More on Fee Awards and Competent Billing and Motion Practice

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.

About David

Professor of Law, Mercer University School of Law. Of Counsel, Taylor English Duma, LLP. Former judicial clerk to Chief Judge Rader; former lawyer with Baker Botts and other firms

5 thoughts on “More on Fee Awards and Competent Billing and Motion Practice

  1. 1

    Very much like the idea of treating the writing of time descriptions as “persuasive writing.”

    Very much do not like the idea that THAT persuasive writing comes across in the billing process.

    What other bill, from any profession, serves as a primary medium of client expectation control? Does your doctor bill do so? your dentist bill? your plumber?

    I “get” that the “reality” (or at least history) of the legal profession has been (archaically) different, but as the legal profession continues to struggle to come into the modern practice of management, THIS area is one prime area for “re-engineering.”

    1. 1.1

      I think I agree with you, but I’m not sure of the distinction you’re making between billing and writing descriptions…?

      1. 1.1.1

        Currently, written descriptions in a bill is the “stuff” that is “selling” to the client.

        I don’t know about you, but when I pay bills, that is not the time that I want to be “sold.” Selling (the creation of value in the eyes of the client) should occur outside of the billing process.

        The billing process could be streamlined and much more “matter of fact,” and could be delegated to be the administrative process that it truly is. I’ve been in a few different industries, and only the legal industry conflates the selling point with the “pain point.”

        1. 1.1.1.1

          Ah, I agree, but I think I look at it this way:

          The work is what is sold, but when you present the bill, it should represent the work that was done. So “research on case” should be “researched means to avoid transfer to California for opposition to 1404(a) motion.”

          1. 1.1.1.1.1

            Thanks David.

            It is not that I am in disagreement that the write-up of the bill should be well done.

            I view the issue as a bit more subtle than that.

            I would prefer a (well-written) bill to be far more perfunctory. Instead, for reasons you have identified, bill writing has become an “art” for convincing the client to pay that which should require no convincing.

            There was an agreement.
            There was work.
            There should be payment.

            But as you note, and as I point that I am stressing, this perfunctory aspect is not present, having been subsumed by the notion that the bill is being used as a selling tool.

            My point is relatively simple: I have seen this type of transmogrification occur ONLY in law.

            As law is not my first (nor second) career, this is reflected for me in the notion that law does not operate under modern management theory. As the business of law continues to struggle to modernize, this billing aspect presents itself as an opportune item to spend LESS attorney time (make the process actually perfunctory), less effort to “sell” that which has already been bought, and to redirect an attorney back to engaging the law rather than wordsmithing a bill.

            Of course, I do recognize the human nature aspect going on here and the inevitable fallout that the business of law IS archaic, and that this type of “selling” IS rewarded with greater realization rates (which causes other rewards). There be real reasons why the practice of law has remained archaic in many business senses.

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