When potential attorney fee awards are big considerations — there is an economic benefit to your client if you obtain solid expert testimony on the reasonable value of the attorneys fees. The expert’s fee is less than the amount you reasonably can expect to lose if you do not have an expert on your side of the case.
It’s a cost to benefit consideration. Specifically — consider the amount the judge or jury may award if you do not have solid expert testimony.
But a “best expert” examination and report on a reasonable attorney fee in your case is a substantial expense item. That’s because, a top-end attorney fee expert looks, in requisite amount and detail, not only at the time entries by the billing attorneys, but also at the actual work that was done by the billing attorneys. This is time-intensive work. And fee experts, like attorneys, usually charge by the hours expended.
As a rough guide: If the fee bills in your case are over $100,000, then it is a wise expenditure to obtain a top-end expert’s examination and report on the reasonable attorney fee amount.
This is true whether you are looking for an legal fee expert to support your own fee award request or for an expert to defend against your adversary’s legal fee award demand.
Under $100,000 of fee bills usually does not call for the services of a top-end expert. It does call for the presenting attorney to spend requisite time on the presentation of facts to the trier of fact of what is a reasonable attorney fee, and the defense attorney to spend requisite time on examination of the presented facts.
You are a lawyer. You know that the expert witness’s fee depends not only on the hourly fee rate, but also on the hours of time required to perform the task with the requisite skill and care.
Here are the basic considerations for the expert’s estimation of fees.
1. The expert must do an independent investigation, and cannot rely solely on what the retaining attorney tells the expert.
2. The work (A) that was done by an attorney and the work (B) that reasonably should have been done are not necessarily the same.
Indeed, court decisions have made that premise a required part of an expert’s job in doing an independent investigation. The fee expert testifies to both (A) and (B); hence he/she must investigate not only what the attorney did, but also what tasks the attorney reasonably should have done and how much time was reasonable to spend on the task. The expert determines the reasonableness of the number of hours on a project, day by day, event by event.
3. An expert on attorney fees must look at each and every time entry by the attorneys who did the work.
4. An expert on attorney fees must look at an appropriate number of the case documents and events to analyze what was done, day by day, by the attorneys.
5. Evidence Rule 1006 is key: When voluminous information cannot be conveniently examined in court, the expert must build the summaries, calculations, and tables to present the information to the decider of fact.
As the expert examines the fee billings and the case documents, he/she frequently has to categorize the information, calculate time spent on various categories, and build unique tables or exhibits conveying information in summary form.
6. The reasonable legal fee expert spends time looking at the involved attorney’s duplication/ non-duplication of effort, efficient/inefficient practices; adherence/non -adherence to ethics standards in billing.
7. Experts must take the time to determine the reasonableness of legal fee hourly charges in the light of the customary market rate for the requisite level of services.
In short, the reasonable legal fee expert takes days, not hours, of time doing the analysis and preparing an opinion that will pass the gatekeeper tests of the jurisdiction for expert opinions — and will be clear, articulate, factually sound, defendable, and persuasive.