OTLA Trial Lawyer Fall 2021

21 Trial Lawyer • Fall 2021 determine what should be allowed. Te- dious as it may be, put a time entry in for each task. You can find cases for and against block billing, but just don’t do it and you won’t have to research the issue. Do not cut your own time Others are happy to do that for you. Bill your honest time you spent on the case. Let your billing be the story You can include a little drama like, “Client called to say he can’t get opera- tion because PIP won’t pay!” and, “Of- fered to settle the case for peanuts but defense won’t budge.” Time sheets don’t have to be deathly dull. The judge needs to understand your journey and the time it took. If you billed for a phone call to the client, say what the call was about. If you did research, explain what you were looking for. Do all this with care to avoid divulging client confidences and trial strategy. Bill your support staff time I used to get my paralegal hourly rate cut because she did secretarial work as well. I solved that by averaging the two rates and explaining the rate was based on a combination of paralegal and secre- tarial work. I always have to trot out Willamette Production Credit Association v. Borg-Warner Acceptance Corporation , 75 Or.App. 154 (1985) that allows time for legal assistant and secretarial work. The UTCR 5.080 attorney billing form has columns for “attorney, clerk and legal assistant time.” Keep it separate Be careful when the work you are doing is for two claims such as a PIP and a liability claim. I try to keep the billing separate, but there can be overlap. Often, most of the time spent prosecuting a case is recoverable when the hours were in- curred for representation on an issue common to a claim in which fees are proper and one in which they are not. See Sunset Fuel & Engineering v. Compton , 97 Or App 244, (1989). But still, be prepared for a cut when you do combine billing on a fee generating case and another claim. In some cases, I have divided the time in half for common issues and pointed out to the arbitrator that I have done so. Show your accomplishments I always attach a copy of my resume to my statement as an exhibit. I include all the CLEs I have given on motor ve- hicle law and it looks pretty good. If you don’t have an impressive resume, take on some speaking engagements and write articles to distinguish yourself. Fee evidence Make sure you know the arbitrator’s process for determining fees. Some arbi- trators want you to present evidence on the fee claim in the arbitration hearing. Others wait until after the arbitration decision. For example, you may have to prove a demand letter was sent in a 20.080 case. See Foust v. American Stan- dard Ins. Co. ,189 Or App 125 (2003) for an example of an attorney who lost a fee claim because he did not put on evidence at the time of the hearing. The attorney fee hearing is coming fast after you file exceptions. The case has to be heard and decided before the 20 days on the de novo appeal runs or the arbitration fee award is affirmed. You have things to do. You need to get a hear- ing scheduled. You can hire an expert to testify on the reasonableness of your fees, but it may not make financial sense. I certainly felt I needed a testifying expert in my first hearings. I don’t really know if the expert testimony helped that much, but it felt good having the backup. The downside was the cost. Paying several thousand dollars for an expert on an arbitration fee appeal did not make sense. I would recommend you get declarations of experts to attach to your initial attor- See Challenging p 22