- There are at least half a dozen attorney fee decisions issued by courts every day.
- Somewhere, someone is writing a fee motion or memo in opposition, and somewhere, someone is getting a fee decision every day.
- For over 20 years I have studied attorney fee litigation and fee motions nationwide, reading an average of a dozen or more fee decisions every week. It still surprises me to see the variety of motion styles, content, and results.
- To help everyone do their job better, I offer some tips below, that I see working every day.
How to Support Billable Rates in a Lodestar-based Fee Petition
The fee motion/petition states your case for awarding fees. It is supported by your affidavit and evidentiary attachments, which is evidence. The motion and your affidavit are supported by a non-party attorney or expert witness affidavit, which is evidence.
Suggested content to consider for each of
these is listed below, and can be further explained in considerable further
detail and length separately. But bear in mind that there is much more to a
successful fee motion than merely providing that which is listed below, but
this is where a successful fee motion starts.
The Motion/Petition:
1. Briefly summarize the salient facts of the dispute, the dispute’s litigation history with appropriate emphasis, and establish the status of prevailing party
2. Identify entitlement, the purpose of and legal basis upon which fees may be awarded to the movant
3. State the motion’s question(s) at hand (what is a reasonable fee/costs in this case, etc)
4. Specify the relief you want (i.e., the total hours, the hourly rate of each time-keeper, and the total fees and costs award sought)
5. State the applicable legal standard(s) and the accepted process for making the decision(s), i.e., determining a reasonable fee using the Lodestar approach and the 12 Johnson factors
6. Identify the undisputed and disputed issues in the motion
7. Identify the evidence you are submitting on the disputed issues, explaining what each piece is and why it matters to the disputed issues
8. (If applicable) identify sparsity of available, knowledgeable attorneys in applicable legal market area
9. (If applicable) briefly discuss settlement efforts and degree of success
10. Discuss use of billing discretion
11. If Survey evidence is submitted, explain methodologies employed to establish accuracy/reliability of results (Survey Report should provide this)
The Affidavit/Declaration of Movant Attorney:
1. Affiant identity, professional background,
2. General and Niche Area education, training, experience
3. Relevant professional recognition, accomplishments, publications related to niche area of law or case
4. Relevant CLE taught or attended by movant attorney/paralegal on niche area of law or case
5. Opinion and knowledge of sparsity of available, knowledgeable attorneys in applicable legal market area and basis for it and basis for knowledge
6. Authenticate affiant’s attached CV
7. Movant attorney’s knowledge of Paralegal(s) professional background, education, training, experience and basis for knowledge
8. Time frame and subject matter of case work
9. Authenticate Time and Costs Business Records, recordkeeping methodology, billing discretion effort
10. Opinion and knowledge of reasonable hourly rates currently charged and rates sought in motion per Timekeeper and basis for knowledge
11. Movant attorney’s relevant prior fee awards
12. Other comparable fee awards in jurisdiction, in niche area of law, and/or by judge on the case
13. Movant attorney’s comments on application of each Johnson factor to case
14. Summary statement of any unusual problems, aspects of case that contributed to time or effort
15. Explanation of any attached supporting documentation, survey report, etc
16. Final Statement of each timekeeper’s hourly rate and accumulated time for case, and the total fee and costs requested
17. Explanation of any attached supporting documentation, survey report, etc
18. If Survey evidence is used, examine and consider use of all applicable survey charts, giving greater weight to those with more applicability to the case at hand; start with the applicable median rate and use other variability charts to modify the initial median and conclude by adjusting for inflation using the CPI online Calculator.
The Affidavit/Declaration of non party Supporting Attorney/Expert Witness:
1. Affiant identity, professional background, education, training, experience
2. Identify and authenticate affiant’s attached CV
3. Opinion and knowledge of movant attorney/Paralegal’s practice area, reputation, standing in the legal community and basis for knowledge
4. Opinion and knowledge of case’s niche area of law
5. Opinion of sparsity of knowledge level in local legal community of case’s niche area of law and basis for knowledge
6. Opinion and knowledge of difficult aspects of handling case’s niche area of law and basis for knowledge
7. Opinion and knowledge of marketplace hourly rate(s) for case’s niche area of law and basis for knowledge, including, where appropriate, the affiant’s hourly rate
8. Opinion and knowledge and reasonableness of movant attorney/Paralegal’s current hourly rate and rates sought in motion per Timekeeper and basis for knowledge
9. (If applicable) opinion and knowledge of reasonableness of total and/or selected task hours in case and basis for knowledge
10. (If applicable) Discuss evidence of billing discretion
11. Where appropriate and possible, the nonparty attorney’s specific knowledge should be explained in appropriate detail.
Class Action Note: Most of the minimum contents for the Movant’s Lodestar Approach affidavit remain necessary or useful in the Common Fund Percentage approach, but bear in mind that in most if not all cases the Lodestar calculation is used by the court to “cross check” the reasonableness of the Common Fund’s percentage result. For that reason the movant’s affidavit should first focus on the evidence supporting the percentage approach and its result, by providing citations to cases showing the specific percentage commonly applied by the local court in similar cases. Should a percentage outside the norm be sought, the movant should provide specific evidence that explains and justifies seeking a percentage that is higher or lower than the jurisdiction’s normal common fund percentage award. Focus should also include an analysis and discussion of the benefits to the common fund beneficiaries, including both amounts and time saved and other aspects of the case result that benefitted both the fund and the beneficiaries.
