in-the-matter-of-the-attorneys-fees-and-costs-in-the-termination-of ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 9OCTOBER TERM, A.D. 2012
January 25, 2013
IN THE MATTER OF THE
ATTORNEY’S FEES AND COSTS IN
THE TERMINATION OF PARENTAL
RIGHTS TO: NRF and JWF, Minor
Children,
DONALD LEE TOLIN, Attorney for
LMB, Natural Mother,
Appellant
S-12-0067
(Respondent),
v.
STATE OF WYOMING,
DEPARTMENT OF FAMILY
SERVICES,
Appellee
(Petitioner).
Appeal from the District Court of Natrona County
The Honorable Catherine E. Wilking, Judge
Representing Appellant:
Donald Lee Tolin, Law Offices of Donald Tolin, Casper, Wyoming
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy
Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Susan K.
Stipe, Senior Assistant Attorney General
Before KITE, C.J., and GOLDEN,* HILL, VOIGT, and BURKE, JJ.
* Justice Golden retired effective September 30, 2012
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
GOLDEN, Justice.
[¶1] Attorney Donald L. Tolin, who was court appointed to represent an indigent parent
in a parental rights termination action filed by the State of Wyoming, Department of
Family Services (DFS), which is a state agency legislatively obligated to pay for the costs
of the action including the indigent parent’s attorney fee, Wyo. Stat. Ann. § 14-2-
318(d)(ii) (LexisNexis 2011), appeals the district court’s fifty percent reduction of his
requested amount of attorney fees for his representation in this action. As more fully
explained below, we hold that the district court did not abuse its discretion by reducing
Mr. Tolin’s fee application and, therefore, we affirm that fee reduction.
ISSUE
[¶2] Mr. Tolin states the issue as:
Whether or not the [district court] abused its discretion in
cutting attorney’s fee by 50%, and whether or not its decision
was unsupported by the evidence, arbitrary, and capricious.
STANDARD OF REVIEW
[¶3] In the usual case where the trial court observed the attorney’s work first hand from
the start of the litigation through its conclusion, an appellate court plays a limited role in
reviewing a trial court’s award of an attorney’s fee. In the usual case, the appellate court
customarily defers to the trial court’s judgment and reviews the trial court’s attorney fee
award for abuse of discretion. Joe’s Concrete & Lumber, Inc., v. Concrete Works of
Colorado, Inc., 2011 WY 74, ¶ 12, 252 P.3d 445, 448 (Wyo. 2011); Ultra Resources, Inc.
v. Hartman, 2010 WY 36, ¶ 149, 226 P.3d 889, 935 (Wyo. 2010). “We can hardly think
of a sphere of judicial decisionmaking in which appellate micromanagement has less to
recommend it.” Fox v. Vice, ---U.S.---, 131 S.Ct. 2205, 2216, 180 L.Ed.2d 45 (2011).
The instant case is not, however, the usual case because District Court Judge Scott
Skavdahl, who observed Mr. Tolin’s work from the start of the litigation through the end
of the trial, resigned from his state judicial office and entered his federal judicial office
long before Mr. Tolin filed his application for an award of his attorney’s fee. By the time
Mr. Tolin filed his fee application, District Court Judge Catherine Wilking, appointed to
fill Judge Skavdahl’s vacated state judicial office, had been in that office nine months. It
was Judge Wilking, not Judge Skavdahl, who reviewed and acted upon Mr. Tolin’s fee
application. In Mr. Tolin’s appellate brief, he does not assert that our standard of review
of his fee award is other than an abuse of discretion. We are confident that given Judge
Wilking’s experience and knowledge, both as a lawyer before her appointment to the trial
bench and as a trial judge after that appointment, she was well-qualified to consider
judiciously Mr. Tolin’s fee application. We also would note here that we agree with
many federal appellate courts that appellate judges, such as those on this Court, “are
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themselves experts in assessing the reasonableness of an attorney’s fee award, and . . . the
appellate court may independently review the record, or itself set the fee.” New Jersey v.
EPA, 687 F.3d 386, 390 (D.C. Cir. 2012) (per curiam) (quoting Envtl. Def. Fund, Inc. v.
EPA, 672 F.2d 42, 54 (D.C. Cir. 1982)); see also ACLU of Georgia v. Barnes, 168 F.3d
423, 432 (11th Cir. 1999); Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942-
45 (3rd Cir. 1995); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir.
1994); and Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., Inc., 960 F.2d 564,
566-67 (5th Cir. 1992).
BACKGROUND
[¶4] On March 16, 2009, District Court Judge Scott Skavdahl appointed Mr. Tolin to
represent indigent LMB in a termination of parental rights action filed by the Wyoming
Department of Family Services (DFS). State law requires DFS to pay for the costs of the
action, including the attorney’s fee for the indigent parent. Wyo. Stat. Ann. § 14-2-
318(d)(ii) (LexisNexis 2011). The action was tried before Judge Skavdahl and a six-
person jury over seven trial days beginning September 27, 2010, and, with an intervening
weekend break, ending October 5, 2010, with the jury’s verdict terminating LMB’s
parental rights. Mr. Tolin timely filed LMB’s notice of appeal on October 21, 2010, but
on November 30, 2010, pursuant to LMB’s decision, he filed a notice withdrawing that
appeal.
[¶5] On February 1, 2011, Judge Skavdahl, having on January 31, 2011, resigned from
his state judicial office, was installed as Federal Magistrate Judge for the District of
Wyoming; on that same date, Judge Catherine Wilking was installed in the state judicial
office vacated by Judge Skavdahl.1 On October 26, 2011, some eleven months after Mr.
Tolin had filed LMB’s notice withdrawing her appeal of the district court’s order
terminating her parental rights, and nearly nine months after Judge Skavdahl had left his
state judicial office, Mr. Tolin filed in state district court his motion for an order
approving payment of his attorney’s fees in his representation of LMB. His motion
included his twenty-six page detailed itemized billing showing that for the period of
February 27, 2009, through February 24, 2011, he claimed 487.17 hours at the hourly rate
of $100, for a total of $48,717.00. He also claimed expenses of $334.30. Between early
November 2011 and December 14, 2011, DFS filed its response to Mr. Tolin’s fee
motion, and Mr. Tolin filed his redacted motion as well as a seventy-eight page affidavit
and a four-page affidavit, all in support of his fee motion.
[¶6] On December 15, 2011, Judge Wilking held a thirty minute hearing on Mr. Tolin’s
fee motion. On January 9, 2012, Judge Wilking issued her decision letter, which was
followed on January 10, 2012, by her order awarding Mr. Tolin $24,358.50 in fees, a fifty
1
This Court has personal knowledge of these facts and takes judicial notice of them.
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percent reduction from the fees sought in his motion, and $334.30 in expenses. Mr. Tolin
timely appealed that order.
DISCUSSION
[¶7] In the district court’s decision letter, the court correctly observed the following
principles:
Wyoming has adopted the federal “lodestar” test for
the determination of the reasonableness of attorney fees.
UNC Teton Exploration Drilling, Inc. v. Peyton, 774 P.2d 584(Wyo. 1989). See Stanbury v. Larsen, 803 P.2d 349 (Wyo.
1990). The lodestar test requires that two factors be
considered: (1) whether the fee charged represents the
product of reasonable hours times a reasonable rate; and (2)
whether other factors of discretionary application should be
considered to adjust the fee either upward or downward.
UNC Teton, 774 P.2d at 595. The party who is seeking an
award of fees has the burden of providing proof of the
reasonableness of his fee. See Miles v. CEC Homes, Inc., 753
P.2d 1021 (Wyo. 1988); Jones Land & Livestock v. Federal
Land Bank, 733 P.2d 258 (Wyo. 1987). In order to meet that
burden of proof, the claimant must present not only an
itemized billing reflecting the time and the rate, but there
must be evidence demonstrating that the fee was reasonable.
UNC Teton.
Hinckley v. Hinckley, 812 P.2d 907, 915 (Wyo. 1991). See also Ultra Resources, Inc., ¶
162, 226 P.3d at 938. The district court determined that an hourly rate of $100 was a
reasonable rate for Mr. Tolin’s fee claim in the parental rights termination action and that
rate is not an issue in this appeal. Similarly, the district court’s award of $334.30 in
expenses is not an issue here. The only issue before us is Mr. Tolin’s claim that 487.17
hours is reasonable and the district court abused its discretion by reducing the hours
claimed by fifty percent. The district court explained that reduction in its decision letter
(emphasis added):
Considering the “reasonable hours” factor, the Court
thoroughly reviewed the itemized fees requested by Mr. Tolin
and was concerned by several entries and concerned with the
“reasonableness” of the hours spent by Mr. Tolin overall.
The Court will detail many of those concerns herein, but will
also note that the concerns listed are merely illustrative
and by no means exhaustive:
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1. Mr. Tolin’s invoice reflects over four (4) hours of legal
research regarding the pretrial memorandum. Yet a review of
the pretrial memorandum submitted by Mr. Tolin fails to
reveal why that research was undertaken, as no case law is
cited by Mr. Tolin in that memorandum and the memorandum
does not mention any unique or novel legal issues involved in
the termination action;
2. Mr. Tolin’s invoice contains many entries for time
billed for clerical work, such as walking to and from the
courthouse to file documents or to retrieve documents;
3. Much of the time billed by Mr. Tolin is clearly
excessive for the actual work done. For example, Mr. Tolin
billed thirty (30) minutes to read a Notice of Setting for a
Pretrial Conference, a document that would take only a few
minutes to read;
4. Mr. Tolin’s invoice contains entries for over forty (40)
hours of time spent reviewing eight-hundred and nine (809)
pages of discovery, which the court finds excessive;
5. The invoice indicates that it took Mr. Tolin
approximately twelve (12) hours to review the Department of
Family Service’s exhibits, which the court finds excessive;
6. Mr. Tolin’s billing for actual trial time is also
excessive. For example, the invoice contains entries for
17.83 hours billed on September 25, 2010; 17.72 hours billed
on September 27, 2010; and 21.49 hours on September 28,
2010.
[¶8] Mr. Tolin voices an initial criticism of the district court’s decision, stating
“unfortunately, Judge Wilking has made judicial determinations on matters in which she
was not directly involved. At the time of trial, Judge Wilking was a private attorney and
a contracted Guardian Ad Litem for the State of Wyoming. Prior to that she was a
prosecutor for the State of Wyoming in [sic] as an Assistant District Attorney in the
Seventh Judicial District.” Unfortunately, Mr. Tolin has no one but himself to blame
that Judge Skavdahl, who presided over the litigation, did not make the judicial
determinations on Mr. Tolin’s fee application. Recall that the trial in this case concluded
on October 5, 2010; Mr. Tolin withdrew LMB’s appeal on November 30, 2010; Judge
Skavdahl did not join the federal judiciary until February 1, 2011; and Mr. Tolin did not
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file his fee application until October 26, 2011. As we said earlier in this opinion, given
Judge Wilking’s experience and knowledge, both as a lawyer before her appointment to
the state trial bench and as a trial judge after that appointment, she was well-qualified to
consider judiciously and make judicial determinations about Mr. Tolin’s fee application.
Combs v. Walters, 518 P.2d 1254 (Wyo. 1974) (per curiam).
[¶9] The overall tenor of Mr. Tolin’s argument seems to be that the district court
should have accepted his evidentiary submissions (including his bill records) at face
value and awarded his fee application in the full amount. To the contrary, the court’s
discretion in fashioning a fee award “is by no means shackled by” the attorney’s billing
records; “it is the court’s prerogative (indeed, its duty) to winnow out excessive hours.”
Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir. 2001). The
district court has the obligation to peruse the fee application with an experienced eye.
Foley v. City of Lowell, Mass., 948 F.2d 10, 19 (1st Cir. 1991). We agree with the federal
courts from which we adopted the lodestar test, UNC Teton Exploration Drilling Inc. v.
Peyton, 774 P.2d 584, 594-95 (Wyo. 1989), that “[b]illing for legal services . . . should
not be a merely mechanical exercise. . . . [T]he Court must scrutinize the claim with
particular care. . . . A reasonable fee can only be fixed by the exercise of judgment.”
Copeland v. Marshall, 641 F.2d 880, 888 (D.C. Cir. 1980). This is particularly true
where the fee is sought from a public agency like DFS that has the ability to pay with
legislatively authorized funds. Id. We agree with the many federal courts that emphasize
the importance of “billing judgment.” Because the attorney who is seeking an award of
fees has the burden of providing proof of the reasonableness of his fee, that attorney must
prove he or she has exercised “billing judgment.” Hensley v. Eckerhart, 461 U.S. 424,
434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983); UNC Teton, 774 P.2d at 594-95;
Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir. 2002). “Billing
judgment is usually shown by the attorney writing off unproductive, excessive, or
redundant hours.” Green, 284 F.3d at 662; see also Barnes, 168 F.3d at 428 (fee
applicant must exclude from fee application excessive, redundant, or otherwise
unnecessary hours that would be unreasonable to bill a client irrespective of the skill,
reputation or experience of counsel); National Ass’n of Concerned Veterans v. Secretary
of Defense, 675 F.2d 1319, 1327-28 (D.C. Cir. 1982) (fees are not recoverable for
nonproductive time; therefore, the fee application should indicate whether nonproductive
time or time expended on unsuccessful claims was excluded and, if time was excluded,
the nature of the work and the number of hours involved should be stated); Ramos v.
Lamm, 713 F.2d 546, 553 (10th Cir. 1983).
[¶10] Against this backdrop of the fee applicant’s burden of proof and the district court’s
duty to winnow out unproductive, excessive, and redundant hours, we now turn to Mr.
Tolin’s criticisms of the district court’s six enumerated “merely illustrative and by no
means exhaustive” concerns about several entries of Mr. Tolin’s billing records and the
reasonableness of the overall hours claimed by Mr. Tolin. The district court’s selection
of this short representative list of concerns is understandable, as there is no requirement
5
for a line-by-line or blow-by-blow examination of the fee applicant’s entire billing
record. Case v. Unified Sch. Dist. No. 23, Johnson Cnty., Kan., 157 F.3d 1243, 1254
(10th Cir. 1998); Foley, 948 F.2d at 20. As Justice Elena Kagan has colorfully stated, the
“trial courts need not, and indeed should not, become green-eyeshade accountants.” Fox
v. Vice, ---U.S. at ---, 131 S. Ct. at 2216.
[¶11] The district court’s first enumerated concern was Mr. Tolin’s billing entry of over
four hours of legal research regarding his pretrial memorandum. Our review of that entry
identifies that he claimed 2.03 hours on July 27, 2009, (6 a.m. to 8:02 a.m.) (“Research
case law for pretrial memorandum and pretrial conference”) and 2.15 hours on July 28,
2009 (10:45 a.m. to 12:54 p.m.) (“Additional Research on case law for Pretrial
Memorandum”) for a total of $418.00; and the billing entry for August 4, 2009, shows he
attended a one hour pretrial conference on that date. Mr. Tolin’s pretrial memorandum,
as the district court correctly observed, contains no case law citations and does not
mention any unique or novel legal issues involved in the parental rights termination
action. Indeed, the memorandum states that there are no known issues with respect to
service of process, parties, jurisdiction or venue, and amendments to pleadings; and no
known contested issues of law. Mr. Tolin’s appellate argument asserts that he researched
legal issues regarding parental rights terminations, pretrial memorandum requirements,
and the question of a jury trial without an indigent parent’s payment of jury fees. He
does not identify any other specific legal issue. In his affidavit in support of his fee
application, he states that he is a very knowledgeable and experienced trial attorney
representing children and parents in civil and criminal bench and jury trials over a thirty-
three year period; and has taken a significant number of continuing legal education hours
related to representation of children and parents and trial advocacy. Given Mr. Tolin’s
professed experience, knowledge, and familiarity of the applicable law, and his failure to
identify any specific issues that he researched, we agree with the district court’s exercise
of discretion in eliminating these hours. Ursic v. Bethlehem Mines, 719 F.2d 670, 676-77
(3rd Cir. 1983). Mr. Tolin’s inclusion of billing entries like these reveals that he has
failed to exercise billing judgment.
[¶12] The district court’s second enumerated concern was Mr. Tolin’s many billing
entries for clerical work, such as walking to and from the courthouse to file or retrieve
documents. Mr. Tolin’s appellate criticism is that the district court did not cite specific
instances and his argument is “no time was billed for strictly clerical work.” Our own
review of his billing entries found at least fourteen such entries:
 3/12/2009 Take paperwork to Angie/District Court: Affidavit of Indigency (client)
(0.25 hours/$25.00);
 3/16/2009 Pickup from Clerk of Court’s office and review certified copy of court
order appointing counsel for mother (0.25 hours/$25.00);
6
 4/02/2009 Pickup from Clerk of Court’s office and review Notice of Setting for
default hearing on father (0.17 hours/$17.00);
 6/09/2009 Pickup and review correspondence: Notice of Setting of Pretrial
Conference signed by Judge Skavdahl (0.50 hours/$50.00);
 8/03/2009 Pickup from Clerk of Court’s office and review copy of proposed court
order (0.20 hours/$20.00);
 8/03/2009 Pickup from Clerk of Court’s office and review pleading (0.32
hours/$32.00);
 7/14/2010 File and mail pleadings and certificate of service (1.05 hours/$105.00);
 7/26/2010 File pleadings with Clerk of Court (0.25 hours/$25.00);
 7/26/2010 Pickup from Clerk’s office and review certified copy of court order
granting modification of scheduling order (0.20 hours/$20.00);
 8/10/2010 Pickup from courthouse and review certified copy of Order Granting
Modification of Scheduling Order (0.28 hours/$28.00);
 9/22/2010 Pickup juror list from Sam/District Court Clerk’s Office (0.25
hours/$25.00);
 9/29/2010 File pleadings with Clerk of Court: Stipulation of Respondent’s
Exhibits (0.17 hours/$17.00);
 10/22/2010 Pickup paperwork at courthouse (0.25 hours/$25.00);
 11/09/2010 Pickup from Clerk of Court’s office and review proposed court order
appointing counsel returned unsigned and noted by judge to hold for hearing (0.10
hours/$10.00).
[¶13] The case law is clear that “purely clerical or secretarial tasks should not be billed
at a paralegal rate regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 274,
288 n.10, 109 S.Ct. 2463, 2472 n.10, 105 L.Ed.2d 229 (1989). “Clerical work, however,
should be compensated at a different rate from legal work.” Walker v. United States
Dep’t. of HUD, 99 F.3d 761, 770-71 (5th Cir. 1996). “[C]lerical or secretarial tasks ought
not to be billed at lawyers’ rates, even if a lawyer performs them.” Lipsett v. Blanco, 975
F.2d 934, 940 (1st Cir. 1992). Mr. Tolin’s inclusion of billing entries like these also
reveals that he has failed to exercise billing judgment.
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[¶14] The district court’s third, fourth, and fifth enumerated concerns give examples of
clearly excessive billing hours, including reading a notice of setting for a pretrial
conference, spending over forty hours reviewing 809 pages of discovery, and spending
twelve hours to review DFS exhibits. Mr. Tolin’s appellate responses range from the
district court has no basis to know how much time was taken to do a specific task and
should take his word for it, to “counsel’s reading speed is counsel’s reading speed,” and
to reviewing exhibits for a seven-day trial cannot be just a quick skim through. We reject
these responses and find the following passage a suitable explanation for that rejection:
There is no requirement, either in this court or elsewhere, that
district courts identify and justify each disallowed hour. See
New York State Association for Retarded Children v. Carey,
711 F.2d 1136, 1146 (2d Cir. 1983); Copeland v. Marshall,
641 F.2d at 903. Nor is there any requirement that district
courts announce what hours are permitted for each legal task.
Such a rule would lead to disagreement of the most odious
sort between court and counsel.
No objective standard exists to resolve a dispute, for
example, over ten hours logged for drafting interrogatories. A
lawyer may insist the time was necessary, while a court,
based upon experience and judgment, including knowledge of
the case itself, may declare half the time to have been
unnecessary. Under the theory proposed by plaintiffs’
counsel, dozens of subsidiary questions then arise. Was the
lawyer interrupted while drafting? Was the draft in longhand
or dictated? Did the lawyer use previous forms on a word
processor? Was research necessary? Were, for example,
fourteen of thirty interrogatories really necessary? Is the
lawyer a slow thinker, a poor writer (occasioning many
drafts), or harassing the opposition for tactical purposes?
As we stated, such inquiries would quickly become
odious. The process would descend to a contest between court
and counsel, with counsel insisting that his or her integrity is
being impugned every time the court questions the number of
hours logged for a given day or a particular task. And, such a
process would still not result in a product free of dispute. To
the contrary, disputes would be multiplied, violating the
Supreme Court’s caution that a “request for attorney’s fees
should not result in a second major litigation.” Hensley, 461
U.S. at 437, 103 S.Ct. at 1941.
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A general reduction of hours claimed in order to
achieve what the court determines to be a reasonable number
is not an erroneous method, so long as there is sufficient
reason for its use. Hensley, 461 U.S. at 424, 103 S.Ct. 1933;
Love v. Mayor of Cheyenne, 620 F.2d 235, 237 (10th Cir.
1980); Northcross v. Board of Education, 611 F.2d 624 (6th
Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64
L.Ed.2d 862 (1980); Davis v. Fletcher, 598 F.2d 469 (5th Cir.
1979). For example, in Hensley the Supreme Court expressly
found to be proper a one-third reduction of one attorney's
hours, “to account for his inexperience and failure to keep
contemporaneous time records.” 461 U.S. at 438 n.13, 103
S.Ct. at 1942 n.13. In [Pennsylvania v.] Delaware Valley
[Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct.
3088, 92 L.Ed.2d 439 (1986)], the Supreme Court expressed
no disagreement with general reductions by the district court
of 48% and 33 1/3% in time claimed by various counsel.
Reasons given for those reductions included findings of
“unnecessary, unreasonable or unproductive” time, 106 S.Ct.
at 3099, and that “the time spent on the particular activity was
‘excessive,’ or that a less amount of time was ‘reasonable,’ ”
id. at 3092 n. 2.
Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1202-03 (10th Cir. 1986).
[¶15] The district court’s sixth enumerated concern was Mr. Tolin’s excessive billing for
“actual trial time,” as exemplified by entries for 17.83 hours on Saturday, September 25,
2010; 17.72 hours on Monday, September 27, 2010; and 21.49 hours on Tuesday,
September 28, 2010. In Mr. Tolin’s appellate response, he correctly observes that the
first trial day was Monday, September 27, 2010, and his actual “in trial” hours were 6.95
hours (3.23 hours in the morning and 3.72 hours in the afternoon). He also correctly
observes that on the second trial day, Tuesday, September 28, 2010, his actual “in trial”
hours were 6.02 hours (2.52 hours in the morning and 3.50 hours in the afternoon).
Obviously, the district court misspoke about those hours being “actual trial time.” But
those corrections about “actual trial time” do not cast doubt on the excessiveness of Mr.
Tolin’s billing for the period from Friday, September 24, 2010, through Tuesday, October
5, 2010. In the entries that follow, as highlighted, we have paid particular attention to the
last entries of one day and the first entries of the next day; one must ask: when did the
attorney sleep, eat, and take care of other personal matters. His billing entries for that
period are:
 Friday, September 24, 2010
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His first entry is at 5:00 a.m. and his last entry is 11:50 p.m., and he
claimed 13.04 hours.
 Saturday, September 25, 2010
His first entry is 6:00 a.m. and his last entry is 11:50 p.m., and he claimed
17.83 hours.
 Sunday, September 26, 2010
His first entry is 4:30 a.m. and his last entry is 11:57 p.m., and he claimed
19.33 hours.
 Monday, September 27, 2010 (first trial day)
His first entry is 5:30 a.m. and his last entry is 11:55 p.m., and he claimed
17.72 hours.
 Tuesday, September 28, 2010 (second trial day)
His first entry is 1:00 a.m. and his last entry is 11:55 p.m., and he
claimed 21.49 hours.
 Wednesday, September 29, 2010 (third trial day)
His first entry is 1:30 a.m. and his last entry is 11:55 p.m., and he
claimed 21.37 hours.
 Thursday, September 30, 2010 (fourth trial day)
His first entry is 2:00 a.m. and his last entry is 11:55 p.m., and he
claimed 19.39 hours.
 Friday, October 1, 2010 (fifth trial day)
His first entry is 1:00 a.m. and his last entry is 11:58 p.m., and he
claimed 20.58 hours.
 Saturday, October 2, 2010 (weekend break)
10
His first entry is 6:05 a.m. and his last entry is 11:30 p.m., and he claimed
15 hours.
 Sunday, October 3, 2010 (weekend break)
His first entry is 6:00 a.m. and his last entry is 4:06 p.m., and he claimed
10.10 hours.
 Monday, October 4, 2010 (sixth trial day)
His first entry is 2:00 a.m. and his last entry is 11:59 p.m., and he
claimed 21.23 hours.
 Tuesday, October 5, 2010 (seventh day of trial)
His first entry is 1:00 a.m. and his last entry is 7:54 p.m., and he claimed
16.47 hours.
[¶16] The total hours billed for the period Friday, September 24, 2010, through Tuesday,
October 5, 2010, are 213.55 hours. For that twelve day period, there are 288 hours (12 x
24 hours). Of that 288 hour period, Mr. Tolin billed 213.55 hours. We find this billing
clearly excessive.
[¶17] Another time period is equally excessive, from Friday, August 27, 2010, through
Sunday, August 29, 2010, and again we highlight the last entry on one day and the first
entry on the next day:
 Friday, August 27, 2010
His entries began at 5:51 p.m. and ended at 11:45 p.m., and he claimed
5.90 hours.
 Saturday, August 28, 2010
His first entry is 12:00 a.m. through 8:00 a.m. (8 hours); his next entry is
9:00 a.m. through 2:00 p.m. (5 hours); his next entry is 2:30 p.m. through
6:00 p.m. (3.5 hours); his next entry is 7:00 p.m. through 9:45 p.m. (2.75
hours); and his final entry is 10:00 p.m. through 11:45 p.m. (1.75 hours).
Total hours billed for reviewing discovery from DFS files is 21 hours.
 Sunday, August 29, 2010
His first entry is 1:00 a.m. through 9:15 a.m. (8.25 hours); his next entry is
10:00 a.m. through 4:00 p.m. (6 hours); his next entry is 5:30 p.m. through
11
7:15 p.m. (1.75 hours); and his last entry is 7:15 p.m. through 11:30 p.m.
(4.67 hours). Total hours reviewing discovery from DFS files and
researching DFS policies is 20.67 hours.
Thus, for the period Friday, August 27, 2010, through Sunday, August 29, 2010, he
claims 47.57 hours.
[¶18] The above and foregoing billing entries for August 27 through August 29, 2010,
and September 24 through October 5, 2010, are patently excessive. Metro Data Systems,
Inc. v. Durango Systems, Inc., 597 F.Supp. 244, 246 (D. Ariz. 1984) (accuracy of time
records called into question by lawyer’s claim to have logged 18.9 hours in one day; to
have accomplished this, he would have had to have been in his office from 5:06 in the
morning until midnight, without taking any time for meals, to relieve himself or to do
anything else); Chrapliwy v. Uniroyal, Inc., 583 F.Supp. 40, 49 (N.D. Ind. 1983) (court
is deeply concerned about lead counsel’s excessive hours; on thirty-four occasions he
billed for ten hours or more; on seventeen occasions he billed for twelve hours or more;
he billed for one twenty hour day as well as eight days where his hours billed equaled or
exceeded fifteen hours). In Ramos v. Lamm, the appeals court observed:
[L]awyers who remember spending the entire day working on
a case are likely to overstate the hours worked by forgetting
interruptions and intrusions unrelated to the case. In the
instant case, for example, Ms. Wiesenberg’s reconstructed
time records for May 3, 1980 to May 23, 1980 show the
following hours of her time expended on the appeal: 10,
12.25, 14.05, 12.85, 13, 15, 5.5, 6.75, 20.75, 13.5, 9.65, 11.8,
13.05, 8.85, 14, 18, 0, 15.5, 11.85, 15.9, and 15.4. . . . We
consider it doubtful that one lawyer, briefing an appeal,
would work 20 days of a consecutive 21-day period, never
spending less than 5.5 hours on the case and spending
between 11.80 hours and 20.75 hours on 15 of those days.
The district court should give special scrutiny to any
reconstructions or estimates of time expended and make
reductions when appropriate.
713 F.2d at 553 n.2. On this record, we cannot escape the judgment that Mr. Tolin’s
litigation efforts became overkill. Oklahoma Aerotronics, Inc. v. United States, 943 F.2d
1344, 1347 (D.C. Cir. 1991).
[¶19] In dealing with excessive hours resulting from the fee applicant’s failure to
exercise billing judgment, the district court has the discretion to reduce by a reasonable
percentage the number of hours claimed “as a practical means of trimming fat from a fee
application,” as the district court did in the instant case. Kirsch v. Fleet Street, Ltd., 148
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F.3d 149, 173 (2nd Cir. 1998) (quoting New York Ass’n for Retarded Children v. Carey,
711 F.2d 1136, 1146 (2nd Cir. 1983); see also Saizan v. Delta Concrete Prod. Co., 448
F.3d 795, 799-800 (5th Cir. 2006) (same); Role Models America, Inc. v. Brownlee, 353
F.3d 962, 973 (D.C. Cir. 2004) (same); Walker v. City of Mesquite, Tex., 313 F.3d 246,
251 (5th Cir. 2002) (same); Green, 284 F.3d at 662 (same); Gay Officers Action League,
247 F.3d at 299 (same); Walker, 99 F.3d at 769 (same); Jane L. v. Bangerter, 61 F.3d
1505, 1510 (10th Cir. 1995) (same); United States E.E.O.C. v. AIC Sec. Investigations,
Ltd., 55 F.3d 1276, 1288 (7th Cir. 1995) (same); Foley, 948 F.2d at 18-20 (same);
Oklahoma Aerotronics, 943 F.2d at 1347 (same); Leroy v. City of Houston, 831 F.2d 576,
586 (5th Cir. 1987) (same); and Mares, 801 F.2d at 1204 (same).
[¶20] Having laboriously reviewed the record in light of the district court’s decision
letter, Mr. Tolin’s contentions, and the considerations set forth in this opinion, we hold
that the district court did not abuse its discretion when it reduced Mr. Tolin’s fee
application by fifty percent. Affirmed.
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