With this week’s orders list, the Texas Supreme Court issued one per curiam opinion. It did not choose any new cases for oral argument.

The Court also reset Bob Greene, as next friend of Lewayne Greene v. Farmers Insurance Exchange, No. 12-0867 from its December sitting. That argument will now be heard on January 7, 2014.


Although time records are not always required, at least some documents must support the calculation of attorneys fees

The Court revisited the issue raised in El Apple I, Ltd. v. Myriam Olivas, No. 10-0490 about what evidence is needed to prove up attorney’s fees under some fee-shifting statutes.

Here, one of the attorneys contended that he had worked for 226 weeks on the case, with a “conservative” estimate of 6 hours per week. Based on those estimates, he calculated a fee of $339,000. (( The statute here provides attorney’s fees to a property owner who prevails in arguing that a government’s use of eminent domain was not for a public purpose. Although the Court noted that this was not a true “lodestar” provision, it applied the guidance of El Apple, noting that the parties had approached the issue as if it were a lodestar question. ))

The Texas Supreme Court holds that is not sufficient evidence. In doing so, it made a nice clarification of El Apple:

Contrary to the City’s argument,
El Apple does not hold that a lodestar fee can only be established through time records or billing statements. We said instead that an attorney could testify to the details of his work, but that “in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this information.” For this reason, we encouraged attorneys using the lodestar method … to keep contemporaneous records of their time as they would for their own client.

Lodestar fees do not require strict time records, although time records are one obvious way to clear the evidentiary hurdle.

Here, the Court found that making a trial calculation of ‘226 weeks × 6 hours’ was not enough. The Court noted that some weeks were surely more, and some were surely less. Because the record did not further explain that ‘6 hour’ figure, it could not satisfy the standard. The Court also noted its “puzzlement” that the attorney made no records of time, prepared no bills, and “does not appear to have known how much he was owed … until the calculations at trial.”

The Court reversed this portion of the attorneys fee award and remanded.