• June 26, 2015

HourglassUpdated post (June 26, 2015): Hourly billing lawyers generally remember to record the time that they work as they work. Otherwise, they smartly reason, they cannot bill and they cannot get paid. (To my consternation, some hourly billing lawyers actually fail to enter their time diligently. Law firms go nuts if they have these foot-dragging procrastinating lawyers on the pay-roll (and they all do, in my experience). Seriously, it’s like taking a siesta at mile 25 in a marathon (a 26.2 mile race for those of you who pay no mind to that kind of thing). WTF?)

Contingent fee lawyers, more understandably, get sloppy when it comes to entering their time because (1) their case-loads are often very different (and often they have exponentially more irons in the fire); and (2) since the vast majority of contingent fee cases have negotiated settlements, most often there is never a need to submit billing records for review to anyone.

But Minnesota litigator, Leo Épée, appears to have walked away without any fee award after being on the team of a winning employment discrimination case (partially winning, at least) because he appears to have “failed to submit any contemporaneous record of his time spent” on the matter in which he sought a fee award. Be forewarned.haircut-33187_640

Here we go again with a most extreme version of “the Minnesota hair-cut,” which is what I call it when lawyers ask courts for fee awards and the lawyers get fraction of the fees that thesiy seek. (See here and here and here, for instance.)

In Kennedy v. Heritage of Edina, an employment discrimination case, decribed below in the original post, Plaintiff’s counsel sought award of over $160,000 in a case, described below, where the fact-finder found discrimination but also found no damages arising from it. But a win’s a win, so the “prevailing party” under the federal statute wins award of her attorneys’ fees, right?

The court finds, however, that a significant reduction [in the award of attorneys’ fees] is warranted due to [Plaintiff’s] limited success. [Plaintiff] prevailed on only one claim, received no damages, failed to establish sufficient evidence to justify a punitive damages instruction, and received limited equitable relief. The court therefore finds it appropriate to reduce the fee award by two-thirds. This reduction is commensurate with awards in other civil rights cases involving similar relief.

Further, the Court reduced plaintiff’s counsel’s fee petition due to “vague billing.”

The records submitted by Gerald Laurie, who served as [Plaintiff’s] primary counsel, include entries such as “Parking,” “Review ???,” “Status update,” and “Conf w/ Jerry re: case.”… a $6,000 reduction is warranted due to vague billing…In addition, Leopold Épée, who served as co-counsel to Laurie, failed to submit any contemporaneous record of his time spent on this matter. … Épée estimate[d] that he spent 117 hours on this action, and requests $26,325 in attorney’s fees….These after-the-fact statements are insufficient to support his request. … The court therefore will reduce the award by an additional $26,000 …[Still further,] [another] reduction is warranted, however, because [Plaintiff] rejected a substantial settlement offer that would have avoided additional costly litigation.

I would suggest that seeking legal fees described as “Parking” or “Review ???” seems bold. The U.S. Court of Appeals for the Eighth Circuit has even rejected fees described as “legal research,” “trial prep,” and “met w/ client.”  In my view the Eighth Circuit’s degree of detail is excessive (trial lawyers have enough work to do during trial prep so that taking the time to recite the details is asking a lot, in my opinion), but, on the other hand, Sr. U.S. District Court David S. Doty is certainly correct that the Court has to have SOME record of the work done.

Original post (January 23, 2015) (under the headline A Jury Can Find Unlawful Employer Misconduct, But No Recoverable Damages Attributable to It): This post appropriately follows yesterday’s post about Clayton Halunen, a passionate plaintiff’s employment lawyer. The case discussed below stands for the proposition that some employees are subjected to racist animus (or other unlawful and discriminatory words or conduct) but, at the end of the day, this, by itself, does not necessarily create a viable claim.

On the one hand, this seems to make good sense. A terrible worker should not get to keep her job or get to win money damages just because her boss is a terrible person. Employers (terrible or not) should have the right and ability to discipline or terminate all terrible workers, right? On the other hand, shouldn’t there be a means to punish unlawful discrimination, even when it is directed at employees who are deficient in other actually relevant respects? Also, how is a judge or a jury supposed to be able to figure out whether an employer’s critical regard for a worker derives from unlawful discriminatory animus rather than a sober assessment of a worker’s performance? No one is perfect, right?

Heritage of Edina, a nursing home, fired Liberian-born Hawa Kennedy in 2010 and, in 2012, Kennedy sued for violations of the civil rights act, the Americans with disabilities act, discrimination under the state human rights act, retaliation, breach of contract, and promissory estoppel.

The case finally went to trial this month and it went badly for the plaintiff. The jury found that she had suffered no damages. That is, the jury appears to have found that Heritage of Edina “discharge[d] or [took] adverse employment actions against [Hawa Kennedy] in violation of Title VII and the Minnesota Human Rights Act,” but, if the Defendant had not discharged or taken adverse employment actions against MS. Kennedy in violation of Title VII and the Minnesota Human Rights Act, it would have fired her anyhow for legitimate reasons.

That is the law.

As Sr. U.S. District Court Judge David S. Doty (D. Minn.) notes the federal law in his order for judgment:

On a claim in which an individual proves a violation [of the civil rights act] and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court— (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under [the civil rights act]; and (ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).

42 U.S.C. § 2000e-5(g)(2)(B).

So, in the end, the result is very bad news for Plaintiff and her lawyers. But, maybe, just maybe, not as terrible for her lawyers who maybe, just maybe, might be able to eke out a fee award for their years of work on their client’s behalf…

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