Why not follow the best road?

When lawyers need to prove their hours to a trier of fact there are a number of options, but only one particular way is best. As recently emphasized by the 2nd District Court of Appeal:

"[C]ontemporaneous time records are the best evidence of lawyers' hourly work. They are not indispensable, but they eclipse other proofs. Lawyers know this better than anyone. They might heed what they know." Taylor v. County of Los Angeles, 50 Cal. App. 5th 205, 207 (2020).

The central issue is credibility. The law has long been settled that an attorney can testify about what they did: "[T]here is no legal requirement that an attorney supply billing statements to support a claim for attorney fees. As this court has held, 'An attorney's testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.' Of course, the attorney's testimony must be based on the attorney's personal knowledge of the time spent and fees incurred. (Evid.Code, § 702, subd. (a) ... )" Mardirossian & Assocs., Inc. v. Ersoff, 153 Cal. App. 4th 257, 269 (2007) (citations omitted). "[P]laintiff's counsel can meet his burden -- although just barely -- by simply listing his hours and 'identify[ing] the general subject matter of his time expenditures.'" Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000) (citations omitted).

But is such evidence good? Is it sincere? Is it accurate? Is the memory defective? Is the narrative faulty?

Keeping contemporaneous records is surely a time-consuming and bothersome task, particularly if the matter was taken on a fixed-sum or contingency-fee basis, but wise lawyers keep accurate time records: "Pinpointing 'billable hours' spent on a 'partially performed' case is essential to fixing the proper 'pro rata contract share' fraction. Thus, it behooves contingent fee attorneys to keep accurate time records for services rendered. You never know when 'full performance' may be cut short by early discharge or premature withdrawal." Cal. Practice Guide Prof. Resp. Ch. 5:1049

Too many lawyers who are engaged on a fixed-fee or contingency-fee basis never start or do not continue recording their time as it is incurred. This becomes a problem when the client moves on to other counsel or the client prevails and fees are sought from the adversary under one or more fee-shifting provisions.

In a simple instance where the modest time sought is for work done entirely before the court, such as a motion for sanctions, anti-SLAPP motion or a demurrer, it is probably credible to testify about the number of hours and hourly rates for the timekeepers without backup documentation. That is not true where the number of requested hours exceeds the common experience for such things, say N plus 20%, where N is the time that most experienced practitioners will readily accept as reasonable for the work.

Another trap for the unwary is inconsistencies in the estimates. In Taylor there were seven substantial difficulties that the appellate panel felt warranted denial of all fees, but it affirmed the trial court's allowance of a modest award as a discretionary act of grace. That tactic has bothered me in the past, but that I have come to appreciate it as one often used by experienced judges to forestall successful appeals.

Taylor offers a compelling review of admissible versus good evidence: "Lawyers can testify from memory to the hours they devoted to a case. That testimony, based on personal knowledge, can be relevant and admissible. But that evidence may be of poor quality. Witnesses can be prone to bias when their own paychecks are at stake. And every lawyer who has kept time sheets knows delays in recordkeeping diminish accuracy. If you are a month late, it is hard to reconstruct a bygone day in six-minute intervals. Now increase the delay to two years. Perform this thought experiment: what were you doing two years ago today, down to six-minute intervals? These two risks aggravate each other: unless you kept detailed contemporaneous records according to some reliable method, common experience will lead observers to regard your tardy and self-serving six-minute claims as largely fictional."

Taylor captures and explains the four weaknesses of witness testimony:

Suppose a party to the accident case testifies about the details of the automobile accident. There are four kinds of risks to consider: "the risk of insincerity, the risk of impaired perception, the risk of memory defects, and the risk of faulty narration."

Testimony about the car crash might be insincere because, as a party to the case, I am biased. My perception might have been impaired because I was texting and oblivious to all else. My memory may be defective after the passage of time. And my courtroom narration may be faulty if public speaking ties my tongue.

Then the trier of fact must also weigh the evidence. Suppose a nearby camera also captured the car crash. That evidence may also be admissible but far superior to my testimony. The camera's video can be unbiased, unblinking, unchanging and clear. The single video can be worth a thousand of my poor words.

Both are admissible. One is weak. The other is worthy.

Unless you kept detailed contemporaneous records according to some reliable method, common experience will lead observers to regard your tardy and self-serving six-minute claims as largely fictional. Even when my clients and I gave it our full attention, we were not able to capture all the time that went into a six-year case. Some of the lawyers had no records at all and we had to reconstruct time records for the court. "Reconstruction of time records may be permissible for a fee motion if there is adequate information to reach reasonable estimates of the work described. The court's conclusion as to the services provided ... was based on a highly detailed reconstruction of time as to each specific legal task, an expert who reviewed the case files and analyzed whether these specific legal tasks and the amount of time identified for each task was reasonable, and the trial court's own analysis of the declarations and case files." Cates v. Chiang, 213 Cal. App. 4th 791, 821-22 (2013) (citations omitted).

Takeaways

To avoid the loss of time and the substantial expense of reconstructing hours, wise lawyers keep accurate time records. Pinpointing "billable hours" spent on a "partially performed" case is essential to fixing the proper "pro rata contract share" fraction. It behooves both fixed-fee and contingent-fee attorneys to keep daily accurate time records for services rendered.

Contemporaneous time records surely are a bother to keep. But people paying those bills are entitled to care about accuracy. At multiple hundreds of dollars per hour, minutes here and minutes there add up. Accuracy is a professional virtue and a systemic concern. The public is entitled to confidence that the justice system is just as careful about getting legal bills right as it is about getting everything else right. And exact clocks and timekeeping software have made it rather easy to be accurate -- extremely accurate.

The Mardirossian and Fischer courts were obviously right to rule a lawyer could testify about time on a case without providing billing records. But it misunderstands Mardirossian to claim it as a reason for skipping contemporaneous record keeping. You can take that chance if you dare. Perhaps you are confident no client will ever fire you or you will never need to prove up your time in a fee shifting motion. But if that happens, some fact finder and an adversary may put you to your proof. In that situation, you will appreciate your contemporaneous time records. That is best. 