Episode 137 - Deploying Multiple Lawyers to the Same Deposition? Follow These Tips to Secure Fee Awards for All

Do you sometimes send multiple lawyers to depositions? If so, it's important to know how to maximize your odds of taxing each lawyer's fees when you prevail in the action and file your fee petition. As Jim Garrity says, it's easy to avoid traps, but it's also easy to step into them. In this episode he provides bright-line guidance for making your fee petition a successful one. Have a great week!

SHOW NOTES

Basic Principle

Gradisher v. Check Enf't Unit, Inc., No. 1:00-CV-401, 2003 WL 187416, at *4 (W.D. Mich. Jan. 22, 2003) (“There is no hard and fast rule allowing or preventing more than one attorney from attending a deposition, hearing, or trial on behalf of a prevailing party”)

Burden of Fee Applicant

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir. 1999) (“Thus, a fee applicant is entitled to recover for the hours of multiple attorneys if he satisfies his burden of showing that the time spent by those attorneys reflects the distinct contribution of each lawyer to the case and is the customary practice of multiple-lawyer litigation. But the fee applicant has the burden of showing that, and where there is an objection raising the point, it is not a make-believe burden”)

Burden of Party Opposing Fee Award

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (party opposing fee petition has burden also, and is obligated to provide specific and reasonably precise objections and proof in seeking to reduce fee aware due to a lack of billing judgment)

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) (The Supreme Court rejected that position, reasoning that fee shifting statutes “favor[ ] treating a case as an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S. at 161–62, 110 S.Ct. at 2320. Nothing about the holding in Jean precludes a fee opponent from challenging a fee request on the basis that an excessive number of hours were billed on some discrete task within the case. Moreover, our decisions contemplate a task-by-task examination of the hours billed. See, e.g., Loranger, 10 F.3d at 782–83 (noting that 100 hours for the task of preparing a fee request in the case was excessive); Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir.1996) (disallowing redundant hours billed for the task of deposing witnesses).

Fees Not Reduced

Aquilino v. Univ. of Kansas, 109 F. Supp. 2d 1319, 1326 (D. Kan. 2000) (“With respect to the depositions of plaintiff and Dr. Linda Stone-Ferrier and the period of jury deliberations, the Court finds that plaintiff's decision to employ two attorneys was reasonable. Both attorneys were extensively involved in the case and their appearance at key depositions was reasonable”)

Clements v. Prudential Protective Servs., LLC, 100 F. Supp. 3d 604, 617 (E.D. Mich. 2015) (finding “nothing ‘duplicative’ with regard to having two lawyers represent [the p]laintiff” where the defendant objected to “two attorneys attending depositions”), aff'd, 659 F. App'x 820 (6th Cir. 2016))

Jones v. Federated Dep't Stores, Inc., 527 F. Supp. 912, 920 (S.D. Ohio 1981) (defendant’s protests in opposition to fee petition undermined by fact that they also had two attorneys present at depositions)

Wajcman v. Inv. Corp. of Palm Beach, No. 07-80912-CIV, 2009 WL 10668140, at *4 (S.D. Fla. Sept. 11, 2009) (“The law is clear in that where multiple attorneys perform work on a case, they may each be compensated, so long as the attorneys' efforts are not unreasonably duplicative. See Barnes, 168 F.3d at 432 (“[a]n award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation”)(quoting Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983)); Norman, 836 F.2d at 1301-1302 (observing that multiple attorneys may be compensated for their work on a case “if they are not unreasonably doing the same work and are being compensated for the distinct contribution of each lawyer”)(citing Johnson, supra)

Fees Reduced or Denied

Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir. 1996) (some fees disallowed for redundancy of work in deposition attended by two attorneys for same party; “Plaintiff has asserted that only one attorney prepared and conducted depositions of parties and witnesses, while both attorneys attended all of the depositions. Because a comparison of the two sets of time entries largely attests to this explanation, the court has subtracted half of each attorney's hours spent for mere attendance of depositions”)

Van Cleve v. Soc'y of St. Vincent De Paul, No. C03-1019, 2005 WL 1868876, at *4 (N.D. Iowa Apr. 4, 2005) (declining without explanation to award fees for two lawyers to attend depositions; saying that one lawyer prepared for the depositions, and then a second lawyer attended the depositions as well)

Baker v. Nat'l Seating Co., No. 3:05-CV-187, 2006 WL 8442688, at *2 (E.D. Tenn. Mar. 28, 2006) (reducing hours of plaintiffs’ lawyers where two very experienced attorneys attended depositions; rejecting arguments that two attorneys were needed to take an active part in formulating questions and making judgments about credibility of the deponents)

Gradisher v. Check Enf't Unit, Inc., No. 1:00-CV-401, 2003 WL 187416, at *4 (W.D. Mich. Jan. 22, 2003) (while case was class action, issues were not complex and litigation was not burdensome, so there was no need for two lawyers at depositions; held, fees for work of second lawyer reduced)

DaSilva v. Vozzcom, Inc., No. 08-80040-CIV, 2009 WL 10667450, at *7 (S.D. Fla. June 9, 2009) (“The law is clear in that where multiple attorneys perform work on a case, a firm may be compensated for work performed by separate attorneys so long as the attorney's efforts are not unreasonably duplicative”)

Schlosser v. Vrhabilis, No. 3:20-CV-190-TRM-JEM, 2024 WL 1600671, at *4 (E.D. Tenn. Feb. 1, 2024), report and recommendation adopted sub nom. Schlosser v. VRHabilis, LLC, No. 3:20-CV-190, 2024 WL 1071871 (E.D. Tenn. Mar. 12, 2024) (magistrate order recommending denial of fees for second attorney’s appearance at deposition, holding that plaintiff did not sufficiently explain why two attorneys was reasonable; mere fact both were “heavily involved” in case, and both needed to observe each witness, did not explain why attorneys could not review transcripts of deponents, or why attorneys needed to “observe each witness”)

Strong Trading Inc. v. Unique Designs, Inc., No. 221CV04206RGKPVC, 2022 WL 22715189, at *5 (C.D. Cal. Oct. 4, 2022) (denying taxability of hours for third lawyer’s work at a deposition where, although the attorney “needed to be there because she was responsible for handling documents and evidence in the trial was less than two weeks away,” the time entry for that attorney simply said “attendance,” and thus the timesheet did not indicate the lawyer was playing a critical role)