"Block Billing" in the Eastern District of Virginia: A Sure-Fire Way to Have Your Fees Reduced

The Supreme Court has emphasized that "billing judgment is an important component" in billing one's clients.[1] It is no less important where one is seeking to have an adversary pay the fees,[2] as "[h]ours that are not properly billed to one's client also are not properly billed to one's adversary."[3] In fact, more precision is required when seeking to have an adversary pay the fees of a prevailing party.[4] This article discusses why counsel would be advised to avoid lumping or "block billing" where it is evident at the outset of a case that, if they prevail, attorneys' fees may be recoverable.

I.   Calculating a "Reasonable" Fee Under the Lodestar Approach.

Whether a party is requesting fees from its opponent as a consequence of a fee-shifting statute, contractual provision, sanctionable conduct, or otherwise, the principles dispositive of a fee petition in federal court are well-settled.[5] First, "[r]easonableness is the touchstone of any award of attorneys' fees."[6] Second, the fee applicant bears the burden of establishing by clear and convincing evidence the reasonableness of the fee requested.[7] "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."[8] In Perdue v. Kenny A.,[9] the Supreme Court clearly stated a preference for determining reasonableness with reference to this "lodestar approach," explaining that the lodestar calculation yields a presumptively reasonable fee, which presumption can only rarely be overcome,[10] and then only in "extraordinary cases" which will be presented in the "rarest of circumstances."[11] [12]

While determination of the hourly rate will generally be the critical inquiry in setting a "reasonable fee,"[13] the burden nevertheless rests with the fee applicant to establish the reasonableness of both the requested rate[14] and the number of hours for which compensation is sought.[15] With regard to the time component of the lodestar analysis, "proper documentation is the key to ascertaining the number of hours reasonably spent on legal tasks."[16] "Indeed, fee claimants must submit documentation that reflects 'reliable contemporaneous recordation of time spent on legal tasks that are described with reasonable particularity,' sufficient to permit the court to weigh the hours claimed and exclude hours that were not 'reasonably expended.'"[17] Such documentation must be in the form of "reliable billing records" and must reflect an applicant's exercise of billing judgment to "excise from its claim time not properly shown to have been incurred in pursuit of the matter at issue or that is otherwise not reasonable in amount or not necessarily incurred."[18] "Absent such documentation, a claimant's submission is no better than a post hoc estimate"[19] and cannot be used to inform the court of whether hours spent were reasonable.

II.  The Problem with "Block Billing"

Inadequate documentation includes the practice of "block billing," which is generally defined as "grouping, or lumping, several tasks together under a single entry, without specifying the amount of time spent on each particular task."[20] As the Eastern District of Virginia has noted, "[t]he problem with block billing is that it "makes it more difficult to determine how much time was spent on particular activities."[21] "Where a fee applicant has engaged in block billing, the adversary and the Court are disadvantaged in assessing the validity of the hours expended, even after concluding that the tasks on which those hours were expended appear to be necessary tasks."[22] As Judge Smith explained in Project Vote/Voting for America, Inc. v. Long, "[w]hile perhaps 'block billing' is not prohibited, it simply does not provide the court with the sufficient breakdown to meet [the applicant's] burden to support its fee request in specific instances."[23] "The court's role is not to labor to dissect every individual entry to hypothesize if the different tasks in the same entry could reasonably result in the requested time."[24]

Because block billing "prevents an accurate determination of the reasonableness of the time expended in a case," it constitutes a proper basis for reducing a fee award.[25] In fact, the practice of block billing has been generally disfavored in federal courts across the country and has often led to a reduction in attorney's fees.[26] In the Eastern District, "[s]uch a reduction can be accomplished in one of two ways: (i) by identifying and disallowing specific hours that are not adequately documented, or (ii) by reducing the overall fee award by a fixed percentage or amount based on the trial court's familiarity with the case, its complexity, and the counsel involved."[27] Inadequate billing documentation can also be the basis for denying a fee altogether.[28]

III.  Recent Reactions of the Eastern District of Virginia to "Block Billing"

The following cases recently decided by the Eastern District of Virginia demonstrate why it is crucial for counsel to exercise sound billing judgment and, most importantly, refrain from block billing where it is evident at the outset of a case that, if they prevail, fees may be available from the adverse party.[29]

A.  McAfee v. Boczar[30]

McAfee sought fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, as a prevailing party after a jury returned a verdict in favor of McAfee on her claim of malicious prosecution and violation of the Fourth Amendment.[31] McAfee sought an award of attorney's fees covering 996.7 hours of work, which McAfee's counsel identified as a six percent reduction from the number of hours actually expended.[32] In support of her request, McAfee submitted a chart identifying the timekeeper, the date on which the work was performed, a brief description of the work performed, and the amount of time.[33] The court found that, while there were instances of multiple entries for the same day, almost all of the entries for two attorneys identified in this chart involved multiple tasks 'lumped' into a single block entry.[34] The court provided the following examples of two entries entered by one attorney on March 26, 2012:

"Prepare for deposition of [Jane Doe] and [John Doe]; confer with Eileen McAfee after deposition; place call to [opposing counsel] and obtain extension on response date to motion to amend answer," totaling 7.5 hours.

"Review discovery issues with [attorney 1] and [attorney 2]; prepare for depositions on March 27; listen to phone calls recording," totaling 0.9 hours.[35]

As requested by the court, McAfee then provided an additional chart purporting to identify the total number of hours devoted to many of the tasks specified in the blocks of time contained in the original chart.[36] Importantly, the earliest entries on the original chart were for work that was performed in July 2011; the most recent entries were for July 2012.[37] The amended chart was filed with the court on October 5, 2012.[38]

In reducing the hours claimed by these two attorneys by ten percent (10%), the court first rejected McAfee's argument that "as long as it is clear that the work being performed is related to reimbursable issues then it is irrelevant how much time was spent on separate discrete tasks."[39] The court explained that such an approach

ignores the possibility that an attorney might devote reasonable time to one reasonably reimbursable request and spend an unreasonable amount of time on another reasonably reimbursable task, and that, as a result, a fee request must thereby be reduced. Such a result would be required by the command that the Court should not award fees for hours that [are] "excessive, redundant, or otherwise unnecessary."[40]

The court went on to note that the attorneys had undoubtedly, as officers of the court, "made in good faith the estimates that [were] proffered to cure the block billing problem."[41] However, "in reality, it is nigh onto impossible to reconstruct old billing entries accurately. Estimates of the sort made here, while attempted in good faith, are actually little more than guesses when made for entries logged long in the past."[42] Indeed, not only did one year elapse between the first time entry on the original chart and the last, but almost three months elapsed between the most recent entry on the original chart and the attempt to identify the time spent on individual tasks.[43]

The court also explained that counsel prosecuting certain civil rights actions are

charged with knowledge that, if they prevail, fees are available from the adverse party under § 1988 . . . It is not demanding too much to ask that, in such cases, counsel refrain from block billing because, however acceptable it is to a client, it is not helpful in assessing entitlement to a fee from an adversary under § 1988.[44]

Had counsel entered time in a manner breaking down the number of hours spent on a single task, the court may not have applied a ten percent (10%) reduction as to time billed by the two offending attorneys.

B.  Project Vote/Voting for America, Inc. v. Long[45]

Project Vote sought an award of attorneys' fees in the amount of $349,317.05, pursuant to 42 U.S.C. § 1973gg-9(c), after prevailing on a motion for summary judgment requesting a permanent injunction requiring disclosure of completed voter registration applications.[46] In addition to the hourly reductions the court made to omit time billed for overstaffing pretrial and post-trial matters, the court applied a ten percent (10 %) reduction to the fee award based on counsel for Project Vote's practice of block billing.[47] In reviewing the time logs provided by counsel, the court "did not find a single instance in which a timekeeper recorded multiple entries for a single day; instead, only the total amount of time for each day is reported, with no breakdown of how that time was spent among often as many as four or five distinct tasks."[48] The court provided the following example entry: "Attend 26(f) conference; begin plan for summary judgment motion; research local rules and privacy issues; meet with team regarding strategy."[49] In response to this obviously deficient entry, the court exclaimed, "[t]he court's role is not to labor to dissect every individual entry to hypothesize if the different tasks in the same entry could reasonably result in the requested time."[50] Instead, "in light of the inexact documentation and the resulting inability of the court to properly assess the reasonableness of the time requested," the court found that a fixed percentage reduction to the fee award was proper.[51]

IV.  Conclusion
There is nothing inherently wrong or inappropriate with lumping or block billing.[52] In fact, if clients accept the practice, lawyers may properly engage in it and often do, as block billing can serve as an effective and efficient way to capture blocks of time dedicated to a single client. The above cases instruct, however, that much more precision is required when counsel seeks to have the losing adversary pay the fees of a prevailing party. Accordingly, if counsel understands at the outset that they may be entitled to a reasonable amount of attorneys' fees should they ultimately prevail, whether as a consequence of a fee-shifting statute, contractual provision, or otherwise, they must exercise billing judgment and record time entries contemporaneously with the work performed and in a manner that breaks down hours expended on specific, individual tasks.[53] Best practice would be to include one verb and one task in each entry. Of course, some may consider this practice a tedious undertaking. When the time comes to draft the fee petition, however, counsel will be thankful for having taken the time.

[1] Hensley v. Eckerhart, 461 U.S. 424 at 434 (1983).
[2] McAfee v. Boczar, No. 3:11cv646, 2012 U.S. Dist. LEXIS 157796, at *32 (E.D. Va. Nov. 2, 2012).
[3] Hensley, 461 U.S. at 434.
[4] McAfee, 2012 U.S. Dist. LEXIS 157796, at *38 n.14.
[5] See, e.g., SunTrust Mortgage, Inc. v. AIG United Guar. Corp., No. 3:09cv529, 2013 U.S. Dist. LEXIS 34922, at *12 (E.D. Va. March 7, 2013) (noting that authorities addressing the question of reasonableness in the context of fee-shifting statutes provide sound instruction where fees are sought as a sanction); Signature Flight Support Corp. v. Aviation Ltd. P'ship, 730 F. Supp. 2d 513, 519-20 (E.D. Va. 2010) (applying the same lodestar approach and reasonableness standards used in the statutory fee-shifting context where plaintiff sought fees as a result of a contractual fee-shifting provision).
[6] E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv058, 2013 U.S. Dist. LEXIS 16295, at *7 (E.D. Va. Feb. 6, 2013).
[7] Hensley, 461 U.S. at 437; Guidry v. Clare, 442 F. Supp. 2d 282, 294 (E.D. Va. 2006).
[8] Hensley, 461 U.S. at 433.
[9] 559 U.S. 542, 130 S. Ct. 1662 (2010).
[10] 130 S. Ct. at 1673.
[11] Id. at 1677 (Kennedy, J., concurring); see also id. at 1678 (Thomas, J., concurring).
[12] As explained in McAfee, Perdue forecloses the use of most of the 12 factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), adopted by the Fourth Circuit in Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978), because they are subsumed in the lodestar analysis. McAfee, 2012 U.S. Dist. LEXIS 157796, at *14-16. Nonetheless, "the rationale of Perdue leaves room for using, in the reasonableness calculus, four of the Johnson factors that are not subsumed in the lodestar calculation if the facts of a particular case make it appropriate to consider them." E.I. DuPont de Nemours & Co., 2013 U.S. Dist. LEXIS 16295, at *11. Those remaining factors are: the amount in controversy and the results obtained (Johnson Factor 8); the undesirability of the case (Johnson Factor 10); the nature and length of the relationship between the claiming firm and the client (Johnson Factor 11); and awards in similar cases (Johnson Factor 12). McAfee, 2012 U.S. Dist. LEXIS 157796, at *14-16. In some instances, however, Johnson Factors 8 and 10 may also be subsumed in the time component of the lodestar calculation. Id. at *46-47.
[13] Plyer v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990).
[14] This article does not address the standards for establishing the reasonableness of a requested rate. For a general discussion on this topic, see, e.g., Plyer, 902 F. 2d at 277-279; Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235 (4th Cir. 2009); Nat'l Wildlife Fed'n v. Hanson, 859, F.2d 313 (4th Cir. 1988); Project Vote/Voting for Am., Inc. v. Long, 887 F. Supp. 2d 704 (E.D. Va. 2012); United Mktg. Solutions, Inc. v. Fowler, No. 1:09-cv-1392, 2011 U.S. Dist. LEXIS 21720 (E.D. Va. March 2, 2011).
[15] See SunTrust Mortgage, Inc., 2013 U.S. Dist. LEXIS 34922, at *27-28 ("It is by now thoroughly settled that, in the lodestar method of fee determination, the fee applicant must demonstrate that 'the number of hours for which compensation is sought also must be reasonable.'") (quoting E.I. DuPont de Nemours & Co, 2013 U.S. Dist. LEXIS 16295, at *13).
[16] Guidry, 442 F. Supp. 2d at 294.
[17] Id. (quoting EEOC v. Nutri/System, Inc., 685 F. Supp. 568, 573 (E.D. Va. 1988)).
[18] SunTrust Mortgage, Inc., 2013 U.S. Dist. LEXIS 34922, at *28.
[19] Nutri/System, Inc., 685 F. Supp. at 573.
[20] McAfee, 2012 U.S. Dist. LEXIS 157796, at *33 (quoting Guidry, 442 F. Supp. 2d at 294).
[21] McAfee, 2012 U.S. Dist. LEXIS 157796, at *36 (quoting Welch v. Metropolitan Life Ins., 480 F.3d 942, 948 (9th Cir. 2007)).
[22] McAfee, 2012 U.S. Dist. LEXIS 157796, at *37.
[23] 887 F. Supp. 2d at 716.
[24] Id. at 717.
[25] Guidry, 442 F. Supp. 2d at 294; see also Hensley, 461 U.S. at 433 ("Where the documentation of hours is inadequate, the district court may reduce the award accordingly.").
[26] McAfee, 2012 U.S. Dist. LEXIS 157796, at *34; see also id. at *34 n.12 (giving examples of fee reductions based on block billing in other circuits).
[27] Guidry, 442 F. Supp. 2d at 294; McAfee, 2012 U.S. Dist. LEXIS 157796, at *39-40; see also Hensley, 461 U.S. at 438 n.13 (approving of the second approach by noting that "[i]n addition, the District Court properly considered the reasonableness of the hours expended and reduced the hours of one attorney by 30 percent to account for his inexperience and failure to keep contemporaneous time records").
[28] SunTrust Mortgage, Inc., 2013 U.S. Dist. LEXIS 34922, at *41 (citing Nutri/System, Inc., 685 F. Supp. at 575-76).
[29] In addition to McAfee and Project Vote, Guidry v. Clare, 442 F. Supp. 2d 282 (E.D. Va. 2006) and EEOC v. Nutri/System, Inc., 685 F. Supp. 568 (E.D. Va. 1988) set forth the controlling precepts in the Eastern District of Virginia concerning what constitutes adequate documentation of hours for purposes of establishing the time component of the lodestar analysis. SunTrust Mortgage, Inc., 2013 U.S. Dist. LEXIS 34922, at *38.
[30] 2012 U.S. Dist. LEXIS 157796 (E.D. Va. Nov. 2, 2012)
[31] Id. at *3-5.
[32] Id. at *30.
[33] Id.
[34] Id. at *33-34.
[35] Id. at *34 n.11.
[36] Id. at *37-38.
[37] Id. at *38-39 n.13.
[38] Id.
[39] Id. at *37.
[40] Id. (quoting Hensley, 461 U.S. at 434).
[41] 2012 U.S. Dist. LEXIS 157796, at *38.
[42] Id.
[43] Id. at *38-39 n.13.
[44] Id. at 39.
[45] 887 F. Supp. 2d 704 (E.D. Va. 2012).
[46] Id. at 708-709.
[47] Id. at 717.
[48] Id. at 716.
[49] Id. at 717. Counsel would be advised to have entered the following three entries instead: "Attend 26(f) conference.""Begin plan for summary judgment motion.""Research local rules and privacy issues." More detail concerning the work actually performed also should have been included in this last entry, as it is unclear whether counsel was referring to the local rules of the court and, separately, the privacy laws that may have been at play. Guidry, 442 F. Supp. 2d at 294 ("[I]ndeed, fee claimants must submit documentation that reflects 'reliable contemporaneous recordation of time spent on legal tasks that are described with reasonable particularity,' sufficient to permit the Court to weigh the hours claimed and exclude hours that were not 'reasonably expended.'") (citations omitted) (emphasis added).
[50] Id.
[51] 887 F. Supp. 2d at 717.
[52] McAfee, 2012 U.S. Dist. LEXIS 157796, at *39 n.14.
[53] Other examples of block billing that led to fixed-percentage reductions of fees include the following:0.4 hours billed for "Reviewed opposition to motion to quash; drafted notice of deposition; confirmed notice of deposition with [another attorney] and gave direction to [legal assistant] to send; sent same by email to opposing counsel." Ebersole v. Kline-Perry, No. 1:12cv26, 2012 U.S. Dist. LEXIS 138659, at *15 (E.D. Va. Sept. 26, 2012). 7.0 hours billed for "Prep for case; email to client; interview Keith and call other witnesses; add to presentation; prep for deposition." Id. 3.9 hours billed for "Tel. conf. w/ P. Jones, EEOC attorney, Baltimore, assigned to research & investigate to determine whether EEOC should prosecute. Mail copies of affidavits; transcript of 8/15/84 FCHRC hearing; Position paper of Wilett W. Bunton; names of witnesses, to P. Jones." Nutri/System, Inc., 685 F. Supp. at 574 n.7.


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