1.10 Methodology of Determining Attorney Fees

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

1.10 METHODOLOGY OF DETERMINING ATTORNEY FEES

1.1001 General Approach. Courts usually determine first if there is a contractual, statutory, or equitable basis for an award of attorney fees. If a party is entitled to recover based on that contract or statute, then it must submit affidavits, detailed time records of the time spent on each individual claim, and, sometimes, expert witness testimony. The court will then consider

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any of the seven factors laid out in Chawla v. BurgerBusters, Inc. ¹⁶³ to determine whether the fees requested are reasonable.

Those factors are:

1.	The time and effort expended by the attorney;
2.	The nature of the services rendered;
3.	The complexity of the services;
4.	The value of the services to the client;
5.	The results obtained;
6.	Whether the fees incurred were consistent with those generally charged for similar services; and
7.	Whether the services were necessary and appropriate. 164

1.1002 Establish a Prima Facie Case. A party "requesting an award of attorney fees must establish a prima facie case that the fees requested are reasonable. ¹⁶⁵

Fee-related work must be segregated. A party is not entitled to the recovery of fees for "duplicative work or for work that was performed on unsuccessful claims." ¹⁶⁶ "In an action encompassing several claims, the prevailing party is entitled to an award of costs and attorney's fees only for those claims for which (a) there is a contractual or statutory basis for such an award and (b) the party has prevailed." ¹⁶⁷

The requesting party must "establish to a reasonable degree of specificity" those fees associated with the fee related claim. ¹⁶⁸ This burden is not

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relieved simply because the claims are "intimately intertwined and depended upon a common factual basis." ¹⁶⁹

1.1003 Assessing Reasonableness of Request.

1.	The court will "weigh the testimony of attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it their own experience and knowledge of the character of such services." 170
2.	A court may determine that the fee award should be reduced under one or more of these factors. 171
3.	For application of this approach, see Jimenez v. Chae Hak Sim, 172 where the court awarded $50,788.25 in attorney fees, and Bison Building Co. v. Brown, 173 where the court awarded $72,168 in fees and costs.
4.	While fees may not be reasonable in relation to the outcome achieved by the attorneys, court still may award fees if they were incurred because of opposing party's repeated and meritless litigation. 174

1.1004 Proving Reasonableness. Detailed records of time spent allows the court to apply the seven Chawla factors to determine reasonableness. The applicant for fees bears the burden to "maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." ¹⁷⁵ "Where the application contains spotty descriptions of services

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performed, the applicant has not carried his burden of proof and the Court is precluded from accurately determining the reasonableness of hours spent." ¹⁷⁶

The Virginia Supreme Court has not addressed the issue of block billing. However, circuit courts have accepted block billing only, "[w]hen tasks are reasonably listed in block listings, in a manner that provides a rational summary of the time spent on the various projects . . . ." ¹⁷⁷

Expert testimony ordinarily is required to assist the trier of fact in determining a reasonable fee. ¹⁷⁸ However, expert testimony regarding the reasonableness of the fees is not required in every case, although it may help support reasonableness. ¹⁷⁹ Where no expert testimony as to the reasonableness of attorney fees is presented, sufficient lay testimony or other evidence is required for the court to determine reasonableness. ¹⁸⁰

Examples of sufficient evidence:

1.

Sufficient evidence as to reasonableness included 300 pages of a law firm's detailed billing records, plus affidavits from attorneys in the firm as to the accuracy and reasonableness of the bills. 181

2.

Sufficient evidence was also found in Seyfarth when party defendant produced a contract specifically identifying the attorneys who were to provide the services and the rates they were to charge; bills that were consistent with those contractual provisions; and an attorney from the law firm proffered testimony about the nature of the legal services provided to the defendants, the complexity of those services, the value of those services to the

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	defendants, and that the services were necessary and appropriate. 182
3.	The bank has submitted a detailed breakdown setting out the chronology and identification of legal work devoted to the collection effort in time records. These show, inter alia, the discovery the bank conducted after the defendants opposed the bank's right to recover followed by various settlement negotiations and workout proposals. There

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