Mary Evelyn McNamara | Recovering Attorney’s Fees in Family Law Cases

This week, on the Texas Family Law Insiders Podcast, we are speaking with Mary Evelyn McNamara. She is a partner at Rivers McNamara, PLLC in Austin. From the beginning of her career, Mary Evelyn knew she wanted to represent people. In order to hone her craft in family law, she became Board Certified. She is a member of the Family Law Council for the State Bar of Texas Family Law Section.

Today we sit down with Mary Evelyn to discuss recovering attorney’s fees, as well as:

  • Preparing to prove your case for attorney’s fees
  • Presenting your bills without violating attorney-client privilege
  • Best practices for identifying fees in interlocking cases
  • Keys to recovering interim and appellate attorney’s fees
  • And more

Mentioned in this episode:

Website: https://riversmcnamara.com

Transcript

Mary Evelyn McNamara: Preparing to testify on attorneys fees is not something you do the night before you’re going to testify in trial. Get started early.

Voiceover: You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We’re excited to welcome Mary Evelyn McNamara as our guest today on the Texas Family Law Insiders Podcast. Mary Evelyn is a partner at the family law firm of Rivers McNamara in Austin. Her practice involves primarily complex family law matters at the trial and appellate levels. Mary Evelyn is board certified in family law and a fellow in the American Academy of Matrimonial Lawyers. She’s also on the Family Law Council for the State Bar of Texas and is the Chair of the Council’s appellate committee. Thank you so much for joining us today.

Mary Evelyn: Thank you for having me, Holly.

Holly: So let’s start with a little bit of background information. Can you tell our listeners how you got started in family law?

Mary Evelyn: Well, it was a matter of being at the right place at the right time, and also some networking ahead. After I had clerked for the Third Court of Appeals in Austin, I was to join a firm in Austin called Brown McCarroll. It’s merged into another firm since then, but I knew I wanted to be a litigator, and I had met the head of family law section, Richel Rivers, and had told her I wanted to be a litigator. It was unusual, by the way, still is for big law firms to have a family law section. But the week I started, there was a family lawyer who was leaving the section to become an associate judge. Richel asked if I would help out in the family law group. And I was hooked the first day. The work was fascinating. And I knew I wanted to represent people. I knew I wanted to represent people as compared with companies. And so it turned out to be a great fit.

Holly: So you’re obviously not still at that firm. Now, as you’re your own. You have your own firm somebody else. So can you describe how you got to be where you are today?

Mary Evelyn: Sure. I didn’t know that at the time. But it turned out that working with Richel Rivers was about a six year job interview. And after that six year job interview, I was thrilled when she asked me to be her partner, and the new firm that we formed Rivers McNamara. We struck out on our own on March 1, 2011, and just celebrated our 10 year anniversary. So we must be doing something right.

Holly: Congratulations on that.

Mary Evelyn: Thank you. Along with that. I’ve worked to hone my craft and family law, I wanted to continue to deepen my knowledge. And one thing I did along the way was become board certified in family law, which I would recommend to anyone who is interested in deepening their knowledge and honing their craft and family law.

Holly: So in your bio, I mentioned that you’re on the Family Law Council of the State Bar of Texas. For anyone who doesn’t know what that is. Can you explain what the Council is and what you all do?

Mary Evelyn: Sure. The Council is the governing body of family law section of the State Bar. It has the executive committee. And then also, members on the council who served in five year terms. Who do committee work such as the appellate committee, you talked about legislative committee, which is a very hard working group and publications committee. Y’all, I’m sure everyone has seen the Texas family law practice manual. That’s a product of the publication’s committee and so the council does the work on behalf of the Family Law Section of the State Bar. Also the head of the council each year, meets with other heads of bar sections and so advocates on behalf of the Family Law Section as as the head of that group.

Holly: So today, we’re here to talk about an issue that is very commonly dealt with in family law cases, which is recovering attorneys fees. So there’s one particular Supreme Court decision Rohrmoos Venture v. UTSW DVA Healthcare, LLP. Can you tell us why that particular case is so important?

Mary Evelyn: Sure. This case came out in 2019 in the site is 578 S.W.3d 469. Rohrmoos court compared to models for recovery of attorneys fees for attorneys fees, Arthur Andersen method and the lodestar method and clarified that when a court is going to be determining an attorney’s fee award, it starts with the lodestar method. And I’ll talk about the lodestar method in a minute. But I want to give a brief background about what happened in that case. Because how this person testified about fees I’ve heard many times in trials, and it’s not going to suffice anymore. He talked about his years of experience, his hourly rate of what the reasonable amount would have been, but that his fees were more than double because of searching through millions of emails, reviewing hundreds of 1000s of documents. 

The Texas Supreme Court reversed it, determining that the fee was general and conclusory devoid of any real substance to support a fee award. The lawyer didn’t explain how much time was spent on a task or categories of tasks. It’s unclear whether he even included in his testimony, all the tasks performed. He didn’t attempt to introduce billing records into evidence or testify about the details of his work. Here, I’ll get to the lodestar method, which is you determine the fees to be awarded by multiplying reasonable number of hours spent working on the case by a reasonable hourly rate. And because the court could not determine the reasonable number of hours spent, times a reasonable hourly rate. The fee award was reversed. He just testified about a general amount and said, gosh, it took a lot to get to this amount. 

Holly: Okay, so in terms of proving a case now, for attorneys fees, what evidence do we need to have in order to have any hope of recovering our attorney’s fees?

Mary Evelyn: Well, of course, you want your fee agreement. And although Rohrmoos included that billing bills are not required. They are strongly urged. And of course, one issue that comes up when you’re talking about introducing your bills into evidence is whoa, wait a minute. I don’t want my entire bill, billing information to be introduced because it’s going to have attorney client privilege information and work product privilege information. And some redaction is okay, by the way. And this takes me to a case that I read about recently that involved a dispute between two inventors of systems for filling and sealing recreational water balloons. Now that’s a case it’s going to catch your attention. I know it’s not a family law case. 

But um, you know, who knew that we were going to have disputes about water balloon filling systems. Anyway, this case out of Dallas last October KBIDC vs. Zuru Toys, upheld the redaction of bills and acknowledged that a three invoices are routinely redacted to protect attorney client and work product privilege. Even with the redactions there, the billing entries listed the attorney who performed the task, the date the attorney’s billing rate, length of time to complete the task and a description of the task, except excluding any privileged material. That was redacted. And that was okay. It was sufficient to apply the lodestar method, even with those redactions.

Holly: Well, that’s really good to know because I’ve been hearing that now we can’t redact our bills. And but it was really going to be a problem of how do you balance including enough information in the bill so the client knows what you’re being billed for? And so that a court can tell if it was a reasonable amount of time for that particular task, while still not waiving privilege or putting too much information that you don’t necessarily want the other side to see.

Mary Evelyn: Well, that’s a balancing act. Because our now we have many levels of communications to our clients, including the bills. They want to know what are we doing working on their case? So you balance including what you’re working on. Keeping in mind what you can redact if you say prepare for trial and your bill. Well, what were you doing? Preparing for trial can include any number of things. So you might deepen that description and say interviewing witnesses, preparing a motion that’s going to be required in trial, working on identifying exhibits. You can keep in your description there. 

And at least in, in my judgment, I don’t believe you need to redact that kind of information. But if you have, you have talked with clients, that’s a task takes time. But you’re going to want to redact public client regarding possibility of hiring an expert witness, talk with CO counsel about and then some specific research tasks that might be done. Consult with a potential expert witness, that’s going to be work product privilege. And you don’t want to include your consulting with Miss Jones about possibly being a parental alienation expert, for example. So in all of those, you can still you can still convey to the client what you’re doing, but have room for redaction of the privileged information.

Holly: So in terms of fee agreements, I generally don’t see attorneys admitting fee agreements into evidence when they’re approving up attorneys fees. Is that absolutely necessary? Or is it enough for the attorney to testify that I’m being paid X dollars an hour, and here’s my bills?

Mary Evelyn: That’s interesting because I generally do see fee agreements being admitted into evidence when proving up attorneys fees. Of course, no one’s going to dispute that the client has retained the attorney for the representation. So I don’t think of the agreement as absolutely necessary. But I would I would consider that belt and suspenders to have the evidence in the record that the client and the attorney have entered into a contract of representation.

Holly: One of the things that I was doing a little bit of research about this issue that I came across was that attorneys need to explain why all entries were reasonable and necessary. Obviously, in a final trial of a big case, there are going to be a lot of billing entries. To what extent can you condense that down? How detailed do you need to be to meet that burden?

Mary Evelyn: Well, as you’re preparing your testimony, you’re going to have some high level areas as you do your case review. As you said, if you’re getting into a going to trial on a highly contested case, there are going to be lots of billing entries. But condensing it down to Did you have multiple temporary orders hearings? How many depositions were in the case where there are multiple depositions requiring a significant amount of preparation for each one? Did the opposing party file multiple motions that required multiple responses? Are there novel legal issues that required more research than usual? 

Was the case fairly straightforward? Or did it have for example of a novel issue in regarding custody? Did it have a novel issue regarding some sort of characterization? And was there something particularly complex such as did it require a lot of document management and contact with a forensic accountant or a complex tracing, then you can, you can zoom out and think more high level as you’re looking back on the case what you’re going to be doing as you prepare your testimony.

Holly: A lot of times in family law, we have interlocking cases with one client, but there may be multiple different types of things happening at once. For example, if we have a client in a custody modification, and then someone files an enforcement during that suit. To what extent do we need to separate out those bills? Or do we need to identify whether a particular billing entry goes to enforcement or modification or both? Or can we want them all together?

Mary Evelyn: I don’t recommend lumping them all together. I think the best practice is when you are seeking fees under different statutory schemes to segregate your your billing entries between for example, seeking fees in a sapcr under Chapter 106 of the family code versus seeking fees under Chapter 157 for an enforcement. Otherwise if the if the time, unless it is so intertwined, which is can be an issue but unless the issues are so intertwined, if the entries are not segregated for the purposes of seeking fees that can be reversed on appeal, because the Court of Appeals is not able to determine what part of this be these fees were for the sapcr what part was for the enforcement. And in fact, I was encountering that issue recently, in a case that ended up settling, but I was looking at it didn’t, in fact, include a sapcr and enforcement. And I was going through and in preparation for my testimony, segregating those fees.

Holly: So you’re segregating them kind of on the back end, you’re not billing them to two different matters along the way.

Mary Evelyn: Actually, in that case, it was segregation on the front end on a single matter in which the billing entries were were separate, or enforcement versus the sapcr.

Holly: That makes sense. So you just mentioned preparing for attorney’s fees portion of a trial. What do you do to prepare prior to your testimony?

Mary Evelyn: Well, first and foremost, most Rohrmoos. Rohrmoos suggested that the agree there be an agreement between the attorneys before trial, as to the amount of fees to avoid protectants protracted fee disputes. So I suggest talking with opposing counsel, to see if you can get a stipulation about the reasonable and necessary fees. Not that anyone is agreeing that the other side should get fees, but that the fees that each side has are reasonable and necessary, stipulate as much as possible ahead of time to avoid those disputes. We’ve talked about good billing practices, I think, going along the way with good billing practices on segregating different statutory schemes for getting fees, writing your bills, having your building entries, requiring as minimal redactions as possible. 

Having ready for trial, two sets of bills, one redacted, and one unredacted for the judge to review in camera. Knowing the rates in your locality. Knowing that your fee, your billing rate is reasonable and necessary. Outlining your testimony as in an affidavit and even preparing an affidavit. Rolling down to satisfy the Arthur Andersen factors. And getting it going sooner than later. Preparing to testify on attorneys fees is not something you do the night before you’re going to testify in trial. Get started early. And also I talked about the concept of a case review, I find it really helpful. Going through my billing entries, as I’m preparing for my testimony to also get a review of what has happened in the case. 

I think that’s very helpful just in general in preparing for trial. And remember the basics, you must testify, you must present evidence that your fees are reasonable and necessary. There was a recent case out of a family law case out of the Dallas Court of Appeals, in which the about $77,000 fee award was reversed, in part because the lawyer did not testify that the fees were reasonable and necessary. And also the billing records were insufficient in that case in that or some of the people on the bills. They were not identified by name, and they were not identified by hourly rate. And so it was impossible to determine who was doing what task and by the way, that case is in the interest of ml. Out of the Houston fort, excuse me, the Houston 14th in January.

Holly: With getting reverse because the attorney didn’t testify about it being reasonable and necessary is just using those buzzwords sufficient or does an attorney need to go beyond that. And if so, what what do they do?

Mary Evelyn: Well, you go back, you go back to the Arthur Andersen factors. I don’t have Arthur Andersen factors, by the way, to just rattle off top of my head. But time and labor require the novelty and difficulty of the questions involved the skill required to perform the services, the likelihood that the acceptance of particular employment will preclude other employment. Be customarily charged in the locality as I was talking about. Know your rates in your in your area. There is a lawyer in Austin, who routinely does surveys of the Austin area, family lawyer rates and circulates those I find that incredibly helpful. 

The amount involved and the results of obtained. Time limitations, nature, nature and length of professional relationship. Experience of the lawyer. That basically, you, you have much more than I think my fees are reasonable and necessary. If you just testified to that, then it’s not going to be sufficient. You want to testify about what was the reasonable amount of time required to perform these services. And what is reasonable? And so no, just I think it’s reasonable and necessary is obviously conclusory. Without anything to back it up. 

Holly: So sometimes, you may need to hire an outside expert for addressing attorney’s fees issues. When do you think that is necessary? And what can an outside expert offer different from the attorney testifying as an expert, which is the norm?

Mary Evelyn: Well, first of all, can your client bear this cost? Can your client afford to have someone else testify? I if I were hiring an outside expert, I would want a family lawyer in my locality, who has been practicing for a while who was familiar with rates familiar with the time it takes on a case in the end. It can be beneficial to have an experienced family lawyer to testify as compared with the trial lawyer directly representing the client. And it can also free up the attorney who’s preparing for trial to prepare for trial. What I just went through as far as some elements of preparing attorneys, fees testimony takes time, it takes a lot of time. And so bringing up the trial attorney to concentrate on witnesses and evidence other than the attorney’s fees can be very helpful again, if the client can afford it.

Holly: And I think the fact that it takes a lot of time to do it right is another balancing act here on what are the odds of actually recovering attorneys fees in this case? Is it worth investing that much time to try and prove them up if your judge isn’t likely to ever award them?

Mary Evelyn: Well, very true. Very true. But you know, the old saw if you don’t ask you don’t know. So it’s definitely a balancing act. I’m not, I’m not going to put $5,000 in preparation fees to seek to recover $5,000 in attorneys fees that have been incurred. I mean, I think that’s kind of a silly example. But still, you have to do a cost benefit analysis of course. And something I am routinely saying to prospective clients and clients is the norm is each person’s going to be ordered to pay his or her own his or her own attorney’s fees. So of course, it’s a balancing act.

Holly: What about interim attorneys fees? And you know, in a divorce case, if somebody is seeking interim attorneys fees, and potentially in another type of case as well, does that change what you have do to prepare? Because obviously, we’re talking about future fees, and how much the fees are going to be required to get us from hearing to final trial.

Mary Evelyn: Yes, yes. And of course, the interim attorney’s fees are crucial in cases in which, for example, one person has the purse strings and the other person does not and say it’s a sapcr compared to a divorce case. And one person may not be able to have sufficient representation without interim attorneys fees. Know your judge, of course. what are the facts of the case, And what’s your client’s situation. But in a sapcr or, for example, if you are my interpretation is if you’re seeking prospective, forward looking future attorneys fees, you still need to have a case budget that you’re testifying about as far as here’s what I anticipate will be needed in this case. If if there’s another temporary orders hearing. If we’re going to be deposing the parties. 

If we foresee there’s going to be an expert witness deposed. Are there novel legal issues that are going to need to be researched? Which I know you know about Holly, as far as the CJC case of the, if you have a case with the novel legal issues, it’s going to require a lot more time, then a fairly straightforward sapcr. And so my best practice would be develop your case budget. Who’s the time keeper? What’s the person’s rate? What is how many hours is it going to take for various tasks for getting interim attorneys fees instead of well, your Honor, based on my experience, the fees in this case are going to be $25,000. I don’t expect that’s going to be sufficient to get interim attorney’s fees.

Holly: One of the issues we deal with a lot, particularly in Collin County and Denton County is our temporary orders hearings are so short. We’re limited to 20 minutes a side, or 30 minutes a side. And when you have such a short amount of time, it’s really hard to devote very much of that to the issue of attorney’s fee.

Mary Evelyn: I’d prepare a summary. I’d just have a summary of the case budget. Your Honor, my testimony would be that the fees are reasonable and necessary, taking into account and, you know, a minute, then introduce your summary into evidence. I’m sure that with those time limitations, y’all are working with summaries all the time.

Holly: Yeah, that’s a great idea. I like that. So kind of along the same lines of interim attorneys fees. Another issue we deal with is appellate attorneys fees. And I don’t think Rohrmoos really addresses appellate attorney fees. But how do you go about recovering those and planning for asking for those?

Mary Evelyn: Well, let’s go back to our water balloon case. Zuru Toys is obviously my new favorite case, since it’s water balloon filling devices. In that case, even though the trial fees incurred were upheld, the appellate attorney fees were reversed. And the reason is the testimony was only a lump sum amount of fees. For example, your honor to handle the appeal at the Court of Appeals I’d be $35,000. That that was reversed because it didn’t have a reasonable hourly rate with reasonable number of hours for that task. 

So I would break that down into, for example, it would be X amount of dollars to review the record at x hourly rate on X number of hours. And then just break it down to prepare the brief, to prepare the reply brief if we’re going to have a reply brief. To prepare and present oral argument if there’s going to be oral argument, but including, again, the the number of hours, times the hourly rate, because again as with the example of interim attorneys fees a lump sum without a breakdown of the task, rate and time, it’s not going to be sufficient. There’s also a case following Rohrmoos called Yowell. y o w e l l that goes into moving appellate attorneys fees after Rohrmoos.

Holly: So if you Is there any way of recovering attorneys fees from the appellate court, or is your only option to have asked for them in the trial court prior to final judgment?

Mary Evelyn: Well, you can certainly request attorneys fees at the appellate court level but best practice is to prove up your prospective appellate attorneys fees in the trial court and and then have what you hope, of course for is a prospective fee for prevailing on appeal that is already in the trial court’s judgment.

Holly: All right. One more topic here. What are some tips you have for cross examining an attorney on the issue of attorney’s fees.

Mary Evelyn: Get those fees down and out. As is get them reduce or get them excluded entirely. The first thing I’ll say is if the other side has put on very general testimony that’s conclusory that was reversed. And along the lines that was reversed in Rohrmoos, be quiet. Don’t drill down and say, gosh, you didn’t give enough testimony, let’s drill down and help you out to see if we can really flesh this out for you. No, just move on. Look over your opposing party’s bills. Have in mind areas that you want to enquire about. 

Was there overbilling. Were there few people, for example, doing the same work. Are the hours out of proportion to the tax. For example, if the case started out, with a straightforward petition for divorce, that that shouldn’t take that much time. And the time entry is 10 hours to prepare the petition for divorce, you want to drill down on that and poke holes and the reasonable amount of time it would take for various tasks. And then, again, cross examine on the Arthur Andersen factors as to just go through and demonstrate unreasonableness.

Holly: How has Rohrmoos impact attorneys who offer flat fee arrangements for family law matters.

Mary Evelyn: Well, lawyers who, again a best practice tip his lawyers who have flat fees should still keep billing records to satisfy the lodestar method. The reasonable hourly rate times the reasonable amount of time to complete the task. Have in in your billing records, even if you’re not providing to them to the client keep good records of who was the timekeeper? What was the rate? What was the task performed? What was the time to complete the task, and then the day performed. That way for a party seeking attorneys fees under the flat fee arrangement, those records would still be available for preparation of these and also introducing those records into evidence

Holly: Certainly seems to defeat the purpose of doing flat fee arrangements.

Mary Evelyn: Again, you would hope in most flat fee arrangements that you wouldn’t be headed to trial of seeking, seeking those fees. That it would be a an uncontested matter that was amicable from beginning to end.

Holly: So one last question, I’d like to ask everyone on our podcast. If you could give one piece of advice to young lawyers, what would it be?

Mary Evelyn: It’s hard to narrow it down to one piece of advice I’d like to give about five or six. But the first piece of advice I would say is get a mentor or more than one mentor. People who are successful in their practices as attorneys did not get that way by themselves. They have mentors along the way, whether they’ve been practicing six months, or they’ve been practicing 40 years, they still have mentors along the way. The second thing I would say is to take care of yourself physically and mentally. This profession can take a lot out of us, especially in the area of family law with the types of disputes that people bring to us. Engage in healthy ways to maintain your health. Because there are a lot of there are a lot of demands. And unfortunately for attorneys, both mental health issues and substance abuse issues are higher than they are in the general population. And so remaining healthy is crucial. 

Holly: Agreed. Excellent advice. Well, thank you so much for joining us today. I think I know I learned a lot about some changes I need to make in my attorney’s fees, testimony and hopefully all our listeners will pick up some good nuggets of information to you. And so thanks for being with us.

Mary Evelyn: Thanks so much, Holly.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle Family Law appellate matters. For more information, visit our website at www.draperfirm.com

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