By David Hricik
In my last post, I mentioned being thoughtful about billing records and some other issues about Section 285. As if on cue, a court issued an opinion which denied an award of some fees because the time had been block billed. As a result, the court could not determine if the time had been incurred as part of the defense of an exceptional suit or were incurred in a covered business method proceeding which the court had concluded was not within the scope of compensable fees. The case is SAP America, Inc. v. InvestPIC, LLC (3:16-CV-02689-K (N.D. Tex. Dec. 4, 2018) (Kinkeade, J.).
The case reinforces the need for good billing practices. I always tell my students to think of billing records as persuasive writing. Why? I explain that, foremost, the client should be motivated to want to pay for the time. “Research re patent” is not as motivating as “research regarding effective filing date of patent,” for example. And, pertinent here in any fee dispute — between lawyer and client, or, as in Section 285 cases, between the lawyer and the opposing party — having work records that are well-written and concise can make a huge difference.
Of course, there are reasons at time not to be very explicit: once, for example, I was involved in a case where the opposing lawyers were required to submit their fee statements monthly in a related bankruptcy case. We monitored that, and as a result we were able to see what issues opposing counsel were examining in almost real-time. But, the rise of Section 285 fee shifting is good reason to make clear and precise time entries a habit.