Part Xliv Motions For Attorney Fees Continued Motions For Attorney Fees Continued

• Jurisdiction: New York

Part XLIV — Motions for
Attorney Fees Continued

The Legal Writer continues its series on civil-litigation documents. In the last issue of the Journal, we discussed attorney-fee motions: determining prevailing-party status, resolving which method to use in calculating attorney fees, and practicing in federal and state courts. The Legal Writer discussed the six methods for calculating attorney fees: the percentage-of-recovery method; the lodestar method; the lodestar cross-check method; the pure factor-based method; the multifactor lodestar method; and the strict lodestar method.

In this issue, the Legal Writer focuses on the multifactor lodestar method to calculate attorney fees. This column will discuss how to compose and oppose attorney-fee motions and how to conduct and defend attorney-fee hearings. This column isn’t about suing your client for unpaid legal fees.²²³⁰ It’s about how your clients can recoup your fees from their adversaries.

Attorney-Fee Motion

Before moving for attorney fees, make sure you’re entitled to attorney fees under a contract, statute, or court rule.

Burden. In your motion papers, you must explain, with specificity, that your legal fees are reasonable.

Specificity is important because your motion papers might push your adversary to settle. And if you’re specific but your adversary doesn’t oppose your motion, or some aspects of your motion, you can win outright, without a hearing, or at least limit the attorney-fee hearing to the issues your adversary opposed.

Motion Papers. Your motion for attorney fees must comport with CPLR 2101 and 2214. Your papers must contain a notice of motion and an affidavit (or an attorney’s affirmation).

State in your motion papers whether you’re moving to enforce a contract, statute, court rule, or any other exception to the American rule. Include as an exhibit in your attorney-fee motion the contract, statute, or court rule on which you’re relying.²²³¹ In a landlord-tenant proceeding, for example, include the residential lease as an exhibit.²²³²

If the contract, statute, or court rule entitled the prevailing party to recover its attorney fees, explain why your client is the prevailing party.

Include your legal bills as an exhibit in your motion. In your bills, affirmation, or both, provide the total number of hours you expended on the case and the total amount of fees you’re seeking. You may include individual bills or a summary of the bills.

Many practitioners create a chart outlining all the attorney fees. A chart might include the dates the legal services were expended, the hours expended, the work completed, the individual who completed the work, that individual’s hourly rate for those services, the costs and expenses, and any other explanation of those services.

Explain whether a partner, associate, or paralegal provided the services to your client. Also explain whether a senior partner supervised a junior partner and provide the hours and fees for those services.²²³³

Explain how your exhibits — bills and any other documents — are admissible under the business records exception to the hearsay rule.

If your bills aren’t concise and self-explanatory, explain the contents of your bills in your affirmation.

Include any other exhibit that’ll help the court decide the motion in your favor.

Be aware that some statutes have a cap on attorney fees.²²³⁴

Method of Computing the Fees. Make it easy for the court to rule for your client. Compute your legal fees for the court.

Under the multifactor lodestar method, determine the initial lodestar amount. Exclude any duplicative, excessive, or unnecessary hours from the calculation.²²³⁵ Tell the court what hours you’ve excluded as duplicative, excessive, or unnecessary. Telling the court what charges you’ve excluded will show you’re honest. Multiply the number of hours that you (and other attorneys or paralegals in your firm) spent litigating the case by that respective individual’s reasonable hourly rate. Adjust the calculation upward or downward based on the facts and circumstances of the case. Then use the Johnson factors to adjust the calculation.²²³⁶

In applying the Johnson factors, explain in your motion papers the time and labor necessary to litigate the case. If the case involved a novel or difficult legal issue, explain how the issue was novel or difficult. Tell the court what skills were required of you to perform the legal services. Explain whether some legal services required more skills than other services. Explain what cases you rejected because you accepted this case. Determine the customary fee that other attorneys in your community charge for similar cases, perhaps with an affidavit from an expert. Explain how your legal fee is similar to or different from the customary fee in your community. Explain whether your fees were fixed or contingent. Explain the time limits your client or the circumstances of the case imposed on you. Discuss the amount sought in the litigation and the results you obtained for your client. Also discuss your experience, reputation, and ability as an attorney; include the experience, reputation, and ability of any other attorneys or paralegals who worked on the case. Address the undesirability of the case. Explain the nature and length of your professional relationship with your client. Discuss fee awards in similar cases.

Discounted Fees. If you gave your client a discounted rate for your legal services, ask the court in your motion papers to award you the higher, undiscounted fee.²²³⁷ Regardless why you gave your client a discount — your client is a great client who gave you lots of business or your client has had financial setbacks — ask the court to award you the higher rate.

A court may assess an award at a rate greater than the rate in your fee agreement if the rate — the undiscounted rate — is reasonable. Argue in your motion papers that it’s not about what you and your client agreed to in terms of your attorney fees but what’s the reasonable fee: “The criterion for the court is not what the parties agree but what is reasonable.”²²³⁸

Argue in your motion papers that if the court awards you the discounted rate rather than the undiscounted rate, the award would result in a windfall to your adversary — the losing party.²²³⁹ Also argue that the discounted rate doesn’t reflect the reasonable attorney fees to which you’re entitled.

Argue that what you did in reducing your fees is similar to what other attorneys do for poor clients.

Argue that attorneys who reduce their fees for poor clients shouldn’t be penalized.

Pro Bono Work. Even if you did pro bono legal work, argue in your motion papers that it’s irrelevant that no one paid your fees: “What counts is whether the attorney’s expenditure of time and effort lead to an obligation to pay fees, and sometimes, as in the case of pro bono work on a prevailing party’s behalf, a client need not incur an obligation to pay attorney fees.”²²⁴⁰

Argue that just because you did pro bono work doesn’t mean the court should reduce the legal-fee award.²²⁴¹

Argue for public policy reasons that you’re entitled to your attorney fees irrespective whether your client is rich or poor. If you’re relying on a statute for your attorney-fee motion, argue that no legislature intended compensation only for attorneys who had clients who could afford their fees.

Someone Else Paid the Fees. If someone other than your client paid your client’s legal fees, explain in your motion papers that you’re still entitled to the attorney fees.²²⁴² Argue in your motion papers that it’s irrelevant who paid your attorney fees. What’s relevant is that your time and effort “lead to an obligation to pay fees.”²²⁴³

Fees for Appellate Work. An attorney-fee award may include an award for attorney fees incurred in doing appellate work for your client.²²⁴⁴ In your motion papers, argue that the court award you attorney fees for the time you spent on appellate work.²²⁴⁵

Fees on Fees. In your motion papers, seek fees on fees: getting compensated for moving for attorney fees.²²⁴⁶ It means you’re asking the court for fees for the time you expended in drafting, researching, and compiling your attorney-fee motion. If the court orders an attorney-fee hearing, it also means that you’re seeking fees for the time you expend at the hearing. The rationale for obtaining fees on fees is that you should be “compensated for [the] time [you] spent proving the value of [your] services.”²²⁴⁷

But a court may award you fees on fees only if a statute or agreement provides for fees on fees.²²⁴⁸ Your agreement — such as a contract or lease — must “contain unambiguous language providing for the recovery of fees on fees.”²²⁴⁹

In your attorney-fee motion, seek fees on fees even if you don’t yet know what hours you’ve expended in putting together your motion and whether you’ll need to reply to your adversary’s opposition papers. Request fees on fees even if you don’t yet know whether the court will order an attorney-fee hearing. In your motion papers, reserve your rights to obtain fees on fees. Example: “Tammy Jerome reserves...