Part 1 of 4: “Attorney Fees in Prevailing Party Litigation”
National Association of Legal Fee Analysis (NALFA), through the coordination of Executive Director Terry Jesse, held the 2011 Attorney Fees Conference at Loyola Law School on November 17, 2011. There were four panels, and we will blog on all of them.
First up, the panel on “Attorney Fees in Prevailing Party Litigation,” conducted by panels Hon. Jay C. Gandhi (U.S. Magistrate Judge, U.S.D.C., C.D.Cal.), Mike Hensley (a co-contributor on this blog), and David H. Paige (of Sterling Analytics Group, Woodbury, N.Y.).
All panelists stressed that many fee applications are unsuccessful or less than successful because inadequate information is submitted or a “roadmap” is not provided by the fee claimants. In fact, Judge Gandhi indicated that one district judge looks at the costs bill first, examining for high hotel charges before even looking at the fee bills. All agreed that these were good things to include in supporting fee declarations: (1) attorney qualifications; (2) prior fee awards in similar actions by claimant attorneys; (3) detailed summary of the litigation and work apportioned for each major task; (4) proof of reasonable hourly rate; (5) attachment of detailed billings and a summary of them (not too heavily redacted); (6) highlight discounts, non-charges, and discounted hourly rates; (7) demonstrate efficiencies and reasons for charges/task work that look high in nature; (8) do not block bill; (9) show efforts to settle the case and settle the fee dispute; (10) show what the opponent spent in the litigation, if you can; (11) offer the opponent a reasonable reduction to compromise the fee dispute; (12) do not pass overhead items through under costs (e.g., charges for office conference rooms, photocopy surcharges); (13) make sure paralegal work is only billed for substantive (rather than clerical) tasks; (14) avoid or explain long work days; and (15) make sure the billings are consistent among timekeepers and co-counsel.
Judge Gandhi indicated he will frequently allow discovery into opponent’s litigation costs for fee reasonableness scrutiny, although acknowledging (as Mike Hensley pointed out) that state courts do not allow discovery as much on this. He also explained that district judges are used to examining fee applications, because they have to approve criminal indigent attorneys’ fee charges--however, he did indicate federal courts in civil matters spent lots of time on summary judgment motions and do not have as much time to look at fee applications (all the more reason for a good roadmap by the applicants).
David Paige talked about the ethics of billing, making sure unconscionable fees and charges are not made to clients. Judge Gandhi and Mr. Paige recommended not passing through Lexis/Westlaw charges, although only actual charges for it would be even considered or would be ethical for fee billing purposes. (Mike Hensley suggested that if you do not bill, show the judge that you did bear computerized legal expenses but did not request in the fee application--showing that you are avoiding a “nickel/dime” approach in the costs/fee submissions). Mr. Paige indicated computerized charges (not surcharged up to make a profit) are permissible under an ABA opinion, but Judge Gandhi indicated he believes this is overhead and will not usually approve.
All panelists stressed the need for apportionment in cases where noncompensable claims were involved, as well as avoidance of nomad attorneys only doubling up on tasks, cumulative lawyering, and overstacking of personnel.
Finally, in an interesting procedural question, Judge Gandhi opined that C.D.Cal. Local Rule 7-3, which requires a pre-motion filing conference between the parties, probably applied to fee motions as well.
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