Types of Compesable Work
Jurisdiction | Maryland |
II. TYPES OF COMPESABLE WORK
A. Fees Available for Appellate Work
Shifted fees are generally available for successful appellate work performed under the remedial statutes.83 This principle has long been the case in federal jurisprudence. Indeed, attorneys' fees may be available for subsequent litigation to preserve the gains made during the prior litigation where the party prevailed.84
MARYLAND RULE 2-703 sets forth a procedure for adjudicating appellate fees in the Maryland courts. Thus, a motion for appellate fees must now be filed "within 30 days in circuit court that entered the underlying judgment." Proceedings are to be conducted under the standards and procedures set forth in that rule.
B. Fees for Litigating the Fee Award Issue
The courts have held that the time spent defending entitlement to attorneys' fees is compensable.85 The Tenth Circuit has stated the prevailing view aptly, "it is obviously fair to grant a fee for time spent litigating the fee issue, at least if the fee petitioner is successful and his claim as to a reasonable fee is vindicated, since it is the adversary who made the additional work necessary."86
The Maryland Court of Appeals has also recognized the principle that costs for litigating attorneys' fees are also compensable. The Court of Appeals rejected the argument that attorneys' fees related to the litigation of the entitlement to attorneys' fees are too attenuated from the underlying subject matter of the case to be compensable, stating:
In the instant case, Friolo succeeded in in obtaining the initial attorney's fee award of $4,711, in vacating the judgment of Friolo I because this Court agreed with Friolo and held that the lodestar method is the proper analysis by which to determine attorney's fees under the Wage and Payment Laws, and in obtaining a new, significantly higher fee ward, in the amount of $65,348, on remand. While it is the Circuit Court's discretion ultimately to determine Friolo's degree of success, which will be reflected in the lodestar calculus to determine the appropriate amount of attorney's fees to award, one of the factors it must consider is the attorney's fees that contributed to any success that the court determines the plaintiff had. Therefore, on remand, the Circuit Court must include in the lodestar analysis, appellate fees Friolo incurred in successfully challenging, based on the flawed methodology the Circuit Court used, the attorney's fee awarded in this case. Only in that way will the fee award be consistent with thee purpose behind both the Wage and Payment Laws.87
The determination of an appropriate award of fees-on-fees is within the trial court's discretion.88 The steps required to prepare an application are necessarily time consuming, entailing review and organization of time records, preparing affidavits, and conducting research to keep pace with the evolution of attorneys' fee law. The awarding of fees for time spent pursuing attorneys' fees is integral to the enforcement purposes underlying statutory fee awards.89
C. Multiple Attorneys
"The retaining of multiple attorneys in a significant, lengthy employment discrimination case [. . .] is understandable and not a ground for reducing the hours claimed."90 Indeed, both Appendix B to the U.S. District Court's Local Rules91 and the Appendix to Md. Rule 2-703 state that it is appropriate for more than one attorney to attend a deposition where both attorneys have specific roles, i.e., organizing documents and taking the deposition.92 "Staffing issues are often best resolved by the trial court's application of its intimate, first-hand knowledge of the particular case's nuances and idiosyncrasies."93 The "[t]ime spent by two attorneys on the same general task is not per se duplicative."94 "Given the complexity of modern litigation, the deployment of multiple attorneys is sometimes an eminently reasonable tactic [. . .] Effective preparation and presentation of a case often involve[s] the kind of collaboration that only occurs when several attorneys are working on a single issue."95
"Careful preparation often requires collaboration and rehearsal. [. . .] [B]ecause a litigant's staffing needs and preparation time will often vary in direct proportion to the ferocity of [its] adversaries' handling of the case, this factor weighs heavily in the balance."96 "Whether time billed by plaintiff is excessive or unproductive must be determined in light of how aggressively the [d]efendant has argued its case."97 "It is an import ant factor to consider whether [d]efendants employed 'Stalingrad defense' tactics, resisting [p]laintiffs at every turn and forcing them to win their hard-earned victory from rock to rock and from tree to tree."98
However, "[a]s a general matter, the time for two or three lawyers in a courtroom or conference, when one would do, may obviously be discounted. [. . .] A trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism [. . .] [consequently] a court should not hesitate to discount hours if it sees signs that a prevailing party has overstaffed a case."99
D. Depositions
"It is generally reasonable to depose a potential trial witness."100
E. Travel Time
Travel time is generally compensable.101 Attorneys typically bill their travel time at the full hourly rate because it precluded them from engaging in other billable professional work.102 Appendix B to the U.S. District Court Local Rules discusses travel time extensively.103
It stresses that time spent working while in transit should be billed to the appropriate case, and when no work can be done, that time can be billed at one half the regular rate.104 The Appendix to Md. Rule 2-703 shows that Maryland courts adopt the same approach.
F. Background Research
"[C]ounsel are not forbidden from receiving fees for background research if the research is (1) relevant and (2) reasonable in terms of time for the scope and complexity of the litigation."105
G. Intra-Office Conferences
There is no rule against compensating attorneys in fee shifting for intra-office conferences.106 Rather, the court often considers the reasonableness of the time or of the specific task with regard to the litigation.107 The Appendix to MD. Rule 2-703 states that: "[o]rdinarily, only one attorney should be...
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