A recent Law 360 story by Bonnie Eslinger, “Excessive Attys’ Fee Bids Can Backfire, Judges Say,” reported on a NALFA CLE program hosted today, “View From the Bench: Awarding Attorney Fees in Federal Litigation”. This live, remote, and multi-state CLE featured an all-judicial panel of sitting U.S. District Court judges. The story reads:
A prevailing party seeking to recover legal fees should resist asking for excessive or unnecessary hours, federal judges said in a panel discussion Thursday, with one jurist noting such entries send up a red flag that makes him "skeptical of the entire application." Speaking on a conference call organized by the National Association of Legal Fee Analysis, U.S. District Judges Virginia A. Phillips and Gene E.K. Pratter and Magistrate Judge William Matthewman all spotlighted examples of fee requests that didn't align with the U.S. Supreme Court’s opinion that fees should only be awarded for hours "reasonably expended" on a case.
Judge Phillips of the Central District of California said that judges spend substantial time combing through billing entries, adding, "Surprising things show up when you take a careful look at the bills." Judge Pratter of the Eastern District of Pennsylvania agreed, saying the most amusing item she once found in an attorney's billing sheet was a calculation that he did 27 hours of work within one day. It turned out the lawyer had failed to take into account the time zone changes when flying, she said. The court's review of an attorney's fee request "sometimes requires a check on reality and then a check on Greenwich mean time," Judge Pratter said, chuckling.
Judge Matthewman of the Southern District of Florida said that lawyers shouldn't try to include excessive, redundant or unnecessary hours in their fee bid. "That comes up constantly with me, where I will see perhaps excessive hours on reading a docket entry … or looking at the local rules, or opening mail, or doing administrative tasks, or really doing things that are unnecessary, such as preparing for a press conference, or perhaps there's a lot of client handholding in the case," Judge Matthewman said. "Things of that nature."
"Lawyers would do much better on these applications if they themselves would sort of police themselves and exclude excessive or redundant, unnecessary hours, so we see less of it or none of it, and we have more comfort in the application. Once we start seeing a lot of these excessive and unnecessary requests for fees, it sort makes us skeptical of the entire application," the judge added.
Judge Phillips also noted that if an attorney is asking for a high hourly rate, based on his or her experience, then she's looking to see how much time the lawyer is spending on simple tasks. "If you're entitled to a high hourly rate because of your immense experience, then you shouldn't really have to be spending a lot of time looking at the local rules of civil procedure," the judge said.
When fighting a fee request by the prevailing party, opposing counsel would do well to look for such concerns and make precise objections, Judge Matthewman said. But avoid pejoratives, Judge Pratter suggested. "There's no reason to call you opponent avaricious," she said. Judge Matthewman agreed, saying those kinds of comments will hurt a party's fee request.
Attorneys seeking reimbursement of their fees also don't pay enough attention to requirements that they base their billing on reasonable, prevailing hourly rates, the judges said. Often, attorneys don't provide enough information to justify their rates, Judge Phillips said. "Ideally, under the case law, we should have a survey, some survey evidence, a declaration from someone who's qualified to opine on what the prevailing rate is in that community for this type of case," the judge said. "But often I get nothing but the declaration of the party, of the attorney who's seeking the fees, saying, 'This is when I graduated and these are all the Best Lawyers awards I've ever gotten.'"
Judge Matthewman added that it's irksome when attorneys from an expensive jurisdiction, such as New York City, come down to Florida for a case and then seek to be reimbursed for an hourly rate they would get in Manhattan. Later in the discussion, Judge Matthewman said that when considering a fee request, he takes into consideration the quality of the attorney's work and representation. "If you have a case where the fee applicant's attorney has been overly litigious, very difficult in the discovery process, very difficult on everything, agreeing on nothing, the court understands and knows that this increases the attorneys' fees that are incurred by both sides in the case," the judge said. "And I think that's a factor that's taken into account."
On the flip side, an attorney who "makes the flow easy," gets rewarded by the court, he added. Judge Phillips agreed, saying she frequently deals with top lawyers who may have high rates but get good results with "lean" hours. "Lawyers who are really good, then, don't drop the ball on their fee petitions," Judge Pratter added. "And lawyers who still have a ways to go somehow, miraculously, don't do so good on their fee petitions either." The Pennsylvania judge also noted during the panel hearing that the Third Circuit guidelines direct judges to make fee reductions based on meritorious objections from the opposing party and not necessarily to rule sua sponte.
But later on in the discussion, Judge Pratter noted that there are times when the court should lean in with its own judgment, such as when there is a settlement in a class action lawsuit. The court has a responsibility to look out for the class, she said. "You cannot rely on the defendants to be acting as a brake on the fees," the judge said. "The defendants come in, and they and the plaintiff's lawyers are all friendly and hugging each other about how important everybody's work was. So that's always a flashing light for the court to become particularly attentive to its duties to the absent class members."
Ultimately, the judge said, attorneys should know that judges are not trying to be "mean-spirited" when they are scrutinizing attorney fee requests. Nor are they jealous of the lawyers, she said. They're just trying to carry out their duty. "Most of us, we've been there," Judge Pratter said. "We understand what it means to have to keep track of time. I'll tell you, by the way, that's one of the best things about coming over to the other side, [giving] up time sheets."