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Excessive lawyering irritates court and results in substantial fee reduction

May 22nd, 2013  |  Lorene Park

When courts start getting creative in their use of adjectives (sometimes letting normally cool, detached writing styles slip for the briefest of moments), it can be a sign that an attorney has pushed the limits of procedural rules or decorum, if not entirely ignored them. Many instances of such creative judicial writing show up in response to motions to compel discovery, but my personal favorites often involve requests for attorney’s fees, which invite courts to inspect attorney behavior.

Excessive lawyering. For example, in Cox v Council for Developmental Disabilities, Inc (No. CIV-12-0183-HE, 2013), a federal court in Oklahoma found a $145,148 fee request in a “heavily lawyered” employment discrimination case that netted a mere $2,984 in damages to be “divorced from reality.” The employee’s gender-based hostile work environment claim failed on summary judgment and only her retaliation claim went to the jury. Although her attorneys’ hourly rates were reasonable, the extent to which the case was “lawyered” was problematic to the court. Virtually all tasks involved substantial involvement by at least two attorneys but lawyers who justify their hourly rates “should be experienced enough that substantial review and revision by other attorneys is unnecessary.”

Further, multiple attorneys reviewed the same routine filings or orders, spent substantial time in interoffice conferences between counsel, and billed the smallest available time increment. A single email between counsel, no matter how insignificant, cost at least $40. Significantly, two attorneys handled all pretrial proceedings, including discovery, but a third attorney prepared the summary judgment response, requiring 30 hours to become familiar with discovery to date. “The cost of such duplication should not be shifted to the opposing party,” the court averred.

To reflect the excess time, the court reduced the lodestar amount to $101,603. In addition, a further reduction was warranted because the employee’s recovery was “pretty close” to nominal and far less than she sought. Moreover, the time spent by her attorneys on post-judgment motions (as to interest and attorneys’ fees) merited a further reduction. To the court, the “minuscule amounts of interest at issue—the amount sought by the current motion would barely purchase a 16oz soda—make plaintiff’s motion essentially useless for any purpose other than increasing attorneys fees.” Accounting for these excesses, the court awarded $29,000 in attorneys’ fees; much less than the $145,148 sought.

Pomposity. A personal favorite comes from a federal court in Texas (as many of my favorites do). In Ransom v M. Patel Enterprises, Inc, an FLSA suit, the court found “pomposity” in defense counsel from a city firm arguing that employees’ counsel should be awarded less in fees because he had a small rural office with lower overhead (No. A-10-CA-857, 2012). The defendants argued the court should award less than the requested $325 hourly rate because their two attorneys only charged $250 and $255. Disagreeing, the court noted that the employee’s attorney was a specialist in employment law and experienced in litigation, whereas defense counsel could claim only one of those qualifications. The court was unswayed (though maybe annoyed) by the defense arguing that its firm, which is “in a downtown high rise two blocks from the federal courthouse,” has higher overhead but charges less. Setting aside “the pomposity of this argument,” the court explained that overhead costs were not a consideration.

The court also found several of the defendants’ remaining arguments “ridiculous” and “preposterous” where they complained about the additional fees incurred after failed settlement discussions and argued that every single dollar of fees expended after they made a settlement offer was spent in pursuit of damages. In the end, the court awarded $331,880 in attorneys’ fees. The court did not find this disproportionate to the judgment for $135,036 in unpaid wages and liquidated damages. It also awarded costs.

Be careful what you wish for. The moral of these stories is so obvious I won’t say it twice. Just be sure, when asking a court for attorney’s fees (or opposing the other side’s request), that your position isn’t likely to provide fodder for post-decision chuckles around your opponent’s water cooler.