This article sets out 15 mistakes to avoid when seeking a statutory attorney fee award based on a lodestar calculation. The number of hours sought based on time records is likely to be the most contested aspect of an attorney fee hearing, so it is important that these records be “bullet-proof.” Defendants often comb through these records carefully. The first 8 no-no’s are common mistakes in filling out time records. The remaining 7 mistakes relate to hours that count for statutory fees, evidence supporting an hourly rate, and the presentation to the court justifying a fee award.
The material in this article is based on the forthcoming book by Ronald Burdge, How to Plan and Handle Attorney Fee Motions. NCLC treatises also analyze case law precedent when seeking statutory fees. The best discussion of state law standards is found in NCLC’s Unfair and Deceptive Acts and Practices § 12.8. Federal standards for statutory fee awards are set out in other NCLC treatises, such as Fair Debt Collection § 11.3, Fair Credit Reporting § 12.7, and Truth in Lending § 11.10.
1. Recreating Time Records Instead of Creating Them Contemporaneously
Although courts may award attorney fees based on reconstructed time records, courts will view contemporaneous records as the most reliable. Failure to keep contemporaneous records also will result in memory lapses that may significantly reduce the fee award.
2. Using 15 Minutes Time Increments Instead of 6 Minute Increments
Although identifying each task performed on time records in 15-minute increments was a standard billable increment for decades, the standard now is the 6-minute increment. For example, at least one jurisdiction has a local rule that bars using any increment other than 6 minutes. See In re Reed (Hales v. Reed), 2023 WL 375753, at *3 (Bankr. D. Or. Jan. 23, 2023).
3. Off-the-Cuff Timekeeping—Instead of Detailed Information for Each Task—Using a Uniform Format and Terminology
Each task should be clearly presented and efficiently completed on the time record. Its time record should be thorough and in a uniform format with uniform terminology. Each entry should include at least:
- The type of task in a single word, e.g., “appearance,” “discovery,” “expert,” “motion,” “settlement,” “trial prep.”
- The task’s subject, e.g., “estoppel,” “defenses raised,” “plaintiff offer.”
- A verb describing what was done, e.g., “research,” “draft,” “phone,” “review,” “depo.”
- The legal claim involved, e.g., “breach,” “fraud,” or the count number in the complaint.
- For multiple defendant cases, the defendants to which the task relates.
- Where there are multiple plaintiff attorneys, the attorney performing the task.
Using standard terms throughout can make the whole process easier, such as “Letter,” “Document,” “Appearance/Attendance,” “Conference,” “Deposition,” “Document Production,” “Expert Witness,” etc. But beyond those labels provide more detail. Don’t just say “hearing prep”; include the nature of the hearing prep such as “deposition review,” “witness outline,” “exhibit compilation,” “jury instruction prep,” or “objection outlines.”
4. Block Billing, Vague, or Formulaic Time Entries
Block billing often results in a reduced fee award. Block billing describes timekeeping where one entry on time records includes several different tasks, making it impossible for a court to evaluate the reasonableness of the time spent on any single task. Instead of “prepare memo in opposition on warranty claim, 2.5 hours,” break out separately “review of the file and evidence,” “legal research on the issues,” “telephone calls to client and witnesses,” and “drafting of memorandum in opposition and two affidavits.” Block billing should only be used in exceptional situations, such as where a large quantity of email is handled in a “batch” manner at one time—individual time entries for each email would be inefficient.
Vagueness also may result in a reduced fee award. For example, an entry with a mere notation that fails to disclose the content or purpose of a telephone call or meeting or research may be found to be vague. In multiple party cases, note which opposing party’s attorney is involved, as well as the purpose and content of the call, meeting, or research. Use such headings as “What I said” and “What they said,” both for billable purposes and for recall purposes. Itemize litigation costs, such as “Copies of ___,” “Postage,” “Parking to Attend ___,” or “Mileage.” Explain task names that could be misunderstood.
A “formulaic” entry occurs where a standard amount of time is put down on the same type of task every time, regardless of the actual time involved in performing the task. This is an easy target for an objection since it is unlikely that a task will always take the exact same amount of time. Adding greater detail to each entry may avoid the formulaic argument.
5. Inconsistent or Missing Time Records
Defendants attacking the unreliability of the submitted time records will pore through them for entries that are inconsistent with other entries or where a time record is missing, such as where expected activities are not listed. For example, the time records may have an item for appearing in court, but no item for the travel time to or from court.
6. Recording of Duplicative or Unnecessary Work
Performing unnecessary or duplicative work or expending unreasonable amounts of time on a task not only results in disallowance of time but puts the consumer attorney on the wrong foot with the court. Defendants will point out if more than one of the plaintiff’s attorneys is described as performing the same task. Distinguish the work each attorney did on the task, such as attorney A did “initial draft” and attorney B did “review of draft.”
Courts routinely hold that attorney time expended to correct the law firm’s errors in a case is not billable to the client. Do not attempt to bill for such error-fixing time. On the other hand, identify any unusual expenditure of time that was required because of the actions of the opposing attorney.
Even when time is unnecessary or duplicative, put all time spent on a case on time records, and then identify for the court the time where the plaintiff is not seeking compensation. Identifying “no charge” items will put the fee award request in a good light.
7. Seeking Attorney Rates for Clerical, Administrative, or Routine Work
Typically, a senior attorney should not seek an award at that attorney’s hourly rate for tasks that are merely clerical or administrative, or that could be performed by a paralegal or junior attorney working on the case. Courts may reduce the hourly rate for a task performed by an experienced partner-level attorney that a junior associate could have performed. But there are exceptions, and notating the time record in such a case can make all the difference. For example, an attorney had to perform clerical work the night before a trial because clerical staff were not available at that time. Also explain to the court the unique aspects of the consumer attorney’s office which make impossible the administrative option suggested by the other side, who may have much larger and different support staff.
8. “Long Day” Billing
Defendants will target “long days” where an unusual number of hours are billed, such as 12 hours in one day. Be prepared to explain such days in detail.
9. Not Asking for All the Fees to Which You Are Entitled, Including for Losing Motions, Losing Claims, and Claims Not Eligible for Fee Shifting
Statutory attorney fees are available for successful claims, and generally not available for unsuccessful claims or where a claim is not successful against one of multiple defendants. Some successful claims also are not eligible for fee-shifting.
Nevertheless, at least some time working on all such claims may be compensable if such claims share a sufficient common core of facts or legal theories with successful claims allowing for fee shifting. Seek all hours reasonably necessary to litigate successful claims allowing for fee-shifting even if such work was also necessary for claims that are not eligible for fee-shifting.
For example, consider a case involving a successful Magnuson-Moss Warranty Act claim that provides for statutory attorney fees. All work on the case should be compensable even though the case also involved work on successful, or even an unsuccessful, UCC Article 2 warranty claim that is not eligible for fees. Elements of proof for the UCC claim are almost always also elements of proof for the Magnuson-Moss claim.
Time may also be claimed for work on failed motions. Many motions serve a dual function, not just attempting to resolve an issue early in the case, but serving to educate the court on the complexity of a factual or legal issue that will ultimately need to be resolved even if the initial motion is not successful. The question should not be whether the motion was won or lost, but whether it served a purpose that favored a prevailing plaintiff. This “education” process should be compensable just as though it were a memorandum of law only later submitted to the court. It should not be disqualified because the court got it in advance of when it was needed.
10. Failing to Adequately Support the Hourly Rate
Defendants are likely to challenge the plaintiff’s hourly rate, and the plaintiff should develop evidence substantiating the rate. The most persuasive evidence of the reasonableness of an hourly rate is the hourly rate that clients pay, either to plaintiff’s counsel or to comparable lawyers in the relevant marketplace. Because of the limited number of consumer attorneys in any marketplace, the prevailing rate in a broad regional area may be the best guide. Also obtain at least one or more supporting affidavits or declarations from an attorney who is preferably local to the jurisdiction and who can display an adequate basis upon which to attest to the reasonableness of the requested hourly rates.
Focus not just on the customary rate for attorneys of a given level and type of experience in the relevant geographic area, but also describe how the attorney applying for fees also has that level and type of experience. This applies to all attorneys whose time is included in the requested award and may be even more important for any paralegal time requested. Set out the paralegal’s identity, education, experience, practice area, and if the paralegal is certified or a member of a paralegal organization.
11. Improper Use of Attorney Fee Surveys
Published attorney fee surveys can be strong evidence of a reasonable hourly rate, but the survey should be used properly. Some jurisdictions totally disregard survey evidence, while others find surveys compelling. The first step is picking the correct survey. There are eight common sources for fee surveys:
- The ALM Annual Survey of Law Firm Economics prepared by AM Intelligence and the National Law Journal.
- The Laffey Matrix prepared by the Civil Division of the United States Attorney’s Office for the District of Columbia.
- The NALFA Report prepared by the National Association of Legal Fee Analysis.
- The Real Rate Report published by CEB, Inc. (Formerly Corporate Executive Board) and Wolters Kluwer’s ELM Solutions.
- The Valeo Reports, published by Valeo Partners, LLC.
- The United States Consumer Law & Practice Survey Report, published by Ronald Burdge.
- State bar association survey reports, frequently with titles like “Economics of Law Practice.”
- The Fitzpatrick Matrix.
Each of these reports has its own characteristics, methodologies, participant levels, data time frames, target use, and publication frequency, among other factors.
For example, the Fitzpatrick Matrix created in 2021 is a one-page matrix of hourly rates for attorneys of varying experience levels and paralegals/law clerks that was prepared to assist with resolving requests for attorneys fees in complex civil cases in District of Columbia federal courts handled by the D.C. United States Attorney’s Office. That office also previously published the Laffey Maitrix which has been used as a guideline in much federal litigation in a wide variety of cases. Courts, however, have refused to rely on the office’s Fitzpatrick Matrix in litigation not considered to be sufficiently complex.
While some of these surveys are free, some of them require payment and in addition there may be a cost for an expert to analyze the survey data in a given case. These expenses should be recoverable as costs or fees, particularly after the defendant denies a request to admit the reasonableness of the fee rate.
A survey is more acceptable to the court when it surveys the area of law at issue or an analogous area of law. The analogy between the two types of litigation need not be perfect, but there should be similarities. For example, the United States Consumer Law Attorney Fee Survey has been accepted by courts in Social Security, EAJA, Vaccine Act, employment, and longshore cases, among others. Companies issuing surveys keep track of cases where judges have accepted their use in a particular type of case.
Since surveys often cover only periods prior to the attorney’s work on a case, adjust the survey results for inflation. Courts may apply the U.S. Bureau of Labor Statistics’ Consumer Price Index Inflation Calculator. See, e.g., Bempah v. Midland Credit Management, Inc., 2023 WL 112577, at *2 (N.D. Ill. Jan. 5, 2023).
Do not expect a court to merely accept a recitation of survey results with no further explanation. Provide the court with the entire survey report, not just relevant pages of data. In some jurisdictions this is mandatory. See, e.g., Cal. Evid. Code § 352 (West). Make sure you use data from the report that best approximates the correct type of case, location, and attorney experience.
Properly admit into evidence the survey data. To be admissible, there must be evidence of the survey’s foundation and relevance, and that it was conducted according to accepted principles. Such support may be found not only in the survey report itself, but by affidavit or declaration by a witness with knowledge.
Even after a survey is admitted into evidence, explain to the court the survey’s methodology, design, reliability, experience, and reputation, as this will affect the weight the court gives to the survey. The information that gives weight to the survey may be found in the survey report itself or be evidenced by affidavit or declaration by a witness with knowledge.
This author’s United States Consumer Law & Practice Survey Report: Since 1999, this author has been producing and publishing the free United States Consumer Law Attorney Fee Survey Report, the only national survey of consumer law practitioners in the United States. Its methodologies have been independently peer reviewed and supported by the National Association of Legal Fee Analysis.
The Survey is based 51% on data provided by 1904 attorneys and 2740 paralegals from all fifty states and 49% on data culled from all court cases reporting attorney fee decisions in the field of consumer law found on Lexis, Westlaw, and certain unreported state court decisions. The survey breaks down fee rates by state and metropolitan area. The survey has been used in more than 55 jurisdictions to determine reasonable attorney fee rates in awarding more than $33 million.
The current 598-page survey includes data from 2017 and 2018 and was produced in 2019. An updated survey is scheduled to be released later in 2023. This author has provided consumer law attorneys with updated interim survey reports on state and metropolitan areas upon request.
12. Cursory Attorney Fee Motions
Too often a motion for attorney fees is too cursory. The motion and an accompanying memorandum should:
- Identify the legal basis upon which fees may be awarded;
- Explain the method of computing the attorney fee award;
- State the requested relief—the hours for each attorney, the hours being excluded, the hourly rate of each attorney, the total award sought, and any enhancement or reduction sought;
- Identify undisputed and the disputed issues; and
- Identify the evidence the movant is submitting on the motion, explaining what it is, and why it matters to the disputed issues.
13. Inadequate and Unpersuasive Attachments to the Fee Motion
A key item in any fee motion is the counsel’s affidavit or declaration with any supporting materials, such as the attorney’s biography and the time and costs records. State each attorneys’ experience, qualifications, and standard hourly rates. Also include the hourly rates actually paid or agreed to be paid in the case or similar cases.
When the hourly rate or number of hours is contested, there should be something more than just the attorney’s affidavit by itself to establish the reasonableness of the time and rate:
- Counsel’s affidavit should provide testimony as to the tasks performed, difficulties encountered in the litigation, case complexities, and details about billing, and attesting to accuracy of attached records or documents.
- The supporting affidavit of one or more other attorneys with knowledge of local hourly rates in the practice area is a necessity. An attorney’s “self-serving affidavit” does not, by itself, satisfy a movant’s burden of establishing an attorney’s reasonable hours or rate.
- An affidavit from an expert on attorney fees is often helpful. See #14, below.
- One or more attorney fee survey reports also may be valuable. See # 11, above.
- Examples of similar cases within the last two years approving fee rates.
- Information on the defendant’s hourly rate.
Don’t forget to attach non-standard exhibits that may have a powerful effect:
- Settlement letters that were sent or received.
- Particularly nasty or irritating or “waste of my time” letters or discovery requests received from the other side.
- Requests for admissions of simple things which the opponent denied.
- Think visual—turning time records into a graph that shows how time kept going up over the length of the case, particularly after the other side did things that made the consumer’s attorney do more work.
14. Failure to Consider the Value of an Attorney Fee Expert
A valuable support for a fee motion is testimony or an affidavit from a fee expert. Be sure to allow adequate time for the expert to be engaged, to review all needed materials, drafting of an expert report/affidavit/declaration, and the like.
The expert should cover all factors that the courts in the state or federal district have identified as relevant and as to any other issues likely to come up in a fee hearing, such as:
- Whether paralegal services are customarily billed separately;
- Whether the attorney charges for adapting standardized pleadings and other documents are reasonable;
- The quality of the work;
- Whether local or out-of-town rates are customarily used for out-of-town attorneys;
- How travel time is treated in the local market;
- Whether the case was over-lawyered;
- Whether the allocation of tasks between senior attorneys, junior attorneys, and non-attorney assistants was reasonable; and
- Whether the time on a claim providing fees could be reasonably segregated from that on counts not providing for fees.
15. Failing to Address Elephants in the Room in the Closing Argument
Especially when a requested fee award is large, or where the fees are larger than the consumer’s recovery, do not rely on soley on the lodestar. Explain to the court why the fees are justified. The consumer attorney’s strong point is the law: the law says the other side should pay the client’s fees. Certainly, emphasize this. But also address the optics.
The consumer attorney is not arguing about the attorney’s money here, but about the client’s right to make the other side pay for the client’s attorney. Set out the policy behind statutory attorney fees. If the other side is not made to pay the consumer’s legal fees, the defendant has less incentive to follow the law in the first place and less incentive for them to settle the case for what it deserves. If consumer attorneys are not paid fairly, they will stop taking these kinds of cases and consumers will have no place to go except for overly strapped government offices.
Justify an award exceeding the client’s damages award. Case law rejects limiting the fee award based on the proportionality of the award to the client’s recovery. Because case law should be on the plaintiff’s side, be sure to stress it. Make multiple copies of all relevant court cases to pass out at the closing argument, with a one-page cover sheet on each, summarizing the case’s relevance and quoting key language directly from the case itself.