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Fee award more than jury award times 100

Hire a big dog lawyer to handle a dog-bite case, and you can expect a sizeable bill for services. But it was worth it for Eileen McAfee, who won an order requiring the other side to pay over $300,000 in legal fees on a jury award of less than $3,000.

McAfee’s case wasn’t a dog-bite case per se, but a civil rights case based on having been arrested after she was treated for a dog bite. McAfee was helping a dog owner put up a new dog house provided by McAfee when the enthusiastic dog bit McAfee as she gave the dog a treat. McAfee sought treatment at a local hospital, where she allegedly expressed concern that the dog might be euthanized in order to be tested for rabies.

Powhatan County Deputy Sheriff Christine Boczar may have regarded McAfee as a rabid animal-rights activist. Boczar later arrested McAfee for violating a Virginia statute that made it illegal to withhold information about possibly rabid animals. That case went to trial, but the court dismissed the charge at the close of the prosecutor’s case.

Richmond lawyer William H. Hurd, a Troutman Sanders partner who formerly served as Virginia’s Solicitor General, represented McAfee in a suit alleging malicious prosecution in violation of 42 U.S.C. § 1983. McAfee won damages of $2,943 after a three-day jury trial.

McAfee asked for $365,027 in fees and $10,305.51 in costs under 42 U.S.C. § 1988. Boczar didn’t challenge the costs, but said $15,000 was a more reasonable fee award.

Senior U.S. District Judge Robert E. Payne signed off on hourly rates of $585 for Hurd and $365 for senior associate Stephen Charles Piepgrass, saying the deputy could not defend against the fee by labeling the tort case as having “low special damages and no experts.”

McAfee’s lawyers asked for pay for 996.7 hours, which they said was a 6 percent reduction from the time they actually put in on the case. The deputy objected to “block billing” by the plaintiff’s lawyers, and the court rejected their after-the-fact efforts to document additional tasks. Even accepting their good-faith estimates, Payne said it was “nigh onto impossible to reconstruct old billing entries accurately.” He levied an across-the-board 10 percent reduction in hours.

But Payne said the deputy refused to consider settlement of the case, managed by the Virginia Division of Risk Management. The “intransigence” on the part of DRM continued even after the verdict and that “makes for expensive litigation,” he said.

The tally so far? In addition to costs, the defendant is ordered to pay $322,340.50 in legal fees, and McAfee has leave to file a “fee on fee” petition.

Richmond lawyer Michael R. Ward and Big Stone Gap lawyer Henry Keuling-Stout represented Boczar in McAfee v. Boczar.

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