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”

 Posted by at 9:20 am  Court Decisions, Interesting Fee Cases, Overbilling  Comments Off on Court reduced attorney’s fee award for “description issues”
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.

Too Vague? No Fees and Costs Paid

 Posted by at 10:07 am  Court Decisions, Interesting Fee Cases, Overbilling  Comments Off on Too Vague? No Fees and Costs Paid
Jul 182016

In December 2015, Venture Corporation v. Barrett, 2015 WL 8588239, the plaintiff won reasonable fees and costs. However the court refused to award Venture fees or costs temporarily because their entries were too vague. Venture Corporation had summarized the daily and total hours billed but did not supply any further detail. The attorneys for Venture Corporations claimed they were purposefully vague, claiming Attorney-Client and Work Product privilege especially since the defendant was likely to appeal.
The Court rejected this argument, without prejudice to renewal, because the vague entries have “two unfortunate effects.” Firstly, the court concluded that the vague entries limit the courts ability to assess if the fees are reasonable, is requirement of the Court. Secondly, vague entries limit the defendants ability to challenge the fees as “unreasonable, excessive or otherwise flawed.”

That Should be a Paralegal Task!

 Posted by at 9:16 am  Court Decisions, Interesting Fee Cases, Overbilling, Uncategorized  Comments Off on That Should be a Paralegal Task!
Jun 282016

It is not uncommon to see law firms attempt to bill ordinarily paralegal tasks at attorney rates. Courts have started cracking down on this unethical practice. One such example of this is Guerrero v. Secretary of Health and Human Services, in which the court held that a significant portion of the firm’s charges billed at the full attorney rate would have been better characterized as paralegal work, and should have been billed as such. No. 12-689V, 2015 WL 7820966 (Fed. Cl. Nov. 16, 2015).

The Special Master had deducted 2.2 attorney hours, totaling $781 from Petitioner’s fee award, and awarded 1.5 paralegal hours, totaling $187.50, for billing entries which he found reflected tasks more properly suited to a paralegal hourly rate than an attorney rate. Id at 159. The Special Master re-characterized the hours spent on email and telephonic communications regarding medical records, the expert’s fees, costs, invoice, litigation expenses, Petitioner’s social security number, drafting an Election to Accept Judgment, and a Statement of Completion, and the court proceeded to affirm his re-characterizations. Id. Had this not been caught, the firm would have easily pocketed nearly $500 to which it was not entitled.

In Shabazz v. City of New York, the court found that a substantial number of entries, twenty-three in total, were improperly billed at attorney rates. No. 1:14-CV-6417-GHW, 2015 WL 7779267 (S.D.N.Y. Dec. 2, 2015). These entries included time the attorney, Mr. Harvis, spent conducting internet searches, reviewing ECF notices, updating calendar entries, preparing civil cover sheets and affidavits of service, and requesting medical records, and were billed at the full attorney rate of $400 per hour. Id at 4. Ultimately, the court found that the entries were clerical or more suitable for a paralegal, rather than an attorney, and reduced the rate charged for 3.9 hours of work that Mr. Harvis billed at $400 per hour to the paralegal rate of $75 per hour. Id. This saved the client a significant $1,267.

Clients must be more diligent in reviewing their legal bills. By reviewing them with increased scrutiny, or having a third-party auditing service do so, chances are, they will find ways to keep more money in their pockets.
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Block-Billed Entries Lead to Block Cuts to Invoices

 Posted by at 2:46 pm  Court Decisions, Interesting Fee Cases, Overbilling, Weekly Wrap-Up  Comments Off on Block-Billed Entries Lead to Block Cuts to Invoices
May 312016

Law firms who practice block-billing are opening themselves up to the risk of having their billed fees greatly reduced. Block-billing makes it incredibly difficult for courts, and clients, to determine the reasonableness of the attorney time spent on each task, and therefore, courts across the country have routinely decided to make substantial percentage deductions to attorneys’ fees, ranging from 10-25%.

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Billing For Clerical Tasks – A Form of Double Billing?

 Posted by at 10:34 am  Court Decisions, Interesting Fee Cases, Overbilling, Uncategorized  Comments Off on Billing For Clerical Tasks – A Form of Double Billing?
May 182016

Courts are often tasked with determining the amount of attorneys’ fees to award the prevailing party in various types of litigation.  In Snell v. North Thurston School District, the Court was tasked with determining the amount of attorneys’ fees to be awarded to the prevailing party in an American with Disabilities Act suit.  2015 WL 8621913 (W.D. Wash. Dec. 14, 2015).  The Plaintiff, Wendy Snell, successfully sued her daughter’s school district for unlawful discrimination by failing to accommodate her daughter’s disabilities.  After determining that the Plaintiff was a prevailing party under the Americans with Disabilities Act, the Court considered several issues to determine the proper award of attorneys’ fees.  These issues included the determination of a reasonable hourly rate and reasonable hours expended in light of block billing within the Plaintiff’s attorney’s invoices, the Plaintiff’s degree of success, and most notably, clerical and duplicative work billed by a paralegal.

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You’ve Gotta “Fight for Your Right” to Attorneys’ Fees but Block Billing, Vagueness, and Duplicate Work Can “Sabotage” those Efforts

 Posted by at 10:28 am  Overbilling  Comments Off on You’ve Gotta “Fight for Your Right” to Attorneys’ Fees but Block Billing, Vagueness, and Duplicate Work Can “Sabotage” those Efforts
May 032016

After almost four years subsequent to the initial filing of this copyright infringement action, the court addressed defendants’ motion for attorneys’ fees and costs. TufAmerica, Inc. v. Diamond 2006 WL 1029553 (S.D.N.Y. March 9, 2016).  The court had previously granted defendants’ motion to dismiss for four claims and granted their motion for summary judgment for the remaining claims.   Although the defendants (consisting of the Beastie Boys, Universal-Polygram International Publishing, and Capitol Records) prevailed in this high-profile sampling case, the court acknowledged that this does not necessarily mean that they would be entitled to attorneys’ fees under Section 505 of the Copyright Act.  The main issue of the action revolved around the plaintiff’s standing to enforce the copyright in question.  Because it was found that one co-owner of the copyright was not a signatory to a contract seeming to convey an exclusive license to the plaintiff, it was determined that the plaintiff was not an exclusive license holder and, therefore, could not sue.  The substantive issue of whether there was actual infringement was never even reached. Continue reading »

The Reasonableness of Block Billing

 Posted by at 10:28 am  Court Decisions, Interesting Fee Cases, Overbilling, Uncategorized, Weekly Wrap-Up  Comments Off on The Reasonableness of Block Billing
Apr 042016

Block billing is a prevalent problem throughout the legal profession. Although a recent decision by the 9th Circuit found an attorney’s block billed entries to be adequate, the court still based its decision on the reasonableness of time billed for the given task.

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