evidenced by the arbitrator’s award
of $35,724, Berryman’s settlement
offer of $30,000, and the jury verdict
of $36,542. It was a manifest abuse
of discretion for the trial court to accept 468.55 hours as reasonable for
this case. (Id. at 661)
Failure to Account for Duplicative and
Unproductive Time
The lodestar process requires trial courts
to analyze and weigh the hours spent to
assure that only reasonable time spent
is awarded. This involves the process of
weeding out duplicative or unproductive
time, and time spent in excess of what was
necessary and appropriate. Here the lawyers “double-chaired” a relatively routine
and uncomplicated case. The court pointed out that both lawyers prepared for
and attended the same depositions and
both tried the entire case for four days.
The court focused on the two lawyers
together spending 80 hours seeking to
exclude the controversial biomechanist
expert Alan Tencer, and over 130 hours
on trial and witness preparation. Plaintiff’s counsel used questionable judgment
in seeking an award of lodestar fees for
both counsel for all trial preparation and
time spent in trial. Farmer’s attorneys
did a workmanlike job summarizing the
hours spent by Berryman’s counsel on
various tasks. Clearly, there was “
double-chairing” and excessive time spent.
Addressing Block Billing
Berryman’s counsel, like many (and
probably most) Washington lawyers,
used block billing, in which multiple legal
tasks in a given day are not apportioned
by time spent per task. Berryman is only
the second published Washington appel-
late court decision to even address block
billing. The court was critical of block
billing here:
The block billing entries tend to be
obscure. For example, on November
3, 2011, Kang billed 11. 7 hours for
meeting with Berryman about trial
preparation and also for drafting a
reply brief in support of plaintiff’s
motions in limine. How many hours
were devoted to meeting with Ber-
ryman and how many to drafting a
reply brief is impossible to tell, but
either way, the amount of time spent
is questionable, particularly since
TALMADGE
FITZPATRICK
