GPSOLO January/February 2009
The ability to attract and obtain significant attorney fees permits a firm the luxury of advancing the intellectual aspects of jurisprudence. Without big fees the economic realities of law practice often force firms and lawyers to accept a large caseload, making the practice of law resemble more an apparatus mill rather than a profession of higher calling. In order to survive and promote justice, lawyers need to be able to earn a respectable living, and I encourage all lawyers to strive to earn reasonable fees. Unfortunately, in today’s environment too many attorneys have lost sight of what a reasonable fee is and charge too little and inherently devalue their services and demote the public’s opinion of lawyers. Certainly, we all have a duty to provide pro bono services and aid all members of society, regardless of financial ability. However, the practice of accepting unreasonably low retainers damages the profession’s reputation. The purpose of this article is twofold: first, to encourage lawyers to value their time and charge appropriate fees, and second, to suggest methods of obtaining big fees.
Flat fees provide an opportunity to receive payment immediately and permit a client to budget the legal matter. Such fees are common for uncontested divorces, criminal cases, and immigration matters. In fact, very few lawyers charge hourly retainers for such cases. The key to big flat fees is mastery of your field of law, the ability to conceive and articulate a solution, and the charismatic delivery of a plan to a potential client. There is also, of course, the little matter of a potential client’s ability to provide payment.
It is a concern with that last item that leads me to discourage the practice of immigration law if you are seeking big fees, unless you are representing corporations willing to pay an hourly retainer for advice and counsel. By “big fees” I refer to amounts commensurate with the time you will expend. Don’t be fooled by large, up-front fees in an immigration case; any aggressive attorney who thinks outside the box will likely keep an immigration case for years. When we opened our firm in April 2005, we intended to practice solely immigration law. The first such client we accepted was a Haitian man placed into removal proceedings owing to a conviction for child abuse, which he had pled out in a state court. We quoted a flat fee we thought would account for our estimated time in the case and what a person facing removal from this country could reasonably pay. As the case continued to percolate through the years, we wished we had charged significantly more. However, it would have been unrealistic to expect a higher fee from a blue-collar immigrant. Furthermore, as counselors we should impress upon an immigration client that the state of the law is in flux, and the amount expended on attorney fees will not necessarily provide better results. In many cases the client would be better served using the money in a different fashion—such as building a life in another country.
Criminal cases, on the other hand, often mandate big fees, and the relationship with attorney fees and results mirror each other. The criminal client, unlike the immigration client, finds a dire situation that demands the fight for liberty. Criminal clients face the loss of liberty, as well as the potential for the loss of a slew of privileges. These clients strive for a knowledgeable and aggressive lawyer providing solutions and hope. I initially began the practice of law in the criminal sector, and I have tried dozens of jury trials successfully. When I first meet with a criminal defendant, I analyze the alleged criminal violation with the facts of the case, explain the possible worst-case scenario, describe the negative consequences of entering a plea to the charge in hand, and finally propose the defense as I see it. Usually, I provide a synopsis of a closing argument under the facts. I explain to the potential client that there are less expensive lawyers and that if I’m to accept the case, it will cost an amount that I believe truly represents the potential liability I will face and the estimated time I will expend.
When negotiating with a potential client, don’t ever go below your initial quote, and state with all certainty that if the client does not respect your time, then the relationship ought not to develop any further. The confidence of a lawyer provides the key element in obtaining a big fee. Discover the potential client’s occupation, rate of pay, and assets. Express to the client the reality that any number of local lawyers would likely take the case for less, but if the client demands your services, the client will have to respect and pay for same. Understand the situation and provide a clear road map of what the future holds for the client (i.e., arraignment, discovery, pretrial, possible motions, trial). Allow the potential client to hear your defense.
I believe that there are viable defenses in all criminal matters. In fact, if I’m unable to envision a defense for a potential client, I express that the client should not be disappointed but rather seek another lawyer, as my inability to create a defense for this matter is not owing to the limitations of the facts but rather the limitations of my own creativity. I’ve rarely run into such a situation in a criminal matter, but in most cases that I do not accept, I still do my best not to take hope away from the client and encourage him or her to seek other counsel.
Never take hope away. Be confident, courageous, and most importantly knowledgeable about the area of law you practice. Potential clients often intuitively feel whether their lawyer has confidence or lacks it. An attorney must be confident in order to obtain big fees.
I have found that most of our clients are unable to pay big fees. As a result, we accept a large number of cases on a contingency basis. Because my practice primarily revolves around employment and labor law, I seek causes of action that mandate reasonable attorney fees and costs by statute. Most remedial statutes provide for reasonable attorney fees. Certain statutes mandate the granting of reasonable attorney fees, whereas others only permit the granting of such fees. Obviously, mandatory attorney fees increase one’s chances of obtaining them.
Once again the attorney’s knowledge regarding the area of the law being practiced and the enthusiasm in prosecuting remedial statutory causes of actions will determine whether a big fee is earned. Additionally, to successfully recover a big fee an attorney ought to keep detailed and contemporaneous time records. When a statute provides for mandatory attorney fees, I like to settle a client’s claims exclusive of attorney fees and discuss the issue of attorney fees at a later time. I have often found that most corporate attorneys reject such an offer. However, when a demand for judgment specifically excludes attorney fees and it is accepted, then the opportunity to obtain a big fee increases dramatically.
The key to obtaining a big fee before a court or convincing an opposing party that they ought to pay a big fee is the organization of accounting for one’s time and the tenacity to aggressively litigate the issue if necessary. For instance, in cases where we are unable to agree upon our attorney fees, we seek and hire two or three expert attorneys in the community or field of law to review our file and give an opinion on the issue of reasonable fees. If we discover that a mere report is not enough for the opposing counsel, we schedule the deposition of each expert at his or her office. Usually after the first deposition, the non-moving party desires to seriously discuss attorney fees.
It is important to charge hourly paying clients the same as clients whose cases are taken on a contingency basis because it provides a legitimate history of an attorney’s regular hourly rate. Fortunately, in many jurisdictions for a number of causes of action an attorney may seek a lodestar multiplier. The lodestar is the product of reasonable hours times a reasonable rate. As Justice Antonin Scalia has stated, the lodestar figure is the guiding light of fee-shifting jurisprudence; the courts have established a strong presumption that the lodestar represents the reasonable fee and have placed on the fee applicant who seeks more than that the burden of showing that an adjustment is necessary to the determination of a reasonable fee. Unfortunately, a lodestar multiplier is unlikely available under most federal statutes. However, in states that recognize the practice, it is vital to understand the jurisdiction’s case law on lodestar multipliers and to obtain an expert opinion on the matter. In essence, the contingency multiplier adjusts the lodestar upward in order to compensate the attorney for taking a contingency case that was unlikely to succeed. Although it is unlikely that the time spent in litigating reasonable attorney fees will be recovered and the costs associated with the process will likely not be recoverable, it is important to demand reasonable attorney fees, as anything short of an aggressive approach will diminish the chance of obtaining big fees in the future.
Most labor and employment law causes of action based upon statutes provide for attorney fees to a prevailing employee. For instance, Title VII, 42 U.S.C. § 1981 and almost all corresponding state civil rights statutes permit the court to award reasonable attorney fees and costs. Because civil rights cases are considered remedial in nature, the recovery of back pay, front pay, consequential damages, and injunctive relief will usually trigger reasonable attorney fees.
Many other labor statutes provide for reasonable attorney fees and costs. For instance, the Family and Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), and the Employee Retirement Income Security Act (ERISA) provide for reasonable attorney fees and costs. Once again, master the act being pursued, keep detailed contemporaneous time records, primarily litigate for remedies that are more likely than not to be obtained, and be prepared to litigate a fee petition. In cases where one demands more than one is likely to obtain, the losing party will argue that the moving party failed to prevail on all issues and should not recover for time expended on non-prevailing issues. In order to maximize fees, demand likely remedies rather than lofty ones that don’t exist in your jurisdiction. Representing employees in labor and employment law cases is very difficult, as most employers refuse to offer reasonable settlements and aggressively litigate. However, for lawyers who enjoy helping downtrodden employees in employment issues and are intellectually enthusiastic about delving into the field, the potential for obtaining big fees exists. The primary reason for big fees in such cases is employers who fail, refuse, and/or neglect to follow the labor and civil right laws—coupled with their zealous defense of such causes of action.
In addition to statutory causes of action in employment and labor law, common law causes of action exist. There is less opportunity to recover reasonable attorney fees based wholly on a common law cause of action than on a statutory basis with fee provisions. However, if an offer of judgment is properly utilized, then the possibility of obtaining a reasonable hourly rate increases tremendously. For instance, Rule 68 of the Federal Rules of Civil Procedure and similar state rules and statutes allow a party to place an offer of judgment, and if the non-moving party fails to accept within a specific period of time and the moving party recovers a judgment for a higher amount, usually 25 percent more than the offer is required, then the moving party is entitled to reasonable attorney fees and costs.
Consumer advocacy, copyright, patent, and trademark cases also provide for attorney fees and costs, as do injury cases under the Longshore and Harbor Workers’ Compensation Act (LHWCA), the Defense Base Act (DBA), and many state workers’ compensation statutes. If your state provides for reasonable attorney fees for recovering a benefit for an injured worker, then the possibility of achieving big fees exist, so long as the lawyer is willing to delve into the statute, case law, and the medical needs of the client.
For instance, prior to October 2003 Florida provided reasonable attorney fees and costs to a prevailing claimant’s attorney under the state workers’ compensation statute. Often the insurance companies would fail, refuse, or neglect to provide all necessary medical care and treatment, such as providing for medically necessary psychiatric care and treatment. Claimant’s at- torneys who zealously and competently advocated for the injured workers’ rights often faced unnecessary litigation by the insurance companies and were forced to expend hundreds of hours seeking redress for their clients. Hitherto, big fees were recovered by injured workers’ lawyers who kept detailed and contemporaneous time records. The Florida workers’ compensation statute changed in 2003, and it no longer provides for reasonable attorney fees. However, your state workers’ compensation statute may provide for reasonable attorney fees and costs. If this is the case and you have an interest in advocating for the necessary needs of injured workers and their families, then big fees may be in your future.
Cases in tort, such as premises liability and personal injury, occasionally provide significantly big fees. These cases demand an excellent understanding of both the theory of the law and the extent of damages. Lawyers who are able to articulate a strong theory of the case and succinctly demonstrate medical support for their clients’ injuries will often be able to recover a percentage of fees for a lump sum settlement.
Additionally, many causes of action may be brought forward as collective and class actions under both state and federal law. If an attorney can demonstrate a policy or practice that affects a large class of individuals and proceeds with certification of a class, then big fees will likely be recovered if the theory of the case withstands.
In order to obtain big fees, you must first master the area of the law being practiced. This can be achieved by reading cases and treaties, routinely attending continuing legal education courses, and actively practicing in that area of the law. In flat fee arrangements, big fees will more likely be obtained by lawyers who enthusiastically delve into the subject matter and who have charisma and determination in demanding such fees. In contingency cases, big fees are more likely if the attorney keeps a detailed and specific accounting of the time expended and if the cause of action mandates reasonable attorney fees and costs by statute.
So long as your client or another party in the case has the ability to pay them, big fees can be achieved in any area of the law, but certain areas are more likely than others. Big fees are more likely to come from contingency cases that are based on a percentage in the field of torts, followed by statutory cases that provide for a multiplier based on the number of hours expended and the attorneys’ hourly rate. Hourly retainers paid by clients with deep pockets provide the next-best source for big fees. Lastly, flat fees may provide for big fees—provided the right type of lawyer and the right type of client.
In order to survive and promote justice, lawyers need to be able to earn a respectable living. I encourage all lawyers to strive to earn reasonable fees.
Bernie Mazaheri is a partner with Mazaheri Gadd PA in Clearwater, Florida, where he focuses on employment law, particularly wage and hour violations. He may be reached at firstname.lastname@example.org.