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Nation’s Top Attorney Fee Experts of 2017

October 11, 2017

Every year, NALFA announces the nation’s top attorney fee experts and legal bill review programs.  Attorney fee experts are judicially qualified expert witnesses who provide expert testimony on the reasonableness of attorney fees and expenses.  Attorney fee experts are often retained by fee-seeking and fee-challenging parties to help prove attorney fees and expenses in court or arbitration. 

NALFA helps to organize and recognize attorney fee experts from across the U.S. and around the globe.  The following profile quotes are based on bio/CV, case summaries and case materials provided to NALFA.  Here are the nation’s top attorney fee experts of 2017:

John D. O’Connor: “Nation’s Top Attorney Fee Expert” – NALFA 2017
O’Connor & Associates
San Francisco, CA

Andy Jardini: “30 Years of Fee Audit and Expert Experience” – NALFA 2017
KPC Legal Audit Services
Glendale, CA

Gary Mason: “Highly Skilled on a Range of Fee and Billing Issues” – NALFA 2017
Whitfield Bryson & Mason
Washington, DC

Kerrie Rosati: “Great Skills Resolving Fee Disputes Between Parties” – NALFA 2017
DGT Costs Lawyers
Sydney, Australia

Robert Kaufman: “Experienced on Cumis Counsel Billings” – NALFA 2017
Woodruff Spradlin & Smart
Costa Mesa, CA

Glenn Newberry: “Understands Legal Billing Issues Across Borders” – NALFA 2017
Eversheds Sutherland
London, United Kingdom

George Indest: “Excellent on Attorney Fee Issues in Florida” – NALFA 2017
Health Law Firm
Altamore Springs, FL

Blog post note: Mari Henry Leigh of Leigh-galese Legal Cost Consulting in Barrington, IL stated she always follows best practices.  She also stated, through her attorney, that she does follow Best Practices in Legal Fee Analysis.  She declined to sign a professional pledge, stating that would endorse and promote NALFA.

National Law Journal Cites NALFA Program

September 11, 2017

A recent NLJ article by Amanda Bronstad, “Judges Look to Profs in Awarding Lower Percentage Fees in Biggest Class Actions,” quotes NALFA’s CLE program, “View From the Bench: Awarding Attorney Fees in Federal Litigation” in an article on class action fee awards.  The full article reads:

After reaching a $101 million class action settlement to resolve lawsuits brought over a chemical spill that contaminated a West Virginia river, the plaintiffs lawyers asked a federal judge to grant them 30 percent of the fund as contingency fees.

The judge praised their work but found that fee request to be just too high.  "Even without accounting for fund size, the empirical literature clearly demonstrates that a 30 percent fee is higher than that awarded in the vast majority of class actions," U.S. District Judge John Copenhaver of the Southern District of West Virginia wrote in a July order.  "Courts have found through empirical analysis that larger common funds typically have smaller percentage fees."

The empirical analysis Copenhaver referred to came from the findings of two leading academic reports — both cited in the opinion — that federal judges across the country have used for the past decade to guide them in decisions about attorney fees in some of the nation's largest class action settlements.

New York University School of Law professor Geoffrey Miller and the late Theodore Eisenberg, a professor at Cornell Law School, wrote one of the studies, an updated version of which is set to be published this year.  The second is a 2010 study conducted by Brian Fitzpatrick, a professor at Vanderbilt University Law School.

Both studies have provided critical assistance for federal judges, particularly when it comes to class action settlements of $100 million or more.  The concern for those on the bench is how to award plaintiffs lawyers for their work without granting them excessive fees and leaving class members in the lurch.

"Judges do take the role seriously," said William Rubenstein, a professor at Harvard Law School whose highly regarded "Newberg on Class Actions" has cited the Eisenberg/Miller and Fitzpatrick studies in his 11-volume treatise, alongside data he has used from a former publication called Class Action Attorney Fee Digest.  "And they understand they're a bulwark against excessive fees from the class members' money."

How to determine the exact amount has often been more art than science.  In a webinar earlier this year hosted by the National Association of Legal Fee Analysis, U.S. District Judge David Herndon of the Southern District of Illinois, who has handled several of the nation's largest mass torts and class actions, said a lot depends on the amount of recovery to the class.

"It just depends … on the case and what the benefit is that the lawyers have achieved by their work," he said at the webinar, called "View from the Bench: Awarding Attorney Fees in Federal Litigation."  "If it's reasonable, then you can approve the contingency, but if it's pretty far out of whack maybe you've got to have the lawyers justify the difference or perhaps go with the lodestar.  There are a lot of things to look at."

And there are outside concerns as well.  Judges have increasing scrutiny from appeals courts, which often take up the petitions of objectors to class action settlements, Rubenstein said.  "Public policy generally cautions against awarding too high a fee," Copenhaver wrote in the West Virginia water case.  "The court's challenge is to award a fee that both compensates the attorneys with a risk premium on their skill and labor and avoids a windfall."

Last month, plaintiffs lawyers in the case submitted a renewed motion for settlement approval that lowered their fee request to 25 percent — more in line with what Copenhaver had found was reasonable.

Judges often look to previous case decisions, or their own experience, to determine what amount is appropriate to award lawyers in class actions.  They also get a list of cases from the lawyers — but those often come with vested interests.  For a long time, there was limited statistical data on what other judges had done.  That's where Fitzpatrick said he and the Eisenberg-Miller team tried to give judges a starting point.

"We tried to give the judges the full data instead of just leaving them at the whim of the cherry-picked cases the lawyers give them," he said.  "The judges don't have to replicate what other courts have done, but they have the opportunity to stick within the mainstream of what their colleagues have done if they want it now that they have the power of empirical studies."

Miller said he came up with the idea while serving as an expert witness in cases.  When his first report with Eisenberg published in 2004, one year before the U.S. Class Action Fairness Act passed, the political atmosphere was rife with criticism about attorney fees in class actions.  At the time, only one group had looked at the data — but it wasn't really a controlled study.

"On the issue of fees, the data was there but hadn't been developed," he said.  Eisenberg wasn't an expert on class actions, Miller said, "but he was the leading person probably in the world who was doing empirical studies of legal material."  Their report looked at published data of class action settlements from 1993 to 2002.

By the time of their second report in 2009, which expanded the data through 2008, Miller and Eisenberg had some competition.  Fitzpatrick thought that their report, like those before it, relied too much on "ad hoc" data that focused primarily on bigger, published decisions.  "I really endeavored to find every last one to have the complete and representative picture," he said.

He came up with a wider range of class action settlements within a shorter period of time — just 2006 and 2007.  Combined, both reports have been cited by judges more than 100 times, Miller said.  And they often involve the biggest settlements in dollar amount, he said.  "The issue is that there aren't as many cases," he said.  "There's less data. And that puts an additional premium on getting what data there is, so that's one reason judges look to this research in big cases."

Another came in 2012, he said, when U.S. District Judge Lee Rosenthal of the Southern District of Texas, the former chairwoman of the Judicial Conference Committee on Rules of Practice and Procedure, endorsed both studies in a case called In re Heartland Payment Systems Customer Data Security Breach Litigation: "District courts increasingly consider empirical studies analyzing class-action-settlement fee awards to set the appropriate percentage benchmark or to test the reasonableness of a given benchmark," she wrote.  "Using these studies alleviates the concern that the number selected is arbitrary."

Economies of Scale

Both studies have come out with slight differences in their specific findings.  But they came to the same conclusions: The vast majority of judges award fees based on a percentage of the total settlement amount — then cross-check that amount against the total number of hours the lawyers billed multiplied by the hourly rate, referred to as the lodestar.  There's a good reason for that trend.

"It's economies of scale," Miller said.  "Judges understand that to get a $1 billion settlement is not 1,000 times harder for an attorney to get a $1 million settlement.  It's a lot harder, but not 1,000 times harder."

Herndon, in the webinar, said that's just common sense.

"If they got a third of $1 billion, and compared to their lodestar, it would be an astronomical per hour figure," he said.  "There's some common sense in doing something like that, and I don't really have a particular feeling one way or the other, but I think there's certainly authority in the law for doing it."

In fact, many judges who cite the Eisenberg-Miller and Fitzpatrick reports look specifically to the data as it pertains to the size of the settlement in front of them and what the case is about.

But Fitzpatrick questioned whether judges were doing the right thing in lowering the percentages as the settlements get bigger.  "I think the judges are responding to perception when they do that and they're not responding to good economic policy analysis," he said.  "Because why would we want to punish lawyers with lower percentages for getting their clients more money?"

Not all judges agree with the conclusions made by the professors, who sometimes go up against each other as paid experts in individual cases.  In a $415 million settlement of "no poach" claims involving high-tech workers, U.S. District Judge Lucy Koh of the Northern District of California weighed Fitzpatrick's report against the Eisenberg/Miller study in awarding $40 million in fees.  In that case, Fitzpatrick was a paid expert for the lead plaintiffs attorneys, while Rubenstein cited the Eisenberg-Miller report in a declaration filed on behalf of one of the lead firms that had submitted a separate fee request.

"The court finds the Eisenberg & Miller study more persuasive than the Fitzpatrick study," Koh wrote in a 2015 order, concluding that the "length and large sample size of the Eisenberg & Miller study suggest that its results are entitled to greater weight."

Fitzpatrick said he's working on an updated report, likely to be drafted next year.  "Whenever I hear from these judges, they say the same thing: We love your study but we need more recent data," Fitzpatrick said.  "So that's what I'm trying to give them."  But gathering the data takes a lot of time and money, he said.  He's hired research assistants to code all the data.

The latest Eisenberg-Miller report, co-authored with research scholar Roy Germano at NYU's law school, uses data through 2013.  Without Eisenberg, who died in 2014, Miller said he's not certain he'll keep publishing the report.  "I don't think I'll do it anymore," he said. "It is a lot of work."

Earn a Certificate in Reasonable Attorney Fees

August 9, 2017

NALFA is the nation's leading CLE provider of events and programs on attorney fee and legal billing topics.  Since 2008, NALFA has hosted over 20 different events and programs on a number of attorney fee and legal billing matters in several key practice areas.  Hundreds of attorneys and other professionals from across the U.S. have registered and participated in these programs.  Several of our faculty have included sitting federal judges. 

NALFA is now offering a Certificate in Reasonable Attorney Fees for registered guests of multiple programs.  Attorneys who register for 4 or more programs within a year will earn the Certificate in Reasonable Attorney Fees.  This is the nation’s first and only certification of its kind.  This certificate is open to paralegals and insurance claim professionals.  Candidates for this certificate must submit their current CV to NALFA.

“We’re excited about this new certification,” said Terry Jesse, Executive Director of NALFA.  “This certification is an excellent way for attorneys to show their clients they're accredited in reasonable attorney fees.  Attorneys who earn this certification are highly knowledgeable in the 5 key substantive areas of attorney fee ethics, fee agreements, fee entitlement, fee award factors, and fee disputes.” Jesse said.

For more on NALFA CLE and professional development programs, visit http://www.thenalfa.org/CLE-Programs/.

NALFA Podcast with Andy Jardini

August 7, 2017

NALFA hosts a podcast series on attorney fee issues.  We talk to thought leaders, attorney fee experts and attorney fee newsmakers who’ve help shape and influence the jurisprudence of reasonable attorney fees.  NALFA interviews members, faculty, judges, law professors, in-house counsel and others to discuss a range of issues on attorney fee and legal billing matters.

NALFA’s fifth podcast featured an interview with NALFA member Andy Jardini.  Andy Jardini is managing partner of KPC Legal Audit in Glendale, CA.  Andy has developed a particularized practice regarding the review and analysis of legal billings.  Since 1986, he has performed services on behalf of a wide variety of clients concerning all aspects of the issues of reasonableness and compensability of legal fees.  Under the auspices of KPC Legal Audit Services, Andy has performed more than 1,000 audits, involving more than $1 billion in legal fees.  His services have been rendered as a consultant, an expert witness in litigation, and as an attorney in fee litigation.

The NALFA podcast with Andy Jardini focused on his work as a litigator and as an attorney fee expert.  Jardini discussed several issues in the attorney fee arena including fee-shifting litigation, attorney fee agreements and proper billing practices.  Jardini also discussed the use of technology and human interface in reviewing legal fees for reasonableness.

“This podcast series is the perfect broadcast format to discuss attorney fee issues,” said Terry Jesse, Executive Director of NALFA.  “Andy’s a pioneer in legal fee analysis and one of the nation’s top attorney fee experts.  It was great to learn about his early career and the important work he does at KPC Legal Audit,” Jesse conclude.  Click on the link below to listen to the NALFA podcast:

https://soundcloud.com/thenalfa/nalfa-podcast-with-andy-jardini

NALFA’s Fee Dispute Mediation Program Achieves 86% Success Rate

July 19, 2017

NALFA’s Fee Dispute Mediation Program is the nation’s only program devoted exclusively to resolving attorney-client fee disputes.  NALFA’s Fee Dispute Mediation Program recently reached an achievement:  Since the program began, NALFA’s Fee Dispute Mediation Program has achieved an 86% success rate—parties who mediate in a session are resolved six out of every seven times.  This rate is significantly higher than most bar-administered fee dispute programs.  NALFA has settled over $5 million in disputed attorney fees between parties in over 40 cases.  The cases were brought by corporate clients and law firms ranging from fee disputes of $32,000 to $975,000 from across the U.S.  One fee dispute case was from the UK.

Attorney fee disputes are the result of a breakdown in the attorney-client relationship.  This breakdown may be a misunderstanding in the fee agreement or confusion over the law firm billing records.  Whatever the cause, mediation is the quickest, simplest, and most cost-effective way to resolve these attorney fee disputes.  NALFA fee dispute program is a private mediation service specifically designed to resolve attorney fee disputes of all types and sizes.

NALFA's fee dispute mediators are uniquely qualified to resolve fee disputes between parties in a cost effective and confidential manner.  These fee dispute mediators are trained neutrals who understand the underlying issues in fee and billing dispute matters.  Our fee dispute mediators are highly knowledgeable on reasonable attorney fees and proper legal billing practices.  They understand the array of issues in fee dispute cases such as fee agreements, hourly rates, billing practices and attorney fee ethics.

Unburden by bar association rules, NALFA provides parties with a mediation process that is flexibility, responsive and cost-effective.  Parties control when and where the mediation will occur, who will serve as the mediator, and whether they will accept a settlement offer.  Unlike most bar-administered programs, NALFA stays with the fee dispute case as long as necessary to bring it to a resolution.

"Our 86% success rate belongs to the outstanding work of our members, some of the nation's top rated fee dispute mediators," said Terry Jesse, Executive Director of NALFA.  "Their understanding of fee issues and their mediation skills are the reason we're celebrating this achievement," Jesse concluded.