Attorney Fee Awards

• Author: Leonard Bucklin
• Pages: 577-618

57-1 (Rev. 4, 8/08)

57. Attorney Fee Awards

In more cases every year, an attorney fee

award is an important part of the litigation. If

you want to recover an attorney fee award, you

need to be aware of the law of what is required

to prove up an attorney fee before you make that

first timeslip recording your attorney time.

Then you need to know how to present that

request, and have some checklists to guide you

in making the request. This tab section brings

law and practical advice together to answer

those questions for the prevailing attorney.

If you are defending, you need some quick

ideas and a checklist to depose the billing attor-

ney and attack the adverse expert. For the

defending attorney, this section shows the ways

to attack the request for an attorney fee award.

This tab section is not a handbook to tell you

in which cases an attorney fee can be recovered

by a prevailing party or to give you the defini-

tion of a “prevailing party” in various types of

litigation or situations. What this book does is

give you the practical knowledge and advice

you need as you handle the litigation, so that

you can efficiently and effectively recover, or

defend against, an attorney fee award.

§57.1 Timekeeping Required for a

Reasonable Attorney Fee

If you are going to ask for an award of a reason-

able attorney fee, you should keep time records —

from the time you start work on the case — and

those time records should contain the elements

we discuss in this text. Why? Because the courts

demand it. Almost always, courts start the calcu-

lation of a reasonable fee by discussing the time

the lawyer spent on the work and requiring attor-

neys requesting an award of “reasonable attorney

fee” to present time records for the work done.

Most courts, federal and state, have adopted the

substance of what was said by the Supreme

Court in requiring documentation of time spent

to be by specific, itemized, time records.

[T]he fee applicant bears the burden of

establishing entitlement to an award and

documenting the appropriate hours

expended and hourly rates. The applicant

should exercise “billing judgment” with

respect to hours worked ... and should

maintain billing time records in a manner

that will enable a reviewing court to iden-

tify distinct claims. *fn12 — We recognize

that there is no certain method of determin-

ing when claims are “related” or “unre-

lated.” Plaintiff’s counsel, of course, is not

required to record in great detail how each

minute of his time was expended. But at

least counsel should identify the general

subject matter of his time expenditures ....

As for the future, we would not view with

sympathy any claim that a district court

abused its discretion in awarding unrea-

sonably low attorney’s fees in a suit in

which plaintiffs were only partially suc-

cessful if counsel’s records do not provide

a proper basis for determining how much

time was spent on particular claims.

Hensley v. Eckerhart, 103 S. Ct. 1933, 461 U.S. 424

(1983).

The Hensley case was not unexpected; start-

ing in about 1980, attorneys seeking fee awards

in employment discrimination cases have

needed to present detailed hourly time records

and segregate issues and claims in their times-

lips.1The Hensley decision of 1983 cemented

1No compensation is paid for time spent litigating EEOC claims upon which the claimants did not pre-

vail; e.g., see Copeland v. Marshall, 641 F.2d 880, 891-892, 23 Fair Empl. Prac. Cas. (BNA) 967 (CADC 1980)

(en banc); Dillon v. AFBIC Devel.Corp., 597 F.2d 556, 564 (5th Cir. 1979); Oldham v. Ehrlich, 617 F.2d 163

169, n 9 (8th Cir. 1980).

that need of accurate and detailed time records

for civil rights claims. Since then, because there

is no substantial reason to treat the fee award

accounting on employment cases and civil

rights claims differently than other types of lit-

igation, the Hensley standard has become the de

facto federal court standard generally applica-

ble in all federal attorney fee settings. The state

courts since the Hensley decision have likewise

demanded hourly time records as the begin-

ning point for computing the reasonable fee.

The ethical problems with the hourly billing

method are well-established: over-billing, dou-

ble-billing, and flat-out false billing, among

others. Lawyers may be just sloppy about keep-

ing time records, but the courts are well aware

of articles such as Lisa G. Lerman’s “Blue Chip

Bilking: Regulation of Billing and Expense

Fraud by Lawyers”; Darelene Ricker’s “Greed,

Ignorance, and Overbilling: Some Lawyers

Have Given New Meaning to the Term ‘Legal

Fiction’”; and William G. Ross’s The Honest

Hour: The Ethics of Time-Based Billing by Attor-

neys2detailing how lawyers “systematically

‘pad’ timesheets,” “create entirely fictitious

timesheets,” or record as their legal time hours

work done by paralegals or secretaries. As a

result, sloppy time records raise court eye-

brows and invite an adverse expert to give

interesting testimony to the fact finder.

Accurate time records mean records made at

or near the time of the event:

“The burden is on counsel to keep and

present records from which the court may

determine the nature of the work done,

the need for it, and the amount of time

reasonably required; where adequate

contemporaneous records have not been

kept, the courts should not award the full

amount requested.” F.H. Krear & Co. v.

Nineteen Named Trustees, 810 F.2d 1250,

1265 (2nd Cir. 1987).

Courts have held that the absence of detailed

contemporaneous time records, except in

extraordinary circumstances, will call for a sub-

stantial reduction in any award or, in egregious

cases, disallowance.3

Courts are supposed to determine if the

amount of time spent on services is reasonable

or excessive. Clients are supposed to be able to

determine from bills if the services are excessive.

Both courts and clients are frustrated by block

billing that lumps several items together into a

one-time charge. “Prepare for depositions, letter

to Jones, phone call to Smith, and interview of

Adams ... 6.3 hours” gives no clue whether 5

hours was spent on the letter to Jones or .5 hours

was spent on the letter to Jones. While painstak-

ing work can segregate it out (e.g., looking at the

Jones letter and the notes on the interview of

Adams would help), no court or client wants to

do that sort of work to determine if the hours

being spent by the attorney are excessive.

[When] more than a single service was

provided, the services are combined, and

there is no information concerning what

part of the total charge is allocated to each

service, Hercules’ challenge of cleansing

the Augean Stables pales by comparison

with the task presented.

Mokover v. Neco Enterprises, Inc., 785 F. Supp.

1083 (D.R.I. 1992).

Courts are today treating as “vague” time

records that attorneys in your firm may be cre-

ating. For example, see the following:

Additionally, USA objects to many of the

time entries pertaining to telephone con-

versations. Pursuant to the standards set

forth in this district, a time entry of “tele-

phone call” or “telephone call with IRS” is

insufficient. See Wildman, 72 B.R. at 708.

The purpose and length of the conversa-

tion and the person called or calling must

be clearly set forth in the application. Id.

§57.1 BUILDING TRIAL NOTEBOOKS 57-2

2Lisa G. Lerman, “Blue Chip Bilking: Regulation of Billing and Expense Fraud by Lawyers,” 12 Geo. J.

Legal Ethics 205 (1999); Darelene Ricker, “Greed, Ignorance, and Overbilling: Some Lawyers Have Given

New Meaning to the Term ‘Legal Fiction,’” 80 ABA J. 62 (1994); William G. Ross, The Honest Hour: The

Ethics of Time-Based Billing by Attorneys. Carolina Academic Press (1996).

3E.g., Grendel’s Den, Inc. v. Larkin, 749 F. 2d 945 (1st Cir. 1984); Ragin, 870 F.Supp at 521 (listing cases) (30%

flat reduction in fee for failure to keep contemporaneous time records).

4See, e.g., Role Models America, Inc. v. Brownlee, which reduced the attorneys fee 50% because of sloppy

billing time records. See also, Bonnie & Co Fashion Inc. v Bankers Trust Co., 970 F. Supp 333 (S.D.N.Y. 1997)

(Even a 30% reduction in the claimed time may be too generous to the attorney in light of the vagueness

of the law firm’s records).

The entries pertaining to telephone calls in

the instant application are insufficient in

that they fail to provide the Court with the

requisite information in order to deter-

mine if the services were reasonable and

necessary.... Moreover, there are several

other entries which inadequately describe

the tasks performed. For instance, many of

the entries reflect time expended review-

ing the file, conferencing, and writing let-

ters to the client without the requisite

detailed specificity. A proper billing entry

must adequately explain what services the

professional was rendering at the time....

With respect to conferences, the entry

should note the nature and purpose of the

conference as well as the parties involved.

In re Price, 143 B.R. 190 (Bankr. N.D. Ill. 1992).

Good timekeeping and billing are not only

important to the courts. They are important to

clients who are looking for court awarded fees.

As a matter of reasonable attorney service in

recovering the fee award for their clients, attor-

neys should keep their records so that a reason-

able attorney fee can be proven in court. Attor-

neys can be properly accused of malpractice for

failing to keep the records on which their client’s

award of attorney’s fees needs to be based.

If you are seeking an award of attorney fees,

or if you are the unsuccessful side seeking to

cut down the prevailing party’s attorney fee

award, concentrate on the time records. Courts

disallow hours that are described in vague or

meaningless terms or that are insufficiently

documented. As the courts have pointed out,

there are substantial penalties, up to perhaps

50%, for a client whose lawyer does not keep

such time records and yet seeks attorney fees.4

Role Models America, Inc. v. Brownlee reiterated

the established law on the subject of time billing

that is not sufficiently descriptive. Because the

decision describes so well the type of time

records needed, and the consequences of a law

firm’s failure to do so, we quote liberally here:

To begin with, many time records lump

together multiple tasks, making it impos-

sible to evaluate their reasonableness....

Many time records also lack adequate

detail ... and do not adequately describe

the legal work for which the client is

being billed. This makes it impossible for

the court to verify the reasonableness of

the billings, either as to the necessity of

the particular service or the amount of

time expended on a given legal task....

The law clerk’s time records, for instance,

give an identical one-line entry,

“[r]esearch and writing for appellate

brief....” See In re Meese, 907 F.2d 1192,

1204 (D.C. Cir. 1990) (per curiam) (reduc-

ing an award because “[t]he time records

maintained by the attorneys, paralegals

and law clerks are replete with instances

where no mention is made of the subject

matter of a meeting, telephone confer-

ence or the work performed during hours

billed”); In re Olson, 884 F.2d at 1428

(“[T]here are multitudinous billing

entries, included among other entries for

a particular day, that wholly fail to state,

or to make any reference to the subject

discussed at a conference, meeting or

telephone conference”).

Attorneys also billed for time spent deal-

ing with individuals whose roles in the

case are never explained.... (“[W]e are also

compelled to deduct — charges incurred

when attorneys held conferences and tele-

conferences with persons referenced as

‘Geiser’ and ‘Wells.’ The application fails

to document who these individuals are or

the nature of their relationship to the

investigation; consequently, we cannot

evaluate whether such fees were reason-

ably incurred.”)... But because the time

records contain so little information, we

have no basis for concluding that hours

that appear to be excessive and redundant

are in fact anything other than excessive

and redundant....

Second, several time records include tasks

that do not warrant reimbursement.... In

57-3 ATTORNEY FEEAWARDS §57.1

(Rev. 4, 8/08)