Ask for Too Much, and You Might Get Nothing

"Plaintiffs submit that it required in total more than 80 hours of attorney time to file a 14-page opposition to a supposedly baseless motion. The Court will not entertain such a patently unreasonable request."

From today's order by Judge Michael Fitzgerald (C.D. Cal.) in Doe v. Fitzgerald, denying attorney fees to plaintiffs who prevailed in opposing defendant's motion for reconsideration:

Plaintiffs' request for fees is not frivolous. Defendant submitted a motion [for reconsideration] with no support under Local Rule 7-18 and did not withdraw the motion when invited to do so. However, given the voluminous history of motions filed between the parties, the Court does not find an award of fees appropriate here.

In addition, Plaintiffs' request for $60,525.50 serves as an independent basis to deny the request. Plaintiffs submit that it required in total more than 80 hours of attorney time to file a 14-page opposition to a supposedly baseless motion. The Court will not entertain such a patently unreasonable request. The Court cannot be forced to examine the billing to determine what amount of fees would have been reasonable.

Comments

[Michael D]

Had they said 10 hours, might the plaintiff have prevailed?

[David Nieporent]

Sure. The point is to penalize someone for making an unreasonable request. If the only penalty for throwing out a big number is that it gets cut down to a reasonable one, then there's no incentive not to do that. And then that imposes a burden on the court, the adversary, etc.

[santamonica811]

Nicely and succinctly put.

[Leo Marvin]

We all know that some lawyers work faster and more efficiently than others (speaking as one of the slower ones). Is it a slower lawyer's obligation to know that s/he's slower, and to request reimbursement for less than time actually spent? Even if that time was billed at 100% to the client? If so, how much is s/he supposed to knock down the request? Is there a standard source for establishing how much time is reasonable for each type of filing?

[Lest there be any confusion, I'm not asking to be argumentative. Despite being licensed for >30 years, I've done exclusively transactional work, so I'm genuinely ignorant on these matters.]

[Davy C]

If you're charging $60,525.50 for a single response to a baseless motion, I don't care whether that took you one hour or 100, that's excessive. Maybe consider only charging $75 per hour instead of $750 if you're ten times slower than everyone else.

Also, there's a duty of competence.

[Leo Marvin]

Thanks for not answering any of my questions.

[David Nieporent]

Is it a slower lawyer's obligation to know that s/he's slower, and to request reimbursement for less than time actually spent?

No. You're entitled to be paid for time actually, reasonably spent, not the time the most efficient lawyer would've spent. If your hours are a bit higher, the judge is likely to shrug and say, "Okay, you spent that time, you can be reimbursed for it."¹ If your hours are "too high" by a know-it-when-I-see-it standard, the court may identify specific line items and say, "It shouldn't have taken you 3 hours to do this basic task; I'll cut it down," or the court may just impose a percentage reduction — I'll cut your fees by 20%. And if you're greedy, a judge may say, "You get nothing."

¹Note that a lodestar (or, as the Second Circuit insists on calling it, the "presumptively reasonable fee") is the product of reasonable hours by a reasonable rate. So the inexperienced lawyer who takes longer to do something will get those hours, but at a lower rate because he's inexperienced. The expert lawyer isn't penalized by being able to speed through the work, because he gets awarded a higher rate.

[Leo Marvin]

Thanks. Informative.

[Commenter_XY]

So David, the Judge does the line item determination? Wow. I mean, I never thought about it before until your two posts today. Like Leo Marvin said; informative.

So how do you go about determining a 'presumptively reasonable fee'? I mean, do people actually measure the amount of time spent, like time trials? Word count in a document? I am not being obtuse, but this is fascinating to me. How can a potential client go about determining the same?

[David Nieporent]

So David, the Judge does the line item determination?

Typically these things are part of the adversarial process. The judge makes the final determination, but only after the other side weighs in and argues that it's too much, and goes through line by line and explains why.

So how do you go about determining a 'presumptively reasonable fee'?

As I said, that's the Second Circuit's terminology for a reasonable hourly rate multiplied by a reasonable number of hours.

Different courts do it differently. I practice almost exclusively in federal court in NY, which is in the Second Circuit, and we are required to have contemporaneous time records if we want to recover fees. On January 4, I spent 2.1 hours researching the issue of whether a notice of appearance waives a challenge to personal jurisdiction, and 4.3 hours writing a brief on the subject, and 0.7 hours on the phone with opposing counsel trying to settle the case, and 3.4 hours reviewing discovery responses. That sort of thing. (But in some places, in particular in state courts, an attorney may be able to get away with just listing the types of work done and the total time spent on it.) And then opposing counsel can say, "Come on, judge; that brief was only 4 pages long and only cited 2 cases, so it should not have taken 6.4 hours to research and write it." And then the judge scratches his head and decides whether he agrees or not.

Sophisticated clients — corporate ones — may do a similar analysis when they see the bill. Other ones just look at the bottom line and the results you got for them and decide whether the two are commensurate.

[Commenter_XY]

Oh wow...Thanks for such a complete response. Ok, it is sort of like a consultant billing. God that must lead to a lot of haggling. I would want to blow my brains out after a few days of listening to that haggling over fees crap.

Hope you got through the snow Ok. 🙂

[Sidney r finkel]

Yeah. A small victory in the battle for those of us who are not practicing litigators to get justice at a reasonable cost.

[Dan Schiavetta]

The lesson of this holding is: don't edit. Don't try to be concise. Just babble into that dictaphone endlessly. A 100-page opposition would have passed muster with this court, even though it would have taken less time to compile, evaluate, write and revise (and would likely have been a less effective opposition).

[Bored Lawyer]

Or the lesson is, do a concise job, which is more effective for the client, and bill a reasonable amouint, which is an ethical duty.

By my calculation, they could have billed 15 hours at about $ 12,000, which the Court might have granted them. And their 14 page opposition brief would have been just as good, if not better.

My review of the docket reveals that the Plaintiffs have four different law firms representing them. That may be part of the problem.

[Dan Schiavetta]

I recently objected to a fee application in New York County Supreme Court. The other side billed $38K for a 15-page motion to dismiss on the pleadings for a combined rate of over $600/hr, the motion being based on common law issues from the attorney's own state. In my opposition I pointed out that the complaint being dismissed was only 5 pages long, and the motion to dismiss consisted mostly of general contract law principles and string cites, and improperly brought up a case cite on reply. It was, in short, a lazy, sloppy piece of work. I got the fee cut down, but only to $32K.

[Bored Lawyer]

Our firm once represented a client, a luxury brand owner, who sued an internet counterfeiter. We took the case to trial, where it settled. Total billings were around $ 350k.

At the same time, another luxury brand hired a national firm, who sued the same internet counterfeiter. They billed their client three times as much -- about $ 1.1 Million. I know because they made a fee application at the end of it, and the judge raked them over the coals for excessive billings. And cut it down by a third. Which was still double what we had billed.

Except the dopey national firm forgot to sue the owner individually, and only sued his one-man corporation. (We did not make that mistake.) So they got a huge judgment, which he rendered uncollectible by shutting down the company. So the second brand hired us to sue the same guy again, individually. We lost because of sticky issues of res judicate and privity. They also pursued him in state court to pierce the corporate veil. They eventually prevailed on that one. After lots more legal fees.

The national firm charged them three times as much to get a result that needed yet more legal fees to even try to enforce.

[Dan Schiavetta]

Indeed. The law business is not a meritocracy.

[Brett Bellmore]

So, win-win, so far as the national firm was concerned?

[Bored Lawyer]

No, they were fired. The subsequent work was given to other firms, part of which went to our firm.
I wished I was a fly on the wall when the GC read the opinion from the first case where the judge called the fees charged grossly excessive.

[Frank Drackman]

“The first thing we do, let’s kill all the lawyers.” (Henry VI, Part 2)

[Eugene Volokh]

An unsurprising thing for a character who's second-in-command to a would-be Communist dictator to say. (Recall that Cade's immediately preceding line was, "I thank you, good people:– there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.")

[Holden C]

People on this forum who support Eugene Volokh are nothing but domestic terrorists who support using "speech" that is part of criminal conduct to justify online harms. America is screwed if people don't have the civility to agree that things like online harassment, cyberstalking, doxing are malicious and illegal. It means the people in this country have totally lost it and have no value of decency whatsoever. Free Speech is being weaponized to hurt the fabric of society and people are drunk on it.

[David Nieporent]

Hey, some people here might be from Canada; they can be international terrorists.

[hobie]

Had to hire a lawyer in Portugal two years ago. Around $2000 to try an entire case from start to finish (contracts, a year of work)

[Holden C]

Volokh is a sadistic, unethical liar of the highest order. He gets paid by Google and Big Tech so that's why he's purposely ignores the pain to victims of these crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money. America is becoming a lawless state and lagging other countries in online regulation because of people like Eugene Volokh who are low on empathy and responsibility, and lack a total understanding of how the internet works.

If you look through these forums, many others have called out Eugene's hypocritical analysis. The sadistic guy (EV) seems to take extreme pleasure in people getting their lives destroyed by harassers online and coming out and defending the harassers while leaving the victims to hang. He takes pleasure when people lose their jobs and livelihoods over doxing. He takes pleasure when plaintiffs cannot file suits using a pseudonym even when they are doing so to protect being re-victimized by the court system. He does not ever talk about how malicious the perpetrators are - they use VPN to hide their own privacy while purposefully, intentionally trying to destroy the lives of innocent victims. He never talks about whether it's fair or not for perpetrators to be able to hide behind "Free Speech" while all the friction to justice in the legal system fall on innocent victims. He never talks about how Section 230 has enabled intermediaries to contribute to the abuse by not removing harmful content in time. He never talks about the suicides that come with cyberharassment and bullying and how victims cannot ever get away from the tormentors. He doesn't give a shit, that's why he's a psychopathic asshole. Most people who take an absolutist view on the 1A have low empathy for people's sufferings, and are obsessed with defending the rights of a bunch of pervs, assholes, psychos, and low-life criminals of society who do not deserve defending and should be punished (fines or jail or both). Bad people deserve to be punished, but Eugene is advocating to punish the good people instead. Eugene Volokh is a grade A sadistic liar and a borderline psychopath based on his behaviour. He enjoys seeing people in pain and then coming out with his BS "Free Speech" arguments to make victims suffer more. You can see it in his eyes, he loves to destroy people using the "Free Speech" shield.

Eugene Volokh's approach would give victims of malicious targeted online harassment no legal recourse, even if their lives have been turned upside down by the malicious stalking or harassment from these individuals, and the speech does not implicate public interests and are purely aimed to harm the victims. For Eugene, Free Speech trumps all - deaths, suicides, victims be damned.

Volokh purposefully ignores talking about the huge impact to the lives of victims of cyberharassers who target these people for years because the harasser has a mental issue. The reality is that Free Speech should be balanced with safety and appropriate privacy for citizens online, otherwise it's been weaponized by sick and sadistic bastards and criminals, and Eugene is fighting hard for these sadistic bastards and criminals to keep harming people. Eugene has never given two shits about the victims of cyber-harassment, never in any of his papers does he even consider the unique nature of the internet and the ability for malicious actors to ruin private individuals who are not in the public eye. Eugene Volokh has opposed laws banning doxing, revenge porn, Section 230 reform, etc... anything that would put more legal responsibility on platforms, ISPs, and intermediaries to make their products safer for people and to balance Free Speech with privacy.

That's what's wrong with the USA today, it's maniacal focus on Free Speech to the extent of allowing social harms is what will destroy this country. All the countries around the world like EU, UK, Hong Kong, Australia, NZ, Canada, Brazil, Argentina are all passing legislation to criminalize doxing, online stalking, online harassment as it should, as these are crimes against human dignity. Is the right to be "free from harassment" not a fundamental right? Eugene doesn't think so. He fights for criminals to continue harming people online. Eugene is a threat to the American public and to the future of the country. He is basically fighting for America to be lawless online. Why should something be legal online when it is illegal offline?

[Dan Schiavetta]

Please, call your doctor. Your Rx has run out, clearly.

[Holden C]

People on this forum who support Eugene Volokh are nothing but domestic terrorists who support using "speech" that is part of criminal conduct to justify online harms. America is screwed if people don't have the civility to agree that things like online harassment, cyberstalking, doxing are malicious and illegal. It means the people in this country have totally lost it and have no value of decency whatsoever. Free Speech is being weaponized to hurt the fabric of society and people are drunk on it.

Eugene Volokh is a sadistic piece of shit for trying to harm the US social fabric.

[Bored Lawyer]

Breathing in and out of a paper bag works much better. And is much cheaper.

[Holden C]

To Volokh and his supporters:

This is the regime to combat harmful online harassment that the USA needs to be set up, ASAP:

1. Congress needs to pass federal personal data protection laws that criminalize malicious doxing and cyberstalking on a federal level, giving uniformity across state lines.

2. Congress needs to reform Section 230 to remove ISP immunity from liability if they are notified of cyberstalking, doxing content, and malicious cyberharassment targeting individuals for no legitimate purpose, and impose fines for ISPs and networks that do not remove within a period of time. Fine Google/Facebook say USD 1000 per day if the content remains up and they do not remove.

3. Institute "notice-and-takedown" mechanism for cyberstalking, cyberharassment, doxing content similar to DMCA for Copyright. The poster can appeal but he needs to reveal his identity and location (similar to DMCA), which would allow victims to sue him if necessary.

4. Update specific jurisdiction requirements to allow victim of online harassment and stalking to sue from their own state rather than spending exorbitant resources to find out the location of the defendant, who may be out of the country.

5. If anonymous defendant is found to be using VPN, the plaintiff gets default judgment unless defendant comes out, reveals his identity, to fight the charges.

6. Establish uniform rule to allow victims of cyber-harassment and cyberstalking to file civil and criminal lawsuits using pseudonym to protect them from re-victimization.

7. Establish local, state, and federal cyber-investigation cells to investigate reported online crimes rather than ignoring these harms.

8. Establish a Federal court specifically designed to fight against cyber crimes, with limited jurisdictional and uniformity of application issues.

We need ROBUST laws in the 21st century that balance Freedom of Expression with curbing online harms. Online harassment will not go away, no matter how hard Eugene Volokh tries to deny it. History will prove him wrong.

To hell with unrestricted, expansive, dangerously broad "Free Speech" interpretations. The rights of a psycho or mentally ill, malicious harasser to harass, torment others takes a back seat to the rights of the victims to be free from this abuse. See Canada's new "tort of internet harassment." America is falling behind by miles.

[Brett Bellmore]

In my experience, that's about right for preparing a boilerplate uncontested divorce. At least according to my divorce attorney, it took that long.

I thought absurd billing hours were standard practice, and the courts don't seem to mind most of the time.

[Holden C]

Volokh's interpretation of the 1A is borderline sadistic and cruel. The guy has no empathy and doesn't understand the nature of internet communication.

Under Eugene Volokh’s asinine interpretation of the First Amendment, there would be NO such thing as cyberstalking or cyber-harassment! These crimes would simply not exist in his world. Because these actions are performed with words, Eugene would have the 1A apply to anything that involves words (or by extension, pixels). No course of conduct that involves typing words on a screen would be subject to any civil or criminal liability regardless of content, form, or intention. This mean in Eugene’s warped world, revenge porn, doxing, public disclosure of private fact, privacy violations, even swatting would be perfectly legal, and even encouraged!

Ludicrously, he argues that these malicious acts are actually “valuable” because they provide value to “at least some people.” That’s a BS argument, because anyone can argue that say doxing material provides value to “someone” – yeah, the doxers and the criminals doing the harassment of course! A person’s credit card can be posted and it would provide value to someone, the thieves. A person’s revenge porn pictures can be posted and it would be obviously valuable to countless shady people on the internet. Eugene’s 1A internet speech test is: as long as the information posted is “of value” to someone, that content doesn’t qualify as harassment! This insanely warped logic is beyond asinine that I wonder how Eugene can say this with a straight face. There is no discussion at all from him on the rights of the victims and their constitutional right to be free from malicious harassment (4th Amendment). Eugene Volokh is borderline sadist who just wants to see people’s lives get wrecked and he takes enjoyment in seeing victims suffer.

No civilized society would just let victims take the brunt of harassment while online criminals can get away by hiding behind a warped definition of the First Amendment. If the constitution says “Congress shall make no law” then maybe the 1A needs a new interpretation in the age of the internet! Because the current approach is leading to very bad social results and instability when people can just say whatever they want online with no liability. Volokh is insane.

[neurodoc]

Holden C, there must be a painful personal back story here. If you can summarize the facts of your case, that might serve your purpose here better than going about this as an ad hominem attack on Professor Volokh. That is a sincere request of you.

If you have done this before, that is laid the facts of whatever has so disturbed you in summary form, then point us to wherever that may be. Not everyone here is a 1A absolutist, though many may be that.

Regularly breaking into other conversations to vent as you have been doing, is worse than an exercise in futility, unless your purpose is to antagonize the audience you are addressing yourself to.

[TwelveInchPianist]

I'm not sure who's better, the 1A Kirkland, the lawyer should be replaced by a diverse Kirkland, or the you deleted my comment Kirkland.

[gormadoc]

Cage match to find out?

[David Nieporent]

That last one ought to be the you-deleted-my-comment-ten-years-ago Kirkland, no?