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what we deem to be the four “core” categories (obtaining and
reviewing records, legal research, preparing briefs, and
preparing for and attending oral argument), Izen claims 676.65
hours, Minns claims 779.18 hours (including Lawfinders’ time),
and Porter & Hedges claims 1,013.9 hours. While it may be
somewhat presumptuous for this Court to judge the relative merits
of the appellate briefs,42 we see no obvious justification for the
significantly greater number of hours claimed by Porter & Hedges
in these categories. Assuming for these purposes that the
subject hours claimed by Izen and Minns represent the low end and
the midpoint, respectively, of the range of reasonableness, we
reduce the Porter & Hedges figure by 130 hours so that the
42 We do observe that it was Izen who hewed to the line that
the misconduct of respondent’s attorneys was a fraud on the
Court, and that the primary relief to which all eligible
petitioners should be entitled is the benefit of the Thompson
settlement. Binder and Minns argued primarily for the complete
vacatur of this Court’s decisions, which would result in a
complete win--no deficiencies--for the petitioners (although
Binder did suggest the Thompson settlement as an alternative).
In the light of hindsight, Izen’s approach has been vindicated;
the Court of Appeals in Dixon V adopted both his diagnosis and
his prescription without reservation.
Having said that, we do not mean to imply that all of Izen’s
appellate time was well spent. He was the only attorney who
continued to argue that the Kersting tax shelters created valid
tax deductions, a position not only contrary to the holdings of
this Court in Dixon II and Dixon III, but also contrary to that
of the Court of Appeals for the Ninth Circuit in the related
promoter penalty case. See Kersting v. United States, 206 F.3d
817 (9th Cir. 2000). We also have the impression that
considerable time was wasted at the appellate level in dealing
with Izen’s unsuccessful and unnecessary attempts to include
hundreds of nontest cases in the Adairs’ interlocutory appeal.
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