Making Your Fee Award Appeal Proof
Ah, the sweet success of convincing the trial court that your client deserves an award of attorney fees. Lawyers love it. Perhaps, we view it as an affirmation that we are worth what we charge our clients.
Whatever the source of our pleasure, one potential eventuality can replace our gratification with a sick feeling: explaining to the client why the attorney fee award did not hold up on appeal. If you want the appellate court to affirm that coveted fee award, be sure to cover some necessary elements.
Just like the mason building a house, you need a proper foundation. Your own declaration with attached billing records is the primary building material.
Washington follows the lodestar approach to determining the amount of an attorney fee award.1 You must give the trial court the information necessary to support application of the lodestar approach.
Normally, you will attest in a declaration that you kept contemporaneous billing records, you billed your client as set forth in the attached billing records and, in appropriate cases, the client has paid the bill.2 In your testimony, review the qualifications and billing rates of all timekeepers, touching upon the reasonableness of the rates based on their experience, the skill required to perform the legal work (including the complexity of the issues), the customary rates in your legal community, preclusion of other work, the hourly billing agreement with the client and the service provided.
Some practitioners submit the declaration of a colleague outside their firm testifying that their rates are reasonable. This is persuasive, though not necessary. Think about what the appropriate legal community is and address that issue. If you made any reductions, explain those. In appropriate cases, address an upward or downward adjustment of the lodestar calculation.
One caution is to review the billing entries for any attorney-client privileged material or work product. Be sure the content of privileged attorney-client communications is not revealed. A tension exists between providing billing records and preserving privileges.3 Better to err on the side of preserving a privilege and redact an entry or series of entries entirely, than to open the door to arguments of waiver of privilege.
If brevity is the soul of wit, do not aim to have a witty order. Your proposed order should be thorough. I suggest you need a minimum of two to three full pages.4
First, you will list all the pleadings that the court reviewed. Your proposed order will grant the relief and state the findings of the trial court by addressing all of the ingredients to a lodestar analysis. This will include a finding as to reasonable rates, of reasonable hours, that the hours awarded are not duplicative or wasteful, and that the fees awarded are reasonable based on the court's careful consideration of the matter and the record.
Fees for Preparing the Fee Petition
Parties sometimes challenge a prevailing party's right to receive fees incurred preparing the fee petition.5 No Washington case supports the blanket objection. If the award is based on contractual language that arguably excludes such effort from compensation, an opposing party could frame a proper argument.
Ordinarily, and as demonstrated in passing in several cases, if the request is adequately supported, the Court of Appeals and most parties view such fees as properly recoverable.6 One exception to this general approach applies to attorneys for an estate who may not charge the estate attorney fees for defending their fee petition.7
Fee Awards as Sanctions
If your fee award is a sanction, study in detail the rule authorizing the sanction. This usually includes CR 11, CR 26 or CR 37. These rules have several predicates to an award.
CR 11. If sanctions are imposed under CR 11, the trial court must make two critical findings: 1) the pleading lacked a factual or legal basis, and 2) the attorney failed to conduct a "reasonable inquiry" into the factual and legal basis of the pleading.8
Be sure to present facts supporting these findings in your record and that the findings themselves are in your proposed order.
Discovery Violations. Where the fee award occurs as the result of a discovery violation under CR 37, be sure that your motion includes a proper CR 26(i) certification. (In Superior Court in King, Snohomish and Spokane counties, take into consideration the local rules concerning CR 37.)
Your certification should include a declaration describing the discovery conference and demonstrating that the impending motion was discussed, not simply the outstanding discovery.9
Bad Faith. If the sanctions are awarded under the trial court's inherent jurisdiction, an express finding of bad faith is necessary.10 Again, make your record and be sure that the express finding is stated in the order.
Contract Fee Awards
Remember that if a contract provides for a fee award, the award is mandatory.11 The court cannot decline to award the fees, but does have discretion as to what amount is reasonable.
Appeal deadlines do not await the determination of a fee award. If you are not the prevailing party and judgment has been entered on all but a fee award, appeal! Do not wait for a fee award or the amount of the fee award to be determined and entered, because that judgment will not extend the time to appeal any prior judgment of the trial court.
For example, if the trial court grants summary judgment that includes an award of attorney fees to be later determined, the 30-day appeal period provided by RAP 5.2(a) begins to run from the time judgment is entered. After the 30 days, you will not be able to appeal the summary judgment even if the award of fees remained outstanding.12 An appeal of a final order will automatically include any later-entered award of fees, pursuant to RAP 2.4(g).
You might question whether to refer to your fee request as "attorney fees," "attorney's fees" or "attorneys' fees." Be consistent, whichever form you use. If your claim is pursuant to a statute or written contract, use the form that appears in your source.
However, sometimes you have multiple sources or a source that itself is inconsistent. An increasingly common form is "attorney fees."13
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When the appellate court reviews the amount of an attorney fee award, the standard of review is abuse of discretion.14 If the record contains the necessary evidence and the trial court uses the appropriate language in its order, the chances of reversal are low. Take the time to be thorough in your record and your proposed order, and the result from the appellate court is likely to keep those smiles on your and your clients' faces.
Averil Budge Rothrock focuses her practice on appellate review in the Seattle office of the Pacific Northwest regional firm Schwabe, Williamson & Wyatt. She can be reached at 206-689-8121 or email@example.com.
1 Scott Fetzer Co. v. Weeks, 114 Wn.2d 109, 786 P.2d 265 (1990).
2 See Mahler v. Szucs, 135 Wn.2d 398, 434, 957 P.2d 632 (1998).
3 See Seventh Elect Church in Israel v. Rogers, 102 Wn.2d 527, 532 (1984) (quoting U.S. v. Hodge & Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977)).
4 Review Mahler v. Szucs, 135 Wn.2d at 434–35, before drafting your proposed order. The author and the editor cut their teeth together on a case in which their respective attorney fee awards were reversed on appeal, at a time when the required specificity of the trial court's order was still nascent. The case settled after remand.
5 See, e.g., Brothers v. Public Sch. Employees, 88 Wn. App. 398, 409, 945 P.2d 208 (1997).
6 Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 595, 675 P.2d 193 (1983); Steele v. Lundgren, 96 Wn. App. 773, 781–82, 982 P.2d 619 (1999).
7 Matter of Estate of Larson, 103 Wn.2d 517, 518–19, 534, 694 P.2d 1051 (1985).
8 Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 224, 829 P.2d 1099 (1992).
9 CR 26(i) (counsel must have conferred "with respect to the motion"). See also Clarke v. Office of Attorney General, 133 Wn. App. 767, 779–81, 138 P.3d 144 (2006) (a conference on underlying discovery issues alone is insufficient); Case v. Dundom, 115 Wn. App. 199, 203–04, 58 P.3d 919 (2002).
10 State v. S.H., 102 Wn. App. 468, 476, 8 P.3d 1058 (2000).
11 RCW § 4.84.330; Singleton v. Frost, 108 Wn.2d 723, 729–30, 742 P.2d 1224 (1987).
12 See Carrara, LLC v. Ron & E Enterprises, Inc., 137 Wn. App. 822, 155 P.3d 161 (2007).
13 See Ridder v. City of Springfield, 109 F.3d 288, n.1 (6th Cir. 1997), citing Bryan A. Garner, A Dictionary of Modern Legal Usage 91 (2d ed. 1995) ("attorney fees" increasingly common). Garner expressly disapproves of "attorneys fees."
14 Washington State Physicians Ins. Exch. & Assoc. v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993).
Originally published in the October 2011 issue of the King County Bar Bulletin. Reprinted with permission of the King County Bar Association.