Creators of the CalAttorneysFees.com Blog, Michael Hensley and Marc Alexander, Discuss Tips for Requesting and Opposing Attorney Fees

Marc Alexander  0:00 
I think that there's a lesson though, that we can draw from the fact that reconstructive bills lack credibility, and that is that we can do more within law firms to train attorneys how to prepare their timesheet.

Announcer  0:20 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:33  
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:35 
And I'm Tim colwall, California Department of podcasting license number 25470 Niner. And in each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I split our practices about evenly between trial courts and appellate courts and we try to give trial attorneys in our audience some appellate perspective in about various issues that arise in trial and on appeal,

Jeff Lewis  1:02  
and welcome to episode 28 of the Podcast,

Tim Kowal  1:05 
episode 28. And today, we are pleased to host attorneys Michael Hanley and Mark Alexander. Our audience knows Michael and mark as the creators and authors of the indispensable California Attorney fees.com blog. Mark Alexander is a 35 year business litigator turned mediator. He sits on the mediation panels of the United States District Court for the Central District and the Orange County Superior Court. He focuses on intellectual property cases employment issues and lending disputes. He has also written about litigated and mediated many attorney fee disputes. Mark clerked for the honorable Warren J. Ferguson on the Ninth Circuit Court of Appeals early in his practice. Mike Hensley is a trial lawyer whose client roster over have over 40 years of practice includes global and fortune rank companies and corporate executives. Mike has argued cases before the United States Supreme Court not to mention are all of our Southern California state and federal courts both mark and Mike's trial work is covered at all, including trial and appellate work and state and federal courts in California working on cases involving real estate, unfair competition, non compete non solicitation partnership and corporate and other business disputes, other types of disputes, Mark and Mike write the California Attorney fees blog, which provides a resource to practice practitioners, jurists and the public about the law governing attorney fees and cost awards in California State and Federal Judicial forums. So Mark, and Mike, thank you for joining us today. Welcome to the podcast. Thanks, Ken. It's a pleasure, Jeff. And I like many practitioners in the state always tend to stumble upon your blog. Whenever we have attorney fee motions, everything about that area of practice seems to provide surprising issues, things that you thought you'd seen it all but it turns out, there's something new every time you happen to see it, and then you do a Google search. And lo and behold, there is Cal attorney fees.com with a case right on point. How did you two come to decide to start that blog?

Michael Henley  3:04 
Mark? Because you can answer that?

Marc Alexander  3:06 
Well, Mike and I were interested in starting a legal blog back in 2008. And Mike said, Well, how about attorneys fees? I said that sounds like a great idea because it interests attorneys, it interests judges and our interests, our clients. And I set up the blog using TypePad. And over the years, it's been a work in progress. We have over 5000 posts on the blog now

Tim Kowal  3:36 
5000 How many m&e cases would you estimate you have read in the course of doing this blog is it is that about one case per blog post,

Marc Alexander  3:44 
Mike has read far more of the cases than I have. Mike has read every case that we've posted on I've read many of them that not as many as Mike,

Michael Henley  3:55 
I would have to say. And this this may be surprising for people that are on your state appellate system. And the state appellate system is where we get most of our published decisions, as well as unpublished and usually the court of last resort, right, going up from the trial court level, then under constitutional mandates, they have to write a decision. And then you can if you lose there you can petition for the Cal Supreme Court for writer success rates on civil was maybe 2% or 3% in a non issue. So I would tell you that each of the decision library, actually unpublished decisions, at least half if not more, either involve a singular attorney speed issue or have one evolve. So you can imagine the number of days because we've been doing this for since May of 2008. I mean, I'm going to guess that we probably have done somewhere between five and 7500 decisions that we've looked

Tim Kowal  4:59 
at. So What is the day in the life of the authors of the Cal attorney fees blog? Are you? How many of these decisions come down on a daily basis? How many of them weren't the write up? Are you writing up all of them are just the ones that stand out is of note,

Michael Henley  5:15 
what I do is you can go to the Cal ca.gov website, and appellate opinions are posted, usually 30 minutes after the issue. Generally, the litigants get a notice from the appellate court. So they have a little bit of advance notice. But then they're actually put on this website. And it's divided into published John Kasich. So you can go in and you can click and actually see the decision that session. And basically, every day or if I'm in a trial, on weekends catch up, I go through all of those decisions. And if it involves a fee, issue 95% of the time, I will post on it from there, Mark. And now our legal assistant Shanna straighter, basically uses the TypePad and posted on the blog. And sometimes if someone is sick or on vacation, there's a little bit of a lag, but we usually get caught up in short order. So that's how it works. If you go on the website, at the homepage, over on the left, we have categories. So for example, we have section 1717, which talks about Civil Code 7870, we have private attorney general, we'd have employment, we have consumer statutes, you can click on that, and find whatever decisions we posted since May of 2008, there also is a search function that you can put in key words. And that will narrow down your search for something but you can go to Google or whatever you're using. And if you put in the words immediately, or posted somehow right, risen to the top, and you'll be using find find some information just by going into Google and putting in people

Tim Kowal  7:06  
or their particular issues that you have in mind that you're looking for more clarity from from cases, are there any are there any doctrines or particular cases that stand out as being just just kind of something's not right, or something really needs to be clarified. And you're hoping to see a case really advance what you see as an as a need or a gap in the law of attorneys fees.

Michael Henley  7:30  
Sure, whatever is in the private attorney general area, and one of the elements that you have to satisfy is you have to show that you're benefiting a large number of people and that your financial interests are of such a strong nature, that you can have such again millions of dollars or hundreds of 1000s of state that you are benefiting someone or that the financial costs would outstrip what you would have to do to probably win the case. I do believe that there are splits and things in among the appellate court. I think that the Supreme Court needs to probably come back and give some help on this area, because there's always that a concrete is an intangible. And in terms of how the courts come to conclusions on that, I think that's an issue that's going to have to be decided at some point.

Tim Kowal  8:21 
Let's take a step back from the blog for a moment and just get to know a little bit more about the attorneys behind it. What is what's a favorite part of your practice? You know, you're not just authors of a blog, you are practitioners and what what's what what do you like best about your legal practice? Mark, we'll start with you. Well,

Marc Alexander  8:38 
these days, I work solely as a mediator. And I greatly enjoy the mediation process. Because I find that very satisfying to resolve disputes, I can encounter hundreds of attorneys through the through the year, I can encounter all kinds of issues. And in a way my interest in mediation was a response to the work that we did on the attorneys fees blog, because I came to understand just how many hurdles, the attorneys fees issues presented to the average litigant. And I felt that there are more efficient ways to mediate to resolve disputes. And that's one of the reasons I became interested in mediation. litigation, to some extent is a sport for someone who is wealthy. Most people can't afford it.

Tim Kowal  9:39 
Yeah, Mike, what about you? What's your favorite part of your practice?

Michael Henley  9:42 
Well, I think my favorite part of the practice is trying to reach a result. So again, we are talking about a resolution that's in the best interest of the client. And because litigation is a expensive process the day I do try to exchanging information early on in case and see if we can get a mediation or somehow get it resolved. And the reason why is as you become older, I think your importance is, it's not a sports contest in terms of simply winning or losing, I think you have to develop a skill set to be able to go from complaint, all the way up to appeal. But that is extremely expensive. And I think, for most clients, a resource draining and emotional process that they do not want to get involved. So I think to answer it, and it may sound corny, but it's to try to really help people at this stage.

Tim Kowal  10:44 
Yeah, and you must be acutely aware of that covering these cases, with all of these lopsided fee awards and judgments. You know, we're judgments are dwarfed by the fee awards, it's got to just be a constant realization that, you know, the only ones making out from some of these cases are the attorneys. And at some point, the clients, the clients do start to realize that, and the other side

Marc Alexander  11:05 
of the coin is that one can spend an enormous amount of money on paying attorneys fees, and then discover, at the end of the day, that even though one prevails, one gets a huge haircut on the attorneys fees or doesn't recover any at all. That's the flip side, flip side of the unreasonable attorneys fees award,

Michael Henley  11:25 
I'll add that one of the things I think you have to do on your client retention is analyzed sister's a fee shifting base, and then you've got to tell your client about that. So if there's no attorneys fees basis, each side is going to bear their own costs, it still wouldn't change my opinion, and we try to get it resolved sooner rather than later. But if there's an attorney fees shifting basis, then might not might be paying me as well as the other side. And that, again, is another significant basis to try to get things resolved early on. Before, you know you get into a litigation contentious. It's a train wreck, and everyone did a lot of fee. And in the end, someone gets stuck with not only my fees, but the other side.

Marc Alexander  12:15 
I would add to that, that I've come across one case, and I'm sure there are others failure to raise the attorneys fees issue early on in the case led to claims of malpractice.

Tim Kowal  12:29 
Yeah, that's always something to be very, very concerned about early on in the representation. And throughout one other question by way of background, I wondered if you would each tell us a story, maybe a case that you each worked on that was formative in the way you thought about the law from from then on forward? Do you have any experiences like that mark would stay with you? Well,

Marc Alexander  12:51 
the first case that I got to see me go from beginning to end was a copyright infringement intellectual property lawsuit. I worked on it for three and a half years, and got to see it from its inception all the way through trial, I had the privilege of working with an absolutely terrific trial attorney named Morgan Chu, who's in Los Angeles. And it was it was just a fascinating process soup to nuts. And I also found from that immersive experience, that I'm actually pleased to work on a variety of different cases, rather than spending all of my time working on a single case.

Tim Kowal  13:38 
Do you prefer being a generalist and to a specialist?

Marc Alexander  13:41 
Yes. Jack of all trades?

Tim Kowal  13:44 
Yeah. Mike, what about you? Do you have a formative experience or a case that that really stayed with you stuck in your Craw, or, or drives your perception? Thanks.

Michael Henley  13:54 
I was at a large law firm. And as we're working on we the list pendants was we moved to expunge it, and that was denied, and the supervisor, what's my supervising attorneys and so I think there's a basis for an appellate writ. And the attorney looked at me like I was crazy and said, there's only a 5% chance you're out of your mind. And I know, I know, you all are busy, but let me take a stab at it. And I did. I did all the ride and there was actually no revisions. Lo and behold, in a month, they issued an alternate order show cause on supplemental briefing, I got to argue it. And we completely reversed that. And the expungement motion was now granted and the list pendants was expunged. And that then led to a settlement between the parties. The case on the other side was against Bank of America. And when I think I learned from that is don't ever give up. If you're really firmly convinced that there is a basis for you need to be a bulldog and take that step to the client.

Tim Kowal  14:56 
Yeah, you have to want to defy the odds because As on on certain kinds of actions in the Court of Appeal, especially repetitions, the odds are always against you, even when, when your case is righteous. So if you just were to look at the odds, you would never take the shot, but you took it. And does that make you an optimist in your approach to the law?

Michael Henley  15:14 
I am an optimist. I mean, I will say that I've been very lucky in terms of most of the attorneys that I have opposite to or CO counsel have totally been professional, although I will say that they're more tendency among the really, really to do with the attorney to be a little bit abrasive and hard charging. And I think our profession, to be honest, depends on professional courtesy. And communication doesn't mean that you can't vigorously represent clients. But in my view, there's no reason not to grant extensions to people, unless there's some precedent emergency, you should do. That reference to someone saying, I'm on a vacation, I'm having another child, whatever those situations are.

Tim Kowal  16:03 
All right. Let's talk about California Attorney fees. Now, whenever I get an attorney fee motion or or I am setting out to prepare an attorney fee motion. I'm always reminded what a mess our attorney fee regime appears to me to be. It always just seems so complicated. So many ins and outs in your opinion, after writing writing the California appellate the California attorney fee blog for what are we on 14 years now? In your view? Is California's attorney fee regime well organized? Or is it is it complicated? Is it is it overly complicated?

Marc Alexander  16:37 
I would I would mention one thing, which is that, as Mike pointed out, we have sidebar categories on our blog. I counted them up this morning, we have approximately 90 sidebar categories related to attorneys fees, and I

Tim Kowal  16:54 
999 0990.

Marc Alexander  16:58 
Okay, less than 100 more than 85. And I think that that reflects that. attorneys fees are really important to both losers and winners, and they can invest a lot of time into the issues and explore every nook and cranny of the law, the attorneys fees. And that was the basis for us being able to create a blog on the subject of attorneys fees. I think I also agree with Mike that substantively, the law relating to attorneys fees is is pretty solid in California.

Michael Henley  17:36 
My answer would be that it is it is a little bit as convoluted as attorney fees in terms of presenting and oppose and is really a niche, kind of boutique art practice. To be honest, there's two parts of it, you got to determine if there's a basis for fee shifting, and then you're going to have to address the mouth that you're going to claim. Those are your two basic questions, right? On the substantive law with there being 90, you know, tabs on our homepage shows you that you have to delve in early on and determine if there's the entitlement basis. So what are those common common ones? So code 1770, which deals with contractual fields, P clauses, whether they're going to be interpreted as mutual or bilateral in nature, we have various wage our fee high employment, you have consumer statutes like lemon law, you have HLA Davis Stirling shifting, I mean, we can go on and on. But those are anti slap motions. So you know, we could go on and on, there are a lot of areas in a daunting task for practitioner on either side is to go to get into the law, the QI entitlement in your specific area, then you get to the second part, which is the amount of feature requests. And I'll have to tell you, that's an art form. an unsuccessful presentation is where you do a two or three paragraph death, you don't describe for the judge remind the judge who by the way, you're one of many trains in the station and the number of cases that speed to through on a given day. Who knows that who remembers but just indicate I prevail, here's a bunch of bills, or I don't even keep bills. Here's what I want. You have to have some specificity and remind the judge and tell him the amount that you want. And sometimes you want to reduce voluntarily that amount so that you give the judge options. I mean, judges are politicians, but once they have to slam, they usually try to steer a middle course or a course that doesn't necessarily, you know, give one side a complete 100% win and the other side 100% law now doesn't mean if the facts of the case require it, because they won't do it. But I find if you can give a judge options on fees, that helps you out because kind of reversing backward. There's a lot of appellate law that indicates that see motions. The first and essential aspect of it is attorney credibility. They are going to look at the submissions from both sides and judge are these things. First of all, are they being straight with me that there's a fee shifting basis? And then on a mound? They're going to look at things such as well? Did they put contemporaneous billing? And then what does that show me? Is there duplication, where they're making entries where they're bought billing entries, if the judge determines that a fee request is inflated, it's clear under California law, the trial judges have a huge amount of discretion and guess what they can do, they can deny it completely, or they can severely chopping. And there's a great case I would say, anyone either making or opposing tea should do. It's called the Christian research versus owl nor case that was written by Justice Aronson, who recently retired and is now in neutral. And it just has great language indicating that C motions are attorney credibility motions, and that if the credibility of the attorney is basically hacked in front of the trial court, it's going to be a hard thing to resuscitate it on appeal. Right. And they generally are going to listen carefully to what a trial is. Because in this era of fee entitlement, when you go up on appeal, if you think that judges results on a team motion was wrong, there's two issues, like I said, the entitlement that's usually reviewed de novo because it's generally a legal issue of law. As far as amount. It's done under the abuse of discretion standard.

Jeff Lewis  22:02 
Yeah. And that's a daunting, a daunting standard. Mike, let me ask you, I don't want to cut you off. But just to make this little interactive, I've never understood why people do such short motions for attorneys fees without laying the foundation of what happened, because nine times out of 10, when you're making a fee motion, you're going to get fees for fees, meaning the time spent on a fee motion. So spend the time to tell the story and remind the judge who may not be excited to see your motion about what happened. And I just I don't understand it. Why do you think people sometimes take shortcuts? It just do we one here's our bills, pass our money to style motion,

Michael Henley  22:36 
not doing very many emotions before standing the process, because one of the things that you hear from trial judges and appellate judges, Mark and I did a seminar with rich fibrils, who again and retiring from the bench at the end of this year. And he sat there and said one of the greatest thing which is on fee motions provide your judge and intelligence, a roadmap. All right. If you just put a slapdash motion together, you know, three pages on a memorandum and one page declaration, you're not providing the roadmap that most of these judges wants.

Marc Alexander  23:14 
Judges don't like to hear attorneys fees motions, because they require going through a lot of minutia. And that's why the roadmap is so important because the judge wants to be helped by the attorneys. One other thing that is very helpful in connection with that is testimony from an expert. Now, the expert can opine about the law and that may be more useful simply for informing the attorney since the court is going to make the legal call. But there are two areas where the experts testimony can be really helpful with a fee motion. One is in testifying about the reasonable rate that attorneys can obtain for certain work at a certain level with a certain judicial locality. And second, the expert can be really helpful for auditing invoices, and an expert declaration can provide the roadmap that will really help the judge

Tim Kowal  24:23 
know is there a is there a pitfall or a line that could be crossed in in providing expert declarations where at some point, you have the expert could be argued to simply be opining on what the law is. Does that issue ever come up? Is that an appropriate objection to to an expert opining on entitlement to fees or your Are you only talking about the reasonableness or amount of the fees but does that still is that still susceptible to an objection that this is an expert opinion on a legal issue?

Michael Henley  24:54 
So I can help you out. I do do the expert assignments. I do select them Wait, because sometimes I can tell the person up front, after they send me some information, I can't help you. But I will tell you on my declarations, I try to provide the roadmap. Now I will discuss the law but make it very clear that it's simply giving the compass that the judge looks at it from I'm not telling him what the law is. It's just here's my understanding so that you have a compass, that most of my opinions are going to go to the amount that's requested, either being reasonable, or that there needs to be adjust, etc. Yeah,

Jeff Lewis  25:37 
you know, I do this expert work, too. And for me, the test is always can can the expert offer or is the expert offering something that the lawyer writing the brief can't in terms of experience and gray hair and looking at as many cases as you guys have? I can't tell you how many times I've seen expert declarations misused were just an extension of the brief arguing points of law. It's really frustrating to read those

Michael Henley  25:59 
i To your point, I never sit there and discuss whether or not there's the entitlement, basically make it very clear. I mean, we're experts can be tremendously helpful or issues like hourly rate, you know, what's reasonable, right, and we're billings are provided you actually do you do see audits? And what you try to do is to show where there's duplication, vagueness, excessive and block filling those, right.

Tim Kowal  26:27 
When you're, when you're providing your roadmap of the amount that that you ought to be entitled to? Do you find that judges appreciate? Which approach? Is it a narrative of here's what the case of about it was about? And here's all the work I did. And here's why it was so great, or, or is a chart kind of a task by task analysis better? Or is there a third option?

Michael Henley  26:48 
You know, to answer the first, I think you only show your qualifications and what you've done in the past to show that you're qualified as an expert, I don't think that that's the be all and end all of the deal, I think you then have to show specificity. So you have to either do and I do a line by line on it. And then what I do is I break out by categories. And then I explained, I cherry picked some glowing examples that I think the judge would relate to in terms of either one, the fees were justified because there were efficiencies or why the CD should be reduced, because there was duplication, I'll take the number of hours that was spent on a motion to compel and envoy for large firms he sent, I'd see two and 300 hours. And you know, you basically say, Look, this motion should have been no more than 100 hours being generous. And judges, they'll usually remember if you tell talk to them a little bit about what that motion was about. They're receptive, and they will pay attention. Because what you've done is you've done the audit for them, they don't have to sit there and go through 110 pages of bills. So to the extent that they think you're credible, and I've provided the roadmap, I will guarantee you that some of my opinions have been actually accepted for reductions. Penny for Penny because they like my my analytical code. Most of the time, it's somewhere either in between, or I usually get it a little bit more on the size of the client to retain.

Tim Kowal  28:20  
What about how do you go about evidencing the the amount to which you're entitled to your client is entitled, do you provide the bills? Or do you instead provide attorney declarations describing what was done? Well, the

Michael Henley  28:34 
law in California is buildings are not required. You can attach you can supply attorney declarations best practice is thing is to provide attorney because it is specificity. It gives the judge a good feel for the amount of work might to the extent your tax on invoices that might trigger a memory. Oh, wow. I remember those folks. Boy, this was fought tooth and nail. Right. So that's the case, the opposite when you're opposing that usually go with approach, right? Because in large firms, you have a team approach to things. So you have multiple partners and associates and what you find a show. A lot of times there were too many cooks in the kitchen. There's been an issue

Marc Alexander  29:19 
with producing bills in California and the issue is how much can you redact and what are the consequences of redacting from the attorneys fees bills when you're making an attorney's fees motion and I think that you can redact but then if you don't have a clear basis for recovering fees, you may lose some of the fees that you're asking for. If you've redacted the basis for those fees. You know, but you could have you could have a situation where you don't want to disclose information in your bills.

Marc Alexander  30:00  
And then you have that issue. Do I redact that portion of the bill or don't I? How much is at stake?

Michael Henley  30:07 
I actually more of a fan of the less the better. And I'll tell you why. Most of the time my case has been resolved on the merits. So why are you redacting legal research on statute of limitations or statute of frauds when the issue has already been resolved? And maybe it was incorrectly resolved. But still, I mean, there's like, There's no hiding the ball. There's no mystery of what the issues

Tim Kowal  30:32  
are. When you say the less the better. You're talking about less redactions, the better. So

Michael Henley  30:36 
unless you're dealing with something like a fifth Fifth Amendment criminal issue, or crime fraud, privilege, or real substantive privileges, I can understand that. But I would sit there and say I've seen I've seen billings before. They're they're redacted 90%. So it's almost impossible to determine the just justify some of the work that was done. Now. Sometimes the trial judge can tell that in, because there's a lot of law in California that the trial judge is kind of the best arbitrator because he actually saw or is presumed to have seen the work of the attorneys of all I like lesser redactions than more.

Tim Kowal  31:17 
And the judges want to see a task by task or at least a category category by category breakdown. The attorney spent this many hours on, on on the pleadings and pleading motions, this many hours on Discovery this many hours on the motion for summary judgment and this many hours for trial. Is that the way to go about it.

Michael Henley  31:35 
I think it helps to have kind of a categorical approach. So you, you, you summarize the amount of time that was spent on kind of the major clusters of things, I certainly think that's helpful. Okay, so

Tim Kowal  31:49 
we talked about some of some best practices for the parties filing the attorney fee motions, what about on the opposition side? What are some best practices for opposing maybe an overreaching fee motion,

Marc Alexander  32:02 
I would just make one comment, which is, to a surprising extent, attorneys may not have formerly analyzed the first issue of entitlement. Now, entitlement, if there's no entitlement to fees, that doesn't simply reduce fees, it can eliminate a basis for fees. And sometimes attorneys have entirely missed the entitlement issue. But that's the threshold issue.

Michael Henley  32:30 
And the defense for sure has to do real good research on the title, because obviously, entitlement fees, we don't get to the sound, but focus in on the amount, there are certain things you really have to present, the success in opposing a fee motion is it was overloaded, right? If the amount of time for the complexity or what was at stake in the case was overloaded. And planners can sometimes overcome that. On it by a couple of things we can already well, the other side really, you know, was contentious, and we had to be what they were putting forward, or two, sometimes they can just by talking to the other attorney to get an idea of what they spent, well, they spent equally, or about the same amount and same amount of tasks, that's a pretty good indication of what a reasonable fee award should be. But what you look for, in large cases, you probably are going to want to engage a fee expert, what you look for is, in essence, are they presenting something reasonable with credibility to the judge, and you're gonna look at there hopefully, most cases like get do have extensive billing. And the reason I believe that's the case is most of the cases are asking for pretty substantial fees. And I think they understand that a judge is going to want to see the detail. But you really it's almost an exercise when we get into what firms should be doing in terms of good billing practices. So it's almost a tutorial on what I say at law firm, lawyer management, right? Look, triple lock billing is cheap. People continue to do it. Big firms are the toilet.

Tim Kowal  34:12  
Do you see courts clamping down on that enough? Or too little?

Michael Henley  34:16 
I think courts are just about right. I think that, you know, I would tell you that they reduce for plot billing somewhere in the 25 to 35%. I mean, there was one unpublished appellate case for the judge reduced to 85%. And they do have discretion with block billing to deny it entirely. I don't usually find that that happens because the judge is sitting there. I think that's just a little too far. I just think judges probably clamp down on it pretty well.

Tim Kowal  34:49 
You mentioned the Christian Research Institute case that suggested that trial judges may deny a fee request in its entirety if the request is is too overreaching. I don't know that I have seen Have a trial judge follow that suggestion. Have you

Michael Henley  35:03 
thought Christian research was an interesting one because it did not. They denied 90% of the fees. So it was pretty close to a clear thing. But however, Mark can discuss an interesting case called Martinez versus O'Hara, and it was published, not for the E result, but for something interesting. So why don't I let Mark talk a little bit about the Martinez case? That one will answer your question on what happened with the fees?

Marc Alexander  35:31 
Yes, the unpublished part of the case, which Mike and I were most interested in, was about attorney's fees. And we didn't try the case. In the court below. We handled the appeal and the plaintiff's attorney after a jury trial that lasted over for at least five days tained, an award of $8,080. He had originally asked the jury for an award of half a million dollars. And then he made a fee motion asking for I think $146,000 and Commissioner, then Commissioner Carmen Lu AG, denied the request in its entirety. And she gave a number of different reasons, which are almost additive. First of all, she relied on a case called Chavez versus City of Los Angeles. And that was a fee hoc case in which the plaintiff asked for $871,000 in fees, but obtained an award of only $11,500. And in the Chavez case, which was earlier, that court denied the request in its entirety. That said the test was the request was bloated, it was over litigated the case could have been brought in limited jurisdiction, because the award was significantly under $25,000. The case didn't really benefit the public much it was for the benefit of the individual plaintiff Chavez. And those considerations were also the considerations in the Chava. In the Martinez vs. O'Hara case that we handled in that case, they obtained an award of $8,080 at trial, and the judge thought that it was a modest success that the case had been over litigated and not very successful, and the amount that was obtained was an amount well within the limited jurisdiction of the court. But on top of all of that the council's billing records, in the opinion of the court were very unreliable, because there were instances in which he had built 15 hours a day more than once. And I think in one instance, he may have built 25 hours in a day, and all of that, but that the billing records didn't convince the judge also the billing records had been reconstructed after the fact they were not contemporaneous. So on the basis of that, of all those different factors, the judge entirely denied the attorneys fees that went up to the Court of Appeal. In the fourth district Division Three justice FiBL wrote the opinion and he affirmed the decision below the published part of the opinion had to do with some of the language that the opposing attorney have used in his briefing and then his appeals he referred to the trial judges sucky bus stick, which is pretty much a non existent term but means a female mythical female she demon, and he called her order disgraceful. And he said that the opinion was created reverse peristalsis which I guess was his way of saying that it made him want to throw up and the Court of Appeal did did not like that and wondered why one would ever put words like that in an appeal, nor nor did the

Jeff Lewis  39:33 
State Bar court I recall that lawyer was suspended briefly he went up and challenged it and I think last month there was an update on that case saying by merely calling that judge a name suck cubistic that alone was not a basis for discipline interesting, but some of the other things he said suggesting that this trial judge had intentionally not applied the law and other disrespectful things said in the in the Notice of Appeal were found to be a basis of discipline. fascinating case.

Marc Alexander  40:00 
That's right. You've got it exactly right, Jeff. And the fact is that we as attorneys have very broad first amendment rights when we advocate and that includes the rights that we would have if we were sued in a defamation lawsuits so that if we use language that expresses an opinion, rather than a fact, hard to sanction the attorney or convict someone in a defamation case, if if we state something that's true, and we can't be sanctioned, but even so we ought to exercise common sense, even if it doesn't mean that the words we lose, we use necessarily result in discipline, we still need to exercise common sense. And especially if that appeal level, because of my experience, and I know it spikes experiences that the justices, and that certainly includes our local court, which is excellent. They're not real impressed by over the top language and an appeal. In fact, it's turned off.

Tim Kowal  41:08 
Yeah, adjectives are never going to win your argument for you

Michael Henley  41:11  
know, maybe I could step in and answer your argument on denials. It's interesting, because the commissioner actually testified in the State Bar proceeding. And there's a summary of her testimony by the state barge. And she sat there and said, this was the only key motion and she would handle several in which she totally denied. So then shows you something about, in my view, you know, really a faulty presentation by the person wanting to attend See, last year, I think one of the interesting cases is called Guillory versus hill that again, was out of our local court of appeals. And what happened there is it was in 1988, civil rights case. And after a long trial, only a little over $5,000 was obtained. Two sets of attorneys then put into see requests for $3.8 million, right full of over delegation, duplication that one of the attorneys and stated the exercise billing judgment. Well guess what one of the entries in there that really destroyed his credibility said this email, phone call prepare trial crap, go back to the printer to grab trial crap. trial judge found that cringe worthy. And based on that, and some other things denied entirely the be request went up. And again, rich, Aaron, someone who's on the Court of Appeal sustained the result

Marc Alexander  42:48 
that one of the lessons that I draw from this is that there are a lot of factors that judges take into consideration when they will on fee motions. That makes presentation. Very important. Because the judges, if they don't like a fee motion can find many different ways to nick the fees and provide a fee haircut. And in federal court, if the judge gives a haircut of greater than 10%. The judge is now supposed to explain why that was done, at least in a civil rights context. But I you know, I routinely, we see fee motions where the court grants fees, but the attorneys especially in state court, end up with fee haircuts, sometimes very substantial ones.

Tim Kowal  43:45 
Yeah, let's you mentioned we've discussed some great tips for this for the second step of the the fee motion, which is to substantiate the amount that you're that you are asking and Paramount is to protect your own credibility as the attorney don't oversell what you've done. Don't try to oversell the efforts don't don't and don't just attach a ream of billing statements and leave the judge to interpret what the case was about and what was done what what was needed, provide declarations of the attorney of the associates who worked on the case, and maybe even consider bringing on an expert to talk about the reasonableness of these fees. I want to back up just for a minute, the first step of the fee motion, which is the entitlement and when we lead off, I mentioned how I thought that that the statutory rubric for determining fees was often very difficult. And the case law sometimes is a little bit vague on these questions. I remember just share an anecdote of a case I was working on a few years ago where we were opposing a fee motion. And I remember there being an issue over civil code 1717 And the reciprocity involved. And we noted that in the motion, they were actually they actually under evaluated how much they were entitled to because there was a an nonreciprocal there was a limited fee provision in the lease agreement that only provided for fees for eviction related activities. But this was our case was broader than that. But they didn't seek fees beyond the eviction activity. And we thought, oh, gosh, we want to be careful. We don't want to misrepresent anything to the court. But we don't want to tip them off, that they could be asking for more than they're actually asking for. And I thought that was just kind of it turns out that they they never got wise to it never had never really utilize the Full Reciprocity, reciprocity aspect of 1717. So I wanted to ask you, if you could wave a magic wand and change anything about maybe 1717, specifically, or or anything else about the attorney fee, statutory regime, what would it be to make it simpler and and also still achieve the purposes, which is to, you know, to we start from the American rule that each party bears their own attorney fees, except in certain cases, but how do we make it so that we can it's a little bit easier to determine when the party is entitled to attorneys fees in a case?

Michael Henley  46:00  
Well, you're you're raising an issue, that's very tough, because as you know, attorneys T shirts are scattered and throughout civil code code, civil procedure, sometimes they're in federal, one of the things that you could try to do is to put like an attorney's fees section together, you know, a new amendment to the Code of Civil Procedure. I don't think the legislature is kind of to it, just because it's a daunting task. I think one of the things that could be helpful is much like there's at least some guidance on how you format summary judgment adjudication motions, the opposition and the evidence that might be helpful if the Judicial Council tried to give a little bit lash in terms of what an attorney fee motion should look like, what the supporting papers should be, and what the opposition should be, because when you're opposing it, there is one case, MLA, that makes it very clear when you're opposing, your objections have to be specific. And, you know, I see a lot of times opposition's that, again, are little more than 10 pages and brands saying, Oh, my goodness, goodness, look how large that just can't be. And General, I want to put some specific objections and reasons for why it's outrageous, you probably want to lose that type of rhetoric.

Tim Kowal  47:23 
Okay, I have two more questions. The first is maybe could you tell our listeners, a couple of the most important attorney fee cases that have come out of the courts of appeal or the or the Supreme Court in the last couple of years that our listeners need to be aware of?

Michael Henley  47:36 
First one that comes to my mind is the Taylor case, which came authored by Justice Riley. And basically, et K stands for the proposition that constructed reconstructed buildings aren't very credible, and that judges have a lot of leeway to not pay attention, because they are not the best evidence in terms of reasonableness of time, because they're basically guesstimates. I mean, sometimes the weakest sign is in a prolonged case. I've seen reconstructive time for seven or 10 years past and even worse, in one case, they had sought feed and get put under penalty of perjury to time and then years later, in a trial. They were trying to add entries seven years later to inflate their deal. Their request. It's it's it's not that happen. The second case, actually, it's a conflict in the My case out of the Riverside court. And this has to do I think it applies both to C motion and when you have to claim attorney seats at trial. And it basically holds that the client can actually authenticate the fee billing saying I paid them. So hence, it's an inference that they were reasonable. That's in conflict with a Santa Ana court of appeal that was authored by Justice FiBL, who said no way. How's the client going to know what's reasonable in terms of either work efforts or hourly rates? Believe it or not, that slip has not been resolved, the Supreme Court did not take my case. And I've seen this issue arising time and time again, and seeing motions and trials where you have to put on evidence of attorneys fees and damages. That surprises

Tim Kowal  49:23 
me. Do you know if any case of cases that follow that first case, you mentioned it was out of the Riverside court, the court of appeal? That's the

Michael Henley  49:30 
I have not I do not know anyone has followed that. I do it on the cases. But

Marc Alexander  49:36  
I do think that there's a lesson though, that we can draw from the fact that reconstructive bills lack credibility, and that is that we can do more within law firms to train attorneys how to prepare their timesheets, it's a small thing, but it's additive. They need to know that they need to Say things that they're doing with some specificity. They need to know that they shouldn't be block billing, they need to know how to separate out their tasks, they should, they should be somewhat careful about the time increments in which they bill. If I look at a bill and every thing that is billed as an increment of half an hour, or even a quarter of an hour, the credibility of the biller may be in question. So, you know, there are just a lot of things that we can do to help keep people in our law firms bill more accurately. And we should probably spend a little bit of time auditing the bill of a young attorney who works with us to make sure that they're doing it properly. We also know that a lot of attorney that a lot of insurance firms do not like to bill for certain expenses, like conversations among attorneys, and all of those things are additive and can improve the bill in the likelihood that the bill will be treated as credible by a judge and the likelihood that the amount can be collected.

Tim Kowal  51:11 
Okay. And here's my last question, what's the most ridiculous fee award you've ever seen, awarded or upheld? And what sticks in my sticks out in my head is I've heard reports of and I know, I don't want to get crosswise with Jeff, because this is he does a lot of anti slap work. But please, please

Jeff Lewis  51:28 
don't mention Jeff Lewis, please don't mention Jeff Lewis, go ahead.

Tim Kowal  51:32 
But in a lot of anti slap awards get up sometimes in close to half a million dollars. And I've I've heard those justified along the along the lines of well, that's just how big firms do it because they'll they'll have a lower associate, right, the draft and it gets passed along to other senior associates and depart partners, and everyone puts their fingers on it, and everyone wants to bill for it. And suddenly you're up in six figure land approaching half a million dollars. And some judges are seem to be copacetic with that and say, well, that's just you know, you don't understand big firms just like money. You know, they're not like you and me, they really like money. So we have to award award them for for touching the file. I wonder what what your reaction is to that? Do you see judges clamped down on that ever? Or is this attitude of of indulging some of these big firm ideas to be pervasive?

Michael Henley  52:19 
That's a difficult one to answer. I mean, I will tell you that I think sometimes judges and arbitrators are enamored with big firms. So it's it's a tough favoritism to overcome. But I do believe that, in the end, we're talking about how it has to be reasonable. Most judges in the end also apply as I call it a proportionality analysis. And what they do look at we looked at you the amount of the settlement, or the amount of the results, and even with large firms, they're likely to scale back based on that factor that is just not right, that they should be awarded for a fairly small award or something that should have been resolved early. On the mitogen is also focused on those issues. I think a good defense proposition is to indicate what was done is reasonable efforts were made to settle early on and avoid these fees. And instead, three years later, the settlement was fairly teeming or could have been negotiated or was within the range of the potential request, I find the judges shonali will take that into account. And also, let's say your handling fee request, I think it's not a bad tip from the past to try to negotiate a resolution and put those things in the deck. And then I couldn't be subject to Well, that was a settlement discussion, and it's not fair. But I generally find a lot of judges are interested in knowing that progress between counsel to try to get injured.

Jeff Lewis  53:56  
Yeah, that's a that's a great tip on anti slap motions. I file about one a month and before I file my fee motion after winning an anti slap, I always say here's what my fees are. Here's what my fees are going to be if I have to file a fee motion, you want to pay this or you want to pay that and I attach that a letter to my declaration it's never come back to burn me so far. Knock on wood.

Michael Henley  54:15 
Well answer tennis was one of them that sticks in my mind was a homeowner association homeowner dispute in West LA and seriously 13,000 on the chimney issues. More was obtained, and I believe in fees were awarded, by the way profit or dissent from the judge who basically said This is outrageous that they should have and this should have been a one day arbitration instead, it became a litigation train wreck that produced the amount of fees so that's up there in terms of one of those decisions and also the reaction by the defendant judge

Marc Alexander  54:55 
the ridiculous fee case as well. also make me understand that there are some fundamental unfairness in our legal attorneys fees system that I don't think we can solve today. For example, in a typical breach of contract case, if you have an in pro per litigant, that improper litigant is never going to get any attorneys fees, because the improper litigant does not have an attorney representing them. A basic unfairness. On the other hand, if there is a large firm attorney who's been engaged to litigate against that in pro per litigant than the improper litigant could get hit with 1000s and 1000s of attorneys fees after losing the case. So there, you know, there's some basic inequities, and I don't see how we're going to solve those today.

Michael Henley  55:57  
Yeah, can I pitch him on maybe a last tip for everyone? Because I mentioned this, we hadn't really developed it, I indicated that options are sometimes good. So for like plaintiffs, you know, if you gave voluntary discounts to the client, show what those totals show that you use, you did exercise filling judgment, in a case where you won, but only on certain counts, but only certain claims were compensable for peace, give a thought to doing an abortion, or if you had limited success, think about reducing your fees based on the limited success. Okay, on the defense side, give the judge some option. Okay, I had a case and which I won't bore you with, in essence by law, so representing the seller and a non disclosure residential case, I brought a new trial motion in it was granted, we're gonna stand back. And the trial was about four weeks long. Other side approach, we want to do binding arbitration, we got a good candidate to do that. I said, fine. So and four days, we did what it took four weeks to trial. And guess what, I dispense them all under 1770. And I was going to be entitled to see, whenever I thought about this, I could ask for all my fees through trial and through the arbitration. But I thought, you know, the judge might be disturbed about this, because he's gonna think that maybe not all the trial were was compensable and was not used in the arbitration. So I gave him the top dollar. And then I gave him a much scale that lower option. Yes, but he gave me every penny of the lower option, number of years later array. So when he goes, I have to say that I really appreciate that. Remember that motion? Because you thought like a judge with a judge who would be bothered by that issue. I need every penny of your option that was more reasonable and

Tim Kowal  57:56  
good lesson. Yeah. Yeah. Well, with that tip, I think we're out of time for today, Mike and Mark, authors of the cowl attorneys fees blog, Jeff, and I want to thank you for sharing your thoughts with us today on on our podcast about the very important issue of putting together a credible, reasonable motion for attorneys fees, how to oppose and overreaching motion for attorneys fees, and Mike and Mark have this excellent PowerPoint presentation they sent us with their permission, I will we'll put those in the show notes. It's an excellent template and in sample roadmap for how attorneys can go through and think about preparing an effective motion for attorneys fees and how they might take the the hammer and tongs to to an overreaching motion. So I think that wraps us up for this episode. Jeff.

Jeff Lewis  58:41  
Right. If you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  58:52  
See you next time. Thanks.

Marc Alexander  58:53 
Thanks for the opportunity to talk about attorneys fees.

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