Attorney Fees Billing Practices

By William F. Cobb January 5, 2021 Posted in Business Litigation Share

Attorneys are reminded that the burden of establishing a reasonable fee rests with the fee applicant, who supplies the court with “specific and detailed evidence” in an organized fashion.  Most attorneys keep time records for work done by the lawyer or lawyers on the cases they work.  Most time records are kept by an electronic billing system that each lawyer uses to input his or her time, generally in increments of one-tenth of an hour, allowing the lawyers to bill separate tasks for each client.  The electronic billing system permits the lawyers to describe services performed and allows the inputting lawyer to specifically describe services performed.  Best practice is to input time contemporaneously with the work performed in order to insure time and description accuracy.

Generally speaking, it is these billing records that are provided with the Motion for Attorney’s Fees filed with the court, reviewed by the experts and opposing counsel, and the “specific and detailed evidence” relied upon by the court in making a determination of the reasonableness and amount, if any, to be awarded.  The manner in which these billing records are prepared and presented is essential to the maximization of any resulting award.  The following is a discussion of issues regarding billing practices that impact the decision of the courts when rendering attorney fee awards.

• Block Billing:  Block billing occurs when multiple tasks are included in a single time entry, such that a court cannot distinguish between compensable and non-compensable time.  The mere inclusion of two tasks in a single entry is not, per se, evidence of block billing.  While counsel are not required to record in great detail how each minute of their time is expended, counsel should at least identify the general subject matter of the time expenditures.  When tasks are intertwined, a thorough description of the activities clarifies the entry and allows courts to make the distinction between compensable and non-compensable time.  The presence of block billing makes it impossible for the court to determine how much time was actually spent on any particular task.  In addition, the descriptions used by attorneys that are vague and oftentimes fail to describe the actual task performed can result in the court reducing the requested number of hours.  Being precise in the description of the work performed regarding the entry will substantially increase the likelihood of receiving credit for the work performed, resulting in allowing the entry and time in the ultimate award.
• Unit Billing:  Unit billing is an arbitrary set fee for a give task.  Examples are .2 for every phone call or every page reviewed in a discovery matter and is not condoned by the Florida courts.  Rule 4-1.5, Rules Regulating the Florida Bar, provides the factors upon which a reasonable fee can be based.  Nowhere does it provide for flat rates per task.  The Florida Supreme Court has suspended attorneys for unreasonable unit billing and flat rates for phone calls and document preparation  finding “absolutely no justification” for such an approach to billing.
• Clerical Work:  Clerical work, such as the compilation of facts and statistics, coordinating schedules, basic communications, procedural matters, and housekeeping matters, is usually performed by legal assistants, not lawyers.  The focus on the inquiry is whether the work is traditionally performed by attorneys.  Work performed which can often be accomplished by non-lawyers but which a lawyer may do because he or she has no other help available is not compensable at a lawyer’s rate solely because a lawyer does it.  Courts have the ability to reduce the rate for clerical work or excluded it entirely from a fee award.
• Excessive or Unnecessary:  Attorney’s fees arising from hours that are excessive, redundant, or otherwise unnecessary should be excluded from an award of attorney’s fees, either by the applicant for the fees or the court.  Time spent on discrete and unsuccessful claims should also be excluded.  Thirty-six minutes reviewing a two page order, twelve minutes for a three-sentence order and twenty-four minutes reviewing a renewed motion to withdraw are all examples courts have determined are excessive.  One court excluded time spent on the drafting and presenting a summary judgment that was filed for failure to comply with a local rule.  The court reasoned the time was unnecessary and refused to award the fees sought, claiming to do so would award an unreasonable fee for substandard work.  Parties seeking attorney’s fees are charged with proving they exercised billing judgment.  Billing judgment requires documentation of hours charged and of the hours written off as unproductive, excessive, or redundant.
• Office Conference and Multiple Attorney Billing:  In multiple attorney firms, billing will reflect office conferences between counsel within the same firm or multiple attorney’s attending hearings or completing the same task, frequently in different amounts of time.  While clients are certainly capable of hiring as many attorneys as the client wants, generally speaking only one attorney should bill for the matter.  One instance involved billing that reflected over 100 entries, totaling 444.95 hours, of activity related to viewing surveillance video of a property.  The court ruled the hours were unreasonably expended as 8 different timekeepers, attorneys and paralegals, viewed the video surveillance multiple times.  Another involved 94 time entries by seven different timekeepers referencing an unsuccessful motion for summary judgment that provided obvious factual disputes on its face.

The Florida Supreme Court has emphasized the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee.  To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed.  Counsel is expected to claim only those hours that he or she could properly bill the client.  Inadequate documentation may result in a reduction in the numbers of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary.

Florida courts have consistently explained that the party seeking fees must distinguish between fees which are collectible and fees which are not.  It is the party seeking fees on multiple claims who has an affirmative burden to demonstrate what portion of the effort was expended on the claim or claims that authorize attorney’s fees, or alternatively to show the court how the issues were so intertwined that allocation is not feasible.  If poor records prevent the party asking for fees from complying with Florida law, the court has the authority to award no fees.

Carefully crafted billing entries, specific as to a reasonable amount of time for the associated task, together with sufficient commentary to inform the court regarding the work actually performed, has a better chance of being the “specific and detailed evidence” necessary for the court to award the fees being requested.  A careful and thoughtful review of the billing to be presented to the court in support of an award of attorney’s fees, redacting any problematic entries referenced above, will also likely yield a more favorable result and can only serve to enhance your credibility as an ethical attorney with the court.  Illegal, prohibited or clearly excessive fees are not permitted and in fact are a violation of Rule 4-1.5 of The Rules Regulating The Florida Bar.

For information on the author of this blog visit: https://www.cobbgonzalez.com/attorneys/william-f-cobb-esq/

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