OTLA Trial Lawyer Winter 2021

48 Trial Lawyer • Winter 2021 ing reasonable hourly rates by commis- sioning an economic survey every few years. This economic survey becomes the gold standard by which the reasonable- ness of hourly rates are viewed. As you probably know, the most recent eco- nomic survey was released in 2017. On page 38 to 43 of that document you will find every bit of information you need to either justify your hourly rate or to attack your opposing counsel’s hourly rates in their fee petition. Keep in mind that setting the correct hourly rate is not as simple as picking the right rate out of the Bar’s economic surveys. There are ethical considerations (which are beyond the scope of this article) that should be taken into consideration. The bottom line here is that setting your hourly rate is as much art as it is science and should be determined in a careful and thoughtful manner. Billing statements — what to include Once you have settled on your hourly rate, you need to turn your atten- tion to how you capture your time, in- cluding how you convey what you’ve done to your target audience — your client. At the very least, your billing state- ment should help your client understand what you did, why you did it and how much it cost. Generically, this concept is called “explaining time on task.” “Time on task” should not be confused with “block billing.” ( See block billing ex- ample below.) “Block billing” meets the most lib- eral interpretation of “time on task” but I assure you neither your client nor any court reviewing this time entry in a fee petition will view it as appropriate. So, diving right in: for those who bill time hourly — whether it is a daily part of your practice or an occasional annoy- ance — consider the following rules. Rule #1 Each t ime ent r y should be a mini-statement by itself. Your billing statements should provide a detailed description of the “time on task” but with sufficient detail so your client can under- stand what you did and how long the specific task took. If you are capturing all of your time in one daily time entry, you should get into the habit of identifying the task with some detail and with its own individual time allocation. ( See mini statement ex- ample below.) The level of detail in this single time entry provides the client with clear, de- tailed and useful information about the case. Rule #2 If the task takes you over an hour, explain what you did, why you did it and how it benefits the client. Regardless of whether you are handling a litigation file where fees can be recovered, or just doing hourly work for a client, as the client’s advocate, you (we) must keep in mind that what seems routine to us is the far- thest thing from routine for the client. Therefore, part of our job is to help the cl ient understand why things are happening and why the services being rendered are valuable. Traditionally, this task is handled through a monthly status letter for which the client is charged. I can tell you, as someone who has had to hire an attorney, these types of letters seem like nothing more than an opportunity to pad the bill. Please do not misunderstand — there is a time and a place for a detailed status letter. Sometimes such letters are not only absolutely necessary, but the failure to send one is tantamount to malpractice. In the vast majority of circumstances however, such letters are nothing more EXAMPLE OF BLOCK BILLING Represent Client in trial, conduct pretrial discovery, litigate case to the court, submit judgment to the court $1,400 14 Hrs. EXAMPLE OF MINI STATEMENT Date Task Time Rate Total 1/1/20 Discuss topics for inclusion in request for production with David At- torney [.3]; review correspondence from opposing counsel regarding scheduling depositions in May [.1]; analyze and update appellate brief to refines second assignments of error related to the breach of contract claim [3.3]; analyze White v. Smith and Jones v. Black to determine if a failure of consideration argument can be incorporated into the appellate brief [1.1]; dictate letter to client regarding whether the appeal should be abandoned in light of the holding in Jones v. Black [.2]. 5 Hrs. $400 $2,000 Value of Time Continued from p 47