50 Trial Lawyer • Winter 2021 myriad of events, from reading an email to talking on the telephone. And, “com- municate” implies active participation that is more open-ended, whereas “con- sider” simply suggests “you thought about it but nothing more.” See the difference one word can make in how something is viewed? The reason words matter is because you don’t want to go back and revisit or explain something that you can’t bill for, in the first place. The more time you spend on non-billable tasks (such as ex- plaining why an event took as long as it did, or why you took certain action, or how a specific task helps a client) the more economic value you lose. I can tell you from personal experi- ence there are days I feel like I’ve spent more time capturing my time than per- forming legal work. But I can also tell you from personal experience that while clients have on occasion complained about the total cost of the legal services, no one has ever complained to me about not understanding what was going on, why it was going on, and why it was important to their case. Fee petitions If you have ever won an hourly case, you know about the fee petition process outlined in ORCP 68. Very simply, within 20-days of the entry of a judg- ment, the prevailing party must submit a fee petition. The opposing party has a period of time to pick apart the fee petition. The matter comes before the court and ulti- mately some decision is made about the reasonableness of the fees. It’s important to consider the nuts and bolts of the ORPC 68 petition. Specifi- cally, what level of detail should be pro- vided to the court. Oregon cases have held that anORCP 68 fee petition requires the petitioner to provide a detailed statement in support. Parker v. Scharbach , 75 Or. App. 530, 707 P.2d 85 (1985) and Thompson v. Long , 103 Or. App. 644, 798 P.2d 729 (1990) are two cases where this issue is discussed. In Parker , the plaintiff submitted an affidavit that included the total hours spent and which estimated the amount of time required for finishing the matter. The defendant objected. The trial court held a hearing during which the plaintiff presented evidence of reasonableness. The trial court agreed the petition was reasonable as to one defendant but not the other. The case was appealed and the Court of Appeals focused on the term “detailed statement.” The Court of Appeals noted the term “detailed” means “marked by abundant detail or by thoroughness in treating small items or parts” and “to enumerate, minutely, particularize.” The Court of Appeals ultimately held the plaintiff ’s affidavit in supporting the claimed fee amount did not constitute a detailed statement of reasonable attorney fees. In Thompson , the Court of Appeals vacated an award of fees because the sup- porting documentation was insufficient. In this case, the fee petition was merely a summation of the total hours spent on the case and the Court of Appeals, relying on the definition of “detailed statement” from Parker , summarily vacated the award of attorney fees. Also, keep in mind that as timekeep- ing programs evolve, become more sophisticated and easier to use, the likeli- hood of a trial court requiring even more detail in a billing statement increases. Put another way, the trend is headed toward providing even more detail to the court. The unintended (but welcome) benefits One unintended, but very welcomed benefit of keeping contemporaneously created detailed time records is that if something were to happen, your time records would act as back up. Here is an example of what I mean. Imagine a con- versation where the client authorized you to make a $5,000 settlement demand. Imagine making the demand only to have your client then become upset because the client believed the demand was too low. Imagine reminding the client that the $5,000 demand was authorized. Now imagine the client saying, “I don’t re- member that.” In my example, it is unlikely you would not have confirmed the settlement demand with the client before proceed- ing. But imagine that you had not. Now what? The last thing you want to happen is getting involved in a “my word vs. your word” circumstance with a client. Even worse is having to face a bar complaint or malpractice claim from your client. If you have detailed time records, kept contemporaneously, those records could be used to support your position that the settlement demand was authorized by the client. Conclusion The irony that capturing time is time consuming is not lost on me. It is also no secret that I absolutely loathe capturing time. But, when I find myself in the middle of a pity party (always a party for one), I try to remember this simple math problem: if, by creating contemporane- ous time records, I am able to capture just an extra 1/10th of an hour for every hour I have billed that I would otherwise miss, my gross income would increase annually by more than $40,000. Imagine generating an extra $40,000 per year by simply writing your time down as you do work. Yet, by failing to capture time once, as work is done, with sufficient detail that the time entry does not have to be revisited or defended later, we are giving away money. Hafez Daraee is responsible for the litiga- tion practice at Luby Daraee Law Group PC. He contributes to OTLA Guardians at the Sustaining Member level. His office is located in Lake Oswego. He can be reached at
[email protected] or 503- 766-4772. Value of Time Continued from p 49