• July 23, 2018

Regular Minnesota Litigator readers will recall that we have, from time to time, decried the prevalent practice of the so-called “Minnesota Haircut.”

For our n00b readers, the Minnesota Haircut refers to Minnesota state and federal courts’ frequent application of sharp discounts to a prevailing party’s request for award of her lawyers’ attorneys’ fees.

Lawyers submit petitions in the hope of being awarded their fees (very often when their own clients have no money and could not themselves pay the lawyers). Often, the petitioning lawyers set out in detail the hours worked, hourly rates consistent with the community standards, the work done, and touting the result obtained. (And, of course, they cannot bill for the time to collect, organize, and set out all of this information in their petitions for attorneys’ fees.)

More often than not, the judges then slash the fees requested. This is speculation on our part, but there seems to be a not-very-subtle unspoken suspicion that the petitioning lawyers have padded their hours and, based on this unflattering and unsubstantiated suspicion, the courts feel justified in cutting the fee requests, even by 50% or more sometimes.

This is perhaps all the more galling when the petitioning lawyers are a law school clinic instructor and a law student who prevailed against a county sheriff in vindicating an indigent person’s constitutional rights.

But that’s what happened here at the end of last week.

Mr. Erik Christianson was jailed and assessed “pay-for-stay costs” in Martin County without being considered for eligibility of waiver based on Mr. Christianson’s indigence.

The Legal Assistance to Minnesota Prisoners Clinic and attorney Bradford W. Colbert and a law student Brandt Devich, took the Martin County Sheriff to task based on alleged violations of the U.S. Constitution and the Minnesota Constitution. Colbert and a law student prevailed on summary judgment. Indeed, U.S. District Court Chief Judge John R. Tunheim (D. Minn.) was rather stinging in his rejection of the sheriff’s argument that the plaintiff had not actually won the lawsuit (“It is increasingly clear to the Court that Markquart is utterly confused about the legal issues in this case. The Court will make one final attempt to remind [the sheriff] that he did not prevail in this case” (here at p. 6)).

Nevertheless, Judge Tunheim slashed Plaintiff’s lawyers’ requested fees from $17,300 to $6,075.

Judge Tunheim decided that $450/hour was a reasonable hourly rate for the Director of Legal Assistance to Minnesota Prisoners Clinic, Prof. Colbert.

Prof. Colbert swore under oath that he had worked 27 hours on the case. Prof. Colbert volunteered that he did not keep hours on the case contemporaneously. He reviewed the work done and estimated the number of hours that he worked. For this, Judge Tunheim cut his fee request 50%.

Why in the world would a good faith non-contemporaneous record of work performed be doubled? Isn’t this the inference one must draw from the Court’s hair-cut? In fact, studies have shown that lawyers who bill contemporaneously capture and bill MORE time than those that try to cobble together their hours in retrospect.

Lawyers who reconstruct their time weekly tend to lose 25 to 30 percent of their time, and those who enter time on a monthly basis can lose as much as 55 to 70 percent.

Further, Judge Tunheim awarded $0 for the law student’s work on the case. The judge’s rationale: The law student failed to complete a required student-practice certification form and the supervising lawyer failed to file the form with the Court. The law student appeared in court with the supervising lawyer not present (no fewer than “thrice” (here at p. 11)). The young lawyer-to-be, when he became a lawyer and was no longer a law student, failed to make a formal appearance in the case. Finally, the junior lawyer, Brandt Devich, like Prof. Colbert, failed to “keep contemporaneous records of the hours worked.”

To suggest that the law student’s work and contribution to the case was of $0 value (i.e. was entitled to no fee award) because of administrative lapses sends the bar a strong message about the importance of knowing and following the court’s administrative rules — an unnecessarily and excessively strong message in our view.


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