It ain’t heavy . . . it’s just the lodestar! Attorneys’ fees and the requirements of Rohrmoos

February 12th, 2023 By David L. Plaut

Even though the Rohrmoos case has been around since 2019, Plaintiffs’ lawyers with contingency contracts more than occasionally designate themselves as testifying experts without providing any fee bills or other accounting addressing the legal tasks and time incurred in connection with the prosecution of a case.  This practice is out of line with the requirements of Rohrmoos.

Texas courts use the “lodestar method” for proving the reasonableness and necessity of attorneys’ fees. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 490 (Tex. 2019). Under the lodestar method, the determination of what constitutes reasonable attorneys’ fee involves two steps. Id. at 484. First, the trial court must determine the reasonable hours spent by counsel in the case and a reasonable hourly rate for such work. Id. The court then multiplies the number of such hours by the applicable rate, the product of which is the base fee or lodestar. Id. The court may then adjust the base lodestar up or down (apply a multiplier), if relevant factors indicate an adjustment is necessary to reach reasonable fees in the case. Id.

The lodestar method is a focused and objective analysis of whether the fees sought are reasonable and necessary, yielding a base figure that is presumptively reasonable. Id.  Under Rohrmoos, the fact finder’s starting point for calculating an attorneys’ fee award is determining the reasonable hours worked multiplied by a reasonable hourly rate. Id. at 498. The fee claimant, or prevailing party, bears the burden of providing sufficient evidence on both counts. Id. Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services. Id. This base lodestar figure should approximate the reasonable value of legal services provided in prosecuting or defending the prevailing party’s claim through the litigation process. Id. Accordingly, there is a presumption that the base lodestar calculation, reflects the reasonable and necessary attorneys’ fees that can be shifted to the non-prevailing party. Id. at 499.  See also Veach v. State Farm Lloyds, 2021 WL 5920903, at *2 (N.D. Tex. 2021).

Plaintiffs’ counsel has to provide information from which the court and the parties can determine what legal services were performed; who performed those services; when those services were performed; or the reasonable amount of time required to perform the services.  Although billing records are not absolutely required to prove the amount of reasonable and necessary fees, it is “strongly encouraged” to submit such proof in support of attoneys’ fees.  Rohrmoos, 578 S.W.3d at 502.  This admonishment from the Texas Supreme Court makes sense as the trial court cannot award fees under the lodestar method without sufficient evidence indicating the actual time expended on specific tasks.  See Long v. Griffin, 442 S.W.3d 253, 255-56 (Tex. 2014).  For this reason, attorneys must document their time for purposes of “fee shifting” with “contemporaneous billing records or other documentation recorded reasonably close to the time when the works was performed.  El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). See also Kurt Kuhn, Proving and Defending Attorneys’ Fees at 7 (SBOT, 10th Annual Damages in Civil Litigation Feb. 1-2, 2018); P. Silberman, Proving Up Attorney’s Fees in Texas After Rohrmoos, at 2 (March 19, 2020) (concluding that “keeping detailed time and billing records (even if the fee structure is based on contingency or a hybrid of hourly and contingency) is a necessary practice for supporting any attorney’s fees claims”).

Unlike the old days, Plaintiff’s counsel cannot simply get on the stand and give an impressionistic assessment of what’s usually done to work up a case along with general cost components based on their litigation experience.  There have to be detailed time and billing records of some sort in order to calculate the lodestar.  Without those, it is likely impossible to establish reasonable and necessary attorneys’ fees of any sort.