Time to get paid

By Agenique Smiley
BridgeTower Media Newswires
“Counties are getting bargain basement prices,” commented attorney Mitch Foster in reference to the fee caps that some counties impose on attorneys doing court-appointed work. “The law is on your side ... you have the right to a reasonable fee.”

Foster, a Michigan Appellate Assigned Counsel System attorney at Mitch Foster Law in Milford; Brandon McNamee, child welfare attorney at John B. McNamee PC in Port Huron; and Bonnie Faraone, office manager at Michael A. Faraone PC in Lansing, were all panelists during the discussion entitled, “Reasonable Attorney Fees from Unreasonable Fee Schedules” at the recent State Bar of Michigan Appellate Practice Section conference, “The Economics of Court-Appointed Appeals” on Nov. 18 in Novi.

Take maximum advantage of billing increments

“Counties have really cut down on the ability to make money,” commented McNamee in reference to county billing requirements. “In the past, attorneys could bill for every quarter of an hour, now the billing is at one-tenth of an hour ... but there is still an opportunity to make money.

“Dictation software will allow you to take full advantage of billing increments ... good dictation software is intuitive and will remember any correction you have made to the transcription,” McNamee continued. “If you have good dictation software, no legal assistant is needed.

“If you can do something in under six minutes, there is a considerable opportunity to make money,” McNamee advised. He stated that he uses dictation software to save time when drafting everything from statements of facts to emails.

“I whip through certain documents and my hands never touch the keyboard,” stated McNamee. “Dictation software will allow you to do in 30 seconds what could have taken five minutes.

“You can tell the computer to open a file and start dictating after that ... dictation software saves money because it cuts down on the time it takes to complete a task ... taking advantage of each billing increment by using less time to complete a task ultimately saves you money and creates opportunities to make more money,” McNamee added.

Ask, be honest and as descriptive as possible

“As a pre-emptory measure, ask the court for a list of things that cannot be billed for ... it keeps you informed on what you can’t bill for and it makes it more difficult for the county to deny your request because they have already told you what they will pay for,” McNamee stated.

“It is very important to have detailed billing,” stated Foster, “even if the county does not require detailed billing, it is still worth it, just in case the county later has questions.”

“Bill according to the name of the attorney doing the work and the activity being billed for ... put fee information on one side and all the activity related to that activity on the other side …,” advised Faraone.

Faraone, a certified Microsoft Excel expert, stated that she uses Excel spreadsheets for her billing. She advised that she makes spreadsheets that are tailored to each specific county that her firm serves because each “each county’s billing system is different and each has different criteria on how each activity is to be billed.”

“Courts love it,” Faraone continued, “because it lays out everything that is billed for and makes the court administrator’s job easier. Submitting a detailed spreadsheet not only cuts down on billing turnover time, but very rarely do they not get paid.”

Faraone also advised to be forthright in your billing.

“Being forthright will get you paid,” stated Faraone. “Courts always assume that you are lying ... so when you find an error in your billing ... always bring it to the court’s attention and pay back any overpayments you received.

“If you can build a reputation of honesty with the court, your fees are more likely to get paid,” Faraone advised.

“Be honest ... lay out what you are owed ... and aggressively pursue it,” Faraone encouraged, “if you write something off, make sure the court knows that you wrote it off ... include it on your spreadsheet.”
Faraone stated that she outlines her firm’s written-off expenses on the spreadsheet submitted to the court in red.

What to do when the county won’t pay

“Sometimes courts will rip you off,” commented Faraone. “We bill for any and everything ... we even break down utility fees ... bill for it and let the court figure it out.”

“Some counties have fee caps as low as $500 ... how do you justify billing over $1,000,” Foster questioned. “Nonpayment of fees can be either appealed or the subject of a motion for consideration.

“Generally you can file the motion for fees ex-parte and just serve the prosecutor ... it may be good practice to file the motion simultaneously with the fee request …. some counties require a hearing ... but there is an incentive to appear because, in some cases, the judge has not only awarded the requested fees but also additional costs for travel, etc. to appear on the motion.”

Foster further advised, “it may also be helpful to have representation at the hearing to question you before the court as to the source, reason and reasonableness of your fees.”

When a county denies a fee application, an attorney has the right to file a motion for a “Ujlaky” hearing, Foster said, “have your spreadsheet with you at the hearing so you can detail your time and expenses to the court.”

The Michigan Supreme Court in In Re Attorney Fees of John W. Ujlaky held that when there is a dispute over a fee cap, the burden of proof shifts to the county to prove why the fees sought by the attorney are unreasonable and should not be paid.

Foster advised that further incentive for an attorney to enforce his or her right to be paid their reasonable fee is that the Court of Appeals will generally waive the $350 filing fee and will sometimes compensate for time, mileage and expenses in filing and defending their motion.

Foster also advised not to be afraid to ask for fees because “cases are assigned on a regular rotation and the court cannot kick you off the list for exercising your right to payment of a reasonable fee.”