33 Trial Lawyer • Spring 2023 See Lessons Learned p 34 However, at least one federal decision awarded attorney fees to lawyers who simply did not keep time records. In Turner v. Oregon, 2006 US Dist Lexis 109212 (D Or 2006), lawyer Charles Merten brought a successful § 1983 claim, and estimated that he spent 400 hours. Defendant objected to the requested award on the ground that “plaintiff provided insufficient support.” Judge Mike King stated that he was “familiar with the issues litigated” and ruled that “the number of hours reasonably spent is 300 hours.” Likewise, in Page v. Muzyn, 124 Or App 137, 861 P.2d 382 (1993), lawyer Mic Alexander brought a successful § 1983 claim, and used a percentage formula to support the requested fee, the defendant argued that the court was “restricted to consideration of a rate times hours formula.” The Court of Appeals panel disagreed, and ruled that a reasonable fee may be based on a percentage formula. 124 Or App at 140. Bifurcation Consider bifurcating the attorney fee proceeding if entitlement is disputed. I formerly served as co-chair of the American Bar Association Insurance Coverage Subcommittee on Practice and Procedure. I authored an article in the American Trial Lawyers Association monthly magazine on the scintillating topic of “bifurcation.” I stated categorically in the opening paragraph that bifurcation of liability and damages is anathema. However, there are exceptions to every rule. Some years ago, I represented Liz Babnick, who owned a rental home in Pacific City that had been used as a meth lab by a bad-apple tenant. After a stipulated judgment, the insurer disputed entitlement to attorney fees. The defense counsel agreed to bifurcate the Rule 68 proceeding for the purpose of judicial efficiency and cost saving to the parties. There was no need to bring expensive attorney fee experts to the entitlement hearing. Judge Janice Wilson ruled the plaintiff was entitled to attorney fees, and the parties conducted a second Rule 68 proceeding to determine the amount of reasonable fees. State trial Enjoy the attorney fee trial if your case is in state court. There is no right to an evidentiary hearing in federal court to establish the amount of reasonable attorney fees. See FRCP 54 (d). In state court, however, if the insurer (as the objecting party) requests a hearing (which it invariably does), the court will conduct an evidentiary hearing. See ORCP 68 C(4)(e)(i). Court of Appeals Judge Rick Haselton, concurring in Computer Concepts, Inc. v. Brandt, 141 Or App 275, 280, 918 P.2d 430 (1996) (emphasis in original), issued a cri de coeur to present expert testimony, “Just as trial courts benefit from expert opinions as to the reasonableness of fees, so do we. Just as trial courts are enlightened by particularized objections to fee petitions, so are we.” If you are like me, you may be somewhat apprehensive as a typical trial approaches. There is uncertainty whether your opponent may file a Superbilt motion to reverse or modify the court’s pretrial decisions. There is uncertainty how the judge will rule on the parties’ motions in limine. There is unpredictability as to how your client will hold up on cross examination. Some witnesses, despite being under subpoena, may fail to appear. The attorney fee trial is a time for celebration! Every single witness is an expert. See Colonial Plumbing & Heating Supply Co. v. Contemporary Constr. Co., 464 A.2d 741 (R.I. 1983) (“It is well settled that attorneys are competent to testify as experts in determining what is a reasonable charge for legal services rendered”). There are no surprises. You, as the
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