Hello everyone. My name is Samuel Tascher and I'm a managing director at Wyatt Partners. Here with me today are my colleagues, Steven and Lindsey Tascher. First of all, we want to extend a huge, heartfelt thank you to Quimby for having us and a huge thank you to all of you for joining us for this program. Let me tell you a little bit about us. Wyatt Partners is a consulting firm that does three things. First, we provide expert evaluation and opinions concerning attorneys fees and settlements that arise in litigation or transactions. Second, we advise companies on the management of their litigation and transactional portfolio. And third, we teach other lawyers, much as we do here today on a variety of topics. My colleagues will each introduce themselves in a little more detail when it's their time to speak, but I'm going to give you a very quick background on each of us. I'm going to start with Steven Tascher, our CEO. He is a former deputy attorney general of New Jersey, a partner in two international law firms, and an in-house attorney at three businesses, including DuPont and Wyeth. Stevens spent more than a decade and a half since founding Wyatt Partners, focusing on the attorney client relationship and litigation and transactional management, which he has done his whole career since law school. Our managing director, Lindsay Tascher, has worked for several law firms on securities and aviation litigation, before coming to Wyatt Partners about 15 years ago. She regularly teaches on a variety of topics around the country, including on this subject matter. We're going to talk about and gives her time to serve as counsel to local charitable organizations. And finally, a little bit about myself. I've been with Wyatt Partners since 2013, focusing on the ins and outs of attorney client relationships, litigation management, and transaction management. I've also served as general counsel and director to a number of private equity groups and portfolio companies, managing their litigation and transactional needs, and also worked in the law department at the New York Yankees. As you can see, we bring a diverse array of experience, both from the perspective of outside and in-house counsel and both on the litigation and transactional side. And we hope our program today will be informative on a topic that will always be timely. Our program today is entitled The Ethics of Legal Fee Applications Ethical, Procedural and Practical Considerations. As the title indicates, we are going to talk about fee requests. This is the bread and butter of our business, and we spend a lot of time working with our clients on their fee requests. And we hope over the course of this presentation to give you some insights into the standards governing fee requests, the issues that come up both ethical, legal and practical, and how best to handle fee applications should you find yourself involved in one. And you can see here in this, the presentation is divided up into three parts. I will be covering part one, which will cover some of the basic concepts of fee applications, like what is a prevailing party? What is the lodestar method? How do courts look at fee requests? At that point, I will turn it over to my colleagues to get into the more practical and then into some of the nitty gritty on a number of these concepts that you may wish to include or not include if you find yourself involved in a fee request. A quick note before we begin. If you have any questions that come up during the presentation, I would encourage you to contact us by email. Our emails are included on the slide deck when we would be delighted to hear from you. And as we begin the first part of this presentation, I'd like to give you an overview of what a fee. Application is, what it means to be a prevailing party, what the lodestar method is, and other procedural issues that will arise during the applications. Let's start with a key question, which is what is a fee application? A fee application or a fee motion or a fee petition is the means by which a prevailing party petitions a court and asks the court to award it its legal fees during a litigation. Usually this would come at the end of the case, although that is not necessarily so. A fee application may come on an interim basis, or the contract that authorizes the fee request may provide for fee entitlement prior to a final judgment. In either event, the movement must believe that he or she has some entitlement to recover fees and must move according to the relevant court rules. Under the federal rules, that may be as simple as filing a motion with accompanying documentation after becoming a prevailing party. The other side will then file an opposition and the moving party gets to file a reply. Some other rules, like the state rules, may be a little different. There may only be a motion and an opposition. So in either event, make sure you know what the local rules say before you start your motion. What we are hoping to do through the remainder of this presentation is let's say you have to file a fee application. We want to walk you through the standards that will govern and affect the fee petition. Because there are legal standards, there are also ethical standards. And if you find yourself either moving for your fees or opposing a fee, request how you would best can address those issues. One of the important concepts that we need to discuss and understand in the context of fee petitions is something called the American rule. This dates back to a 1796 Supreme Court decision. Ah, Campbell versus Wiseman. Prior to our Campbell, when a party won a lawsuit, that party would also be entitled to recover its lawyer's fees as an element of its damages. However, ah, Campbell's decision changed all that and said, you can't do that. The American rule was best explained by Justice White in the Alyeska Pipeline case for 21 US 240. Quote, absent statute or enforceable contract, litigants pay their own attorney's fees, end quote. Now, today, there are thousands of fee shifting statutes between federal law and state law and contractual fee provisions that shift fees in the event somebody wins a lawsuit have become far more commonplace. So the bottom line here is that a fee application arises when a statute or a contract provides that a prevailing party may recover its fees or costs from the defeated party and has won the case or some sort of relief. The next few slides were going to be discussing what is an absolutely important concept here. What is a prevailing party? The best definition of a prevailing party was offered in Hensley versus Eckhardt, a 1983 Supreme Court decision for 61 US 464, which we're going to discuss in a little more detail in a moment. Most fee shifting statutes do not require success to be monetary, and quite often it won't be monetary, because success in an environmental case or a civil rights case may not be measured by a monetary award at all. It might be exclusively injunctive relief on which the party prevails, and that wouldn't make them a prevailing party. So I want to talk for a moment as we move to the next slide about this Hensley case, because Hensley is a very, very important case for fee petitions. Hensley was a civil rights case involving a fee shifting statute, which was is known as section 1988. It's one of the big ones, and it was a claim brought against a government hospital for violations of the 13th Amendment in Hensley. Justice Powell writing for the court to find a, quote, prevailing party as those who, quote, succeed on any significant issue in litigation, which achieves some of the benefit the party sought in bringing suit, end quote. Justice Powell made it clear that this is a generous formulation that merely serves as a threshold. Now, since Hensley, another good definition of a prevailing party can be found in the Ninth Circuit decision. Richardson versus Continental Grain 336. Federal third 1103. Quote. Successful prosecution means obtaining some actual relief that materially alters the relationship between the parties by modifying the defendant's behavior in a way that directly benefits the claimant. End quote. While Hensley makes it clear that a party does not need to prevail on all counts or relief sought, the court retains discretion to make downward adjustments for lack of success. Where rubber meets the road here is in determining was the lack of success on a minor claim. Was it on a major claim? Was it on a claim that was inextricably intertwined with successful claims? These may result in different decisions by the court and ultimately, if there is a substantial lack of success on a number of issues, it may require an allocation or other means of addressing work on unsuccessful issues. Now, once the court has determined that a party is a prevailing party, as we've discussed, and either a statutory or a contractual fee shifting right exists, Hensley proffers a concept now known as the Lodestar method to calculate the fee, which we're going to explore now. Let's discuss this Lodestar concept. Prior to the Lodestar, fees were often calculated according to an equitable doctrine known as the percentage of the fund method. And if you think about it, this makes perfect sense because originally most fee shifting was done in class actions where counsel is compensated on a contingent fee basis. So awarding them a percentage is exactly how they would have expected it to be paid. However, so too are civil rights lawyers and lawyers who litigate many other cases with fee shifting statutes. They're also paid on a contingent fee basis. In addition, there are statutes out there, such as the Longshore Act, which prohibit private fee agreements between lawyers and clients as a matter of law. So if you are a longshore lawyer, you will only get paid if you win under the statutory fee shifting rule in 33 US code 928. So to address this, the Third Circuit developed the concept of the lodestar. And you can see here the secrecy decision from the Ninth Circuit which best articulates what the lodestar formula is. It's a reasonable number of hours on the case times a reasonable hourly rate, as you can also see here in the Supreme Court's Kenny, a decision, the stated goal of the lodestar is to simulate what a counsel would have received had they been paid by a private client on an hourly basis. Now, given the increasing proliferation of contractual fee shifting provisions, as well as statutory fee shifting provisions where private counsel who do in fact bill on an hourly basis are engaged, think, for example, intellectual property statutes. The fact that a private client actually paid the fees may end up becoming important evidence pertaining to whether or not it's reasonable. Such was, in fact, the case in the 2020 decision from the United States District Court for the Eastern District of New York. Value wholesale versus CCB Insurance Company. 2020 Westlaw 6393016 where the court carefully considered the fact that the client actually paid the fees in question when evaluating the fee request. The key formulation here in the fee request is that a fee must be, quote, reasonable to provide guidance as to what reasonable means. Justice Powell and Hensley turned to and affirmed a list of 12 factors listed in the Fifth Circuit decision Johnson versus Georgia Highway Express 488. Federal second, 714. The so-called Johnson factors are now consolidated and generally incorporated as model Rule of Professional Conduct Rule 1.5 and the respective state Rules of Professional Conduct. In some form. You may see variation on the Johnson name for the factors, especially among the states which all have their own respective names for the factors, sometimes just calling them generically the rule 1.5 factors, and some circuits even go by their own name, like the Ninth Circuit, which refers to them as the care factors carer. While there are some variations on the name or what factors may be included. There are a list of core factors that are generally included across all jurisdictions. The time and labor required the stakes of the litigation. The degree of success obtained, the complexity of the case, the skills required to perform the work, the time limitations imposed by the case, and whether the fee is fixed or contingent. In Hensley, Justice Powell held that the most critical factor in a lodestar calculation is the degree of success obtained in the case. Let's talk for a moment about burden of proof. Documenting reasonableness is a critical standard in the fee application process, and I think you're going to hear a lot more about that over the next two parts. To illustrate, just a few weeks ago in Gilead Sciences Incorporated versus the United States, 2024 US claims Lexis 1142. The Court of Federal Claims held that a, quote, reasonableness requirement attaches to attorney's fees and costs sought as breach of contract damages, just as it does in statutory post-judgment awards. End quote. In Hensley, the court held that the fee applicant bears the burden of establishing entitlement to an award that your prevailing party analysis and documenting the appropriate hours expended and hourly rates. This analysis will include something known as billing judgment, which Justice Powell explained means that, quote, hours that are not properly billed to one's client are also not properly billed to one's adversary pursuant to statutory authority. End quote. Note that a lot of fee provisions, fee shifting provisions are for lawsuits brought against a government entity, and many bodies, including the EEOC, have applied the same billing judgment standard to fees sought against the government in Velva B versus DeJoy. 2022 EEO pub Lexis 2677. The the EEOC held likewise hours not properly billed to one's client also can't be charged to the government. Now some things that may be necessary to help a petitioner meet this burden of proof may include sworn statements from counsel who supervised and perform the work, explaining how did I perform the work? What did I do to make sure the fees were reasonable? Here's who did the work, here are their credentials. So on and so forth. Two. You may wish to submit an affidavit from a fellow practitioner in the field. Here's how these are typically done. Here's what rates are typically charged in this community. Three. Expert testimony. This is how work is typically done in the legal industry. Here's what rates are typically charged in this area of the industry, and for evidence of write offs or things you haven't charged for this billing judgment concept. So the court can look and see they took that seriously. And finally, a key thing to discuss contemporaneous time records. As you can see, a key reason for courts reducing time is the failure to keep contemporaneous time records detailed ones. This is true even if counsel is on a contingent fee arrangement, and courts have found experienced contingency counsel who regularly file for applications should know how to keep good time records. In fact, in Hensley, the court reduced one of the law firm's hours 30% for its failure to keep good contemporaneous time records. You can see on the slide the Second Circuit's decision in Cary, which is considered somewhat of a hallmark case on the issue of contemporaneous time records. Some court systems and circuits outright require contemporaneous time records and refuse to consider for applications without them. As you can see with the case in Cary and even those who permit them generally take a muted view of reconstructed time records, and they'll scrutinize them. And you can see why from a court that considered them in Mitchell versus the city of Warren. Uh 2012 Westlaw 5334133. The Eastern District of Michigan court found reconstructed time records were generally biased in favor of the Reconstructor, who happened to be the one seeking these fees. Another example includes Ward versus Brown, 899 federal Supp. 123, in which the Western District of New York found the reconstructed time record, suffered from the faulty memory of the attorney, who also happened to be the one asking for fees. So bottom line here, unless there is an extraordinary reason for you not to keep them, be sure to track your hours and keep them in reasonable detail, even if you're not being compensated on an hourly basis. So with that, I wanted to thank you all very much for joining us here today. I hope the information that I provided to you proves helpful as you face a fee application of your own. And with that said, I want to turn the floor over to my colleague Steven, who will introduce himself in a bit more detail and begin part two of our presentation. Thank you all. Samuel, thank you for um, eh, providing us with background and setting the table for the next two presentations. I am Steven Tasher. I'm chief executive officer of Wyatt Partners. I will be presenting on the relationship between fee applications and the rules of professional conduct and how they intersect. As the Chief Executive Officer of Wyatt Partners, I have served as an expert witness in over 200 legal fee disputes and state and federal courts and arbitration panels around the world. I also, as Samuel noted earlier, provide advice and counsel to major companies and law firms on the management of legal spend and the preparation of legal fee applications. I have served in numerous roles which bring me to this, uh, webinar today. Uh, I've served as deputy attorney general for the State of New Jersey, a partner in two major international law firms, a senior vice president and associate general counsel at a global pharmaceutical company. General counsel at a global pharmaceutical company. In each instance, handling or supervising complex litigation and for the last 15 years, serving as the CEO of Wyatt Partners and performing the work that I and Samuel have described earlier. So I bring a unique perspective to legal analysis. I have been a provider of legal services, a consumer of legal services, and a reviewer of legal services. There are several provisions of the rules of professional conduct that pertain to the review, and the reasonableness of legal fees presented in support of a fee application. They include. Rule rule 1.5, which sets forth the factors to be considered when analyzing the reasonableness of fees incurred. Also to be considered are rules 1.2 and 1.4, which delineate the parameters of counsel's communication with the client to ensure that the client is in a position to make a meaningful and informed decision about each aspect of the representation and rules 5.1 through 5.3, which set forth the responsibilities of the supervising partner to ensure that all subordinates working on the matter comply with all elements of the rules of professional conduct. These factors constitute the basis for analysing the reasonableness of legal fees incurred, and as Samuel described earlier, they are a codification of the factors derived from the case law. Analyzing reasonableness. The rules of professional conduct pertaining to rule 1.5 vary depending upon the jurisdiction, but in most respects are substantially similar, and each legal fee application to take these factors into account and the factors are numerous. They include, for example, the time and labor required, and these will cover the entire span of the litigation or the matter, from the filing of a complaint to an answer to motions, to the quantum of documents that need to be reviewed, the number of depositions that had to be taken, all of the things that had to be done by counsel in order to perform the legal service properly and appropriately. Another of the factors is the novelty and difficulty of the issues, both factual and legal. Um, was this a standard contract dispute involving one party or Or was it a highly complex environmental or toxic tort matter, an intellectual property matter, a data privacy case, or a securities fraud? Litigation. Uh, depending upon the type of case, uh, it will be a very important component in evaluating the legal fee, uh, application. What were the skills required to handle the matter effectively? What kind of lawyer was required? Obviously, when you're having a lawyer handling a simple contract dispute, uh, you're going to get a different type of lawyer than ones who will handle, uh, the niche practice areas such as environmental, toxic tort, intellectual property, data privacy, and securities fraud litigation. The fees customarily charged in the locality for similar legal services. Clearly, someone who is expert in very complex niche practices will command, um, a much higher rate than that performed by people who are handling relatively routine matters. What are the stakes of litigation? And the stakes will involve an analysis not only of the monetary stakes, but the reputational stakes, uh, for the, um, uh, for the company. Will, um, will this case pose an existential threat to the existence of the company? Uh, will it doom its reputation on a going forward basis and prevent it from engaging in business? Or is it simply a dispute between two parties hammering out a $50,000 contract? The stakes of litigation will be a very important factor in the analysis of the fee application. Also, the amount involved and the results obtained. Uh, and put another way, what success was achieved. And this will involve a macro and a micro analysis of the issue of the. Of the success achieved all along the way in litigation there may be many victories. Many defeats. So the success analysis will take a look at what the ultimate outcome will be. But also along the way, were there actions taken, motions brought, um, that were not successful, and for which a um, uh compensation may not be afforded. And also the experience, the reputation and the abilities of counsel, uh, different uh, counsel with different expertise, resources will be involved depending upon the type of cases. All of these points should be baked into the fee application so that the finder of fact can make a determination as to the appropriateness of the ask. And while these issues that I'm about to speak now are not necessarily contained in the rules of professional conduct, another very important factor that a court will look at when looking at the the effectiveness and the appropriateness of the fee application is the concept of case management. And Sam touched upon this a little bit earlier, but what actions were taken both by the client and counsel to evaluate the fees that were spent, make a determination that they were appropriate? And was the client actively engaged in the matter on an ongoing basis so that the fees that are presented to the court will represent fees that are appropriate and have gone through an appropriate layer of review. I want to spend a moment on a concept called lodestar, which Sam touched upon in much greater detail when considering the quantum of the legal fees that are sought. Bear in mind that many courts will apply what Sam described earlier as the lodestar approach, and that approach will consider the number of hours reasonably expended by counsel in the case multiplied by a reasonable hourly rate in terms of in terms of the number of hours reasonably expended. No compensation will be permitted for non-productive time. And so as you analyze everything along the span of work that was performed in a litigation, you will look at matters that were not successful, efforts that were undertaken that did not achieve an appropriate result and deduct those. Courts will consider the degree of success in determining the reasonableness of the hours expended. Also when determining the reasonable hourly rate, courts will compare the hourly rate of the prevailing attorney to hourly rates for similar legal services by lawyers of reasonably comparable skills, experience and reputation in the community. In many of our cases, we will perform an analysis of the attorneys seeking the fee application and their opposition and putting it in biblical terms, no one expects David to be going up against Goliath. So if you have many formidable and resource intensive law firms on the other side, it is entirely appropriate to engage counsel with comparable resources, comparable bandwidth, in order to successfully accomplish a result. Rules 1.2 and 1.4 must be read in conjunction with each other. So the discussion I'm about to have now will cover the following two slides. They impose substantial and critical obligations on counsel, and they require a transparency of interaction with the client. Counsel must inform a prospective client about the means by which ongoing communication will occur, and this is very important. Also, counsel must keep a client reasonably informed about the status of the matter, and this is an ongoing obligation as the as the matter unfolds. Also, if there are requests for information by the client, an attorney must promptly comply with whatever requests for information are made. Also, a lawyer must explain a matter to permit the client to make a meaningful and informed decision about the representation. And counsel must abide by the client's decisions regarding the scope and objectives of the representation, and is required to consult with the client about the means to pursue and obtain those objectives. So these two rules, rule 1.2, in conjunction with 1.4, require an ongoing communication and transparency with the client. Rules 5.1 through 5.3 set forth the responsibilities and obligations of counsel designated as the supervisory lawyer in a particular matter. Every law firm must take reasonable measures to ensure that whoever is part of the team providing legal services do so in a manner that conforms to the rules of professional conduct. The lawyer, who has direct supervisory authority over another lawyer, is required to make reasonable efforts to ensure that the other lawyers conform with all aspects of the rules of professional conduct. This responsibility covers supervision of subordinate lawyers, and by that I mean both partners and associates and counsel. It also covers supervision of support staff, that is, non-lawyers and assistants, and to ensure that they all act in accordance with their professional obligations, including conformance with the Rpcs. So the responsibility of a supervisory lawyer is a critical one. In any engagement, they will be the focal point and point of contact for the client, and they will be the focal point and the supervisory authority dealing with each of the elements of the representation. In political terms, the buck stops with the supervisory lawyer. So with that, for part three, I'd like to thank everybody for their attention and ask that the mic be turned over to Lindsey to talk about process and content. Wonderful. Thank you very much to Stephen and to Sam. And thank you especially to Quimby for having us back. So now we are going to move into part three process and content. Sam gave you a little bit of my background at the outset. I was an associate at two firms. Um, and in one at one firm, I did securities litigation, and in the other firm I did aviation mass. Mass disaster and crashes. Um, a lot of my experience, uh, gave me a very good perspective, notably on the discovery process and the different procedural aspects of litigation that have to be managed and that specifically can generate a lot of legal fees. So as an outside counsel, I bring a unique perspective as to what happens during those processes that speaks to required workload, the time and labor, the amount involved and the results obtained, and truly what has to be done so that when you go and contextualize the legal fees in terms of what the dollars were spent, there is the capability of doing that reasonable analysis and the balancing test. So with respect to process and content, let's do a recap first. In part one Sam walked you through conceptually what a fee application is, how and why the parties become entitled to their legal fees. A little bit of history, a little bit of case law and issues with respect to the burden. And in part two, Stephen walked you through the rules that apply the rules about reasonableness in 1.5, communication with your client and very importantly, supervision on the part of a partner in charge. Now that we have all of that info, we are officially ready to get into where the rubber meets the road. The actual process and the content of what goes into these fee applications. In this part, we're going to talk about scenarios. What happens when can they come up, statutory, contractual, and what other scenarios can speak to a fee application? What are the procedural timelines? Because they can vary depending upon the nature of what's happening. Roles of all the key players and the and the parties in the fee application. This can involve a judge or other Trier of fact, actual parties, in-house counsel, outside counsel and experts. We are going to go through what gets included in the actual submission the content, the moving papers, oppositions and rebuttals. We're also going to explore miscellaneous things that can come up, ranging from possible mediation, which frequently happens over the course of the applications, as well as what happens afterwards. Your post decision options. So let's begin and talk a little bit about traditional fee application scenarios. It is very important to understand fee applications, and fee disputes can arise out of a multitude of circumstances where the dynamic between the parties, the degrees of entitlement and procedural circumstances may differ. But very importantly, the core issues. And when I say that, I mean standards regarding reasonableness, all the things Sam talked about, the transparency of what information is being presented and the burden you ultimately have to come back to all of those core issues. But to give you a non-exhaustive list of circumstances, there's statutory entitlement to start. So let's say that you have just litigated a matter involving a particular statute. Um, let's do examples. There's the Copyright Act or the Lanham Act. Those are two statutes that can provide for attorney's fees for the prevailing party. As Sam discussed, we're after you get a jury verdict, you enter the next phase, which is making a motion for your attorney's fees, contractual obligations. That arises where you and another party have an enforceable contract, and the contract has a provision that, to the extent a dispute arises, the prevailing party is entitled to legal fees. There are coverage actions which we're going to focus on a little bit later when we talk about timelines, because fee disputes that involve a carrier follow a very different procedural timeline and ways of submitting the information. But they obviously come up frequently. So we are going to want to talk about that. Class actions, where counsel's fees and the evaluation of their reasonableness are generally evaluated in the context of a proposed settlement. Sanctions motions. These can range from large amounts of money to a judge saying, okay, just put together a fee application for the money you had to spend putting together a forth motion to compel because your adversary wasn't cooperating. Type of situation. And we're not going to go into this in tremendous detail. But fee evaluations, particularly when it comes to the value of an attorney, Services can come up in quantum meruit cases as well. This is really just to give everyone a flavor. For scenarios where fee applications and reasonableness evaluations can arise. It's a non-exhaustive list. Now we are going to talk about the sample procedural timeline of fee applications. And this discussion is aimed to give you a ballpark sense of what that timing is and specific events that occur over the course of a fee application. I want to start by focusing on the left side of this of the information, because this is your traditional timeline for a prevailing party where you start with a triggering event, someone succeeds on the merits and became, as Sam explained to you, a prevailing party, and the process begins. Depending on what the rules are and what your judge or other deciding entity establishes, you submit your application. The other side will often have an opportunity to respond via some sort of opposition, and you might, depending on how the procedure works, you might get the last word in a rebuttal and depending on the circumstances, sometimes, oftentimes a judge will order the matter to mediation or some type of alternative dispute resolution or not order, but very gently suggest that this is a good idea. So that may happen. The judge may or may not want to have a hearing where counsel comes and presents their arguments in person, but a lot of times, most times they'll decide on the papers, and after that they will most likely then put together some sort of written determination. We've rarely experienced rulings directly from the bench on reasonable fees. They can and they do happen. But in our experience, these situations mostly get decided on the papers. If you recall, I mentioned coverage disputes and this is why we've also included the fee dispute litigation right hand column here. And if you look at it, it should look pretty familiar to you. It appears to be the procedural walk through of an actual litigation, and that is because it is coverage disputes where a carrier denies coverage or indemnification, or fails to respond to coverage. Or sometimes we run into experiences where they stop indemnification payments in the middle of an underlying action for various reasons. This is the Insured's method to get their reasonable fees covered and involves that involves them filing a separate piece of litigation against the carrier. This actually can happen simultaneously when the underlying action is still going on. In this circumstance, the fees in question get presented a little bit differently. They usually get acquired through the discovery process, but the analysis and all of the standards and rules Steven and Sam talked about are the same. Were the fees reasonable? Was there a proper case management on the part of client and counsel? And as I said before, the core issues, they are the same. It's just procedurally the timeline and the pleadings are just a little bit different. Now we will move on to a very, very important topic judicial guidance and instructions. I cannot stress enough how significant a role this plays over the course of your fee application. Sam presented some case law and the rules. Steve Steven walked you through the applicable rules of professional conduct, all of which are obviously vitally important and applicable. In addition to those, your Trier of fact and law may also provide you with additional guidance and instructions for your fee application. Please make absolutely 1,000% sure, um percent sure you are clear as to what they are. They may come in the form of an order, a scheduling order, an additional order. They could come via a transcript hearing. They could also come verbally and to the extent your judge has individual rules that are available online, many judges often do. Please check those out to make sure you're clear. They will often clarify key instructions such as the timing, any particular deadlines? Page limits. Many judges are very keen on page limits. They love them and it can impact how you go about submitting your papers. What requested content needs to be submitted? Here's another one whether or not experts need to be used or whether the judge doesn't want to hear from experts. Is the information going to be submitted via a report? Are the parties entitled to rebuttals the hearings? Are they happening? One other key issue that arises often, and this is probably the best place to bring it up. The issue of redactions. Specifically, you'll run into scenarios, as I mentioned before, where cases are the fee application. Part of the case is happening at the same time as the underlying case, and for any one of a number of reasons, there is confidential or privileged information in the invoices and the time records that are getting produced for reasonableness evaluation. And one side, the party that's submitting the fees. They want to redact as much as possible. And the other side says, well, wait a minute. I can't evaluate time entries for reasonableness if I cannot see what they are. We run into that very frequently, and in the end, I'm talking about it here because the judge or the Trier of fact is going to be the one who's going to set the rules and the protocol for resolving that, depending on what the information is and oftentimes the degree of the redaction. So for example, we've looked at cases where the redactions weren't terrible, they were here and there on a couple of different pages on specific issues. Or we've run into cases where we get 500 pages of invoices and the entire page is blacked out. Cannot see a thing. There is no way to evaluate anything for reasonableness. It's just another thing to be aware of. Regardless, learn what those judicial guidelines are and respect them. You do not want to be the attorney or the prevailing party who, the Friday before a Monday hearing, finds out by accident that you're expected to show up with an expert report in hand about the fees. On the flip side, you also do not want to be the prevailing party who, despite being told that the judge does not want to hear from experts or no rebuttals are allowed. You do it anyway. You file an expert report with a 60 page rebuttal, which will get the judge very upset. These are easy pieces of information to find out, and when in doubt, always ask. Let's talk about. This is the biggest part preparing your fee application, also known as the steps you take to make sure you meet your burden with reasonableness. Going back to Sam's discussion about the burden. If it is your fee application, that's you, and the information needs to be gathered and presented by certain people in a certain way to maximize the chances of meeting that burden. What are those materials? Who are those people? Let's start with the necessary participants. That is, anyone with information on how to help meet your burden, most likely your in-house counsel who is involved in the litigation and was hopefully actively participating in managing it alongside outside counsel, making strategic strategic decisions, and most importantly, reviewing the fees and invoices for reasonableness over the course of the matter. Who's next? Any outside counsel involved in the litigation? Even if it's multiple firms, you're going to need the cooperation and involvement from whoever was supervising or managing any aspect of the litigation, coordinating amongst each other and reporting directly to in-house counsel about the case. Also, if there is someone like an associate or a paralegal who was directly responsible for a portion of the work that got expensive expensive I mentioned before, like e-discovery or regular discovery, a document review process. Those people may also need to be involved. Sometimes you will also have cases where experts, consultants and vendors have played a huge role in the litigation. That and cost a significant amount of money. That needs to be explained. For example, environmental cases, big Superfund cases require work from environmental and engineering experts over a long period of time. They cost a lot of money. You may need assistance from whomever was in charge of that work to explain the time and labor that was required for this expert and the expenses that were incurred. So those are your people invoices. As Sam said, contemporaneous ones are absolutely the best ones. This is mainly because as time goes by, a person's memory with respect to what they were doing and how long they spent on it, memory can fade. It is always best to enter your time and get those invoices down as the time is happening. Expenses. As I mentioned, this number can be high, especially in cases where you went to trial or had a lot of out of town depositions where travel was required, You need to be transparent, clear and organized with all of these expenses so the Trier of fact and law can evaluate them for reasonableness. E-discovery costs too. One other note about experts and consultants their invoices fall into the expenses category, but they get evaluated under the same 1.5 reasonableness standards that counsels time entries do. And that's important. They need to be clear. They cannot be vague. They they need to make sure that whatever they cost is contextualized with what they were doing. You will also need pleadings, correspondence, transcripts, judicial orders, anything that contextualizes or supplements your ability to establish that your fees were reasonable, reasonable, and appropriate. Gather and include them, and make sure someone is in a position to explain and reference them. Again, as I mentioned, do all of this in conjunction with assessing your deadlines, hiring your fee expert, and evaluating your strategy. If you know, for example, that ultimately you're only going to get 30 days to file your fee application, and there's a chance it may take you longer to do that. You want to have your game plan established as early as possible. Let people know. Get your documents in order. A lot of them should already be in order. So for example, outside counsel, they should have their invoices and expenses organized and already submitted to in-house counsel. If your in-house counsel and you've been approving invoices and expenses in conjunction with your company's billing guidelines over the course of the litigation, there should never be a scenario where anyone is running around saying, what do we do? Where's all the paperwork? To use a very silly Food Network comparator. Preparing your fee application should rarely involve a trip to the grocery store. The ingredients should already be there and organized in your pantry. You just need to get them out, prepped and plated. Next, let's talk about the role and participation of in-house counsel. From a general standpoint, in-house counsel will have three key roles in the fee application process, providing necessary information to counsel, and an expert figuring out who else in the company needs to assist when and if necessary, and if there is a hearing or declarations to be prepared participating in that. But from a bigger picture standpoint, I want to highlight three concepts that were covered by Steven and Sam that come full circle here with in-house counsel. First, in-house counsel sets the standards for case management, and when it comes time to meet this part of the burden in your fee application, this is your opportunity for in-house counsel to say the following. I was actively participating in this litigation. I communicated regularly with my counsel. I went to hearings. I was involved in strategy discussions. I read and commentated on the pleadings, all of those best practices when it comes to case management that Stephen was talking about, your in-house counsel hopefully is in a position to do that. Second, in-house counsel is one side of the two way communication street with outside counsel. When it comes to rules 1.2 and 1.4 making informed decisions. So when outside counsel is testifying or declaring that all the decisions, all the work and all the related fees were generated from a transparent and openly communicative relationship with in-house counsel, in-house counsel also needs to back that up. Third, to the extent in-house counsel is engaging in best practices for case management, they will be in a much better position to review outside counsel's bills for reasonableness and for purposes of the fee application, say they did that. They need to say I reviewed the bills for reasonableness every month before approving and paying them out of pocket. And because I was so involved in the litigation, nothing I saw in those invoices came as a surprise to me. Now let's talk about the role of experts. Depending on the nature of your fee application, you may need to hire a fee expert to render an expert opinion on reasonableness in conjunction with your papers. Let's talk timing first. When do you hire one? The answer is as early as possible. There are two main reasons why some of the materials, like the invoices, can be voluminous and in many instances, as much as we'd like to say we're organized and have everything set up in a beautiful, user friendly and reviewable format, that's not always the case. You want to make sure your expert has time to review everything and prepare the written work product. Second reason if you're in a situation like a coverage action or any kind of fee related procedure where discovery is permitted, your expert can be a tremendous asset to you in identifying what to ask for and who to ask. And similarly, if you're in a position where certain information is missing, your expert will also be in a really good position to help you identify what that is, what is going to be your experts role. That depends. If you're preparing your fee application and the burden is on you to demonstrate reasonableness, your expert should be in a position to justify your fees in the context of all the factors Steven and Sam discussed in parts one and two. On the flip side, if you find yourself needing to prepare an opposition to your adversary's fee application, your expert should be in the position to analyze what, if any, fees were not reasonable or excessive, depending on what jurisdiction you're in. Some of the jurisdictions are different with respect to the fees need to be reasonable versus they can't be excessive or unreasonable. Regardless of what you're doing, your expert's going to be able to help you play devil's advocate from a strategy standpoint and really evaluate the key issues from both sides. Just be careful. Your fee expert is evaluating the reasonableness of fees, not other legal issues And whatever the expert's role is, that all should be covered in writing, in the engagement agreement and the scope of work that you enter in. Couple additional points about working with your fee expert. Be accommodating in terms of what your expert needs to review. Be prompt. Time is usually of the essence to the best of your ability. Provide the information in a user friendly, reviewable format. Don't give your expert a mess or a data dump first. That just makes everything not cost effective. But it's also not going to help your expert bring about their best work product for information that you, as counsel or the client should already have reviewed and processed, make sure everyone is on the same page as to what the it is. Is your expert providing verbal testimony or report? Both. When does all of that have to happen? As I mentioned, your expert may also be in a position to help you with strategy, especially if they're involved in discovery or helping with identifying information that is needed and that might be missing. With that, I'd like to talk for a few minutes about the contact content of your moving papers. We've talked about a lot of it already, but I want to go back through it just to make sure to contextualize how we're presenting reasonable fees under the rules. What are you putting into this fee application, which, if you look, is really, for all intents and purposes, a motion. You're going to have declarations from supervising attorneys. What do they say? Each one of them is going to articulate the circumstances of the litigation in the context of all the factors Steven and Sam walked through earlier. Rule 1.5 complexity. The issues involved, the required workload, skills of the lawyers working on the matter, anything about the litigation that speaks to why the fees were what they were. What else did the supervisory lawyer say under rules 1.2 and 1.4, how they communicated with their client, did they how often? Under rule five, what did they do to supervise? How did they delegate assignments? Review the work product, review invoices for reasonableness. The client in-house counsel is going to have to do the same thing. We talked about this earlier. Their declaration overall needs to clarify that they were participating, reviewing, attending, communicating, reviewing the bills for reasonableness when they came in, before approving and paying them. All of that info we talked about. The declaration is where they go supporting documentation, invoices, receipts. Those usually get attached as exhibits to the declarations and cross referenced accordingly in a brief and a memo of law, which again articulates rules of professional conduct, case law, etc. and to their extent there are any other documents required by the court. Make sure to include them. Declaration of other necessary participants I mentioned before. If there is an associate who is managing discovery experts or consultants that got expensive, make sure to include them. Next up, opposition papers. Assuming there's an opportunity for an opposition, this is where the party responsible for the payment addresses reasonableness of the fees. To the extent there are concerns about case management or supervision, or other external issues that indicate portions of the fees may not have been reasonable. Those arguments are presented here either via legal arguments by counsel, or if the issues pertain to certain billing practices, then via an expert. Next, what are common billing issues that can arise? The ones that we most frequently see. So let's look at the left column. This speaks mostly to individual practices by timekeepers such as block billing, vague billing, task inappropriate billing such as senior partners conducting large amounts of first level legal research that should be delegated, non-working travel, and other potentially unreasonable expenses such as, you know, liquor, first class, airfare, etc.. The right hand column speaks to bigger picture staffing issues that is firm based, such as general Overstaffing multiple attendance at events who should be staffed on the matter. The two key takeaways from these billing practices. First, every jurisdiction is different and can treat these issues differently. Many courts don't prohibit block billing per se. Block billing, for those unfamiliar, is grouping a series of tasks into one time entry and assigning it a total number of hours, as opposed to breaking it down by task. But the courts can take issue if the block billed time entries are interfering with the ability to identify other potential billing practices. Second, a lot of these issues can be contextual. So for example, there are going to be instances where multiple attorneys might need to participate in something like a big dispositive hearing. This is why it's so important when you're preparing declarations and supporting documentation. Any chance you have to provide context as to why something happened to explain the fees, best practices include it. Finally, with regard to other procedural events, just very briefly after an opposition is filed, the moving party may get the last word via a rebuttal. There may be an oral argument or a hearing, or a judge may just issue a decision on the papers. You may go to mediation. That's also a very high possibility. In our experience. That happens a lot. And oftentimes the applications can and do come to a settlement. And depending on the jurisdictions and the rules, there might be avenues available to have written decisions reviewed like a motion for reconsideration or other procedural opportunities. You just want to make sure you're clear what they are and how they work, depending on your jurisdiction. With that, I would like to thank everyone for joining us today. Thank you so much again to Quimby and their entire team. As Sam mentioned at the outset, if you have any additional questions we were not able to address today, please feel free to reach out to any of us via our contact information on this last slide. Thank you and have a wonderful day.