Panelists Were Kevin Martin, Gerry Knapton, and Co-contributor Mike Hensley.
Co-contributors Marc and Mike attended an MCLE seminar hosted by Proviors, LLP which was appropriately titled “Contract Litigation and Effective Motions for Attorney’s Fees” on July 8, 2011 in Century City.
Besides co-contributor Mike, the other panelists were Kevin Martin, CEO of Sonoma Risk Insurance Agency (which offers Contract Litigation Insurance, as discussed in our prior posts of August 3 and 6, 2010) and Gerald G. (Gerry) Knapton, an acknowledged fee expert and partner with Ropers Majeski Kohn Bentley of L.A.
Here are some interesting points and tips that were made at this seminar:
*Mr. Knapton, who has developed many of the California State Bar sample retainer agreements, stressed the importance of making sure (1) attorneys mention hourly rates, (2) attorney’s fees shifting is covered if a litigated/arbitrated dispute arises with a client (including a Trope waiver based on Lockton v. O’Rourke, 184 Cal.App.4th 1051 (2010)), (3) attorneys include a clause stating that the retainer letter applies if the client has the attorney work on other matters for clients or affiliates, and (4) reimbursement of specialized costs such as computerized research is desired (spell it out). Also, make sure you customize the State Bar forms to your particular client retention.
*Mr. Miller described the benefits of purchasing Contract Litigation Insurance (CLI), which will cover a court-ordered award of attorney’s fees to a prevailing party based a contract (Civil Code section 1717) claim subject to certain underwriting and other policy conditions. He noted that 70% of the litigated contract disputes overall involve fee clauses, with the percentage coming closer to 100% for leases and real estate purchase disputes.
*The panelists agreed that it was at best ambiguous whether the existence of CLI had to be disclosed in response to California state form interrogatory requests, given that they seem to be more broadly worded to only encompass the substantive claims in a particular suit.
*Mr. Knapton encouraged fee claimants to obtain discovery or disclosure of what an opponent spent in fees, noting that Florida requires the filing of fees under seal on a periodic basis in a case. Co-contributor Mike observed that the majority federal approach would allow discovery or disclosure of an opponent’s fees, while California state judges are much more split on the propriety of allowing disclosure of such fees. (Rob Stein, a colleague of co-contributors Marc and Mike, noted that N.D. Ill. district court rules require an opponent to disclose fee expenditure totals when a fee proceeding is in dispute.)
*All panelists agreed that a fee claimant needs to provide a “roadmap” to trial and appellate jurists on fee requests, which segues in completely with Justice Richard Fybel’s sentiments at a past L.A. County Bar Appellate Division seminar.
*Mr. Knapton stated that a good fee motion should discuss three topics: RESULTS; TIME; FEES. He believed that most trial/district judges do not dissect voluminous billing statements; though they will look at some samples of entries, it would behoove the claimant to prepare an Excel spreadsheet summarizing the time and fees based on major tasks in the litigation. Co-contributor Mike chimed in that the claimant needs to provide at least a bullet-point summary of the tasks and time spent on the tasks to remind the reviewing judge of the work that was expended, making sure that claimants highlight any discounted hourly rates, gratis fee reductions, and allocations when there are compensable versus non-compensable issues
*Mr. Knapton informed seminar participants about the utility of using the Laffey Matrix, adjusted by localized costs of living, when it came to arriving at a reasonably hourly rate. Gerry and co-contributor Mike also indicated other information could be used, such as national and regional surveys, published/unpublished decisions about hourly rates for the relevant venue, and declarations from local attorneys confirming the reasonableness of the hourly rates being claimed.
*For specialized intellectual property litigation, Mr. Knapton recommended supporting higher hourly rates by using the Report of the Economic Survey of the American Intellectual Property Law Association (AIPLA Report), which has been endorsed in this area. (See Mathis v. Spears, 875 F.2d 749, 755-56 (Fed.Cir. 1988).) Co-contributor Mike also observed that state judges seem to be more conservative on hourly rates, while federal courts are more liberal in this area.
*Mr. Knapton suggested that overbilling/duplication/inefficiency challenges should be supported by using the State Bar advisory publication “How to Detect Attorney Fee Padding.” Gerry and co-contributor Mike explained the significance of Chavez v. City of Los Angeles, 47 Cal.4th 970 (2010), where California state courts have discretion to reject or reduce large fees requests under FEHA (a pro-plaintiff fee shifting scheme) if plaintiff’s recovery was small or the case was not very complex.
*All panelists agreed that block billing was a big “no no,” which will usually lead to some serious judicial discounting (routinely ranging around 15-30%)--but more on some occasions.
BLOG UNDERVIEW--This was a terrific seminar. However, co-contributor Mike did feel somewhat like comedian George Gobel when he appeared on a Johnny Carson late night interview on New Year’s Eve one year. Johnny interviewed Mr. Gobel that night, alongside Bob Hope and Dean Martin. That prompted Mr. Gobel to say, just as co-contributor Mike felt with such panelists as Messrs. Martin and Knapton, “Did you ever get the feeling that the world was a tuxedo, and you were a pair of brown shoes?” There you go!
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