When a claimant prevails in a Longshore or Defense Base Act claim, then the claimant may be entitled to shift the payment of attorney’s fees to the employer and its insurance carrier. See 33 U.S.C. § 928; see also Dyer v. Cenex Harvest States Co-op., 563 F.3d 1044, 1047 (9th Cir. 2009). Congress enacted the attorney fee statute in 1972 to incentivize employers to pay valid claims rather than contest them. Hunt v. Director, OWCP, 999 F.2d 419, 424 (9th Cir. 1993). Requiring shifting fees when a claimant must protect their rights makes sure that the money for the litigation does not come out of the claimant’s compensation payments.
Sometimes, however, fee disputes arise between the successful claimant’s attorney and the insurance carrier’s attorney. In a fee dispute, the insurance carrier’s attorney objects to the successful attorney’s fee petition. But, what if the insurance carrier’s attorney’s objections are bogus when compared to the objecting attorney’s own billing records? For example, what if an objecting attorney spent more time performing the same tasks as the successful attorney, yet the objecting attorney argued that the successful attorney’s time was excessive? And how will a reviewing agency or court ever know that the objecting attorney’s complaints are hypocritical unless the agency or court requires the objecting attorney to submit their own billing records?
The Fee Petition Process:
To receive fees, a fee petition must be filed in the appropriate venue. A separate petition must be filed for each venue where work was performed. A district director at the Office of Workers’ Compensation Programs can only approve work performed at the OWCP level. An administrative law judge may only approve work performed at the Office of Administrative Law Judges level.
The contents of the fee petition must comply with applicable regulations, like 20 C.F.R. § 702.132. Section 702.132 states:
The application shall be supported by a complete statement of the extent and character of the necessary work done, described with particularity as to the professional status (e.g., attorney, paralegal, law clerk, or other person assisting an attorney) of each such person performing such work, the normal billing rate of each such person, and the hours devoted by each such person to each category of work.
By and large, fee petitions include a petitioning attorney’s time itemization, affidavits or declarations, surveys, matrices, and references to exemplar cases. The time itemization identifies who performed the work, the general subject matter of the work performed, and the time spent performing the work.
Upon receipt of a fee petition, the carrier’s attorneys can file objections to the fee petition. Sometimes, fee objectors argue that an hourly rate is too high. Other times, fee objectors argue that the time spent by the petitioner was excessive, clerical, duplicative, or vaguely worded.
Many venues allow the fee petitioner to file a reply to the employer and carrier’s objections.
Excessive Time Objections:
Excessive time objections are interesting because they boil down to one attorney saying that another attorney took too long performing a particular task. Courts have developed rules for reviewing excessive time objections.
“By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). The “hours excluded are those that would be unreasonable to bill a client, and therefor to one’s adversary, irrespective of the skill, reputation, or experience of counsel.” Martin v. University of South Alabama, 911 F.2d 604, 610 (11th Cir. 1990) (emphasis added); see also Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1301-02 (11th Cir. 1988). As the Eleventh Circuit explained:
Generalized statements that the time spent was reasonable or unreasonable of course are not particularly helpful and not entitled to much weight. As the district court must be reasonably precise in excluding hours thought to be unreasonable or unnecessary, so should be the objections and proof from fee opponents.
Norman, 836 F.2d at 1301 (emphasis added) (citation omitted).
The fee petition reviewer must “bear in mind that the measure of reasonable hours is determined by the profession’s judgment of the time that may be conscionably billed and not the least time in which [the task] might theoretically have been done.” Id. at 1306 (emphasis added).
The reviewing court or agency “must explain which hours are disallowed and show why an award of these hours would be improper.” Perkins v. Mobile Housing Bd., 847 F.2d 735, 738 (11th Cir. 1988) (emphasis added). Sworn testimony “that, in fact, [a task] took the time claimed is evidence of considerable weight on the issue of the time required in the usual case and therefore, it must appear that the time claimed is obviously and convincingly excessive under the circumstances.” Perkins, 847 F.2d at 738 (emphasis added).
The guidelines presented above boil down to some basic common sense points. Listen to the winning attorney, who most likely was not a slacker. The petitioning attorney’s skill, reputation, and experience are irrelevant to the excessive time objection. The measure is what may be conscionable billed, not how fast a lawyer can theoretically perform the work. Sworn testimony that a task took as long as the petitioning attorney billed is strong evidence. Objections need to be more than “generalized statements.” And if time is cut, then the fee deduction must be explained with reasonable precision.
The Objecting Attorney’s Time Is Relevant Evidence:
The objecting attorney’s billing records are relevant evidence in an excessive billing inquiry. For example, the Eleventh Circuit entertained a complaint from an objecting attorney saying that the petitioning attorney spent too much time on a settlement. As it turns out, the petitioning attorney’s time was almost identical to—in fact, less than—the objecting attorney’s time. The fee petitioner billed 97 hours; the fee objector billed 100 hours. Yet, the fee objector said the petitioner took too long.
State courts have also recognized that an objecting attorney’s billing records are relevant to an excessive time objection. Paton v. GEICO Gen. Ins. Co., 190 So. 3d 1047 (Fla. 2016). In Paton, the Florida Supreme Court concluded:
We . . . conclude that the billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorney’s fees, and their discovery falls within the discretion of the trial court when the fees are contested. When a party files for attorney’s fees against an insurance company . . . the billing records of the defendant insurance company are relevant. The hours expended by the attorneys for the insurance company will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable. . . .
Paton, 190 So. 3d at 1052 (emphasis added).
The Florida Supreme Court got it right. If an attorney objects to another attorney’s fee petition, then the objecting attorney should produce their own billing records. If nothing else, requiring production will weed out hypocritical and disingenuous objections–objections belied by the complaining attorney’s billing records.
Of course, this is not an argument for fee parity. Two attorneys on opposite sides of the aisle are not going to spend an equal number of hours on a case, especially where the Longshore or DBA claimant bears the burden of proof. But, when an attorney objects on the grounds of excessive time, the petitioning attorney should be afforded the opportunity to rebut that objection–a factual contention–with the objecting attorney’s billing records. See, e.g., Serricchio v. Wachovia Securities, LLC, 285 F.R.D. 43 (D. Conn. Jun. 17, 2009) (“In short, evidence of how much work Wachovia’s attorneys devoted to various pieces of this case may well be a useful measure of whether Serricchio’s attorneys spent a reasonable amount of time working on those same matters. By putting essentially Serricchio’s counsel’s entire approach to this case at issue, Wachovia cannot now plausibly claim that its own litigation tactics and efforts have no bearing on the quest of whether Serricchio’s attorneys are seeking compensation commensurate with the circumstances of this case.”).
Why an Objecting Attorney’s Time Sheets Should Be Produced in Longshore and DBA Claims:
That leads us back to the topic of this post: why an objecting attorney’s billing records should be produced.
Recently, I had an opportunity to review the time sheets of a well-known DBA defense firm that objected to my fees. None of the time entry objections were supported with evidence. Instead, the objections were simply bald assertions, the type of generalized statements that the Eleventh Circuit discussed in Norman.
More importantly, however, was that the defense firm’s time sheets belied their objections regarding the reasonableness of time spent on particular tasks. A few examples—of many—demonstrate the hypocrisy:
- Carrier’s attorneys spent 42 hours preparing their own fee objections at the OWCP level. Yet, they objected to 13 hours spent writing an 18-page pleading replying to the objections.
- Carrier’s attorneys objected to the time spent corresponding with my client, who had no prior knowledge of the Defense Base Act, even though Carrier’s attorneys spent much more time—nine times longer—writing their client, experienced DBA adjusters and managers.
- Carrier’s attorneys objected to the time spent speaking to my client even though they spent five times longer speaking with their DBA-versed clients.
- Carrier’s attorneys spent 34 hours researching and writing reports about a particular legal issue. Yet, they objected to the 1.1 hours I spent discussing the legal issue with my client.
This is the problem. If an objecting attorney spent more time performing the same tasks as the petitioning attorney, then the objecting attorney’s “excessive time” complaints lack candor. The objections are hypocritical and disingenuous. But, if the reviewing agency, court, or board refuses to require an objecting attorney to produce their own time records indicating how long they spent performing a particular task, then those tribunals likely consider only half the evidence.
A different approach could work in Longshore and Defense Base Act claims: a “put up or shut up” approach. Depending on the type of objection (e.g., excessive time, vagueness, clerical work), the reviewing agency, court, or board could require the objecting attorney to provide its billing records. Then, the petition reviewer could place the objecting attorney’s time next to the petitioning attorney’s time and compare like with like. In the Longshore and Defense Base Act practice areas, the OWCP, OALJ, BRB, and even appellate courts may discover that the objecting attorney’s time sheets belie many of the attorney’s objections. It’s hard to argue with a straight face that the successful attorney took too long when the objecting attorney took longer; or that the successful attorney’s time entries are vague when the objecting attorney records time the same way; or that the successful attorney engaged in clerical tasks when the objecting attorney performed the exact same tasks.
Requiring Disclosure is Nothing New:
Like I mentioned earlier, an objecting attorney’s billing records are relevant. See Norman, 836 F.2d at 1306 (noting that the 100 hours spent on a settlement by the objecting was “some evidence” that the 97 hours spent by the fee petitioner was not excessive). Further, some courts have held that an objecting attorney’s billing records are discoverable. Paton, 190 So. 3d at 1052.
But there are also courts that require objecting attorneys to share billing records. For example, Local Rule 54.3 for the Northern District of Illinois requires an objecting attorney to produce the total amount of attorney’s fees paid (or billed but not yet paid) by the attorney’s client, time and work records, evidence of hourly rates, evidence of specific expenses, and the evidence that the respondent will use to oppose the movant’s fee petition. The point of the N.D. of Ill.’s local rule is to foster resolution of fee disputes through the disclosure of relevant evidence–or at least to narrow the issues for the court to resolve.
Want to reduce fee litigation? Require objecting attorneys to produce accurate billing records. It’s a great way to keep objecting attorneys honest.