This article provides practice pointers on preparing for and conducting an attorney fee hearing. The tips are based on the author’s forty-four years of trial experience handling exclusively consumer law cases. The article focuses on steps to take well before the hearing, including proper completion of time records; preparation for the hearing, including a discussion of survey evidence; and tips for conducting the attorney fee hearing.
Steps to Take Well Before the Fee Hearing
An attorney fee hearing may be won or lost based on steps the consumer’s attorney takes months and even years before the hearing—even steps to take before the case is filed.
An attorney’s hourly rate—billed to other clients—is relevant proof of the prevailing community rate for an attorney of that level of experience and specialty. To establish their market rate, attorneys who do most of their work on a fee-shifting basis may find it helpful to accept some cases on an hourly basis.
A request for attorney fees should be specifically mentioned in the initial prayer for relief, although a court may be willing to construe a pleading liberally to include such a claim. The most important item to prepare well before the hearing is “bullet-proof” time records, discussed below.
Complete Your Time Records as If They Will Be Challenged—They Will Be
Defendants’ challenges to an attorney fee request often focus on the consumer attorney’s time records. Each entry should be made with a view as to how that entry might be challenged.
As soon as a file is opened, begin keeping careful records, detailing all work and time devoted to the case. Although courts have awarded attorney fees based on reconstructed time records, a court may view contemporaneous records as the most reliable and failure to keep contemporaneous records will result in memory lapses that may significantly reduce the fee award.
Time records are likely to be the most contested aspect of an attorney fee hearing, so it is important that these records be able to withstand various challenges, to be “bullet-proof”:
- Avoid “block billing,” i.e., aggregation of a number of activities into a single time entry. 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.”
- If there are multiple defendants or claims, time records should identify which ones an activity relates to in case the consumer is successful only against just some of the defendants or some of the claims, and the court requires that the time be segregated.
- Be specific to avoid a vagueness challenge. Disclose the content or purpose of telephone calls or meetings or research. Use headings as “What I said” and “What they said,” both for billable purposes and for recall purposes. Where there are multiple defendants, note which party’s attorney is involved in each call or meeting. Itemize litigation costs, such as “Copies of ___,” “Postage,” “Parking to Attend ___,” or “Mileage.” Explain task names that could be misunderstood. The more detail the better.
- Using standard terms throughout can make the whole process easier, such as Letter, Document, Appearance/Attendance, Conference, Deposition, Discovery, Document Production, Expert Witness, Miscellaneous, Other Motions, Plan and Prepare, Pleadings, Research, Review of ___, Settlement, Hearing Prep, Travel, etc. Nevertheless, do not stop with those labels, but provide more detail than just a standard label. Don’t just say “hearing prep,” instead, include the nature of the hearing prep such as “deposition review,” “witness outline,” “exhibit compilation,” “jury instruction prep,” or “objection outlines.”
- Avoid putting a standard amount of time for all entries of the same type or putting down the same label for much of the work on the case—this looks suspicious. Be precise about the time spent on a task and what it was spent doing.
- Where more than one attorney worked on a task, distinguish the work each attorney did on the task, such as attorney A did “initial draft” and attorney B did “review of draft” to avoid claims of duplicate bills for the same task.
- Identify any unusual expenditure of time that was required because of the actions of the opposing attorney.
- Time records should include all time on a case, even time that will not later be sought as part of the award—later listing “no charge” items will put the fee award request in a good light.
- While billing in fifteen-minute increments was once acceptable, billing in six-minute increments is now the industry standard.
- Where one lists a large number of total billable hours in a given day (e.g., 12 hours) for one attorney, avoid a later challenge by explaining why that was the case and other detail.
Preparing for the Hearing
Prepare for the fee hearing as if it were a trial, from opening statement to closing argument. This should include witnesses, exhibits, and case citations. Defendants are often obstinate in their opposition to fee claims and tenacious prosecution of the claim is necessary. Here are six steps to take to prepare for an attorney fee hearing:
1. Review time records before attaching them to the attorney fee motion. The key support for an attorney fees motion is the attorney’s declaration or affidavit with the attached time records. Before doing so, carefully check and double check the time records for any errors or lack of clarity. You can bet that the other side will double check and will point out every single error.
Non-attorney support personnel can conduct the review under attorney supervision. However, the further the attorney is from the actual records review process, the more difficult it is for the attorney to have a thorough understanding of the very records that must be explained and proven reasonable at the fee hearing.
Highlight in the attorney fee records or attorney fee motion any unusual expenditure of time that was required because of the actions of the opposing attorney.
This is also the time to decide whether to voluntarily discount some of the time. If an activity took an unusually long time or is inadequately documented, it is better to discount it before submitting the petition than to give the court reason to scrutinize every entry. If an attorney would not ask a client to pay for certain time, consider whether to request that time be included in a fee award. Many attorneys automatically deduct 5% or 10% of their time. Sometimes a defendant will agree not to challenge a fee petition in return for such a deduction. Importantly, “no charge” items should be clearly identified for the court, which may make it harder for a court to justify discounting the actual time for which compensation is requested.
Time records should be internally consistent. For example, a time record may exist for appearing in court but no time record for the travel time to or from court, time to prepare for the court appearance, and a subsequent letter updating the client on the case’s status. “Cross-checking” such entries ensures consistency and accuracy and demonstrates the attorney’s thoroughness as to time records.
2. Request admissions of the other side regarding the reasonableness of the hourly rate and the number of hours spent on the case. A set of admissions with a range of rates and a range of hours may result in agreement to at least some floor number, narrowing the dispute.
3. Discover the opposing party’s billing records. The hours and rates charged by the opposing attorney are relevant to whether the consumer attorney’s hours and rates being claimed are reasonable. If the opposing firm does corporate bankruptcy work, its rates may also be found by examining fee requests it has filed with the bankruptcy court. The other side’s hourly rates may also be relevant to the prevailing rate in the community. Attorney-client privilege does not shield billing information. In some courts, local rules require defense counsel to disclose their bills if they challenge the plaintiff’s fee request. See NCLC’s Unfair and Deceptive Acts and Practices § 12.8.14.
4. Make a settlement efforts chart. A one-page, detailed chart, blown up to 2 x 4 feet, showing in date order the history of settlement negotiations, indicating what the consumer offered and what the opponent offered. This can show the consistency and reasonableness in the consumer’s settlement positions taken over time, contrasted with any obstinacy and unreasonableness of the other side’s position. Point out the places where an offer was sent to the defendant’s attorney and the consumer’s attorney never heard a word back. Show the cumulative attorney hours at each point in time on the chart. Where the consumer’s attorney fees jump up on the chart, be ready to explain what was happening in the case that caused it—such as depositions.
5. Line up witnesses, if the court will allow witnesses at the hearing. One option is an experienced and credentialed local attorney, particularly one the judge already respects. Another option is an attorney with expertise in the subject of your trial.
The attorney who handled the case usually can be a witness, as the jurisdiction’s code of professional conduct will probably allow the attorney to testify in a fee hearing. The client is another potential witness, describing the difficulties that the defendant’s attorney put the client through. If the attorney has kept the client informed of the progress of the case, the client can also substantiate the attorney’s time records. The client’s personal appearance also dispels the perception that the lawyer is merely using the case as a vehicle for a fee award. See NCLC’s Unfair and Deceptive Acts and Practices § 12.8.14.
6. Collect evidence of comparable hourly rates. To support a requested hourly rate, the consumer attorney should find comparable hourly rates in the geographic area, for attorneys with similar or like years of experience, and preferably with similar or like types of practice. There are fewer consumer law attorneys than many other specialties, so it may be difficult to find comparable rates for consumer lawyers in an exact locality. If true in your case, this may support an argument to present comparable rates over a wider geographic region.
Potential evidence includes the rates awarded in past cases to the attorney or other consumer attorneys in the area, and also the opinion of an expert (as described below under “The Evidentiary Hearing.” Important sources of comparable hourly rates are published attorney fee surveys, including:
- The National Law Journal’s annual survey of the rates for the 500 largest law firms in the United States.
- USAO Attorney’s Fees Matrix—2015–2021 prepared by the Civil Division of the United States Attorney’s Office (USAO) for the District of Columbia to evaluate requests for attorney’s fees in civil cases in District of Columbia courts.
- The Adjusted Laffey Matrix, adapted from the USAO Attorney’s Fees Matrix.
- The United States Consumer Law Attorney Fee Survey, described below.
Other factors to consider in an hourly rate are the novelty and difficulty of the questions involved; the professional skill required to perform the necessary legal services; the attorney’s inability to accept other cases; the fee customarily charged; the results obtained; any necessary time limitations; the nature and length of the attorney-client relationship; the experience, reputation, and ability of the attorney; and whether the fee is fixed or contingent.
The U.S. Consumer Law Attorney Fee Survey
Since 1999, this author has been producing and publishing the U.S. Consumer Law Attorney Fee Survey Report. This free Survey Report continues to be the only national survey of consumer law practitioners in the United States and is the only consumer law attorney survey whose data gathering and analyzing methodologies have been independently peer reviewed and supported by the National Association of Legal Fee Analysis, a nonprofit professional association of attorney fee experts.
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 unreported state court decisions. The survey has been used in more than fifty-five jurisdictions to determine reasonable attorney fee rates in awarding more than $30 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 on October 30, 2022.
In the meantime, courts in some cases have increased hourly rates based on changes in the Consumer Price Index from 2018. In addition, this author has provided consumer law attorneys with updated interim survey reports on state and metropolitan areas upon request.
The survey breaks down consumer law attorney fee rates by state for every state, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. It also breaks down rates by 154 greater metropolitan areas, including one or more greater metropolitan areas in every state, covering 66.5% of the entire U.S. population. Data for every non-metropolitan area in the United States is reported.
The survey offers data for attorneys and paralegals and shows average and median rates, and rates at 25%, 75%, and 95% of median, and with some breakdown by region within the state, and by type of consumer practice. Additional variables are offered for selected states, which also suggest similar adjustments in other states, including such factors as the percent of an attorney’s time working on consumer cases, years of experience, size of firm, and primary and secondary practice areas.
The Evidentiary Hearing
Some courts hold that a separate evidentiary hearing is not necessary to determine the proper amount of attorney fees, but many other courts require the consumer to offer at a hearing any evidence of the reasonableness of the requested award. Evidence may be necessary even where there is a default judgment. If the consumer attorney prefers a hearing, request one. The fee applicant has the burden of documenting the amount of time spent on the case and the reasonableness of the fee sought. Here are tips for the evidentiary hearing:
The consumer attorney’s expert should testify as to their opinion on more subjects than just the requested hourly rate. The expert should cover all factors that the state’s courts have identified as relevant and as to other issues likely to come up in the hearings, including:
- 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.
Attorney fee surveys. The consumer attorney should submit in evidence an entire attorney fee survey as opposed to merely the pages applicable to the forum court. This is important because support for admissibility is often found in the survey itself. 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. After admission, the survey methodology, design, reliability, experience, reputation are issues that go to the weight of the survey rather than its admissibility. Again, such support may be found in the survey report itself or evidenced by affidavit or declaration by a witness with knowledge.
Use not-so-obvious exhibits. This article has already discussed a number of exhibits to introduce—time records, the defendant’s admissions and billing rates, and the settlement efforts chart. In addition, think of other items to introduce as exhibits:
- 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.
- Your requests for admissions of simple things which the opponent denied. (Under many rules of procedure, a party has a right to recover fees for successfully proving facts that the other side has refused to admit in response to a request for admissions.)
- Think visual, too—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.
Responding to the other side’s arguments. When the other side points out actual errors in the time records, be quick to admit them and consider pointing out the erroneous time will be free if they will just pay the rest. Otherwise, provide an explanation or refutation for all issues questioned by the defendant.
Explain how losing claims and non-fee shifting claims have the same elements as winning claims that provide fees, so that time spent on those elements common to both should be compensable. For example, a Uniform Commercial Code claim for breach of warranty (no statutory fees) may have almost all the same elements as a Magnuson-Moss Warranty Act cause of action (allowing statutory fees). Similarly, explain to the court that even though a summary judgment or other motion was not granted at the time, the motion served a purpose in reaching the eventual successful resolution of the case in clarifying the issues and facts for the court, as if it were a memorandum of law and facts submitted at trial. See NCLC’s Unfair and Deceptive Acts and Practices § 12.8.4.
When the other side argues that consumer law is not “rocket science,” then ask why more attorneys are not representing consumers.
Respond to arguments that administrative staff could have handled a particular task instead of an attorney. Emphasize the expertise necessary to deal with such matters. Is this a true administrative task or does it involve exercise of legal decision making or analysis? Point out any unique aspects of the consumer attorney’s office that makes impossible the administrative option suggested by the other side, which has a much larger and different support staff. Explain the training and functions of the support staff in the consumer attorney’s office.
Provide copies of all relevant case law. Do not just present orally any case law precedent supporting the hourly rate and why certain disputed time should be compensated. 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.
Make the right points in the closing argument. The consumer attorney’s strong point is the law: the law says the other side should pay the client’s fees. Emphasize this. 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, then there is less incentive for the defendant to follow the law in the first place and less incentive for them to settle the case for what it deserves. If they are not made to pay enough, then attorneys will stop taking these kinds of cases and consumers will have no place to go except for overly strapped government offices.