Contemporaneous Time Records Are Accurate Time Records

 Posted by at 4:38 pm  Court Decisions, Interesting Fee Cases, Overbilling  Comments Off on Contemporaneous Time Records Are Accurate Time Records
May 102017
 

In Dagostino v. Computer Credit, Inc., the plaintiff brought suit under the Fair Debt Collection Practices Act (the “FDCPA”). 2017 WL 776086 (E.D.N.Y. Feb. 28, 2017). After accepting defendant’s Rule 68 Offer of Judgment, plaintiff filed a motion seeking attorneys’ fees under the FDCPA. The majority of the Court’s reductions in this case resulted from plaintiff’s counsels’ failure to contemporaneously record their time expended in this case. It became apparent that plaintiff’s counsel did not contemporaneously record their time when there were significant discrepancies between plaintiff’s draft timesheet provided to defendant and plaintiff’s final timesheet provided to the Court.
The Second Circuit requires that “[a]pplications for fee awards should generally be documented by contemporaneously created time records.” Plaintiff’s counsel initially submitted a draft timesheet to defendant in order to settle the issue of attorneys’ fees without court intervention. The draft timesheet contained a total of 30.2 hours of work. The final timesheet ultimately submitted to the Court contained a total of 35.9 hours of work. The only explanation provided by plaintiff for the 5.7 hour increase was that emails were not included on the draft timesheet. Plaintiff also assured the Court that all entries contained in the final timesheet were accurate. However, the Court did not accept plaintiff’s explanation of the additional time billed because the draft timesheet already included certain emails and correspondences leading the Court to question why plaintiff chose not to include 5.7 hours of emails in the draft timesheet. Although the Court reluctantly accepted plaintiff’s assertion that all the entries in the final timesheet were accurate, the Court reduced plaintiff’s time by 5.7 hours because the discrepancy made it apparent that plaintiff’s counsel did not contemporaneously record their time in this case.
Plaintiff’s failure to contemporaneously record their time expended also led to further reductions. Plaintiff’s draft timesheet contained a 0.8 hour entry for travel to a pre-motion conference. Defendant argued that this entry was false because the entry referenced a telephone conference that did not require travel. On the final timesheet submitted to the Court, the entry was changed to indicate that the 0.8 hours represented time spent preparing for the conference. Plaintiff simply indicated that the travel entry on the draft timesheet was an error that was corrected on the final timesheet. Plaintiff also responded to the allegations of the false entry by arguing that the draft timesheet was not intended to be a final product, and the final timesheet submitted to the Court was accurate. Even if the entry now was accurate on the final timesheet, the Court ultimately deducted this 0.8 hour entry because the plaintiff failed to provide an explanation for the error on the draft timesheet, and it was now apparent that the corrected entry on the final timesheet was not made contemporaneously with the performance of the work.
The contemporaneous recording of all work performed results in a reliable time record that is more difficult for a court, or even a client, to question. In practice, it may seem difficult or unnecessary to keep contemporaneous time records. However, this case illustrates the importance of recording time as the work is performed. The Court reduced the total time billed by nearly 20% because it was obvious that plaintiff’s counsel did not contemporaneously record their time as the work was performed. Even if the time billed on the final timesheet was accurate as stated, plaintiff’s counsel seemed to lose all credibility once the Court determined that the timesheet submitted to the Court was created long after the work was performed. Work that was otherwise billable became unbillable because contemporaneous records were not kept.

The Edge of Reason

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Mar 212017
 

Reasonableness of attorneys’ fees and the number of hours billed are at issue in LHF Productions, Inc. v. DOES 1-19, Case No. C16-1175RSM, 2017 WL 615197 (W.D. Wash. Feb. 15, 2017). . Here, the Court reduced an attorney’s rate because it did not find that the legal work required extensive skill or experience. The attorney up-charged his fees in this case after disposing of identical cases at a lower rate. The Court even alleged that the attorney, who had litigated many identical complaints to this case, had ‘recycled pleadings’ used in other cases. To make matters worse, the attorney received little to no opposition from the named Defendants and ended up getting a default judgment when a number of named Defendants did not respond to the amended complaints. The moral of the story for attorneys is when you handle a number of similar cases, which require very little work, be prepared for the Court to look to those similar cases for instruction of fees. If you are using recycled pleadings, they are viewed as no more than form pleadings to the Court and the fees associated will be viewed as requiring basic legal skills.

Since numerous identical complaints were filed by this attorney, the Court balked at the attorney billing for hundreds of hours of legal work preparing identical complaints and motions. In this case, the attorney billed hundreds of hours for his own work and billed for hundreds of hours of work by an associate and legal assistant. The Court found this billing practice to be unreasonable and even “extravagant” to believe that identical complaints and motions for dozens of Defendants took that much time. In its opinion, the Court estimated that preparation of each complaint took no more than an hour to create.

In the end, the Court found that the work performed by the legal assistant amounted to administrative work and would not be compensated. Due to massive overbilling, the Court only deemed it reasonable to compensate the attorney one hour’s worth of work and one hour’s worth of his associate attorney’s work on each complaint filed. Had the upcharge on these cases been slight, the court may not have noticed such a disparity and would have found the fees reasonable.

Is it detailed enough?

 Posted by at 9:11 am  Court Decisions, Interesting Fee Cases, Legislation  Comments Off on Is it detailed enough?
Feb 212017
 

How much of this time was spent on the firm’s own marketing to the public, and how much was spent on the actual case? That is what the court could not determine in Deocampo v. Potts. Civ. No. 2:06-1283 WBS CMK, 2017 WL 363142 (E.D. Cal. Jan. 24, 2017).

Block billing occurs when the total time, rather than the itemized time spent on specific tasks, is billed. Plaintiffs’ counsel engaged in this method of billing for the following tasks: phone conferences, “immediate considerations,” “draft press release,” and “draft synopsis of opinion for publication.” The court found this to be “work largely done on marketing the firm’s work to the public, rather than work on the appeal itself.” The court went on to state, “[T]he court cannot tell how much time was spent on the phone conferences, which would be appropriately billed to a client, and the marketing work, which would not.”

The court acknowledged that the remaining block billed fees at issue could be more specific, but only the time block billed with tasks that were for firm marketing was reduced. Block billed fees that were “sufficiently detailed to assess the reasonableness of the hours billed” were not reduced.

Former Attorneys Receive No Reimbursement for Unsuccessful Claims

 Posted by at 10:11 am  Court Decisions, Interesting Fee Cases, Legislation, Overbilling  Comments Off on Former Attorneys Receive No Reimbursement for Unsuccessful Claims
Jan 302017
 

The Court recognized Plaintiff’s former attorneys, Swick & Shapiro, P.C., billed at reasonable rates for the nature of the case and skill required in Smith v. Loundon County Pub. Sch., 2017 WL 176510 (E.D. Va. Jan. 17, 2017). However, the former attorneys failed to reduce their fees in relation to Plaintiff only prevailing on one of her three claims. The Court found the attorneys reduced arbitrary amounts from their billing simply claiming “lost claim time” with no further explanation and which only amounted to ~10 and ~22% of their total billing, respectively. In addition, the remaining time entries contained block billed and various vague entries, prompting the Court, for those reasons, to reduce the overall billed time by Swick & Shapiro by 50%. The Court next recognized the firm’s work in the case provided assistance in Plaintiff’s current counsel’s preparation, but ultimately, since Plaintiff only prevailed on one claim, it required “a substantial reduction for ‘lack of litigation success,’” and the Court took an additional 2/3 reduction. Finally, an attorney who billed for Plaintiff’s representation before the EEOC received nothing of her requested $8,400 since the Court found it troublesome the attorney billed nearly all time to the nearest hour and, based on the time sheets, it was impossible to determine how much time billed was actually expended on the one successful claim.

Their Saving Grace was Reducing Duplicative and Unnecessary Fees

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Jan 252017
 

Over the last decade, the Courts have routinely found block billing to be inadequate and have been reducing attorney fees because of it. The Courts’ reasoning for the reductions is because block billing hinders their ability to determine the amount of time spent on each fee, and the reasonableness of those fees, since many unrelated tasks are “lumped” together. In 2012, the Court in Project Vote stated that while block billing is not prohibited it does not provide a “sufficient breakdown to meet [the applicant’s] burden to support its fee request.” 887 F. Supp. 2d 704, 716 (E.D. Va. 2012). That Court stated it was not their role to spend their time dissecting blocked billed entries to determine if the time and fees were reasonable. In 1988, the Court in EEEOC v. Nutri/System, Inc. stated that entries should be “described with reasonable particularity” to allow the Court to determine what is a reasonable time spent on a task. 685 F. Supp. 568, 573 (E.D. Va. 1988).
In December of 2016, the Court in Griffin v. Areva, Inc. found several instances of block billing of multiple unrelated tasks by Troutman Sanders. 2016 WL 7736953 (W.D. Va. Dec. 15, 2016). The Court stated it was unable to distinguish time spent on each task and, therefore, it was unable to determine the reasonableness of the time billed. The Court cited some precedent where courts have found block billing “consistently warranted” a reduction in fees. Those Courts reduced a percentage of the total fees requested.
The defendants argued that they had already reduced their fees that could be “deemed duplicative and unnecessary” which ended up being their saving grace. Because the Court in Griffin v. Areva stated the defendants had already reduced their fees and Troutman Sanders fee submission, which was “not replete with block billing,” they would not reduce the attorney fees further.

Unreasonableness and Overstaffing Cause Fee Reduction

 Posted by at 9:25 am  Court Decisions, Interesting Fee Cases, Overbilling, Uncategorized  Comments Off on Unreasonableness and Overstaffing Cause Fee Reduction
Dec 082016
 

Courts have the discretion to reduce attorneys’ fees if the application is unreasonable or ambiguous and the hourly rate is not reasonable. In Mosley v. Nordquist, 2016 WL 5794480 (S.D. Miss. Sept. 30, 2016), the Court determined that while the substance of the underlying litigation was complex, the issue of the return of confidential documents subject to a protective order certainly was not. This case exemplifies the notion that firms must base staffing decisions on the complexity of the issue at hand and not on the overall complexity of the case.

The Court reviewed the billing records and found that the total hours billed were excessive. The Court determined that the time expended by the plaintiff on the Motion to Compel (22.5 hours), the Motion for Order to Show Cause (22.4 hours), and the Motion for Attorneys’ Fees and Costs (28.7 hours) was “light on case law and legal argument” and the Court also concluded that none of the billing attorneys used “billing judgment.” Billing judgment is usually shown by the attorney writing off unproductive, excessive, or redundant hours. Therefore, the Court reduced the total time billed for these motions by half.

A number of itemized entries were inadequately documented with vague or otherwise unproductive descriptions; therefore, the Court concluded that these hours were un- reasonably expended. These items included descriptions such as “analyze…,” “work on…,” “outline…,” “follow up…,” and “prepare to work on…” As the Court concluded, these entries were unreasonable, and thus, not compensable.

Lastly, it was evident from the billing records that partners and “of counsel” billed for work that associates could have done, attorneys billed for work that paralegals could have done, and even clerical work was occasionally billed A number of itemized entries by attorneys appeared to resemble paralegal work. These items included descriptions such as “prepare materials…” and “work on materials…” The Court reduced these entries to the paralegal rate.

There were also entries that included tasks such as calling the court regarding the process for the motion to compel, to check court reporter availability, and to check transcript status. The clerical work reflected in these entries was not compensable.

Billing Judgment-A Necessary Legal Skill?

 Posted by at 9:38 am  Court Decisions, Interesting Fee Cases, Overbilling, Uncategorized  Comments Off on Billing Judgment-A Necessary Legal Skill?
Nov 142016
 

In Thatcher v. OakBend Medical Center, a prevailing plaintiff in an employment retaliation suit sought an award of attorneys’ fees. 2016 WL 5848889 (S.D. Texas, Oct. 6, 2016). In discussing the reasonableness of the requested fees, the Court addressed the affirmative duty of plaintiff’s counsel to demonstrate that billing judgment was exercised. Id. at 3. As a part of the reasonableness analysis, the plaintiff’s attorney seeking an award of attorneys’ fees must prove that they exercised billing judgment. The exercise of billing judgment is shown by “documentation of the hours charged and of the hours written off as unproductive; excessive, or redundant.” If plaintiff fails to meet this burden, then the Court will impose its own billing judgment by reducing the fees appropriately. Id. In this case, the Court did not find evidence of billing judgment and reduced the requested fees significantly. Id. at 3-6. The Court reduced the requested fees from $190,250.00 to $124,464.14 as a result of plaintiff’s counsel’s lack of billing judgment. Id. at 7. The Court reduced the plaintiff’s requested fees for time billed for work on a failed claim, work on a motion that was never filed, general attorney education time, vague time entries, and excessive communications. Id. at 3-6.

Law firms and their billing practices are under growing scrutiny from their clients and the courts. Even under this ever-increasing scrutiny, the exercise of billing judgment is not a skill many attorneys would deem vital to the practice of law. Reducing your own fees may seem counterproductive. However, as demonstrated in this case, exercising billing judgment may be more beneficial than letting the court or the client impose its own judgment. Documentation of hours written off as unproductive, excessive or redundant is a simple way for attorneys to demonstrate to the court or client that restraint was used in determining the fees charged. The evidence of restraint makes it easier for the court or client to trust the attorney’s invoice and ultimately pay the amount billed by the attorney. Before documenting hours written off, attorneys must become familiar with the types of activities that should be written off or reduced as excessive or unreasonable. Understanding and demonstrating billing judgment is a skill every attorney should strive for in the modern practice of law.

Court reduced attorney’s fee award for “description issues”

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Oct 042016
 

In a recent case, a U.S. District Court reduced attorney’s fees for “blocking billing” and “vague entries.” Rock the Ocean Prod., LLC v. H1 Events, LLC, No. 15-5189, 2016 WL 4272931 (E.D. La. Aug. 15, 2016).
The practice of block billing is “disfavored by the Courts,” id. at 3 (citing Creecy v. Metropolitan Property and Cas. Ins. Co., 548 F. Supp. 2d 287 (E.D. La. 2008)), because it shows a lack of billing judgment and “prevents the Court from being able to conduct a proper analysis of the time actually spent on each of the transactions listed.” Id. Although block billing is not a basis for refusing to award attorney’s fees in their entirety, the court will apply a flat reduction of a specific percentage from the award. See id. Here, the court decreased the blocked billed time by 25%.
Moreover, the court decreased entries that were vague. Attorney fee entries must contain “sufficient detail and probative value” so that the court can “determine with a high degree of certainty that the billing is reasonable. Id. at 4 (internal citation omitted). Here, the billing entries reference emails but fail to describe the subject matter of the emails. The court deemed such entries as vague and applied a 50% reduction. See id.

Block Billing and Over-Billing Can and Will Harm Your Firm’s Attorney’s Fees

 Posted by at 3:01 pm  Court Decisions, Interesting Fee Cases, Overbilling  Comments Off on Block Billing and Over-Billing Can and Will Harm Your Firm’s Attorney’s Fees
Aug 162016
 

In the case of C.G. & R.G. v. Winslow Twp. Bd. of Educ., 2015 WL 7760356 (D.N.J. Dec. 2, 2015), the court found that the plaintiffs were entitled to over $47,000 in attorney’s fees despite the challenge by the defendants, who argued that the plaintiffs were not entitled to any attorney’s fees. However, the court did concede that the plaintiff’s attorney’s billing was problematic, having amassed excessive block billing charges from April through September of 2013. This case serves as a reminder that firms need to make sure that associates and partners are billing efficiently for tasks performed.
The court examined the attorney’s billing patterns and found that there was significant block billing that even spanned several days. Due to Mr. Epstein’s block billing, tasks that should have taken a significantly shorter amount of time, were actually billed almost double the amount of time. Moreover, the tasks were not separated out to enable to the court to be sure of the time devoted to each task.
Nonetheless, the court discovered that his billing was excessive compared to an associate in the firm who attended many of the same meetings and conferences and performed similar preparation needed for the duration of the case. Mr. Epstein, the plaintiff’s attorney and a partner, billed inefficiently based on his experience, having expertise in several key areas of the case. However, he was billing more time than his associate for tasks that should have taken him less time to do.

The court found that Mr. Epstein had a significant difference in billing than his associate while he did nothing differently that would produce a difference in time for billing. The court stated, “Mr. Epstein and Ms. Adams attended the same due process hearing, and there is no justification for this disparity in billing. Ms. Adams billed at a rate of $135.00 per hour, whereas Mr. Epstein’s stipulated reasonable hourly rate is $425 per hour—more than three times the rate of Ms. Adams. As rates increase, the reasonable time expended for the same matter decreases.” This was examined further when the court found that Mr. Epstein specialized in education law. His specialization and experience should decrease, not increase, the time necessary to prepare for a routine due process hearing. See Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 596 (3d Cir. 2000) (“with experience, the amount of time spent performing routine tasks in an area of one’s expertise should decrease[ ]”).

Because of this block billing and excessive time billed, along with vague entries, tasks for which the attorney was overqualified, and work on unrelated matters, the plaintiffs were entitled to just over $47,000, representing a 50% reduction from the requested fee amount. If the firm had monitored the billing practices of this individual, the line by line deductions could have been avoided. The result of this case proves how vitally important it is to make sure that each member of the firm is billing responsibly.

Big Cuts for Excessive Rates, Vague Entries, and Overbilling

 Posted by at 3:03 pm  Court Decisions, Interesting Fee Cases, Overbilling  Comments Off on Big Cuts for Excessive Rates, Vague Entries, and Overbilling
Aug 012016
 

The law firm of Kase & Druker lost over $35,000 in attorney fees for excessive attorney bill rates, lack of contemporaneous timekeeping, failure to provide clear time entries, billing attorney rates for ministerial tasks, and overbilling in New York Youth Club, et. al. v.
Town of Harrison, et. al., 12-CV-7534 (CS), 2016 WL 3676690 (S.D.N.Y July 6, 2016). Ms. Frome’s billed hourly rate of $450 was reduced by the Court to $375 concluding her forty one years of practice involved little work in trial level civil rights work. Co-counsel, Mr. Druker, fees were reduced from $375 to $275 as his associate level expertise was mainly in criminal defense litigation.

As to a lack of contemporaneous timekeeping, Ms. Frome submitted records claimed to have been used to re-create her billing, but Mr. Druker simply submitted to the Court his time was “so well documented that contemporaneous records [were] unnecessary.” While the Court accepted Ms. Frome’s submitted records, they were not so willing to overlook Mr. Druker’s complete lack of even an attempt to provide substantiating evidence of his billed time. His hours were reduced to 5.2 hours for his attendance at depositions which were time-stamped to evidence the time he spent in attendance.

The biggest cut to Ms. Frome’s billing was by 25% across the board for vague entries such as “Research,” and “Discovery.” Additionally, time spent preparing documents for mailing, filing motions, and assembling exhibits were cut by the Court as ministerial tasks. An additional 20 hours were reduced from Ms. Frome’s billing for excessive time spent reviewing and researching motions for someone of Ms. Frome’s experience.