Attorney’s Fee Awards: Time-barred

Employment discrimination and wage claims are remedial in nature. That means several things, but one of the most important features to plaintiff’s lawyers is the right to recover fees and costs in a successful suit. This encourages lawyers to represent clients in employment scenarios wherein there is insufficient economic incentive in the case in chief alone. It is now clear that a fee award will not be governed by how much money the client receives. If it costs a dollar to recover a dime, the dollar will likely be awarded, all other things being equal.

There is a trap however, and that trap caught the lawyers in Corey v. Pierce County, 154 Wn. App. 752 (2010). Mr. Corey hit a home run in a wrongful termination case against the County, achieving a judgment on the verdict of $2 million which was affirmed on appeal. But whereas the court of appeals affirmed the right to recover fees, it also affirmed the denial of any fees whatsoever to plaintiff’s counsel. The reason: the fee application was not filed within 10 days following entry of judgment.

Washington Superior Court Civil Rule 54(d)(2) specifically provides that claims for attorney’s fees “other than costs and disbursements” must be made by motion filed no later than 10 days after entry of judgment. There are obviously many good reasons why a fee application might take longer to assemble and present than 10 days, particularly since no one knows if there will even be a fee award until the verdict or judgment is rendered. Allocation between successful and unsuccessful claims is but one example of what a competent fee petition must address. Counsel in Corey offered a variety of justifications for their tardiness. But all to no avail.

Whether a place-holder application for fees filed within the ten-day window would suffice remains to be seen. One might assume however that the cautious practitioner should begin preparation of his or her fee petition early by keeping carefully segregated time entries avoiding block-billing, and thus be ready to make a full and timely application should the opportunity to do so arise. The downside of failing to do so is obviously significant.