Earlier this month, I reviewed a legal bill that included time entries for work done in February. This reminded me that at this time of the year, attorneys (and paralegals) are likely going back through their files and reviewing previously sent legal bills to see if those legal bills reflected all work undertaken in their files. This likely is being done as attorneys and paralegals scramble to get all their time billed out to clients in order to meet firm billing minimums or be eligible for firm bonuses – or even to retain their jobs.
When an attorney finds that work that has not been previously billed for, it is often due to the fact that the time for the work was not recorded on the attorney’s daily timesheet that is used to generate the attorney’s legal bills. And when time is not recorded contemporaneously when the work was done, the attorney will attempt to try to “reconstruct” that time by relying upon memory.
When attorneys attempt to reconstruct their time for work done by relying upon their memories rather than upon contemporaneously kept timesheets, courts and legal commentators alike agree that attorneys tend to misstate their time. As one court put it, “reconstructed records generally represent an overstatement or understatement of time actually expended . . . lawyers who remember spending the entire day working on a case are likely to overstate the hours worked by forgetting interruptions and intrusions unrelated to the case.” Ramos v. Lamm, 713 F.2d 546, 553 n.2 (10th Cir. 1983). Because of a tendency for attorneys to overstate time rather than understate it, courts often do not allow attorneys to collect on legal bills with reconstructed time based upon their memories or make across-the-board cuts in the legal bills. See, e.g., Johnson v. Univ. Col. of Univ. of Ala. in Birmingham, 706 F. 2d 1205 (1983)(11th Cir.).
To address this issue, a company’s billing guidelines should require firms to bill their time on either a monthly or quarterly basis and require that the time billed be based upon time records filled out at the time the work was performed. Going a step further, billing guidelines could even prohibit billing for work more than a certain number of months (e.g., 3 months) after it was undertaken.
As an alternative, billing guidelines could require that legal bills with time billed for work that was more than a certain number of months in the past (e.g., 3 months) be accompanied by copies of the actual timesheets for those days the work was performed. (No contemporaneously made out timesheet, no pay or reduced pay by a certain percentage.) This would help ensure that the time billed for work on those days was contemporaneously recorded and not the product of an attorney’s overactive imagination.
Note: This is my last post as I am discontinuing this blog after 11 years and hundreds of posts. Over the years, I have discussed every conceivable legal billing issue. Also during this time, I have communicated with many followers of this blog who have contacted me to discuss various legal billing issues. I encourage you to continue to contact me if you have a legal billing question or just want to kick around a billing issue. And don’t forget to contact me if you have legal bills you would like me to review or you need an expert witness in a fee bill dispute case. I can be reached at firstname.lastname@example.org.