February 27, 2017
Attorney fees are often a bone of contention in class actions. In fact, upon settlement, the only disputes usually to surface center around the attorney fees. Upon settlement approval, class counsel file somewhat self-interested fee requests with the court. Here, even when prepared with the proper standard of care, these fee requests appear bias and self-serving. Indeed, these self-seeking requests for fees are a source of frustration for the courts and often contested by professional fee objectors. These internal dynamics can drag class action litigation on for years. Recently, some class counsel have even grudgingly low-balled their fee requests to avoid this confrontation and delay in payment (see Race to the Bottom: Class Action Lawyers are Low-Balling Fee Requests). This self-reduction in fees is short-sighted and sets a bad precedent for future class action cases.
In order to break this stalemate, some class counsel are turning to attorney fee experts. Attorney fee experts are fully qualified expert witnesses who provide expert declarations on the reasonableness of attorney fees and expenses in underlying actions. They are skilled litigators with subject matter expertise and are highly qualified on a range of fee and billing issues like hourly rates, billing practices, fee award factors, litigation management, and lawyering just to name a few. A qualified, outside fee expert provides a fee-seeking attorney with an independent, unbiased, and objective analysis of the attorney fees and expenses in the underlying class action. Fee experts can manage the entire fee application process, provide an expert report/opinion, or advise and consult on fee matters. Some fee experts include law professors and former judges.
Hiring a qualified fee expert during the settlement phase shows the court and would-be professional fee objectors that you are taking the setting of attorney fees in a constructive and impartial manner. Retaining a fee expert shifts the focus from an internal and rather self-assured fee analysis to an outside, objective, and peer review-driven fee analysis. By relying on a qualified fee expert, class counsel can defuse the existing tensions within the class action and speed up the recovery of attorney fees. What is more, courts are more likely to rule in favor of a fee analysis provided by a qualified and disinterested expert, rather than someone with a financial stake in the outcome.