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A Hunterdon County, N.J., judge awarded $896,555 in fees and costs in a sexual harassment case, including a 60 percent fee enhancement, saying that defense counsel’s “obstructionist tactics and hardball strategy” drove up the tab. Superior Court Judge Edmund Bernhard’s July 17 opinion came three months after a jury awarded Mary Ferrante $366,000 in compensatory damages in her suit under the Law Against Discrimination, Ferrante v. Sciaretta, L-584-02. The jury found liability for punitive damages but awarded none. Ferrante alleged that Bernardsville’s former police chief, Thomas Sciaretta, created a hostile work environment that forced her to resign as his administrative assistant. Ferrante also claimed to suffer retaliation for expressing concerns about alleged improprieties in the borough’s failure to hire her nephew. Bernhard said that 60 percent enhancement was justified for Ferrante’s lawyers, Lisa Manshel and Kyle Francis of Francis & Manshel in Millburn, 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, their nearly 1,700 hours result in a $513,570 lodestar plus a $308,142 enhancement and $74,843 in costs. ‘UPHILL BATTLE’ Bernhard’s opinion lays out in detail the efforts the lawyers had to go through to counter defensive posturing, namely: • Manshel had to file a motion to substitute in as counsel when defendants refused consent; file motions to amend the complaint and her answer to the counterclaim because defendants withheld consent; move for change of venue because Sciaretta’s lawyer, Dennis Cipriano of West Orange, tried “to influence the Somerset County jury pool with an inflammatory pretrial interview.” • Manshel had to make numerous applications to obtain discovery, seek a default when Sciaretta failed to answer and move, successfully, to dismiss the counterclaim after Sciaretta ignored her frivolous claim letters. • There were six weeks of trial, 48 depositions, 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 sexually harassed her, fixed a drunken driving ticket, intervened in a friend’s domestic violence case and stole a computer. 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 and failed to follow the Attorney General’s Guidelines on Internal Affairs investigations.” Somerset County Deputy First Assistant Prosecutor Robert Lang Jr., however, says the office did not do an internal investigation. “Our only role was to decide whether criminal acts were committed,” he says. • 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.” ‘CAPITAL CASES TOOK LESS TIME’ Ferrante’s original counsel, Somerville solo practitioner Steven Lieberman, says he handed off the case because it was growing burdensome. He was paid a retainer and did not request fees. “I’ve tried capital cases that took less time than what this did,” he says. Sciaretta’s lawyer, Cipriano, says that Manshel was also aggressive. “Because the case was hotly contested, everybody had to do more work,” he says. “We took a hard line but I thought we had to.” He adds that the legal fees are payable by the town and not his client. Timothy Beck, an associate with DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer in Warren, who represents Bernardsville, did not return a call seeking comment. There is at least one precedent for such a high enhancement. In 1999, Burlington County Judge Jan Schlesinger applied the same rate in awarding $855,350 in fees against the state in Lickley v. Turner, a reverse-discrimination case. An appeals court reversed Lockley‘s $3 million punitive damages award in 2001 but upheld the fees, noting the case was “hard fought” and served the public interest. An appeal argued before the Supreme Court in January is pending. Linda Wong, a partner in Princeton’s Wong Fleming, the plaintiff’s lawyer in Lockley, filed a certification supporting Manshel’s fee request.

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