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Fees? Simple.

Many of the opinions we get at this newspaper involve a fight over who is liable for some harm or whether some statute has been violated, and who is responsible and must pay money damages.

Some opinions are in a different category — Someone has lost a case and there is a statute that provides for attorney’s fees. There is a fight over how much the lawyers get paid.

A new case out of Charlottesville (Imagine that, a story from C-ville that doesn’t involve the University of Virginia and the brouhaha over its recently deposed president) provides helpful suggestions on how not to argue a fee case.

Rust v. Electrical Workers Local No. 26 Pension Trust Fund (VLW 012-3-243) was an ERISA case, a high-dollar ERISA case.

The plaintiff hired former Attorney General Anthony Troy and his firm, Troutman Sanders, to represent him, and it was a big win.

As U.S. Magistrate Judge B. Waugh Crigler Jr. put it, the presiding judge, U.S. District Judge Norman K. Moon, “took the defendants to the woodshed on each of the plaintiff’s claims.”

The plaintiff, Edwin J. Rust, won on every single count of his complaint; Moon gave him $385,219 in total damages and reinstated his monthly benefits. Not bad for an ERISA case.

Enter Troy and Troutman Sanders. Under ERISA’s fee provisions, they asked the court for $288,714 in fees and costs.
Defendants, represented by Charlottesville lawyer John E. Davidson, among others, objected. Moon referred the fee issue to Crigler, who ultimately gave Troutman almost all of the fees and costs requested — $271,869.

Crigler walked through the standard fee analysis supplied by the 4th U.S. Circuit Court of Appeals in the 1993 Quesinberry case.

But in his march through the different points, the judge provided a few tips on how to guarantee that you will lose your fee argument, should you ever face one. Here they are:

Use yourself as an expert.

The defendants squawked about the rates charged by the Troutman lawyers. Troy billed at $585 an hour; three colleagues ranged from $500 to $365. The defendants relied on a local lawyer – Davidson.

He submitted an affidavit with what he contended were reasonable rates for lawyers’ level of experience in Charlottesville. He admitted, “I recognize that as counsel of record, I suffer from the appearance of bias in sharing these opinions.”

Crigler made quick work of this argument. Davidson, he said, is a “respected attorney before this court.” But the judge said he could not help but observe that “this kind of opposition is supremely self-serving and as such, it will be given only the weight it deserves.”

Argue something irrelevant.

The defendants argued that the 4th Circuit Judicial Council is poised to adopt a proposal that in federal capital prosecutions, any fee request by counsel in excess of $100,000 is preseumptively unreasonable.

Their argument: If the 4th Circuit is contemplating a fee cap in “the most solemn, more important and most time-consuming duties any lawyer will ever handle,” then the court should lower fees in “what the defendants consider to be less serious civil cases,” Crigler wrote.

Crigler found this argument “patently frivolous” and “immaterial” to an ERISA case. “That the notice [to cap fees] has been suspended for further review adds even more reason to suggest the defendants are grasping at straws as much on the fee issues as they did on the underlying merits of the cases,” Crigler wrote.

Argue that your town – the home town of the judge – is Podunk.

The defendants complained at the size of the Troutman tab, with Crigler noting that they argued that the Charlottesville market “cannot bear this kind of crushing invoice for legal services.”

Crigler refused to buy the notion that rates in the U.S. District Court for the Western District should reflect only those of local lawyers. The plaintiffs tendered an affidavit from former Virginia State Bar President William R. Rakes, who practices in Roanoke, stating that market rates in the Western District are not just those charged in Charlottesville. This statement confirmed “what the undersigned already knows,” Crigler wrote.

Indeed, the judge said that lawyers from all over Virginia and Washington D.C. appear regularly in “this and other divisions” of the district.

“[T]he defendants labor under a much more provincial concept of the Charlottesville market than reality demonstrates,” Crigler concluded.

Crigler knocked off a little of the fee request for work done before the case got under way, and he declined a request for fees in anticipation of an appeal to the 4th Circuit.

All tallied, though, the Troutman team got 94 percent of what they asked for, more than a quarter million dollars. Not bad for an ERISA case.

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