Attorney Fees and Sanctions - Virginia and Federal Courts

Attorney Fees and Sanctions
Publication Date: 2016
Available Formats: Print (330 pages (est.), softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 958

Information

Content Highlights:
  • Pleading Attorney Fee Requests
  • Documenting Your Time and Expenses
  • Contractual and Statutory Provisions
  • Virginia Rules 3:25, 4:1, and 4:12
  • Sanctions for Frivolous Suits
  • Federal Rules 11, 16, 37, and 56
  • Virginia Code § 8.01-271.1
  • Exceptions to the “American Rule”
  • Awards on Appeal
  • Methodologies for Determining Fees
  • The Lodestar Method
  • The Percentage of Recovery Method
  • Costs

"With the proliferation of sanctions and attorney fees in both state and federal courts, attorneys must be up to date on when they can obtain attorney fees from their adversaries and when they may be vulnerable to paying them. Without submitting timely and proper documentation, fees that would otherwise be awarded are routinely denied to very great extents (up to 90% in certain cases). Attorneys must know when sanctions may be awarded not only against them, but also against a client."
- Michael Lieberman, co-author

Written for the Virginia practitioner, Attorney Fees and Sanctions - Virginia and Federal Courts covers the procedural rules, the substantive law, and the practical approaches to maximizing petitions for attorney fees whether permitted by contract, by statute, or by rules of the court, as well as when you and/or your client are vulnerable to being sanctioned. The book also contains a brief, but important, section on attorneys being held in contempt in Virginia courts.

Since this book was first published in 2012, the Virginia Supreme Court has specifically issued at least five important decisions regarding when sanctions are appropriate and have clarified other important areas of when attorney fees are recoverable. In federal court, over the last several years, trial courts have been cracking down on the documentation requirements for granting attorney fees, which are referenced throughout the book, while at the same time the determinations of what constitutes a reasonable fee have fluctuated throughout the various divisions and even with the same districts. The most recent decisions from each District are included. This book also explains the 2015 amendments to Federal Rule of Civil Procedure 37(e) regarding spoliation of electronically stored evidence.


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Table of Contents

TABLE OF CONTENTS

1. Virginia Attorney Fee Awards

2. Sanctions By Virginia Courts

3. Federal Attorney Fee Awards

4. Sanctions By Federal Courts


CHAPTER 1: VIRGINIA ATTORNEY FEE AWARDS

1.1 GENERAL OVERVIEW
    1.101 Virginia Follows American Rule
    1.102 General Approach to Awarding Fees
    1.103 Exceptions in Which Fees Are Allowed

1.2 PROCEDURE
    1.201 Rule 3:25
    1.202 Time for Making Demand for Fees
    1.203 Fee Requests Must Be Pleaded with Specificity
    1.204 Proof of Fees Must Be Presented at Trial

1.3 TYPE OF CASES WHERE ATTORNEY FEES AWARDED
PURSUANT TO STATUTE
    1.301 Prevailing Party
    1.302 Substantially Prevailing Party
    1.303 Award Where Appropriate
    1.304 Statute Vests Courts with “Discretion” to Award Fees
    1.305 Miscellaneous Statutes
    1.306 Motor Vehicle Dealer Fraud

1.4 CONTRACT PREVAILING PARTY CLAUSES
    1.401 Generally
    1.402 Prevailing Party Defined
    1.403 Interpreting Fee Recovery Clauses
    1.404 Examples of Prevailing Party Clauses and Cases

1.5 CONTRACT INDEMNIFICATION/PROTECTION OF RIGHTS
CLAUSES AND CASES
    1.501 General Rule
    1.502 Examples of Indemnification Contracts

1.6 OTHER BASIS FOR RECOVERING ATTORNEY FEES
    1.601 Sanctions—Frivolous Lawsuits, Litigation Abuse
    1.602 Quantum Meruit

1.7 EXCEPTIONS TO THE AMERICAN RULE
    1.701 Third-Party Suits—Attorney Fees as Damages
    1.702 Fraud
    1.703 Trustee Good Faith Defense
    1.704 Alimony and Support Disputes
    1.705 Malicious Prosecution

1.8 AWARDS ON APPEAL
    1.801 General Summary
    1.802 Rule 1:1A
    1.803 Original Fee Award

1.9 STANDARDS OF REVIEW AND BURDENS OF PROOF
    1.901 Standard of Review
    1.902 Burden of Proof

1.10 METHODOLOGY OF DETERMINING ATTORNEY FEES
    1.1001 General Approach
    1.1002 Establish a Prima Facie Case
    1.1003 Assessing Reasonableness of Request
    1.1004 Proving Reasonableness
    1.1005 Determining a Reasonable Hourly Rate
    1.1006 Contingency Fee Cases
    1.1007 Other Issues

1.11 COSTS
    1.1101 General Rule (Statute)
    1.1102 Recoverable Costs
    1.1103 Costs Not Awarded
    1.1104 Appeal Costs
    1.1105 Costs Recoverable by Contract
    1.1106 Burden of Proof
    1.1107 Procedure for Determining Taxable Costs

APPENDIX 1: FORMS FOR USE IN VIRGINIA COURT FEE
PETITIONS

CHAPTER 2: SANCTIONS BY VIRGINIA COURTS

2.1 BASIS FOR SANCTIONS AND GENERAL
CONSIDERATIONS

2.2 SECTION 8.01-271.1 OF THE VIRGINIA CODE
    2.201 In General
    2.202 Purpose of Statute
    2.203 General Considerations
    2.204 Pleading Must Be Grounded in Fact
    2.205 Pleading Must Be Warranted by Law
    2.206 Pleading Must Be Proper
    
2.3 PARTIES SUSCEPTIBLE TO SANCTIONS
    2.301 Both Parties Partially Responsible
    2.302 “Coordinated Effort” Violations
    2.303 Disregard of Counsel’s Advice
    2.304 Spoliation of Evidence and False Deposition
    Testimony
    2.305 Failure to Provide Basis for Allocating Fault
    2.306 Effect of Attorney-Client Privilege
    
2.4 SANCTIONABLE VERSUS NONSANCTIONABLE
    2.401 In General
    2.402 Appropriate Sanctions—Considerations
    2.403 Available Sanctions
    2.404 Pending Motion for Sanctions May Still Be Ruled upon
    After Entry of Nonsuit
    2.405 Sanctions Warranted
    2.406 Sanctions Not Warranted

2.5 INHERENT POWERS

2.6 TYPE OF SANCTIONS
    2.601 Licensure
    2.602 Monetary Sanctions

2.7 RULE 4:12
    2.701 In General
    2.702 Violation of Court Orders
    2.703 Prejudice Not Required
    2.704 Appellate Review
    2.705 Cases Where Sanctions Warranted
    2.706 Cases Where Sanctions Not Warranted
    
2.8 RULE 4:1(g)
    2.801 In General
    2.802 Sanctions Warranted

2.9 APPELLATE REVIEW OF SANCTION AWARDS
    2.901 Abuse of Discretion Standard
    2.902 Contempt

CHAPTER 3: FEDERAL ATTORNEY FEE AWARDS

3.1 INTRODUCTION
    3.101 In General
    3.102 Lodestar
    3.103 Johnson/Barber Factors
    3.104 Perdue Rules

3.2 PROCEDURAL: FILING A PETITION FOR ATTORNEY
FEES
    3.201 Filing Requirements Under Rule 54
    3.202 Eastern District of Virginia
    3.203 Western District of Virginia
    3.204 Ruling on Claim for Fees Pending Appeal
    3.205 Fees and Costs for Appellate Work

3.3 TYPES OF CASES WHERE ATTORNEY FEES AWARDED
    3.301 Common Law Basis for Attorney Fees
    3.302 Federal Statutes that Have Fee Shifting Based on
    Prevailing Party Provisions
    3.303 Federal Statutes That Have Fee Shifting Based on
    “Whenever Appropriate” Provision
    3.304 Attorney Fees Awarded Against the United States
    3.305 Federal Statutes Have Differing Standards for the
    Awarding of Attorney Fees to Prevailing Parties
    3.306 Statutes that Award Attorney Fees to “Substantially
    Prevailing Party”
    3.307 Statutes that Award Attorney Fees to Successful
    Litigants
    3.308 Statutes that Contain Provision Awarding Attorney
    Fees Whenever Appropriate
    3.309 Statutes That Simply Vest District Courts with
    “Discretion” to Award Attorney Fees
    3.310 Other Basis for Attorney Fees
    3.311 Contracts with Prevailing Party Clauses

3.4 STANDARDS OF REVIEW AND BURDENS OF PROOF
    3.401 Abuse of Discretion
    3.402 Burden of Proof

3.5 METHODOLOGY OF DETERMINING ATTORNEY FEES:
LODESTAR METHOD
    3.501 General Approach
    3.502 Reasonableness
    3.503 The Twelve Johnson/Kimbrell Factors
    3.504 Degree of Success Obtained by the Plaintiff
    3.505 Lack of Proper Documentation
    3.506 Excessive, Duplicative, or Unnecessary Hours
    3.507 Downward Departure Based on Other Factors
    3.508 Upward Departure from Lodestar
    3.509 Determining a Reasonable Hourly Rate
    3.510 Recent Cases—Approved Hourly Rates
    3.511 Contingency Fee Cases
    3.512 Other Issues

3.6 METHODOLOGY OF DETERMINING ATTORNEY FEES:
PERCENTAGE OF RECOVERY METHOD
    3.601 In General
    3.602 Seven Factors
    3.603 Lodestar Cross-Check

3.7 OTHER METHODOLOGIES USED FOR DETERMINING
ATTORNEY FEES
    3.701 In General
    3.702 Market Approach
    3.703 Auction Method
    3.704 Corporate Benefit Doctrine Under Delaware Law

3.8 BANKRUPTCY COURT
    3.801 Statutory Basis
    3.802 Awards to Trustee and Trustee’s Counsel
    3.803 Determining Reasonable Compensation—Eastern
    District of Virginia
    3.804 Debtor’s Counsel
    3.805 Fee Applications
    3.806 “No Look” Fees in Chapter 13 Cases

3.9 JOINT AND SEVERAL LIABILITY FOR ATTORNEY FEES
AND COSTS

3.10 COSTS
    3.1001 Federal Rule 54
    3.1002 28 U.S.C. § 1920
    3.1003 Timing for Filing for Taxable Costs
    3.1004 Procedure for Determining Taxable Costs
    3.1005 Enforcement of Local Rules
    3.1006 Burden of Proof
    3.1007 Standard of Review on Appeal
    3.1008 Possible Costs
    3.1009 Other Issues Regarding Costs
    3.1010 Non-28 U.S.C. § 1920 Costs Permitted Under
    Contractual Fee-Shifting Provisions

APPENDIX 3: FORMS FOR USE IN FEDERAL COURT FEE
PETITIONS

CHAPTER 4: SANCTIONS BY FEDERAL COURTS

4.1 BASIS FOR SANCTIONS AND GENERAL
CONSIDERATIONS
    4.101 In General
    4.102 American Rule

4.2 RULE 11 SANCTIONS
    4.201 Rule 11 of the Federal Rules of Civil Procedure
    4.202 Purpose of Rule 11
    4.203 Rule 11 Applies to Attorneys, Parties, and Pro Se
    Parties
    4.204 Filings
    4.205 Timing of Motion
    4.206 Safe Harbor Provisions
    4.207 Identification of Specific Conduct Required
    4.208 Oral Misstatements
    4.209 Specific Sanctions Available Under Rule 11
    4.210 Applicability and Scope of Rule 11

4.3 28 U.S.C. § 1927 SANCTIONS
    4.301 In General
    4.302 Application to Pro Se Litigants Uncertain
    4.303 Standard and Considerations for Imposing Sanctions
    Under 28 U.S.C. § 1927
    4.304 Situations Where Sanctions Warranted
    4.305 Situations Where Sanctions Not Warranted

4.4 COURT’S INHERENT POWERS SANCTIONS
    4.401 In General
    4.402 Sanctions Available Under Inherent Powers
    4.403 Specific Cases

4.5 SANCTIONS FOR DISCOVERY ABUSE
    4.501 Basis for Discovery Sanctions
    4.502 Available Sanctions
    4.503 Test for Determining Whether to Impose Sanctions
    Under Rule 37
    4.504 Warning to Party Prior to Sanctions
    4.505 Cases
    4.506 Due Process Concerns

4.6 RULE 56(h) SANCTIONS
    4.601 In General
    4.602 Application
    4.603 Due Process Requirements
    4.604 Cases
    4.605 Other Summary Judgment Sanctions

4.7 RULE 26(g) SANCTIONS
    4.701 In General
    4.702 Cases

4.8 SANCTIONS UNDER RULE 16(f)
    4.801 In General
    4.802 Cases

4.9 OTHER BASIS FOR SANCTIONS
    4.901 Perjury/Subornation of Perjury
    4.902 28 U.S.C. § 1447(c)

4.10 BURDENS OF PROOF IN MOTION FOR SANCTIONS

4.11 APPELLATE REVIEW OF SANCTIONS AWARDS
    4.1101 Abuse of Discretion.
    4.1102 Review of a Magistrate Judge’s Report and
    Recommendation

4.12 CONTEMPT
    4.1201 In General
    4.1202 Civil Contempt
    4.1203 Criminal Contempt

TABLE OF AUTHORITIES

INDEX


Authors

Bernard J. DiMuro

Bernard J. DiMuro is the managing partner of DiMuroGinsberg. A highly experienced trial attorney, he represents corporations and individuals in complex civil litigation in both the federal and state courts as well as before administrative tribunals in many practice areas including business torts, corporate governance, employment law and defamation. He also represents law firms and attorneys in matters of professional responsibility both before the courts and the disciplinary boards of Virginia and Washington, D.C. In this regard, he provides consultation and representation on, among other things, law firm governance (including law firm disputes), the Rules of Professional Conduct, motions to disqualify counsel, and motions for sanctions and attorney’s fees. Mr. DiMuro earned an undergraduate degree from Northwestern University in 1976 and a law degree from the George Washington University National Law Center in 1979. Mr. DiMuro served as the president of the Virginia State Bar in 2003 and has served on its governing council for 11 years. He previously chaired a grievance committee and the Disciplinary Board of the Virginia Supreme Court and has been a member of Virginia State Bar committees dedicated to the promulgation and review of ethical rules and procedures. He is a Fellow of the Virginia Bar Foundation and the American Bar Association and is a frequent lecturer on numerous continuing legal education subjects including professional responsibility. Mr. DiMuro is often quoted in legal publications and is often called upon by other attorneys to provide legal insight into cases. He has qualified as an expert in Virginia courts on both attorney’s fees and on the standard of care for litigation in Virginia. For these reasons and others, he is continually recognized by his colleagues as one of Virginia's "Legal Elite."

Michael E. Barnsback

Michael E. Barnsback is a partner in the law firm of DiMuroGinsberg. Mr. Barnsback has represented clients in complex civil litigation for over 20 years. As part of the firm’s ongoing work in professional responsibility he counsels attorneys on litigation matters involving motions for sanctions and/or for attorney’s fees. He has qualified and testified as an expert on attorney’s fees issues in Virginia courts. His practice also includes representing Virginia employers in all aspects of employment law. Before his association with DiMuroGinsberg, Mr. Barnsback served as a federal judicial law clerk (Pro Se Clerk) in the United States District Court for the Eastern District of Virginia. During law school, he was a legal assistant for the Federal Judicial Center in Washington, and an adjunct Sociology professor for George Mason University. Mr. Barnsback is a past President of the George Mason University School of Law Alumni Association.

Michael S. Lieberman

Michael S. Lieberman is a founding partner of DiMuroGinsberg, P.C. Mr. Lieberman has more than 30 years of experience representing clients in complex civil and criminal litigation matters. He counsels and represents attorneys and law firms on matters of professional responsibility and motions for sanctions and attorney’s fees before trial and appellate courts and before various disciplinary committees and boards in Virginia. Mr. Lieberman received a Public Justice Achievement Award in 1995 from the Trial Lawyers for Public Justice.

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