July 31, 2019 Practice Points

Collecting Attorney Fees

A verdict in your favor is not the final obstacle between you, your client, and collection.

By Andre Regard and Ivey Workman

So, you’ve won your case that included attorney fees! Now what?

If a statute, contract, or other authority provides for an award of attorney fees to the winning party, a verdict in your favor is not the final obstacle between you, your client, and collection. After the verdict or judgment is entered, you must then move to request your fees in accordance with Federal Rule 54(d)(2), and any applicable local rule. Three major areas to concern yourself with are (1) billing descriptions, (2) privilege, and (3) the effect of contingency arrangements.

First, be mindful of your billing practices. Provide your invoices as an exhibit to your motion and be detailed, precise, and consistent in your descriptions. Opposing counsel will have a chance to respond and you should be prepared for your billing to be closely examined and challenged; you want to avoid a cringeworthy display of your firm’s practices. If the billing description is not sufficiently detailed, the court has discretion to disregard that billing entry and subtract it from your total fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). While you are not required to “record in great detail how each minute of his time was expended,” the general subject matter should be identified Therefore, an entry of “research” without more, may be subject to deletion.

Second, while your initial instinct may be to redact much of your descriptions due to privilege, “the attorney-client privilege does not apply to the underlying facts of the case.” Upjohn Co. v. U.S., 449 U.S. 383, 402 (1981). Accordingly, most of the descriptions are likely not protected, save for the disclosure of attorney-client communications. Therefore, make sure to review and redact only descriptions that reflect information from client communications. Be careful here, or you may end up with entries set aside for insufficient descriptions.

Finally, contingency cases may pose unique issues for attorney-fee awards. While a contingency agreement results in the attorney receiving a percentage of the award, courts may not accept and award that figure without more. Here the “lodestar” approach may be used, wherein the court will examine the reasonable number of hours billed, assign a reasonable rate, and multiple the hours by said rate. Unfortunately, this rate is not guaranteed to be the standard rates of your law office. The court will likely consider the market rates for the area, complexity of the case, and time spent on prevailing claims. Simply adding a lump sum with a dollar amount listed for the percentage negotiated is not likely to suffice.

Congratulations on winning the case and good luck getting paid what you are owed!

Andre Regard is the owner of and Ivey Workman is an associate attorney at Regard Law Group PLLC in Lexington, Kentucky.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).