Civil Procedure
One-Minute Delay Costs MoFo $1M in Attorney Fees
Posted Jan 8, 2008 9:50 AM CST
By Debra Cassens Weiss
Missing a deadline for an attorney fee request by one minute has apparently cost a Morrison & Foerster client $1 million, the Wall Street Journal Law Blog reports.
MoFo contended it was late because a hired courier got stuck in traffic on his motorcycle. The courier arrived at the courthouse after closing time, requiring the attorney fee request for Toshiba America Information Systems to be filed the next day.
U.S. District Judge Cormac Carney of Santa Ana, Calif., refused the law firm’s motion for attorney fees in a Nov. 14 opinion (PDF posted by the Law Blog).
The reason for the delay was within the control of the law firm, and the circumstances “however regrettable, do not meet the standard for ‘excusable neglect,’ ” Carney wrote. “The entirely foreseeable obstacle of traffic in Southern California in the late afternoon ... cannot justify an enlargement of time.”
In any event, the request for attorney fees was inadequate because it was not supported by sufficient evidence from Morrison & Foerster lawyer Mark Mersel or in-house lawyers for Toshiba America, Carney said. Submitted declarations were “mere summaries of attorney work and time spent, without any connection between the listed hours and a particular task,” Carney said.
Mersel told the Law Blog his client has asked him not to comment on the case. He left Morrison & Foerster and joined Bryan Cave last week.
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Comments
mike hunt
Jan 11, 2008 7:22 AM CST
The judicial comment about insufficient evidence in this case is purely unnecessary “DICKTA” here, as there was a statutory basis for denial. I wonder if the judge felt that adding that extra rationale would help or further hurt the applicant. In any event, it’s clear the law firm got the shaft (the real meaning of DICKTA we knew and understood long before we learned about it in law school.
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H.V. Baxendale
Jan 11, 2008 8:38 AM CST
I disagree—the judge did everyone a favor by saying the late filing wasn’t the only reason for the loss. Had he not, the client would have looked to the firm to damages; now we know that there were no damages. Further, the result-driven decision (they all are) explains the otherwise inappropriate inflexibility. IMO it would be morally wrong to deny a $1 million claim over 60 seconds.
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Rob C.
Jan 11, 2008 8:58 AM CST
“Judge Carney said submitted declarations were ‘mere summaries of attorney work and time spent, without any connection between the listed hours and a particular task.’”
I’d say that was a rather pointed comment about the state of MoFo’s bilables.
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C Bellovary
Jan 11, 2008 9:04 AM CST
The decision of the judge to list the statutory basis for his decision as well as the deficiencies in the submittal was not only appropriate, it is exactly what he should have done.
It also wasn’t a one minute delay, as indicated by the article title, they missed the day of filing. Anyone cutting the deadline that close is begging for trouble.
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Ed Brewer
Jan 11, 2008 10:02 AM CST
There could be damages here for the client, or more likely the firm will just eat the $1M, perhaps by refunding fees paid. The failure either to keep or to present adequate time records is probably a 1.1 competence or 1.3 diligence problem. We’ve known what adequate time records are since the 1960s, when modern fee-shifting law began developing.
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Billy Madison
Jan 11, 2008 12:27 PM CST
Since when do motorcycles get stuck in traffic in SoCal…? 1 Mil would have bought the MoFo crew some watches that actually work.
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R
Jan 11, 2008 12:44 PM CST
I am deeply offended by Morrison & Foerster’s use of the nickname “MoFo.” Have they no shame?
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CM
Jan 12, 2008 2:04 PM CST
To “R”: The nickname “MoFo” is used by many people to refer to Morrison & Foerester who have no affiliation with that firm. It is not facially in bad taste - without the negative connotation that it conjurs up in your mind, the nickname makes a lot of sense. Just because it does have a negative connotation doesn’t mean that it should be abandoned altogether. In any event, abandonment is not within MoFo’s control….
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Jan
Jan 21, 2008 12:41 AM CST
It takes me more than a minute to unlock my saddlebags and strap on that darn mandatory helmet.
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