In a clearly written opinion, the NJ Supreme Court held that Perdue is limited only to “federal fee-shifting purposes.” Ultimately, the NJ Supreme Court

“reject[s] the Appellate Division’s conclusion that the Rendine framework for evaluating attorneys’ fee awards made pursuant to state statutory fee-shifting provisions has been altered in any way by the United States Supreme Court’s Perdue decision.” (see p. 33).

Thus, the New Jersey courts can and should continue to evaluate requests for contingency fee enhancements under the analysis set forth in Rendine v. Pantzer, 141 N.J. 292 (1995).

What does all this mean?

In essence, it means that in those cases in which fee-shifting provisions are available under NJ state law, the trial court may award not only attorney’s fees based on the lodestar (reasonable hourly rate multiplied by the time spent on the case), but it may also increase the fee to as much as 100% “‘to reflect the risk of nonpayment in all cases in which the attorney’s compensation entirely or substantially is contingent on a successful outcome.’” Rendine, 141 N.J. at 337 (see p. 11, 19).

Typically, contingency fee enhancements fall somewhere between 5% and 50% (see p.19). It is worth mentioning, however, that a 100% fee enhancement may be possible, but would only occur in rare instances — only for cases “in which no prospect existed for the attorney to be compensated by payment of a percentage of a large damages award, and in which the relief sought was equitable in nature.” (see p.19-20).

In upholding Rendine, the Court linked contingency fee enhancement to the need for attracting competent counsel to socially beneficial litigation. (see p.20).

In light of its reasoning above, the NJ Supreme Court went on to hold that the Appellate Division in two separate cases erred in applying Perdue and denying contingency fee enhancements (see p. 22). In one of these cases, the Court reversed the judgment of the Appellate Division and remanded for entry in favor of plaintiff in the amount of $63,350 in attorney’s fees plus a 50% enhancement, bringing it up to a total of $95,025 in attorney’s fees. Not bad for 180 hours of work, which comes down to about $530 per hour.

Although the Court did not directly address the importance of contemporaneous time records — which has been discussed in many other cases in the past — it is a critically important aspect of this case since it appears that none of the plaintiffs’ attorneys’ timesheets were challenged on appeal.

This case also stresses the importance of trial courts and appellate courts to clearly explain its reasons how it calculated the award of attorneys’ fees. Interestingly, it seems that lower courts in NJ do not always clearly explain why it has awarded a certain amount of attorneys’ fees. Paul Kostro, Esq., offers a summary of one such case here.

As the New Jersey Employment Law Blog suggests, this case is required reading. Attorneys who practice consumer law, employment law, and discrimination matters, or any other state law for which fee-shifting provisions are available, will greatly benefit from reading this case.

© 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

Website - More Posts

Contingency Fee Enhancements in NJ originally appeared on Matthew Stoloff's Blog on February 1, 2012.

This case is not an attorney’s fees case arising out of a special education matter. I’m going to deviate from the legal matters that I usually focus on this blog, but there is good reason: there is a lot to learn from this case.

District of Columbia v. Heller was a case involving the Second Amendment to the Constitution, in which Heller ultimately prevailed in the United States Supreme Court. Heller then sought millions of dollars in attorney’s fees from the District of Columbia. Heller’s legal team sought $589 per hour for the experienced attorneys on the team and $361 per hour for the less experienced attorneys on the team. For many of us who practice law, these numbers aren’t all that shocking — there are lawyers who charge upwards of $1250 per hour. (Don’t believe me? Check out this shortlist.)

But unlike the bigwigs who charge $750+ an hour, Heller’s legal team of attorneys do not work for big law firms. Heller’s lead attorney is a partner in a two-partner private law firm based in Washington D.C., who, along with two other attorneys, do not have “standard, fixed hourly rates.” Three other attorneys who were part of the Heller legal team “are employed by non-profit public interest organizations that do not charge hourly billing rates” (see p. 6-7).

What seems to have hit a nerve among bloggers is that the Heller Court inquired into the overhead costs among big law firms and small law firms (see p. 18) — and considered this as one factor in order to make a determination as to reasonable attorneys’ fees.

I think it’s important to go beyond the Court’s analysis of “overhead costs” and try to understand why the Court reduced the hourly rate that Heller’s attorneys had sought.

To support its position that they were entitled to $589 per hour (for the experienced attorneys) and $369 per hour (for the less experienced attorneys), Heller’s attorneys submitted the following documents:

1. A survey data from the National Law Journal.

2. A declaration from a legal recruiter at a big law firm. (!!!)

3. Citation to a case in which the court approved rates ranging from $625-$750/hour for senior partners at Wilmer Hale. (!)

4. Standard billing rates for attorneys who provided pro bono services (!?)

(See pp. 23-24.)

What is remarkable is that Heller’s attorneys apparently did not submit fee certifications from other attorneys in nearby jurisdictions who are sole practitioners or work in small private firms that perform similar types of work that Heller’s legal team had been involved in.

I don’t think a declaration from a legal recruiter is persuasive. I don’t think that citing to a case where a court approved $750 hourly rate for senior partners of a nationally known law firm is helpful to a legal team that consist of small law firms and not-for-profit organizations. Evidently, the Court didn’t find these persuasive either.

If Heller’s attorneys had cited cases in which the Court had determined that $500 per hour was reasonable for a solo attorney who worked on a Second Amendment rights case in D.C. or Maryland, that would undoubtedly been helpful. And if there aren’t any such cases in D.C., the Heller legal team could have researched similar cases in other Circuits and used those cases to persuade the Court that the hourly fees sought were reasonable.

To make matters even more complicated, the parties involved “fee experts” to determine what was a reasonable hourly rate for Heller’s attorneys.

Had Heller’s attorneys simply obtained fee certifications from several sole practitioners or small to medium sized firms in and around D.C., the case might have been far simpler — and the Court probably would not have had any need to even address overhead costs that large and small firms incur. Moreover, the enormous amount of time and energy expended in connection with the fee litigation could probably have been avoided altogether.

In the end, the Court determined that $420/hr (as opposed to $589/hr) for the experienced attorneys and $315/hr and $275/hr (as opposed to $369/hr) for the less experienced attorneys were reasonable. These numbers might not be what Heller’s attorneys had hoped for, but by all accounts, this is still a very good result.

For all we know, the average hourly rate for sole practitioners and attorneys working in small and medium sized law firms in D.C. and Maryland might be $500 per hour. If that is the case, then some of Heller’s experienced attorneys lost about $100 an hour. But if the average rate among attorneys working in small and medium size law firms in D.C. and Maryland is $350 per hour, then Heller’s experienced attorneys were awarded a slightly higher hourly rate than average.

None of this is to suggest that attorneys working at small to medium sized law firms “deserve” an hourly rate that is less than the attorneys working at big law firms. Not at all. But to successfully argue that your hourly rate is reasonable, certifications of hourly rates from attorneys in similarly sized firms in nearby jurisdictions and practice in particular legal areas will probably be far more persuasive to the Court than anything else. If the hourly rates commanded by sole practitioners and small size firms are lower than what the big law firms charge, the chances of a sole practitioner getting an unusually high hourly rate is probably slim. I think that is the reality sole practitioners and small law firms face.

© 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

Website - More Posts

Did Heller’s Attorneys Demand Reasonable Hourly Rates? originally appeared on Matthew Stoloff's Blog on January 26, 2012.

There is one additional piece of information about attorney’s fees that parents should be aware of: even if a federal court orders that the parent reimburse attorney’s fees and costs to the school district, the fee award may be overturned on appeal.

As a general rule, in order to overturn the fee award, the parents must persuade the appellate court that the school district was not a “prevailing party.”

By way of example: In a recent case, a federal court in the District of Columbia awarded the school district attorney’s fees and costs in the amount of $1027.50 for the time spent in litigating a due process complaint initiated by the parent. On appeal in 2011, the appellate court determined that the school district was not a “prevailing party” and therefore reversed the lower court’s decision to award fees and costs. The case is District of Columbia v. Ijeabuonwu.

Likewise, in a decision also issued in 2011, the United States Circuit Court of Appeals for the Ninth Circuit overturned a lower court’s fee award of approximately $140,000 in attorney’s fees and costs against the parents. The case is R.P. v. Prescott Unified School District.

Now, it goes without saying that appealing a fee award can be challenging. No lawyer can guarantee that parents will win on appeal. It also goes without saying that appealing a fee award can be expensive. The fees associated with litigating the matter in an appellate court can cost as much (and perhaps more than) the actual fee award.

It is therefore critical to weigh your options of prevailing in the appellate court. Even if the parents lack funds, it may be worth the effort to reach out to special education attorneys to see if they are willing to take your case on a pro bono basis. Alternatively, some pro bono legal organizations may be interested in your case. Some of us love a real challenge.

© 2011 – 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

Website - More Posts

Reversing a Fee Award originally appeared on Matthew Stoloff's Blog on August 15, 2011.

This is a very important issue because if the parent prevails, she not only gets some or all of the remedies that she sought on behalf of her special needs child, but she also gets reimbursed for some or all of the legal expenses paid out of pocket.

Now, I want to talk about what could happen if the parent files a frivolous lawsuit.

Although it is not common, it is possible that if a parent files a complaint for a due process hearing against a school district, the school district can sue the parent for attorney’s fees and costs. Fortunately, however, the circumstances upon which the parent may be liable for attorney’s fees and costs are limited.

Perhaps the clearest circumstance in which the parent may be liable for attorney’s fees and costs is when the parent files a frivolous lawsuit. Simply stated, a frivolous lawsuit is a lawsuit that has no merit. Thus, in a situation where a parent files a frivolous lawsuit and loses the case, a court may order the parent to reimburse the school district for attorney’s fees and costs.

Even if a parent files a legitimate complaint, another scenario in which a parent could be liable for attorney’s fees and costs is when a parent continues to litigate the case long after the issues have been settled.

By way of example, there was a recent federal case where a school district filed a federal lawsuit seeking an award of attorney’s fees and costs. In that case, the attorney had continued to litigate the issues even after the school district had agreed to offer all of the relief that the parents sought. The district court determined that the school district was the prevailing party and awarded the school district $10,000. In 2010, the Fifth Circuit upheld the $10,000 award. See El Paso Independent School District v. Berry.

Although it is not common for school districts to seek attorney’s fees and costs from parents in special education matters, parents must nonetheless ensure that their complaints are legitimate and continue to be legitimate throughout the course of the litigation to avoid liability. It is critical to keep in mind all of the pieces of the puzzle and how these pieces fit together.

It is always a good idea to speak with an attorney to ensure that your case has merit. In special education matters, it is advisable to speak with an attorney who is knowledgeable about special education laws and regulations.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

Website - More Posts

Attorney’s Fees and Frivolous Lawsuits originally appeared on Matthew Stoloff's Blog on August 8, 2011.

Many parents with special needs children do not know that it is possible to get reimbursement for attorney’s fees and costs in connection with special education matters. When a special education issue is litigated, and the parents obtain some of the relief that they had sought, a court may declare the parents “prevailing party” and order that the school district pay attorney’s fees and costs to the parents.

For example, suppose that a parent requested an Independent Educational Evaluation (“IEE”) at district expense, but the school district refused to pay for the independent evaluation. If the parent retains a special education attorney, litigates the issue, and subsequently gets the independent evaluation at district expense, a federal or state court may declare the parent the “prevailing party” and award attorney’s fees and costs in connection for having litigated the matter.

This above example is exactly what happened in one of my cases, which was recently decided in a New Jersey federal court. In DI v. Phillipsburg Board of Education, the parent requested certain evaluations and independent evaluations. In response, the school district filed a petition for a due process hearing to challenge the request for the independent evaluations. Ultimately, the parent and school district reached a settlement whereby the school district would conduct or pay for three evaluations. Next, the parent sued the school district in federal court for attorney’s fees and costs in connection with the due process proceedings. A federal court in New Jersey determined that the parent was the prevailing party and ordered that the school district pay attorney’s fees and costs for both the due process proceeding and the fee application.

“Attorney’s fees” are simply the attorney’s total amount of hours expended on the case multiplied by the attorney’s hourly rate. For example, if an attorney charges $200 an hour and spends 50 hours on your case, that is a total of $10,000.00.

“Costs” are expenses that arise in connection with the litigation, such as the cost of xeroxing papers, the cost of faxing papers, the costs of mailing documents via certified mail, etc.

When considering whether to retain a special education attorney to help your special needs child, ask your attorney whether your case is one that may need to be litigated. Also ask whether it might be possible to get reimbursement of attorney’s fees and costs. These are very important questions. Keep in mind, however, that in some instances, it may not be possible to determine whether the case has to be litigated or even if all attorney’s fees and costs can be recouped. Also keep in mind that no attorney can guarantee reimbursement of attorney’s fees and costs. There are many variables at play — talk to your attorney to discuss some of these variables.

© 2011 – 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

Website - More Posts

Attorney’s Fees and Costs in Special Education Cases originally appeared on Matthew Stoloff's Blog on June 27, 2011.

In a previous post, I explained how to prepare for your first in-person meeting with a special education attorney. This post provides tips for writing an email to an attorney for the first time.

Organization is the key to communication. When writing an email, do not write all the facts and your thoughts in a single paragraph. Writing everything in a single paragraph makes it very difficult to read and understand. Please break down your email in multiple paragraphs.

State the facts concisely. Remember the basic Ws and H: who, what, when, and where. If applicable explain why and how. Ideally, each paragraph should contain at least two of these essential pieces of information.

Brevity is essential. If you want to convince an attorney to work on your case, you must understand that the attorney’s time limited. Do not ramble. Do not get emotional. Do not curse. Stick with the facts and express yourself as clearly as your can.

Describe your goal. Towards the end of your email, please explain what it is that you hope to achieve by retaining an attorney. If you are seeking a specific remedy to resolve the issue, say so. If, on the other hand, you are not certain what you want, that’s ok — but please indicate that you are not sure.

Below are two emails that I wrote. Which one of these emails gives clearer information?

Version #1:

My daughter has an IEP and is receiving only basic services. I spoke with the IEP team and they said that she doesn’t need to be reevaluated even though her grades aren’t where they should be. Despite my insistence that they do another evaluation, they refused to do it. They were so rude. The director of special services wouldn’t even listen to what I had to say and he left the room before the meeting was over. I just don’t understand how he could do that. This is my daughter we’re talking about here. She needs these services–both in school and at home! She is regressing in all areas, and needs to be placed in a mainstream class. I want to retain counsel to help me.

Version #2:

My daughter is 10 years old and has PDD-NOS and speech related disabilities. Since 2006, my daughter has had an IEP. For the past three years, from grade 3 to grade 5, she has been in a self-contained classroom at Cookie Monster School in Atlantis. She receives OT 2x a week, PT 2x a week, and speech therapy 4x a week. She also has an augmentative communications device to help her communicate.

My daughter was last evaluated in 2007. The IEP team does not think she needs to be reevaluated. The IEP team also thinks that my daughter will not be able to survive in a mainstreamed class. However, I feel that my daughter has not made progress in the last three years and I think that she needs to be reevaluated. I also think that we need to increase OT services from 2x a week to 4x a week, and I would like to see if we can get an independent OT evaluation.

By the way, the school doesn’t allow my daughter to take the assistive technology device home. I’m wondering if it might be possible for the school to purchase another AT device for her to use at home so that she can continue to communicate effectively with her family and friends.

I don’t know how the IEP team feels about me, but I try to be respectful towards them. However, I am in disagreement with the IEP and would like to retain counsel to help my daughter get the services she needs to do well in school.

As you can see, the differences between Version #1 and Version #2 is like day and night. Yes, it takes more time to write Version #2, but it is much more meaningful and the impact is much stronger. You are more likely to receive a much better response.

Before you send out your first email to an attorney for the first time, read and re-read your email. Make sure that the email contains the basic information broken down in multiple paragraphs. And don’t forget to explain why you want to hire a lawyer and what you hope the lawyer can do for you.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

Website - More Posts

Writing Your First Email to a Lawyer originally appeared on Matthew Stoloff's Blog on May 23, 2011.

Several months ago, Massachusetts attorney Robert Crabtree blogged about the mistakes that parents make in special education matters. Connecticut attorney Jennifer Laviano also has a great blog post about the 10 questions parents should ask themselves at the beginning of the new school year.

I’ll chime in on the top 10 things that parents should keep in mind when they retain a special education attorney:

Do not lie. This is a big no-no. Attorneys almost always find out when their clients lie. It is best to be truthful and straightforward. You will just make it more difficult if you lie to your attorney. It will cost you more money and aggravation. In rare cases, attorneys will cease representing you. Just don’t lie.

Try not to get frustrated answering questions. Attorneys ask a lot of questions. Clients sometimes get frustrated answering questions. It’s understandable. But remember, attorneys ask questions to get as much information as possible. We don’t mean to frustrate you. In any event, it’s good practice to hear these questions if you must file for a special education due process hearing.

Do not contact school personnel regarding issues of litigation. The reason you hired a special education attorney is so that your child can get the services he or she needs. Unless the attorney specifically instructs you to speak with school personnel regarding a particular issue that is being litigated, please direct all correspondences to your attorney. The main reason is simple: to avoid confusion and time-consuming mistakes. Therefore, if you have retained an attorney and have a question about something, ask your attorney.

Do not make any assumptions. Parents retain special education attorneys for their advice and expertise. If you’re not sure about something, ask. If you’re confused about something, ask. Don’t make assumptions. There’s no need to lose sleep over something. A good attorney wants you to understand what’s going on and what the next step will be.

Do not send originals, only copies. When an attorney asks you to send a copy of a document, do not give the original unless specifically requested. We mean that. Just make a copy and keep the original in your file.

Keep all papers. Don’t throw anything out. Every letter, every report, every correspondence, should be placed in a file. Every piece of paper is crucial evidence. In special education cases, nothing is immaterial: No matter how old a report might be, no matter how irrelevant a letter may appear, keep it in a place where you can find it and be sure to furnish a copy to your attorney.