Working the system overtime

by David Nieporent on April 25, 2007

It made news a few weeks ago when attorney Willie Gary (many entries) requested that a court award fees of $11,000 per hour for his work on a lawsuit against Motorola; the $24 million total demand may have been outrageous, but at least it was part of a $10 billion lawsuit.

But what about a lawyer who requests $150,000 in fees on a case that was only worth $11,000? A magistrate judge actually granted the award, but fortunately the federal judge overturned that insanity, awarding just $4,900 in fees:

Zloch said the case, which lasted nearly three years and produced thousands of pages of court files, should have been resolved with 19 hours of legal work. Legal experts not involved in the case say a six-figure attorney fee request in a simple overtime case is extraordinary.

In 2004, Trina Carlson, formerly of Weston, Fla., sued her former employer, Dr. Marc Bosem, a Weston ophthalmologist, for $11,000 in unpaid overtime wages. Bosem, who acknowledged he owed Carlson overtime pay, was represented by Plantation, Fla., lawyer Jeffrey Norkin. The case was settled in January 2006 for $11,000.

On the attorney fee request, Zloch this month overturned U.S. Magistrate Judge Lurana Snow’s award of $142,000 in fees for 455 hours of work at $300 an hour, plus paralegal fees and costs.

The actual saga would be humorous if it weren’t so wasteful; it involves allegations of name calling, bad faith, assaults on court reporters (!), claims of destruction of evidence, and ethics charges.

Readers of Overlawyered will not be surprised to find out that this practice is not unusual.

For several years, defense attorneys have complained that plaintiffs attorneys are filing overtime claims under the federal Fair Labor Standards Act for small dollar amounts that require little litigation, then claiming attorney fees in the tens of thousands of dollars. They complain these cases are clogging the federal courts and angering judges.

In 2003, Judge Federico A. Moreno rejected attorney Donald Jaret’s request for $16,000 in fees on a $315 claim that was settled weeks after the claim was filed. In his order, Moreno wrote that the claim “shocks the conscience of the court. … This strategy of ‘shaking down’ defendants with nightmarishly expensive litigation in pursuit of attorney fees must not be rewarded.”

If only more judges felt that way.

{ 7 comments }

1 Seth 04.25.07 at 8:39 am

The one time I was on a civil jury, the case involved a contract dispute in which the defendant was refusing to pay his real estate broker $25,000 of his fee.

The plaintiff attorney fees were something like $180,000 – which seemed crazy for a $25,000 claim.

Until we went over the actual bill. The facts turned out to be that the plaintiff attorney fees worked out to around $2000/month for completely legitimate work.

It turned out that the developer had been filing frivolous counter-suits and totally ridiculous motions over and over for more than six years trying to break down the broker who could nowhere near match the developers war chest (his attorney was on contingency).

Why was the developer willing to spend all this time and money over $25,000 in a multi-million dollar transaction? Because he wanted to send a message.

Should the broker have had to eat a $25,000 loss because the developer had a bigger war chest? Or should the court have stepped in and told the defense firm that their fees would be capped proportionally to the amount in dispute?

2 Ted 04.25.07 at 9:46 am

Courts need to distinguish between cases where there is churning and multiplication of proceedings by a plaintiffs’ attorney and cases involving scenarios like that Seth mentions (and with which I also have personal experience). The defense attorney seems to be far from blameless in the Bosem case.

Not having read the opinion, perhaps the judge legitimately placed the blame on the plaintiffs’ attorney after a full evaluation of the facts, but I hope some measure of relative fault and sanctions on the defense attorney was at least considered, rather than a knee-jerk reaction that this cost too much.

Part of the problem is the one-sided loser pays. We could be confident the incentives were correctly structured if the defendant could recover their legal fees if they won. We don’t know in this case whether Bosem simply paid off the plaintiff as protection money against further litigation expenses: this case cost him $111,000.

3 Jeffrey Norkin 04.25.07 at 11:05 am

As the attonrey representing Dr. Bosem in this matter, readers should know that at all times my client admitted liability and made ever-increasing offers to settle the case. Mr. Mavrick refused at all times to negotiate. I repeatedly asked for the court’s intervention but the Court did not seem to understand what was happening. The articlle excerpted here gives more information on the issue. But most importantly, I did this case for a friend, and only to pay the claim. I lost over $100,000.00 in unpaid time owrking on this csae. I did not in any way cause the matter to be “Overlawyered.”

4 Jeffrey Norkin 04.25.07 at 11:12 am

I have now read the juror’s comment about the defendant who litigated to “Send a message” and caused the Plaintiff’s attorney to work unnecessarily hard to achieve the result. This did not happen in the Bosem case. Mr. Mavrick used outrageous tactics to bulk up his bill. There was NO meaningful litigation in the case. Everything that happened was in response to Mr. Mavrick’s bad-faith filings, false accusations, and other improper tactics.

5 Jeffrey Norkin 04.25.07 at 2:56 pm

Mr. Frank,

I represented the defense in this case but I am a plaintiff’s lawyer. I worked for the defendant for FREE. I was dragged unwillingly into this litigation by deceit and despicalbe litigation tactics. The judge should have sanctioned plaintiff’s counsel the full $150,000 incurred by my client. The case was worth $6,000 at MOST. Defendant paid Plaintiff far more than that against my advice and to avoid incurring another $30K in fees at trial. If you want the order, please feel free to contact me at jeff@norkinlaw.com.

6 Melvin 04.26.07 at 12:08 am

Mr. Norkin: Please calm down!! It is precisely what happened to you and your client–and a whole lot of other people, agencies, schools, businesses, and more– that these gentlemen (Mr. Frank, Mr. Olson, and now Mr. Nieporent)set up this site years ago. Just take a look at the line under “OVERLAWYERED” at the top of the page: “Chronicling the high cost of the legal system.” Also, look at the “About Us” page.

7 Michael Simpson 04.27.07 at 10:12 pm

I fully agree with Seth and Ted. Mr. Norkin, please excuse me if I disregard your rebuttal as coming from an interested party. I have tried consumer protection cases in Texas in which the juries routinely award more money in attorney’s fees than in damages. The purpose of fee-shifting, “loser pays” statutes is to prevent defendants from making a lawsuit into a battle of attrition with their “bigger war chests”, as Seth put it. In the case reported, it appears to me that a Reagan-appointed federal judge, whose livelihood is guaranteed by the Constitution, robbed a plaintiff’s attorney of more than $100,000 and created a disincentive for attorneys in Florida to pursue lawsuits vindicating employees who have been robbed by their employers. The will of Congress lands on the trash heap while a Republican appointee assists the current administration in the abolishment of the separation of powers. Hooray.

Comments on this entry are closed.