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Federal Practice Manual for Legal Aid Attorneys: 4.1.11 Pleading Facts and Theories

For the strategic reasons outlined above, the facts should be drafted so that they tell a clear and compelling story guiding the reader to believe in the obvious need for relief. Casting the story in human terms makes it more immediate and, therefore, more compelling. As explained above, this factual presentation must be made in sufficient detail to satisfy the new plausibility standards and should be framed in terms that will resonate with the judge’s experience and common sense. Where possible, refer to the plaintiff by name rather than by legal designation.

Federal Practice Manual for Legal Aid Attorneys: 4.1.12 Framing Relief

The prayer or request for relief is a required part of the complaint. It forms the opening gambit in any negotiations. It acts as the “ceiling” for what you can obtain either in settlement or from the court. It colors the way others, including the court and the defendant, perceive the lawsuit depending on whether they view what you want as reasonable or as overreaching. Thus, how you frame your request for relief is a strategic decision.

Each type of relief you want must be listed. Your requested relief might include the following:

Federal Practice Manual for Legal Aid Attorneys: 4.2.2 Standards for Making Representations to the Court

Rule 11(b) provides that,”[b]y presenting to the court a pleading, written motion, or other paper–whether by signing, filing, submitting, or later advocating it–an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the material presented is not filed for an improper purpose and has the requisite degree of evidentiary and legal support.1303 This language raises two interpretive questions: what “later advocating” means

Federal Practice Manual for Legal Aid Attorneys: 4.2.3 Sanctions

Rule 11(c) permits, but no longer requires, the court to issue sanctions to attorneys, law firms, or parties in violation of the rule or responsible for the violation.1347 The 1993 amendments made the issuance of sanctions, whether prompted by motion or by the court’s own initiative, discretionary rather than mandatory.1348 The advisory committee’s notes list several factors that the courts should consider in deciding whether to issue a sanction and, if appropriate, the kind of sanction to i

Federal Practice Manual for Legal Aid Attorneys: 4.2.5 The Inherent Power of the Court

The sanctioning power of the federal courts “is not limited to what is enumerated in statutes or in the rules of civil procedure.”1385 Federal courts have the inherent power to punish persons who abuse the judicial process. The inherent power of the court is an “implied power squeezed from the need to make the courts function.”1386 Rule 11 and § 1927 do not displace the court’s inherent power, but instead they exist concurrently.1387

Federal Practice Manual for Legal Aid Attorneys: 4.2.6 Ghostwriting

As increasing numbers of litigants proceed pro se, many lawyers and legal offices offer “unbundled legal services” also known as limited scope representation.1401 Limited representation is permissible if reasonable and the client consents.1402 In such representation, attorneys and clients agree that the attorneys will provide discrete and limited services for the clients as part of the clients’ efforts to represent themselves.

Federal Practice Manual for Legal Aid Attorneys: 4.2.7 Ethical Concerns

Various courts and ethics committees have found the practice of ghostwriting to be in conflict with the duty of candor owed to the court by giving a “false impression of the real state of affairs.”1409 They regard ghostwriting as violating Model Rules of Professional Conduct Rule 3.3(a)(1) (candor to the tribunal) and/or 4.1 (truthfulness in statements to others).

Federal Practice Manual for Legal Aid Attorneys: 4.2.8 Procedural Concerns

Federal courts have been hostile to the practice of ghostwriting, finding that it violates the spirit of Rule 11 by circumventing the attorney’s signature requirement.1418 Courts have specifically interpreted the purpose of Rule 11(a) as requiring attorneys to sign court documents that they prepared “in any substantial part.”1419 However, one court acknowledged that if a ghostwriter no longer represented a litigant when the complaint is filed, the author’s failure to sign a complaint “is not

Federal Practice Manual for Legal Aid Attorneys: 9.2.22 Challenges to Consent Decrees

In Martin v. Wilks, the Supreme Court held that a consent decree adjudicated only the rights of the parties to the decree.4455 The Court, therefore, allowed those persons who were adversely affected by the operation of the decree to challenge actions taken pursuant to the decree even though they failed to intervene in the litigation from which the decree arose.

Federal Practice Manual for Legal Aid Attorneys: 9.4.7 Reasonable Number of Hours

What constitutes “hours reasonably expended” is the most frequently debated question in fee litigation. The court must determine which attorney activities are compensable and whether the time expended on those activities was reasonable. Advocates can expect resistance from opposing counsel here, based on arguments that the claimed hours are excessive due to purported “overlawyering” of the case, and a great deal of case law exists interpreting these issues.

Federal Practice Manual for Legal Aid Attorneys: 9.4.8 Documentation Requirements

As a threshold matter, courts and opposing counsel examine whether the hours are well documented. As the Court in Hensley stated, “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.”4560 The quality of this documentation will be critical to achieving reasonable compensation.

Federal Practice Manual for Legal Aid Attorneys: 9.4.9 Overall Billing Judgment Decisions

Hensley states that “[w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation . . . .”4570 However, attorneys seeking court-awarded fees are expected to exercise voluntary “billing judgment,” excluding from a fee request “hours that are excessive, redundant, or otherwise unnecessary….”4571

Federal Practice Manual for Legal Aid Attorneys: 9.4.13 Convincing the Court of the Reasonableness of the Hours Claimed

The most important part of a major fee motion usually is the section that explains why the number of hours claimed, which may seem high at first glance, is actually reasonable. Attorneys need to keep in mind that in most cases the vast majority of the work they do takes place out of court. They need to explain that work, most often through a detailed declaration from the plaintiffs’ lead attorney on the case, summarized in the opening brief.

Federal Practice Manual for Legal Aid Attorneys: 9.4.14 Reasonable Hourly Rates

In Blum v. Stenson, the Supreme Court held that § 1988 fees awarded to legal aid programs that do not charge their clients fees should be calculated at rates comparable to those charged by private attorneys in the community with comparable experience.4607 The Court rejected as inconsistent with the legislative history of § 1988 the argument that fees should be limited to the internal costs of the relatively low salaries paid by legal aid programs.