vehicles. Judge Barnet’s exclusion of that
evidence was affirmed. The plaintiff’s bar may
take some comfort in the Court of Appeal’s assessment that excluding Tencer’s expert testimony is so routine as to not require great time
and effort justifying large fees to do so.
6. See Caryl, “Reconsidering Block Billing Practices,” January 2011, Washington State Bar Ne ws.
7. Even so, Division I in a very recent decision approved a multiplier of 1. 5 in a tort case. Miller v.
Kenny, ___ Wn. App. ___, ___ P.3d ___, 2014
WL 1672946 (April 28, 2014). Judge Becker was
the author of both Berryman and Kenny. Kenny
was a wholly different case from Berryman, with
much more at stake in damages. The case was
highly litigated (by superb, high-profile lawyers)
for a prolonged period of time. The trial court appears to have done an excellent job responding to
the kind of defense arguments unsuccessfully advanced and apparently ignored by the trial court
in Berryman. Kenny suggests that when the contingency fee risks are adequately documented by
the prevailing party, the lodestar fees are clearly
reasonable and the trial court squarely addresses
the arguments challenging the fee-shifting efforts of the prevailing party, multipliers in Division I are not an endangered species.
8. The court even cited in a footnote examples of
what they saw as exemplary findings and conclusions in support of a fee award and multiplier.
9. Where the court was headed became very clear
in the next paragraph: “It is true that the court
will not overturn a large attorney fee award in
civil litigation merely because the amount at
stake in the case is small.” Mahler, 135 Wn.2d
at 433. This cautionary observation should not,
however, become a talisman for justifying an
other wise excessive award.
10. See, e.g., Target, Slip Op. at 10–11, where the
court discussed Collings v. City First Mortgage
Services, LLC, 177 Wn. App. 908, 929, 317 P.3d
1047 (2013); Fiore v. PPG Indus., Inc., 169 Wn.
App. 325, 279 P.3d 972 (2012); Taliesen Corp.
v. Razore Land Co., 135 Wn. App. 106, 144 P.3d
1185 (2006); Mayer v. City of Seattle, 102 Wn.
App. 66, 10 P.3d 408 (2000); Dash Point Vill.
Assocs. v. Exxon Corp., 86 Wn. App. 596, 937
P.2d 1148 (1997).
11. The court cited Fetzer for this conclusion, but
did not acknowledge that the fees in Fetzer were
based on the Long Arm Statute, where the only
fees allowable in fee shifting were those fees that
represented the enhanced cost of having to defend a case far from home.
12. No Washington state appellate courts have
shown any serious inclination to call lawyers
to task on the rampant use of block billing submitted to their clients, despite the fact that it is
conclusively established that block billing enables lawyers to bill their clients excessively.
Hopefully this Berryman opinion will cause
more Washington trial and appellate courts
to exact consequences for blanket use of block
billing by lawyers in the future.
13. Bowers v. Transamerica Title, 100 Wn.2d 581,
597, 675 P.2d 193 (1983); Pham v. Seattle City
Light, 159 Wn.2d 527, 541–44, 151 P.3d 976
(2007); Sanders v. State, 169 Wn.2d 827, 869,
240 P.3d 120 (2010).
14. In my own experience with multipliers since
1986 when the multiplier was adopted in Bowers,
multipliers are routinely granted by Washington
trial courts in contingency fee cases, particularly
in King County, where the Berryman case origi-
nated. In my own practice as a contingency fee
lawyer and over the past 15 years while serving
as an expert witness in fee-shifting cases, multi-
pliers are not rare at all but relatively common.
15. 177 Wn. App. at 668.
16. Earlier in our careers, the majority of our practices
involved plaintiff’s personal injury cases, many of
which were modest cases like this Berryman case.
In 1994, Allstate Insurance Co. adopted entirely
new claims practices which consisted of very low
offers, followed by hard-nosed litigation tactics.
Most other insurers followed suit and the ability
of claimants like Berryman to obtain reasonable
settlements without extensive litigation became
a thing of the past in the late 1990s. It was this
situation which resulted in the successful effort
to get the “offer of settlement” provisions added
legislatively to the MAR statute.
17. 177 Wn. App. at 675.
18. See also Talmadge and Jordan, Attorney’ Fees
in Washington, (Lodestar Publ. 2007) at p. 149,
where former Justice Talmadge writes, “In
Washington cases where a multiplier was award-
ed, 1. 5 seems to be the ceiling for multipliers.”
19. 177 Wn. App. at 658.
20. Scott Fetzer Co. v. Weeks (Fetzer), 122 Wn.2d
at 156.
21. Mahler v. Szucs, 135 Wn.2d at 436.
