I realize that these days, alternative billing is all the rage – and I too am a proponent of alternatives to the billable hour. Still, there are times when you have to resort to the billable hour, either at the insistence of a client, or under some of the guidelines for submitting a fee petition to the court.
So if you’re billing by the hour, what should your invoice look like? When I started my own practice, I had the benefit of knowing what a sample invoice looked like, having reviewed many of the outgoing bills at my former firm. Since then, I’ve seen many other invoices: as a contract attorney for a federal agency (a part time position that I held in the early years of my practice), my responsibilities included evauating and ruling on fee petitions submitted by lawyers on behalf of clients who prevailed in litigation against the agency. And I’ve come across other fee petitions in researching caselaw for fee petitions that I’ve submitted on behalf of my own clients (which favorable results, I’m happy to report).
So while invoices are second nature to me, I realized that some lawyers, either those starting a practice from government, or those straight out of law school may not know what an invoice looks like. And because I believe that the best examples are those straight from real life, rather than create a “pretend invoice,” I’m presenting a copy of this Fee Petition, one of several submitted by the attorney representing the defendant in Capitol Records v. Foster, who was sued for allegedly downloading copyrighted materials. Ultimately, in this decision, the court granted $68,685.23 of the $105,680.7 total amount sought. While recovering only sixty percent of a bill doesn’t seem like much of a victory, chances are that the individual defendant in this matter could not have afforded more than a fraction of that bill. Plus, the court noted in its decision that once it had decided preliminarily to grant attorneys’ fees, the defendants’ activity stepped up considerably, thereby suggesting that some of the work may have been performed to run up the bill since the record company would be paying.
As a general matter, the attorney’s invoice offers the level of detail necessary to convey to the client – and a reviewing court (if your bills are ever disputed) the amount of work done. That aside, the invoice has some problems as well. Personally, I would not include the same level of detail regarding my conversations with my client, if only to preserve attorney-client confidentiality. And for a bill of that magnitude, I wouldn’t charge for the cost of Westlaw or a six minute phone call.
The court’s decision is useful as well, because it offers insight into how clients might scrutinize the bill. For example, the court refused to reimburse the attorney for duplicative items, such as the unnecessary presence of two attorneys at a settlement conference. More importantly, the court did not award fees for supplemental filings to correct pleadings that should have been filed correctly from the outset. Think about it: if a judge reviewing a bill does not believe it appropriate to compensate for mistakes or duplicative effort, how will your client feel?
I’ll try to locate and periodically post other fee requests. If you’re interested in finding this information yourself, you can do some research on attorney fee awards either on Google or with your preferred research service, and then plug the docket number (assuming it’s a federal case) into PACER to pull the fee request. [BTW, if you don't have a PACER account, you ought to; it's free with an .8 cents a page download charge - and there's no better place to find sample complaints, briefs and other pleadings than PACER].