Part II: Tips From 2005 Federal Judicial Center “Awarding Attorneys’ Fees and Managing Fee Litigation.”
Yesterday, we gave Part I on fee entitlement. Now, we provide the tips on calculating the amount of a fee award from the 2005 Federal Judicial Center paper.
Here is the roadmap in this area:
* What constitute fees?
[Paralegal fees compensable]
* What is the method of calculating the amount of fees?
[Lodestar is the key test, devolving into an analysis of these factors:reasonable rate; hours reasonably expended; type of documentation required; lodestar adjustments -- (a) downward adjustments based on incomplete success; limited success; low or nominal damages; disproportionately low damages award; rejecting a FRCP 68 settlement offer; and plaintiff’s refusal to discuss mediation [however, improper to adjust downward based on factors used in reaching lodestar in the first place]; (b) upward adjustments based on novelty or complexity of issues; exceptional results or quality of representation; undesirability of the case (e.g., a case with a protracted history or longevity); delay in payment; riskiness; and nonmarket factors such as case preventing counsel from obtaining other clients; for defendants entitled to fees, special circumstances may give rise to downward adjustments based on plaintiff’s impecuniousness and defense failure to mitigate by trying to resolve through law and motion proceedings first.]
* What documentation is required?
* Should the lodestar be adjusted?
* What are the procedural aspects of fee disputes?
[No need for evidentiary hearing except in certain circumstances; many appellate courts have required district judge to provide an explanation for lowering a fee award, although the trend is to not require a precise accounting of deductions--a categorical approach will generally suffice; Rule 54(d)(2) provides procedural flexibility to district judges in hearing contested fee petitions.]
Part III of this series will explore “Issues on Appeal.”