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Usrey v. Wilson11/1/2002
arty for lack of contemporaneous record keeping.
Rabon Martin, attorney for Wilson, presented testimony at the hearing on attorney fees. He testified he has been an attorney for 32 years handling primarily criminal defense work for which he charges a flat fee. About 35 percent of his practice is personal injury , workers' compensation , and medical malpractice for which he charges on a contingent fee basis. None of these representations requires keeping track of hours expended. In the balance of his practice, he charges $200.00 per hour for out-of-court work and $250.00 per hour for in-court time. He stated he was not asking for an award of an incentive bonus increase, just his time spent.
Mr. Martin testified as to his best and good faith reconstruction of time spent, but did not submit any documentation. He claimed $4,000.00 for trial time and $2,000.00 for pre-trial work. He did request the trial court allow him to offer a more detailed reconstruction of time spent and present it to the trial court. He also pointed out the trial court was aware of the 12 to 16 hours of trial time he spent in the courtroom.
Under §936 and §940 , Wilson is allowed attorney fees as a matter of law. The amount to be awarded is discretionary with the trial court based on the standards set out in Burk. Mr. Martin must present evidence of hours spent on the case, which he may do through reconstructed time records.
The majority picks an arbitrary amount to be awarded Wilson for Mr. Martin's trial time without giving the trial court the chance to exercise its statutory discretion after reviewing Mr. Martin's records. In my view, Mr. Martin should be given an opportunity to reconstruct his time records and present them to the trial court, including both trial and pre-trial work. Based on these submitted records, the trial court would then exercise its discretion to determine the amount of attorney fees it would award.
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