Helpful notes, below, on "reasonable attorney fee" law and tactics
(helpful in advancing your thinking).
However, instead of reading the few notes on this page and the associated
pages on this website, you may want to instead buy a short handbook which will
give you more information and present it in a format you can keep at hand in
your office. If so, Bucklin's handbook on attorney fees, noted on the left, may
be what you would prefer.
Length of 199 pages (including the pages of forms) makes this handbook
readable is a few hours, to guide you in an attorney fee award dispute. Includes
forms for preventing mistakes and saving time.
Eight Factors of a Reasonable Fee. Most court decisions use eight factors in determining a reasonable
fee. The Texas Supreme Court is representative of the majority of the
Texas the following are the relevant factors
that should be considered (and thus can be put into evidence as relevant) in
determining what is a reasonable attorney fee. [They are traditionally
considered as only eight items, but really the first item, which has to do with the hourly fee
rate multiplied by the hours of time, can be broken down into 3 sub items.] See Arthur
Anderson & Co. v. Perry Equipment Corp., 945 SW2d 812 (TX, 1997) (citing TX
Disc. Sec 1.04) R. Prof. Conduct
- 1. The hours of time needed, and the skill level needed during those
hours, considered in the sub items of |
a. The time and labor required,
b. the novelty and difficulty of the questions involved, and
c. the skill required to perform the legal service properly.
- 2. The likelihood that the acceptance of the particular employment will
preclude other employment by the lawyer.
- 3. The fee customarily charged in the locality or by the circumstances.
- 4. The amount involved and the results obtained.
- 5. The time limitations imposed by the client or by the circumstances.
- 6. The nature and length of the professional relationship with the client.
- 7. The experience, reputation, and ability of the lawyer performing the
- 8. Whether the fee is fixed or contingent on results obtained, and the
uncertainty of actual collection of the fee when due.
The usual formula of Texas courts is to say that it will consider the factors
contained within the Disciplinary Rules of Professional Conduct in determining
whether the fees were reasonable and necessary, and to stay only with those
factors. [Cf. Bocquet, 972 S.W.2d at 21-22, citing TEX.DISCIPLINARY R.
PROF. CONDUCT 1.04] The enumerated factors are the eight factors set out
Note: Some state and federal courts recast the second item sometimes as "the
undesirability of the case", and the third item as "awards in similar cases"
E.g., see, Johnson v. George Highway Express, Inc., 488 F2d 714 (5th Cir. 1974).
Time Records. Expert testimony needs a base. Attorneys seeking fees must keep time
records! In Heritage Resources, Inc. v Hill 8th Court of Appeals - El Paso
February 13, 2003 - 08-01-00383-CV, the appeals court said it might have awarded
more, but the evidence was hampered by the fact that no time records were
maintained by the attorneys, their legal assistants or staff for the 9,150
billable hours claimed, with the result that 100 hours of time were deemed
reasonable and equitable for the time involved in the case.
Lodestar Fee. Many courts dotheir analysis of the eight factors by
using two of the factors to determine a so-called "lodestar fee," and then using
the others of the eight factors as modifiers of the lodestar amount. E.g., see, City of Bismarck v. Thom (ND, 1977) stating that the base
for determining a reasonable fee is found by multiplying the number of hours
expended by each attorney by the hourly rate normally charged for similar work
by attorneys of like skill in the area. The court noted that it was for
similar work by attorneys of like skill, which is not necessarily the same
as the average hourly rate of all attorneys in the area. When this base
rate is established than other less objective factors are introduced to
determine a reasonable fee.
Reasonable Hours is not equivalent to Least Hours Needed. Norman, 836 F.2d at 1305-06. (“The court on reconsideration should
bear in mind that the measure of reasonable hours is determined by the
profession’s judgment of the time that may be conscionably billed and not the
least time in which it might theoretically have been done.")
Legal Assistant Hours. The Evidence Required to Prove the Validity of Legal Assistant Fees as a
Compensable Component of Attorney Fee Awards is discussed by Vicki Kelly
Britain at 63 Texas Bar Journal 261 (2000). Although Texas courts
have approved legal assistant hourly rates of $90 an hour (e.g., In the Interest
of JLB, 1999 Tex. App. LEXIS 4901), often legal assistant fees have been
disapproved in whole or in part. Often the key to getting the legal
assistant's fees approved (or disapproved) as legal fees is the testimony of an
Available Statistical Evidence. Persons starting to think about reasonable rates of attorney fees per hour
might start with some of the statistical resources offered by a state bar
associations. Ask the state bar association involved whether they have
done studies or surveys on what attorneys in the state charge per hour.
Contingency Fee Cases. In Arthur Anderson & Co., v. Perry Equipment Corp. (Texas, 1997) the
Texas Supreme Court held that evidence of a contingency fee contract by itself
cannot support an award of reasonable attorney's fees. The plaintiff must present evidence
of the reasonableness and necessity of fees that conforms to eight factors,
which the Texas Disciplinary Rules use in defining "reasonable fee."
Most states take a similar approach when the actual fee contract under which
the lawyer handled the case is a contingency percentage fee.
Case Law. More on the
law of reasonable attorney fees
The compact handbook for any attorney fighting to win, or
defeat, an award of attorney's fees
The most common alternative billing methods.
- The hourly fee.
- The fixed fee,
- The segmented fixed fee, a.k.a., the task-based fee. Specific items of
service carry standard charges.
- Plaintiff’s contingency fee. .
- The defense contingency — The lawyer and client determine a goal, in a
dollar number, of would represent the usual expected result. If the matter is
resolved for less than the goal amount set, the lawyer gets a percentage of
savings. If the matter is resolved for more than the amount set, the lawyer
reduces his hourly fee by a percentage..
- Retainer fee — A set charge for a range of legal services over a
particular period of time.
- A variation of this is the availability- only retainer where a fee is paid
only to insure that the lawyer will be available. Specific services are
- A variation of this is the retainer trust account. A retainer amount is
paid into the lawyer’s trust account and used to pay fees as they occur. This
is sometimes combined with the availability - only retainer with the agreement
that a certain amount if unused at the end of the period will be paid to the
lawyer for staying available.
- Combination hourly rate (or flat fee) and contingency based on result. — A
reduced hourly fee plus a reduced contingency fee. This can be used when the
client cannot afford a straight hourly fee and the lawyer cannot take the risk
of a full contingency arrangement.