Attorney Fees

June 2007
By Judge John Wittmayer, Multnomah County Circuit Court

Trial judges are frequently presented with requests for attorney fees in a variety of circumstances. The procedure for seeking attorney fees is found in ORCP 68, which you should read at the earliest date possible if you think your client may be entitled to an award of attorney fees from the adverse litigant. Read the rule before you file a complaint, answer or other pleading. Read the rule before you file a motion, if you might seek an award of attorney fees if you prevail on the motion.

And from a practical standpoint, here are Judge Jerome LaBarre's top 10 common sense pointers on requesting court awarded attorney fees:

  1. Narrow the issues. Confer and try to work out agreements with opposing counsel on what's undisputed.
  2. Make a complete record. Touch all of the many bases required and put competent evidence before the court in your submissions and presentation so it can withstand your opponent's attacks and the court's scrutiny.
  3. Make the judge's job easy. The trial judge is required to make findings of fact and identify the factors relied on in making a reasonable fee award - it's in your interest to facilitate this.
  4. Don't assume the trial judge knows it all. The bench is diverse. For many judges civil practice experience is either dated or maybe even nonexistent.
  5. Submit expert testimony - or at least seriously consider it. On any sizeable fee request expert testimony is the tried and true way to support your fee petition.
  6. Use persuasion in your written and oral presentations. Don't assume that the need for fine advocacy ended when you prevailed on the merits.
  7. Don't be greedy. Expect that you probably will not get paid by your opponent for every single hour from day one until the file is closed. Don't risk your credibility on nickels and dimes.
  8. Be transparent. At every turn show the court how you have been reasonable. Use good billing judgment. Where you are reducing your time or making other concessions - point it out.
  9. No cheap shots. The case may have been contentious but still be "the complete professional" at all times.
  10. Eyes on the prize. Always keep the big picture in focus and try to settle the fee claim, if you can, to avoid appeals.