Attorney Fee Awards

AuthorLeonard Bucklin
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
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.
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
(Rev. 4, 8/08)

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