Attorney Fee Awards: Assessing the Reasonableness of the Number of Hours Claimed

• Publication year: 2001
• Pages: 79
• Citation: Vol. 30 No. 6 Pg. 79

30 Colo.Law. 79 Colorado Lawyer 2001.

2001, June, Pg. 79. Attorney Fee Awards: Assessing The Reasonableness of the Number of Hours Claimed

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79

Vol. 30, No. 6, Pg. 79

The Colorado Lawyer
June 2001
Vol. 30, No. 6 [Page 79]

Specialty Law Columns
Labor and Employment Review
Attorney Fee Awards: Assessing The Reasonableness of the Number of Hours Claimed
by Jessica Lee

It is the general rule in this country that litigants must pay their own attorney fees.1 However, a widespread exception to this general rule has grown as more statutes authorize payment of attorney fees by one party to the prevailing party.2 The Americans with Disabilities Act ("ADA"), Title VII, and § 1988 each grant prevailing parties a reasonable fee.3 The Age Discrimination in Employment Act ("ADEA") and Fair Labor Standards Act ("FLSA") require courts to award fees to prevailing plaintiffs.4 Once a party has established its entitlement to fees, the court must decide on a reasonable fee

The starting point for determining a reasonable fee is the "lodestar"—the number of hours reasonably expended multiplied by a reasonable hourly rate.5 One key issue with respect to this method of calculating fees is whether the prevailing party has exercised appropriate "billing judgment" concerning the number of hours claimed. This article discusses the factors courts consider when assessing the billing judgment of the parties and suggests specific challenges that can be made to attorney fee applications

Determination of
Reasonable Fee

There is a strong presumption that the lodestar represents a reasonable fee.6 However, to enable the court to calculate the lodestar, the fee movant must demonstrate not only that the claimed hours were actually expended, but also that they were "reasonably" expended.7 Specifically, the fee applicant must exercise billing judgment by excluding unreasonable hours from the initial fee calculation.8 "Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended."9 According to the U.S. Supreme Court "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority."10 (Emphasis in original.)

If fee applicants do not exercise billing judgment, courts are obligated to do it for them.11 In considering whether counsel's hours were appropriately expended, courts seek to ascertain what a fee-paying client reasonably would expect to pay.12 Courts also examine a number of different factors to determine reasonableness, including whether (1) the tasks were clerical in nature or could have been performed by more junior lawyers or paralegals; (2) the work could have been performed more efficiently; (3) the case was overstaffed, the hours logged were duplicative, or the tasks performed were redundant; and (4)Êcertain time was not reasonably expended on the litigation or certain tasks simply should not have been performed. Each of these factors is discussed below.

Clerical Matters and Tasks

Time billed for clerical matters is routinely challenged and disallowed. "[P]urely clerical or secretarial tasks should not be billed at a paralegal [or lawyer's] rate, regardless of who performs them."13 The dollar value of such non-legal work is not increased because it is performed by a lawyer.14 Thus, it is unreasonable for lawyers to bill for tasks that non-attorneys could perform at a significantly lower cost to the client.15

In Davis v. City and County of San Francisco, the city and a class of female and minority plaintiffs settled class employment discrimination claims filed under Title VII, and the plaintiffs were awarded attorney fees.16 The city appealed the district court's fee award, arguing, among other things, that time billed for clerical matters was a clear example of billing abuse.17 The district court noted that plaintiffs' counsel had billed eighty-three hours for copying, filing, and serving papers.18 However, the plaintiffs later reduced the total number of hours claimed by 5 percent, which they claimed rendered a further reduction in the lodestar amount unnecessary.19 The court of appeals agreed. Significantly, the 5 percent reduction amounted to approximately 450 hours.20

In Spegon v. Catholic Bishop of Chicago, the plaintiff appealed a fee award under the FLSA.21 The district court had disallowed all of the associate attorney's hours. The appeals court...