Posts Tagged ‘fees’

Proving Prevailing Paralegal Rates

Tuesday, October 19th, 2010

Legal.com brings us another case in which the court has ruled on the reasonableness of paralegal fees as part of an award of attorney’s fees: MARTINEZ v. JOHARY Case No. 5:08-cv-148-Oc-10GRJ. This case is a bit more straight-forward than the last in which the court had to distinguish between paralegal and non-paralegal (clerical) services. In this case, brought under the Fair Labor Standards Act, the employees attorney had submitted an affidavit pegging her rates at $300 an hour and the paralegal’s at $105 an hour.

The court did not have a problem with either rate per se, but was concerned that the rates were not those “prevailing” in the local market, which the court determined to be the U.S. Middle District of Florida (as the case was pending in that court). The problem was

The Plaintiff has not submitted any “specific and detailed evidence” concerning prevailing market rates in Ocala, Florida. Instead, the Plaintiff has merely attached the affidavit of her own attorney, which lists fee awards obtained in FLSA cases litigated in Orlando, Jacksonville, and Ft. Meyers, Florida (Doc. 24-1, ¶¶ 6-7). However, evidence establishing that a rate is in line with prevailing market rates must be “at a minimum more than the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299. In fact, “[t]he parties ought to provide the court with a range of market rates for lawyers of different skill levels . . . involved in similar cases with similar clients, so that the court may interpolate the prevailing market rate based on an assessment of the skill demonstrated in the case at bar.” Id. at 1300.
The Plaintiff has failed to satisfy the requirements of Norman. While the Plaintiff is correct that Judges of this District have previously awarded Ms. Amritt fees based on a $300 hourly rate, all of those cases were litigated in much larger urban areas with higher costs of living than Ocala, Florida. Moreover, this was a very straightforward case, with no novel or complex issues and minimal discovery. In the absence of any competent evidence concerning the prevailing market rate in Ocala, the Court will rely on its own competence and experience and concludes that an hourly rate of $250.00 is reasonable. SeeMoon, 2009 WL 111678 at *6. The Court further concludes that the hourly rate for the Plaintiff’s paralegal will be reduced to $100.00.

This poses an interesting problem for attorneys seeking recovery of paralegal fees on behalf of a client. What evidence might they provide, other than their own affidavits, of the prevailing rates for paralegals of varying degrees of experience and skill leval in the local market.

It seems to me that local paralegal associations may have a significant role to play in tracking such data and providing the necessary affidavits for inclusion with motions for fees. This ought to be better data than the court’s own “competence and experience,” which is likely to be limited to attorney affidavits filed in other cases unless the judge is fairly new to the bench and has had recent experience paying paralegals.

Another question is how one would determine the skill level of the paralegal. Here it would seem that one or more of the certification programs provided by organizations like NFPA, NALA, OLP, etc., might come into play.

On both issues, this appears to be an opportunity for paralegal associations to gain a greater presence as professional organizations.

Court Finds Added Value of Paralegal Work

Tuesday, June 29th, 2010

From time to time the paralegal profession receives a boost from the recognition it receives from a court and I’m always pleased to post about those boosts. Today’s example is the matter of STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. EDGE FAMILY CHIROPRACTIC, P.A. et. als., Case No. 1D10-0565 from the First District Court of Appeal in Florida as reported by leagle.com. The primary issue in this case was whether it is proper for a court to apply a “multiplier” to paralegal fees as well as attorney fees when awarding fees to a party.

As the court notes, “the purpose of the multiplier is to enhance the fee calculated under the lodestar methodology to take into account the fact that an attorney working on a contingent fee contract is generally not compensated for any of the services provided to a client when the client does not prevail. See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985) (“Because the attorney working under a contingent fee contract receives no compensation when his client does not prevail, he must charge a client more than the attorney who is guaranteed remuneration for his services.”), reaffirmed in pertinent part by, Standard Guarantee Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990). Because the potentially uncompensated legal services provided to the client include not only the attorney’s work, but also the paralegal’s work, it is appropriate to apply the multiplier to the paralegal fees included in the award. Stated another way, because the paralegal’s work is part of the legal services provided to the client, there is no principled reason to treat paralegal fees any different from attorney’s fees in regards to the application of the multiplier.”

The court relied a great deal on section 57.104, Florida Statutes, which provides:

In any action in which attorney’s fees are to be determined or awarded by the court, the court shall consider, among other things, time and labor of any legal assistants who contributed nonclerical, meaningful legal support to the matter involved and who are working under the supervision of an attorney.

It also relied on U. S. Supreme Court decisions:

In Missouri v. Jenkins, 491 U.S. 274 (1989), for example, the Court held that the term “reasonable attorney’s fee” in 42 U.S.C. § 1988 encompasses not only the work of the attorney, but also that of paralegals whose labor contributes to the attorney’s ultimate work product. Id. at 285 (“We thus take as our starting point the self-evident proposition that the `reasonable attorney’s fee’ provided for by statute should compensate the work of paralegals, as well as that of attorneys.”). The Court also observed that the use of lower cost paralegals rather than attorneys encourages cost-effective delivery of legal services and reduces the cost of litigation because, if paralegal fees were not recoverable as part of the attorney’s fee award “it would not be surprising to see a greater amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation.” Id. at 288 n.10.

The Court recently reaffirmed Jenkins in Richlin Security Service Co. v. Chertoff, 128 S. Ct. 2007 (2008), where it held the term “attorney’s fees” in another federal statute included fees for paralegal services as well as compensation for the attorney’s own labor. As in Jenkins, the Court declared that it was “self-evident” that the statute embraced not only attorney’s fees, but also paralegal fees. Id. at 2014-15.

Thus, it appears that both the Florida Legislature and this Florida court have a firm grasp on the role and value of paralegals to the lawyers they assist and the legal system as a whole. This recognition can only help resolve some of the confusion in this regard still held by much of the public and many members of the bar.

The Professional Paralegal and Fees

Thursday, July 30th, 2009

Brian Craig at the Globe University/Minnesota School of Business Paralegal Program Blog posts an update summarizing recent cases upholding paralegal fees. He starts by noting:

A number of recent cases have upheld fees for paralegals when awarding attorneys’ fees to prevailing parties. Courts look at the reasonable prevailing market rate for awarding fees for paralegal services. Recent cases have upheld awards ranging from $50-$100 per hour for paralegals. In Nadarajah v. Holder, — F.3d —-, 2009 WL 1588678 (9th Cir. Jun. 9, 2009), the Ninth Circuit affirmed an hourly rate of $100 per hour for paralegals.

There are, however, limits to paralegal fees. Courts may reduce the hourly rate based on the given evidence.

This recognition of paralegal professionalism by the courts comes with a corresponding obligation on the part of the paralegal to be profession, effective, efficient and ethical, in performing the work.  There are many aspects to this including time management, solid knowledge of substantive law, and a firm grasp of how to do what needs to be done as well as what needs to be done. Perhaps the best short answer is that  in order to be considered a professional the paralegal must develop and demonstrate a professional work ethic.