The “Traditional Method” is Dead; Long Live Lodestar

The Texas Attorney’s Fee Blog*

By John W. Bridger & David A. Kirby

John Bridger hiking with a backpack full of attorney’s fee cases to review.

In the musical Fiddler on the Roof, Teyve opens the play extolling the virtues of tradition and then spends the remainder struggling with and lamenting the erosion of those traditions. A similar scene has unfolded in Texas over the years with respect to the prosecution of attorneys’ fee claims.  To Teyve’s likely chagrin, the “traditional method” for evidencing recoverable attorneys’ fees is dead—the Texas Supreme Court having put a proverbial nail in that coffin last year—and the lower courts are embracing the new standard. Texas attorneys should understand how times have changed.

Historically in Texas, attorneys could prove up attorneys’ fees by either the “traditional method” or the lodestar method.

Under the “traditional method,” the attorney proved up his or her fees by testifying to some, but not necessarily all, of the Arthur Andersen factors and merely stating that his or her total fees sought were reasonable and necessary. See Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). Arguably, this eliminated the need to testify about hours billed, rates charged, and specific tasks performed (although one might give general descriptions of work performed).  Moreover, there was arguably no requirement to submit one’s detailed billing records.

Under lodestar, on the other hand, one must detail the hours spent on specific tasks and rates charged as well as proffer testimony regarding the Arthur Andersen or Johnson factors. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

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