts the lawyers had to go through to counter defensive posturing. Manshel, the judge said, had to file a motion to substitute in as counsel when the defendants refused consent; file motions to amend the complaint and her answer to the counterclaim because the defendants withheld consent; and move for change of venue because Sciaretta’s lawyer, Dennis Cipriano of West Orange, N.J., tried “to influence the Somerset County jury pool with an inflammatory pretrial interview.” Bernardsville is located in Somerset County. Manshel also had to make numerous discovery applications and seek a default when Sciaretta failed to answer. She also moved, successfully, to dismiss the counterclaim after he ignored her frivolous-claim letters. The case produced six weeks of trial and 48 depositions. It also created novel issues and the need to draft original proposed jury instructions in the absence of a model charge. The thoroughness of the discovery was “key to plaintiff’s successful result,” wrote Bernhard. Manshel was also up against the Somerset County prosecutor’s office, which had cleared Sciaretta of Ferrante’s accusations that he, among other things, sexually harassed her. The defendants used those findings as the basis for a defense that Ferrante had a vendetta against Sciaretta because her nephew was not hired. (Sciaretta also counterclaimed for defamation and intentional infliction of emotional distress.) At trial, Manshel “clearly demonstrated that the [prosecutor's] investigation of Chief Sciaretta was ineffective,” wrote the judge. Somerset County prosecutor Robert Lang Jr., however, said the office did not do an internal investigation. “Our only role was to decide whether criminal acts were committed,” he said. Bernhard said the case was an “uphill battle” because Ferrante never complained of the alleged harassment; the department had a sexual harassment policy, albeit a “bare bones” one; Ferrante had to refute the “vendetta defense” backed by the prosecutor’s report; the defendants took a “hostile no-pay settlement position”; and other factors. At one point, Francis & Manshel was out of pocket for $35,000 in expenses. The risk was not offset by hope of a huge award because the maximum economic loss was $400,000 and emotional damages were limited by Ferrante’s decision not to seek professional help. Bernhard also emphasized the significance of the public interest of “the chief law enforcement of a municipality conducting years of sexual harassment of a municipal employee.” Sciaretta’s lawyer, Cipriano, said that Manshel was also aggressive. “Because the case was hotly contested, everybody had to do more work,” he said. “We took a hard line but I thought we had to.” He added that the legal fees are payable by Bernardsville and not his client. Timothy Beck, an associate at DiFrancesco Bateman, Coley, Yospin, Kunzman, Davis & Lehrer in Warren, N.J., who represents Bernardsville, was out of town and could not be reached for comment.

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