Given California’s More Liberal Approaches, These Alternatives Might Offer Guidance.
California endows trial judges with quite a bit of discretion when fixing the reasonableness of fees in a fee petition proceeding. Hourly rates can be pegged based on attorney declarations, surveys, matrices, and the like. Lodestar adjustments, upward or downward, are based on multiple factors, including a litigant’s degree of success.
Virginia federal courts have now offered some tweaks to approaches utilized by federal courts in determining reasonableness in fees, keeping in mind they are only instructive because California does not follow federal guidelines on some issues. (Example: most California state courts do not endorse Perdue v. Kenny A., 130 S.Ct. 1662 (2010), a U.S. Supreme Court decision not favoring positive multipliers in civil rights cases.)
In Grissom v. The Mills Corp., 549 F.3d 319, 323 (4th Cir. 2008), a fee petitioner attempted to prove the correctl hourly rate primarily through lead counsel’s declaration and the Laffey Matrix development of hourly rates for lawyers practicing in Washington, D.C. The Fourth Circuit, although finding the Matrix a “useful” starting point, found it did not necessarily reflect hourly rates for attorneys practicing in Reston, VA. Instead, it developed its own table of hourly rates based on what lead counsel and other attorneys had been awarded previously, adjusted by inflation in fees based on inflation rates obtained from Inflation.com. It also endorsed a fixed-percentage approach as far as reducing fees downward based on plaintiff’s degree of success (in situations where a litigant was successful and unsuccessful on mixed claims).
About four years later, Bradford v. HSBC Mortg. Corp., 859 F.Supp.2d 783 (E.D.Va. 2012) made its own “tweaks” to Grissom, besides rejecting the idea that the relevant attorney community for a fee award was limited to the practice area involved in the particular case (not accepting the notion that fees had to be based on hourly rates for attorneys specially practicing in the TILA area). Based on Perdue’s expression that a lodestar approach has to be objectively based if possible, Bradford found that the Grissom approach had to be “adapted” in two respects. First, district courts should try to actually calculate the hours spent on successful and unsuccessful fee tasks for apportionment or, if this is impossible based on the state of billing records, then calculate a fixed percentage downward adjustment based on the plaintiff’s degree of success. Second, after that, district courts should make multiplier adjustments but exclude any enhancement factors used in calculating the lodestar in the first place. (Id. at pp. 790-791.)
Although not binding, these cases may provide ways in which to offer proof in support of hourly rates or lodestar settings, depending on the circumstances.