Author Steven S. Streger Is Orange County Superior Court Senior Staff Attorney.
Steven S. Streger, a senior staff attorney with the Orange County Superior Court, has authored an article in the May 2017 edition of the Orange County Lawyer, aptly entitled “Attorney Fee Motions: Hunting for Fluff and the Avoidable Haircut.” Given his position with the court, here is our summary of his pointers for practitioners filing attorney’s fees motions in state court (especially the OC venue):
Identify with precision the legal basis for the fee award. This means make sure you have fee entitlement—usually, a basis in contract, statute, or an equitable doctrine.
Explain in detail your client’s entitlement to fees. This means that the fee claimant needs to meet the “prevailing party” test under Civil Code section 1717 or other governing statutes.
Justify the amount of fees sought. This means satisfying the lodestar test, with Mr. Streger observing that surveys, matrices, declarations, or citation to cases awarding fees in like situations are probably necessary where high hourly rates are requested. He also urges claimants to “prove your time investment” through detailed, partially-redacted billings, specific attorney declarations describing the work in detail, and substantiation which avoids block billing.
Avoiding the haircut. Streger presents five rules of thumb to keep in mind so as to avoid an unwanted fee “haircut”: (1) the trial court has an independent obligation “to hunt for fluff”; (2) the “hunt for fluff” covers padding, over-conferencing, attorney stacking, over-staffing, duplication, marked inefficiency, and services righteously performed but seemingly pointless; (3) trial courts do not have to provide a detailed explanation of haircuts; (4) credibility counts, especially if apportionment is obvious for limited success or for work on non-compensable claims; and (5) the higher the hourly rate, the deeper the dig by trial judges, quoting Circuit Judge Weis: “A Michelangelo should not charge Sistine Chapel rates for painting a farmer’s barn.”