OTLA Trial Lawyer Fall 2021

20 Trial Lawyer • Fall 2021 CHALLENGING ARBITRATION FEE AWARDS Wendy Squires By Wendy Squires OTLA Guardian I filed my first exceptions to a denial of attorney fees many years ago in a county far, far away. It was a property damage case. The arbitrator awarded damages but denied my fees. I took ex- ception to the denial and prevailed. The judge then addressed the courtroom and said, “I just want you to know this at- torney filed a lawsuit and got her client’s car damage paid for!” I left the courtroom feeling like a rock star. I have not felt like such a rock star in a fee dispute since. It is always a struggle when my legal judgment and practices are under such scrutiny. I hear from the defense arguments that translate into my own head as, “She is so slow, she is so stupid and she is so wrong.” However, being a glutton for punishment, I have pushed ahead when the case is right and that suffering has paid off. Arbitrators usually give the plaintiff’s attorney fees a haircut. Sometimes it is a trim and other times, it’s a buzz cut. Do you dare take exception to an attorney fee award? ORS 36.425 (6) allows for an appeal just of the attorney fee award or costs. It has to be filed with the circuit court within seven days of the court filing of the arbitration decision. The excep- tions can be directed to the legal grounds for the award or denial of attorney fees and costs, or to the amount of the award. Filing and service of the response must be made within seven days after the ser- vice of the exceptions on the responding party. A judge shall decide the issue and enter a decision. If the judge fails to enter a decision on the award within 20 days after the filing of the exceptions, the arbitrator’s award of attorney fees and costs will be considered affirmed. An appeal de novo of the entire arbi- tration award must be done within 20 days of the filing of the decision. If you file exceptions, you may be pushing the defense to file a de novo appeal. However, if the odds are in your client’s favor or you have nothing to lose, it is worth the effort. I have filed exceptions in PIP cases because the law is so strongly in favor of plaintiffs. I have filed exceptions in zero attorney fee awards. I have also filed exceptions in 20.080 cases when I could bet the defense will not seek a trial de novo . My first case where my billed time was closely scrutinized was brutal. The judge graded my time sheets. Next to each billing was written a letter, “A” for allowed, “D” for duplicate, “S” for sec- retarial and “X” for denied or what the heck was she thinking? The billing was cut according to the grade sheet, but I did get something that was “G” for golden out of that ruling, a decent hourly rate. I had to defend that hourly rate for years. One defense attorney actu- ally wrote, “Her pedigree does not war- rant that rate of compensation.” How- ever, the judge’s ruling always prevailed. I used that rate in future hearings and increased it year by year. At some tipping point, my age and experience stopped the objections. After having my fee petitions picked over many times, I offer the following advice to withstand an attack. Use some economy in your billing It is tempting in a fee generating case to caress the file just a little too much. On the other hand, don’t sell yourself short. I always bill a minimum of .2 hours for any task. Every time I have to handle a file, I need to reorient myself to the case, do the task and record the task. It takes at least .2 to do that. Avoid block billing Judges cannot pick apart our tasks to