In Thatcher v. OakBend Medical Center, a prevailing plaintiff in an employment retaliation suit sought an award of attorneys’ fees. 2016 WL 5848889 (S.D. Texas, Oct. 6, 2016). In discussing the reasonableness of the requested fees, the Court addressed the affirmative duty of plaintiff’s counsel to demonstrate that billing judgment was exercised. Id. at 3. As a part of the reasonableness analysis, the plaintiff’s attorney seeking an award of attorneys’ fees must prove that they exercised billing judgment. The exercise of billing judgment is shown by “documentation of the hours charged and of the hours written off as unproductive; excessive, or redundant.” If plaintiff fails to meet this burden, then the Court will impose its own billing judgment by reducing the fees appropriately. Id. In this case, the Court did not find evidence of billing judgment and reduced the requested fees significantly. Id. at 3-6. The Court reduced the requested fees from $190,250.00 to $124,464.14 as a result of plaintiff’s counsel’s lack of billing judgment. Id. at 7. The Court reduced the plaintiff’s requested fees for time billed for work on a failed claim, work on a motion that was never filed, general attorney education time, vague time entries, and excessive communications. Id. at 3-6.
Law firms and their billing practices are under growing scrutiny from their clients and the courts. Even under this ever-increasing scrutiny, the exercise of billing judgment is not a skill many attorneys would deem vital to the practice of law. Reducing your own fees may seem counterproductive. However, as demonstrated in this case, exercising billing judgment may be more beneficial than letting the court or the client impose its own judgment. Documentation of hours written off as unproductive, excessive or redundant is a simple way for attorneys to demonstrate to the court or client that restraint was used in determining the fees charged. The evidence of restraint makes it easier for the court or client to trust the attorney’s invoice and ultimately pay the amount billed by the attorney. Before documenting hours written off, attorneys must become familiar with the types of activities that should be written off or reduced as excessive or unreasonable. Understanding and demonstrating billing judgment is a skill every attorney should strive for in the modern practice of law.
