OTLA Trial Lawyer Fall 2021

22 Trial Lawyer • Fall 2021 ney fee statement. It is okay to do the exceptions without expert testimony or declarations. You are arguing the legal grounds and your statement of attorney fees includes the facts. The court may even rule new evidence, such as expert testimony, is not allowed because the record could be considered closed after the arbitration. See Foust v. American Standard , 189 Or App 125 (2003). My hearings have run the gamut de- pending on the judge. I have found even seasoned civil judges may not be over- joyed at hearing attorneys argue over fees. I remember one case that was stuck in the mud during the Christmas season. We had to appear for five hearings before and after the holiday. It certainly damp- ened the holiday spirit. My most memorable fee hearing was with a very experienced civil judge who seemed angry he had to deal with attor- ney fees. He practically shouted at both of us during the morning hearing. He refused to allow my expert to testify. The defense attorney questioned my time and hourly rate. I was castigated for billing so much on a simple case. At the end of the morning session, the judge ordered the defense attorney to bring all of her firm’s billing in by 1 p.m. I was pleased to find out the defense hours were equal to mine and the attorney rate was nearly the same. Two law partners had spent 30 hours just responding to my fee petition. Yes, the two big firm law partners and I were butting heads on a 20.080 case. But don’t be fooled. These fee cases can be high stakes for both sides. The judge awarded most of my fees. I then filed a statement for addi- tional attorney fees for the time arguing attorney fees. Parties can be awarded “fees on fees” as part of the reasonable value of legal services related to the prosecution of defense of an action, Marquez v. Meyer , 96 Or App 214, 218 (1989), Trimet v. Aizawa , 277 Or App 504 (2016). Those were also granted. I filed one more statement for attor- ney fees for arguing the additional at- torney fees. The judge then asked me when this was going to stop. I said it could go all the way to the Supreme Court. He was not amused. He ordered us in for a final hearing. The day of the final hearing, the judge was totally changed. I thought my argu- ments must be golden as he beamed from the bench and nodded his head when I spoke. When the hearing ended, I turned around to leave the courtroom. An entire class of fifth graders was seated behind us. The defense counsel and I chuckled. I noted to myself to bring a class of fifth graders next time I appeared in that courtroom. Chasing justice You may be asking how you can avoid all this? I see fewer fee hearings now because I choose my arbitrators wisely. I always pick a professional arbitrator in- stead of using the list. From experience, I can predict the ballpark arbitration award and how certain arbitrators han- dles attorney fees. There is also a better chance the arbitration will not be ap- pealed when the parties mutually agree on the arbitrator. Even with professional arbitrators, there are times I must file exceptions. The message I leave you with is, “Don’t be afraid to get paid.” I would counsel my younger self the struggle is worth it. It can make a difference for your client. It can sustain you as you do the difficult work chasing justice for your deserving clients. Wendy Squires primarily represents victims of automobile crashes. She serves as an arbitrator in Multnomah County. She contributes to the OTLA Guardians of Civil Justice at the Sustaining Member level. Her office address is 7327 SWBarnes Rd., Ste. 522, Portland, OR 97225. She can be reached at wsquires@squires-law. com or 503-241-4708. Challenging Continued from p 21