As the costs of litigation continue to increase, in large part due to overly broad discovery, the skirmishes in motions to compel are taking on new importance as part of the strategy. Attorneys in large law firms are even developing a subpractice area known as “discovery counsel,” particularly with the explosion of e-discovery over electronically stored information. It is for another article to discuss whether discovery should become so large or complex that practitioners can specialize in it. Thus, it will not come as a surprise to anyone that parallel to this issue is the much sought after, but often illusory, claim for attorney’s fees. Clients certainly welcome the opportunity to collect attorney’s fees wherever possible to reimburse their own costs in litigation.

The ability to prevail on a claim for attorney’s fees requires counsel to plan ahead early in the case. Simply winning a motion and then asking for fees will likely create problems in actually being able to present a justifiable claim. Too often, the twin barriers of poor timekeeping records and inappropriate rates block a successful claim for fees. The case law demonstrates an absolute requirement that counsel and parties understand what they will be required to prove to prevail on a fee claim at the outset of the case.

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Co-authored with Collin J. Hite.

Originally published in the December 2013 issue of The Federal Lawyer.

Used with permission.