Legal Strategies to Win Fee Disputes

Legal Strategies to Win Fee Disputes
Presented by Nossaman LLP,
Certified CLE Provider
Valeo Partners LLC,
Corporate Sponsor
Clients across the United States trust Nossaman with their
litigation needs — from complex commercial litigation to
unique niches like election law, land use and water law.
Nossaman trial teams include courtroom veterans, backed
by sophisticated in-house technology. Nossaman has
successfully tried cases in fields ranging from financial to
environmental issues, and from public law to private
contracts. In 2012, Nossaman won a precedent-setting $168
million verdict for the FDIC and defended the largest U.S.
antitrust criminal trial in a decade.
Valeo Partners provides Pricing Strategy Advisory Services –
including hourly rate and AFAs - to over 200 Law Firms and
Corporate Counsel. We provide 5 principal services:
The Attorney Hourly Rates and AFA Database
Northstar to the Lodestar™
EXOGIS™ – Billing System Conversion to AFAs
CLEs and Webinars
Analytical and Industry Reports
Webinar Information
• Viewing Instructions
• Asking Questions
• Reporting Technical Difficulties
• Code Verification (For CLE Credit): Nossaman 2013,
email to Kristy Molinar,
CLE Outline
• Valeo Partners and Nossaman LLP
• Introduction of Panelists
• Fee Dispute Success Considerations
Pre-Filing Considerations
Pre-trial Strategies
Trial Strategies
Post-trial Motion Strategies
• Q&A
• Close Out
 Email Code Verification
 Next Valeo CLE
 Contact Information
• Brendan Macaulay,
Partner, Nossaman LLP, Panelist/Moderator, San Francisco
• Chuck Chandler,
Partner and Founder of Valeo Partners, Panelist, DC
• Megan L. Brown,
Partner, Wiley Rein; Panelist, DC
• Michael De Leuuw,
Partner, Fried Frank; Panelist, New York
• Gary Greenfield,
Founder, Litigation Cost Management; Panelist, Oakland
Legal Strategies to Win Fee Disputes
Purpose & Objectives
To relate specific strategies, knowledge
and experience on fee disputes in US
State and Federal Courts including.
• After the session, you should be able to
• How to identify fee motion opportunities
• How to prove the reasonableness of rates & hours
• Pre- and post-trial strategies for maximizing your
recovery of attorneys’ fees
Pre-Trial Strategies
Setting Up a Matter
• You may have to produce bills or time entries
• Who pays bills?
• Time entries, characterizations, sensitivities: important
• Fee Negotiation – Balancing Act
Availability of fees to
Business Plaintiffs
Judges’ Reluctance to
Award Fees to Big
Companies from
Governmental Entities
• Other tips from Gary Greenfield
 Block Billing
 Adequate Detail
 Billing Increments
Bases for Potential Recovery
• Contractual or Statutes
 Relates to a contract
 Broad versus narrow (relating to or arising from)
 Tort claims related to contract
 Statutes – Identifying Fee Recovery Opportunities
 Some Commonly Used Statutes:
 Sections §§ 1988, 1983 related to civil rights violations
 M&A/Securities
 Class Litigation – class counsel
 Environmental cases
 Discovery sanction– FRCP Rule 37; Cal C.C.P. § 2023
Bases for Potential Recovery
 Statutes – Identifying Fee Recovery Opportunities
Less Common but Useful
 Request for Admissions - CCP §2033.420
 Anti-SLAPP Motion – 35 states follow Model Act
Venue selection and statutes – Catalyst Theory
Injunctive Relief and Appeals
• Preliminary Motions and Requests for Relief
 TRO or PI can entitle you to fees or trigger
timing consideration
 Basis for or strengthen fee recovery ability
Appeals court has ability to refer fee petition to
district court
Trial Court – not so much
• Appellate fees
• Parties prevailing on appeal can seek fees
• Special considerations for fees on appeal
• Possible referral to the District Court.
Trial Strategies
Trial Strategies
• Win!
 Establish right to fees under contract as “Prevailing Party”
 Based on the prayer, special verdict
• Attorney’s Fees as Damages
 Insurance coverage cases
 Tort of Another
Post-Trial Motion Strategies
• When to File
 Federal rule FRCP 54(d)(2); local rules
 Deadlines for moving after judgment – 14 days
o Disputes over “prevailing party” status in cases of
preliminary relief or immediate appeals
• Stipulations for extensions of time?
Defending Lodestar
• Evidence for Prevailing Rates
 Valeo Database
Advantages over other sources
How to identify and obtain comparative
Admissibility of Valeo
FRE 1006 Summary
Multiple Data Points
Expert Confirmation
Defending Lodestar
• Evidence for Prevailing Rates (Cont’d)
 Expert Opinion
 Declaration of Trial Counsel & Other
Members of Bar
 Other Comparable Fee Requests
 Prior Awards Upholding Your Rates
 Declarations of Opposing Counsel
Defending Lodestar
• Multipliers Based on Risk
• Mine Opponents’ Pleadings and
 Admissions or Characterizations
 For Example:
Far-Reaching Impacts
Defending Lodestar
• Skill of Counsel as Justification
 Motions Won, Success Achieved
 ABA Factors
• Defending Hours Used
• Defending Use of Personnel
Defending Lodestar
• Things to Avoid
 Inappropriate time to bill (e.g., Clerical)
 Over-redaction
 Unnecessary Duplication
 Excessive Numbers of Personnel
 Inappropriate Expenses
 Staffing and Rates
 Expenses
Close Out
• Satisfaction Survey
• E-mail Verification Code:
Nossaman 2013 to Kristy,
Contact Information
Valeo Partners
Chuck Chandler
1220 L Street NW Suite 100
Washington, DC 20005
Next Valeo CLE
• Alternative Fee Arrangements: How to Provide
Higher Value to Your Firm and Clients
• Wednesday, June 19, 12 Noon EDT.
Brendan Macaulay is a trial lawyer in the San Francisco office of Nossaman LLP. For 20
years, he has focused on complex business litigation in the areas of real estate,
commerce and financial services. He represents public and private companies in state
and federal courts, and is particularly adept at shifting fees and costs to opposing
parties.; 415-4387204;
Megan Brown is a partner at Wiley Rein in Washington DC, specializing in litigation and
appellate work. She has developed particular expertise helping businesses respond to
regulation and legislation that constrains their operations or communications. This
regularly involves suing governmental entities to vindicate clients’ federal rights. Ms.
Brown has help win precedent-setting victories under the United States Constitution, the
federal Communications Act, and other statutes. Ms. Brown has been involved in
challenges around the country and has become skilled in evaluating and structuring
lawsuits, including those that entitle the plaintiff to attorneys’ fees.
Michael B. de Leeuw is a partner in Fried Frank's litigation department. Mr. de Leeuw has
litigated cases on behalf of corporations, directors and special board committees in a
diverse range of areas related to complex financial and business arrangements, including
litigation concerning mergers and acquisitions, antitrust, bankruptcy, securities,
intellectual property and defamation law. Mr. de Leeuw also regularly advises
corporations and their officers and directors on these areas.
Gary A. Greenfield, a former litigator, founded Litigation Cost Management in Oakland,
California, in1991 to consult exclusively on attorney fee issues. Mr. Greenfield acts as an
expert witness on attorney fee matters and has conducted numerous analyses related to
legal fees in complex litigation, in matters ranging up to several hundred million dollars in
fees, both on behalf of parties seeking and parties opposing recoveries of legal fees in
both state and federal courts. He has also been a Special Master on fee-related issues
and conducts trainings on classes on legal bill analysis and auditing and other legal feerelated issues. and
Chuck Chandler is a Partner of Valeo Partners in charge of its Legal Consulting
Practice. Chuck is a successful entrepreneur, either as Shareholder, Stakeholder or
Partner, with three businesses in the legal information market space - Information
America, CourtExpress and Valeo Partners. Prior to joining Valeo, Chuck was a Vice
President at Thomson Reuters. He has over 20 years executive experience in business and
product creation, legal content acquisition, sales and marketing and finance. Chuck has
been cited in numerous legal publications including the Wall Street Journal, the New York
Law Journal, the California Law Journal, and Le Monde.,
Daniel Weissbein is and independent consultant working with Valeo Partners. He has a
PhD in Industrial & Organizational Psychology and over 15 years experience consulting
with governmental and private organizations. He has particular expertise in research and
evaluation, training design and development, writing, and human capital management.