A recent Law 360 story by Michelle Cassady, “4 Ways Rohrmoos Could Change Fee Fights in Texas,” reports that the Texas Supreme Court's recent opinion laying out what evidence is needed to prove up attorney fees already is being called by some practitioners the seminal case on the topic and one that could have a major impact on fee fights in the state.
In its Rohrmoos Venture v. UTSW DVA Healthcare LLP ruling, issued, the court sought to dispel what it said was confusion on the part of lawyers and courts about two methods of calculating fees: the Arthur Andersen eight-factor test and the lodestar method. It said the lodestar method — determining fees by multiplying the number of hours spent working on the case by a reasonable hourly rate — should be the starting point for calculating fees.
The state's high court intended the 56-page opinion to be a "big black-letter case," said Jadd Masso of Clark Hill Strasburger PLC, characterizing it as "the conclusion of an evolution on the part of the court" that encompasses its 2012 opinion in El Apple I Ltd. v. Olivas and its 2013 opinion in City of Laredo v. Montano. Masso said the lengthy opinion amounts to a "treatise on attorneys fees in Texas." "It is the way, the truth and the life, and the only way to get fees is through the lodestar method," he said. The El Apple decision was a signal from the court it wanted to encourage the use of lodestar, Masso said. And with Rohrmoos, there's no more question about whether there's more than one way to prove up fees, he said.
Here are four ways that the ruling could change fee fights in Texas.
Detailed Billing Records Will Become the Norm
The Rohrmoos opinion didn't mandate real-time billing records to prove up attorney fees, but the court said they are "strongly encouraged to prove the reasonableness and necessity of requested fees when those elements are contested." While most defense attorneys already do keep such records, the ruling will likely have a bigger impact on plaintiffs attorneys and others who work on a contingent fee or flat fee basis, said Frank Carroll of Roberts Markel Weinberg Butler Hailey.
"I think they have put the final nail in the coffin that anything short of contemporaneous billing records is sufficient," he said. "People need to avoid the idea that 'this doesn't apply to me.'" Carrol said lawyers doing simple, flat-rate cases for small amounts of money may not need to worry about keeping those records. "But for everyone else: Proceed at your own peril if you don't follow the mandate of El Apple, City of Laredo, and this case."
Some defense lawyers, like Michelle Hartmann of Baker McKenzie, already are being pushed by clients into alternative fee arrangements rather than the hourly rate model. "But we still enter all of the hours that go toward the case. Not because we're going to bill the client for them, but to double check profitability and see if that was a good fit for both the client and the firm," she said. "I think most defense attorneys do it now, even with flat-fee arrangements. But this is a reminder you still need to keep good billing records."
Lawyers Could Face Lengthy Cross-Examinations on Fees
The attorney who represented UTSW in the Rohrmoos case, Wade Howard of Liskow & Lewis, said he tried at oral arguments before the high court to stress that putting hundreds of pages of detailed billing records before the jury would "do nothing" to help them determine what costs are actually reasonable and necessary. Other practitioners have said that while the jury panel might not be going through those documents page by page, it does provide the other side "better ammunition to cross examine a lawyer," said Kelli Hinson of Carrington Coleman Sloman & Blumenthal LLP.
"They can then ask the tough questions, like, 'Why did you spend 50 hours on a motion for summary judgment that never got filed?' or 'Why were three attorneys doing this when one would have been sufficient?'" she said. "So the jury gets the advantage of that even if they themselves don't pore through the record." The Texas Supreme Court seemed to understand that the new guidance could have unintended consequences and warned in its Rohrmoos ruling that it was not "endorsing satellite litigation as to attorney's fees."
But courtroom opponents could easily use the records "as an opportunity to try and make the burden that the claimant has to meet even harder than this decision intended it to be," Hartman said. And finding that sweet spot could be a years-long process, Hinson said.
"They said we don't want attorneys on the stand for days going through the bills bit by bit," she said. "I think that's going to be where we struggle over the next few years — trying to find that fine line between what's enough and what's too much."
Outside Experts Could Be Used to Back Up Fee Requests
The ruling could also mean that attorney fees — which in many cases are the largest element of damages — will stop being treated like the "stepchild" of litigation, said John W. Bridger of Strong Pipkin Bissell & Ledyard LLP. Bridger said that for years he's been advising other attorneys on the value of having an outside expert testify to the reasonableness of requested fees rather than the attorney on the case taking the stand.
For one, it can keep defense lawyers out of the sometimes awkward position of attacking the plaintiffs' attorney fees in front of a jury, and secondly, he said, it would encourage attorneys to spend more time developing the evidence to prove fees. "This case only pushes us more and more toward outside experts, particularly where the attorneys' fees are larger than the amount in controversy," he said.
And the increasing amount of fees being sought is another reason calling in an outside expert could be worthwhile, said Kurt Kuhn of Kuhn Hobbs PLLC. "It's inevitable that you're going to see people develop that evidence more. It clearly can't be an afterthought," he said. "To get an outside expert is going to give you, in front of a jury, a little more credibility."
Counsel-to-Counsel Fee Agreements Could Proliferate
Hinson also speculated that the guidance could cause an uptick in attorneys agreeing to their respective fees ahead of time, keeping that issue out of litigation entirely. "I do think it will be interesting to see if attorneys veer more that way so at least they know they won't get overturned for not having enough evidence," she said.
In the Rohrmoos opinion, the court "hints at" and "suggests" that stipulating to fees before trial in an agreement with opposing counsel could be a way to avoid contentious fee fights, Masso said. Because the ruling could be interpreted as requiring "more work" on the part of attorneys trying to prove up fees, Masso said it's possible you'll see more negotiation and agreement on fees. "This opinion makes the litigation of attorneys' fees a little more complex than it was before," he said. "And there's no way that it doesn't result in that litigation getting a little more complex, and a little more involved and lengthy."
The cases is Rohrmoos Venture et al. v. UTSW DVA Healthcare LLP, case number 16-0006, in the Supreme Court of Texas.