Attorney Fees--Determining the number of hours reasonably expended.

In Adair v State of Michigan, __ Mich App __ (#230858, 11/6/2012) the Court of Appeals held that Plaintiffs failed to carry their burden of proving the number of hours reasonably expended in the litigating of their claim.

The party requesting an award of attorney fees bears the burden of proving the reasonableness of the fees requested. Smith, 481 Mich at 528. Smith establishes an analytical framework to guide the lower courts in the methodology of determining what constitutes a “reasonable fee.” In general terms, the Smith framework requires a trial judge to determine a baseline reasonable hourly or daily fee rate derived from “reliable surveys or other credible evidence” showing the fee customarily charged in the locality for similar legal services. Id. at 530-531, 537. Once the trial judge has determined this hourly rate, the judge must multiply this rate by the reasonable number of hours expended in the case. The product of this calculation serves as the “starting point for calculating a reasonable attorney fee.” Id. at 531, 537. Finally, the trial judge may make up-or-down adjustments to the fee based on certain factors enumerated in Rule 1.5(a) of the Michigan Rules of Professional Conduct and Wood v DAIIE, 413 Mich 573 (1982), and any additional relevant factors. Smith, 481 Mich at 529-531, 537.

In determining the number of hours reasonably expended, the party requesting attorney fees has the burden of supporting their claimed hours with evidentiary support, including detailed billing records, which the opposing party may contest for reasonableness. Smith, 481 Mich at 532; Augustine v Allstate Ins Co, 292 Mich App 408, 432 (2011). An itemized bill of costs by itself is insufficient to establish the reasonableness of the hours claimed. Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33 (1983). Indeed, the trier of fact is not required to accept it on its face, id.; nor is the trier of fact required to accept an attorney’s representation that the hours identified in the bill of costs were reasonably expended, Sturgis Savings and Loan Ass’n v Italian Village, Inc, 81 Mich App 577, 584 (1978); see also Augustine, 292 Mich App at 423. Rather, the fee applicant must demonstrate by documentation or specific testimony or both that the time identified as expended on a billable item was actually and reasonably expended. Augustine, 292 Mich App at 432-434; Petterman, 125 Mich App at 33.