recently issued an order to the parties asking us to address the issue of what other the district court's reliance on language in a bar committee statement justified the meat ax reduction twenty percent for block dealing because this poor cannot determine what the district court did hear those cases focused a lot on procedure and remain handed back to the district courts because it was unclear to the to this  if you have that right and there is some block billing correct there is some billing that contains more than one explanation in an item but i think we ought to be careful when we're talking about luck bill and his plot the only means you're prepare but that wouldn't be block filling that would just be explaining what i'd done in this case if i could give you an example in the very beginning i don't like law feeling and here's the one flaw feeling that i have a problem with and i'm going to catch you for that one because i can't tell what you did because you're saying you did a mandatory case management memo why on that one why isn't that if you look at that you say well you don't need to do i mean you know that the court is presumed to know how long on some level how long certain things take or i think that that's too much time then i think of what what from eight point five to it was four hours for just the right answer so why isn't why isn't that reasonable i think it's i mean i know you don't agree with it but you know but when you do something like that where you just because you've got a great with something doesn't mean that the court can't do it and say well i don't think you need to do them sure that's excessive i think the problem i have with it is that the courts that you can't do any discovery at all because this is an arrest accused now we have a recent nicer decision ninth circuit decision called ability that really changes plain files like we never got a plan we never got a summary plan description not three different versions of it and the critical issue was the client the claimant had information that she was entitled to benefits for ten years we were trying to resolve that issue with the defendant to to get the plan documents and see what it was we got three irrelevantly undocking switch that's five years not ten years but how do we resolve that issue when we don't have what we're supposed to be issue that's in trust of the district court which is to determine based on his or her in this case his knowledge of the case now if you're saying his knowledge was imperfect because he didn't understand why in this case discovery was necessary my question is what what are to be the rule what what is it that you want us to do with respect to what he actually did in this case because he certainly didn't rule it argument is that it's in our view it's an abuse of discretion to cut any attempts at discovery when you can't even get the simple documents you need to prosecutors and we should make the findings of fact up here no i'm not all of the hours we were blocked bill correct ok so to the extent they were block building where there were multiple entries for a unit of a villa built time that the tasks were not just sequential following down one particular lead in the example you gave that what is the it is your argument that that is a district court cannot discount a lot of this of done through billing and we know what it's for this or j j and i'm sure and i don't know how you expect the judge looking at it or much less a client this time to figure out what it is that the client is being billed for if you have multiple entries absent your telling that is the fee claimant telling the district court what percentage of whatever those various  entries accounted for what amount of time i don't know what guidelines the district court is supposed to apply in deciding how much to do a lot and i suppose a district court can say you know i've got three hours of multiple tasks here i think i'm going to assume that half an hour of that was legitimate and all allowed half an hour against three hours and you're the physician would be then that's within the district courts discretion that the ones who are most in control of what the district court will know are the people who are the bills in the first instance absolutely and if i could turn back the clock there would be no block billing you know quarter hour controlling in this file workers don't get paid by the hour by their planes because they can't afford it just is that one of the factors that affects the market rate probably  the declaration that the district court referred to in an unrelated case had to do with the issue of oftentimes we find a defense count defense counsel put in their bills and say well i only charged two sixty or three hundred an hour why are you charging more than we can we do and first of all this ninth circuit authority tells it doesn't really matter what the defense counsel charges it's the prevailing market right but the other answer is that to an extent the market is driven by the fact know that complicated in the south that he had not done anything more than conference with collins on that and so it's why is that an abuse of discretion that well again  client in your office or or if there are still over somebody else you try to run things by bounce ideas off of i think it's especially in the complicated a risk arena we need to confer with one another always happy when we see them well never mind but i have to deal with that and it is very sexual intensive now in this case this judge did not see us other than at the scheduling conference that he has the defendant capitulated and and filed a notice to reinstate benefits the first time the judge heard from us again was when we put in a post judge so from his perspective we have not bothered him very much i agree with that but in the context of putting the motion in we have an obligation to prove the hummel factors in for a while retitled to that effect and we have to go through the bad faith aspects of the denial because as you said he could give us nothing so it may seem to human life we were able to resolve it without his intervention but from our perspective there's a lot of work going on and the fundamental work was just the basics of trying to figure out what this plan set and where  good morning your honor it's an honor and a pleasure to be here today in front of the well maybe an owner will try and make it a pleasure matter how it turns out so i thank you for the five things in particular stand out to me about opposing counsel arguments and i would like to address them to turn first of all household began her argument by asserting that defendants completely capitulated in this lawsuit in some respects she made the right the reality is we never wanted to be involved in this lawsuit at all the very first thing that i did in this lawsuit was pick up the phone and call opposing counsel and say to them there is so little invent if it's at issue here let's resolve this prior to engaging in anything in this lawsuit three years later here we are in the ninth circuit arguing specific issues about what transpired so we didn't completely we didn't want anything to do with this lawsuit from its inception the second point i'd like to address is it a few years from counsel's argument that she's trying to shift the burden from the plaintiff to prove to the district court that they are entitle to to the district court to review their bills with such incredible specificity that the district court thereby can determine whether or not the billing entries are correct the burden as we know is on the pla to show the district court that they are entitled to the benefits he's made the fees that they seek the burden is not on the district court to go through each and every entry in a three motion and determine whether or not those are going to reduce it from four hundred dollars an hour to two hundred fifty dollars in arkansas i never make two hundred you dollars an hour or whatever when you know what evidence was there that four hundred dollars an hour was not a reasonable far as that goes you know i remember i was a trial judge for ten years ago and there were people coming in four hundred dollars an hour then that had certain specializations well you know everything to this record we did not discuss our rates i think it's generally acknowledged that defendants rates are not necessarily of concern at this stage the issue is what is the appropriate rate for plaintiff counsel in a community practicing this kind of law things of that nature what if you put in do so would it w well i'd like to can i do so you basically this rely on the judge to cite something that you found in some other case you know what we did is we took issue with those various declarations and if we look at those those are largely boilerplate declarations those are declarations from several years prior to the action in this case they have no specifics as to what occurred in this case how the law was practiced how the case was run all that goes to ours what about the  what about the prevailing market rates through rigorous new turns you make say well you may get four hundred dollars an hour but you know this case is worth about one hundred hours of time for less than fifty hours or twenty five contract evidence of what plaintiff's counsel in receipt of long term disability benefits cases are entitled we did not do that and what we did is we looked at the declarations that they submitted in support of their hourly rate the type of work that this case entailed the way that this firm practices this type of work which is boilerplate complaints that's in the that's in the the record in front of the court as the district court also stated boilerplate discovery which he had seen before that's part of his reason for knocking that information out and the motion for attorney's fees itself which the district court characterized as weather plays so although counsel still before the court today and discussed how difficult and gone i have the best if that's my area of specialty and i have some really good boilerplate play stuff why do i have  to and you know and there are in certain areas that people you know actually spend the time to do certain things that they're going to use and reuse and put in so i mean it seems to me you've got two arguments you've got to that's appellants are doing the scorched the earth of discovery and approach to this and so they just you've got to cut the hours is what you're saying but the weakest part that i see is that you know just because you use boilerplate doesn't mean you're not worth four hundred dollars an hour i mean if it's good boilerplates well but one would think as we all develop some measure of expertise i think you've made a great point that part of your expertise as i know how to do this theater arist so are antitrust or trade secrets or something and in some point in time your clients and yourself you don't want to continue to reinvent the wheel so there is some element of items that you have used before i think the issue here is a little bit different is the boilerplate here it's it's it's identical if we look at the complaint in this case versus the other complaints that we attach to my declaration front of the district court all it's done is substituting names there are no specific facts there are until unique allegations there's nothing along those lines at all so all it really is is what was why couldn't cut like the term was because you didn't tell me what it like that's what i had to find out sure but it i was just giving a few examples that happened to be one of them they certainly haven't what would you mean well sure you just now said well they didn't put in the specific planned well search she didn't know it because we didn't get with her so what's your what is the what is your argument well you acknowledge jean that you didn't give her what she was looking for so if you could be more specific oser not known as your own i didn't mean that i didn't mean to say that i hadn't given the plan terms i had meant to say that oh sure she could certainly make that argument that she wasn't aware of the plan terms prior to filing the complaint what we've seen in recent cases it happens quite often is the pla actually aware of the various terms by virtue of having participated in the administrative process well prior to filing suit so the plaintiff in many instances i see flatty of complaints in this context where the plants firms are described in great detail defense posture will use boilerplate response to pleadings that have been developed and honed in the practice of law i doubt that you reduce your hourly rate for filing an answer becoming filing an answer presumably what you do is you take it into account in the efficiency you don't get as many hours because you're not crafting so the question is is boilerplate the reason for reducing the hourly rate or is it the reason for cutting down on the number of hours or do you get in london both ends of the equation i think we are entitled to get the numbers and equations of the district court agrees with that as well when i was discussing for the place it was part and parcel with why four hundred hours is four hundred dollars an hour may not be an appropriate rate i also then where does the two fifty come from that the district court decided  appropriate rate yeah that that we suggested a rate between one hundred fifty and two hundred dollars based on based on our experience and history and understanding of the area of the law the actual rate of two hundred fifty how did you present that the court strictly through arguments and things of that nature was that adequate and that's how the district court should be making three decisions based on counsel's argument i don't know what your fact is is i don't know what you've done and i have the highest regard for you prime facially i don't know the wither you know your guy you know you guys are doing the multiple insurance defense claims and have a bunch of low paid review it's a fine point i think on force and we've moved a little bit away from the basis for plaintiffs range and we've started to argue a little bit too much about what perhaps defense counsels race off get to the know i'm not arguing about defense counsel's rate at all i'd like to know what the trial court  record had before him in evidence where the supports two hundred fifty dollars and i don't know where that came from and you're telling me that probably came from your argument that you offered a hundred twenty five so you split the difference or whatever  here's how we explained to just record judge why four hundred dollars an hour is not appropriate and i gave a few examples one is boilerplate two is the fact that the declarations that plaintiff used in support of their fee motions were asked equated they did not that they may have not had anything to do with what this case is about you were talking about for example one of the declarations is from a well that's not the only fee declarations that you know the burden isn't to bring in some lawyer who said i would charge on this case with they bring them in for is to say i practice in this field of law this is the hour really rate that i charged for a variety of arista cases and they've put in those kinds of  standard of reference not because they weren't trying this particular case they didn't bring them in through necessary say i i would have gone through all of this and this is how i would have tried the case i don't think we put that burden on them they did put fully understand and acknowledge that but what i'm looking for is where does it go from industry rates for three fifty to four hundred dollars to two fifty except that the judge apparently looks someplace that's not in the record to decide two hundred fifty was appropriate i don't know how to review that he may have been absolutely correct for correct reasons that i don't see it and i didn't see it i didn't see anything in your presentation didn't we did not do that what we said is your honor based on the decorations in the title work and these kinds of things those were physicians the court at least in part except that the court i believe also based his decision at the hourly rate of four hundred dollars an hour was improper was based on at least two things one is that he believes it has a contingency multiplier built into it and he cited a specific case in which these fictional rate apparently created amongst the plaintiffs far well they all say this is four hundred dollars an hour or more for fifty or for seventy five but even opposing counsel has of knowledge both here in the district court that that that rate is not actually paid by their own clients this contingency work and that rate may have a multiplier built into it which in this district would say he's improper i also believe the district court based its determination that the rate of fifty is correct and not four hundred is based on his own experience custom and practice lawyers that he's seen in his courtroom and i think the district court is most likely the most appropriate person to determine what is an appropriate hourly rate in his courtroom he sees what is certain type of work and certain rates in certain mourning and he seems to be the most appropriate one to make that determination is there anything in the records that would compare the layers that question here but other lawyers that he thinks are worth four hundred dollars is there anything that the district court introduced in that respect of either sat in the record or you know something that you're talking about no there i'd like to turn to another issue in your honor you brought it up earlier is rather than your selection because we're running out of time and we do have a question that you did pose on the block villain yes or no could you explain a filth i think the reason it's justified is going back to one of the first things i said in my argument is that the burden insulting a young plaintiff to show that she is entitle to the fees that she seeks and the burden is to present to the individual line items as you tend the scheduling conference and that took three hours and i get a twenty percent reduction for block billing when it's not blocked bill to certain percentage of the villains that were in your opinion blocked bill yes all right now i've given examples which i think with supported by the record that there are entries which are not multiple entries there line items for discrete tasks now the district court might find that there are inflated in numbers of hours but they aren't blocked bill than in east and in a definitional sense of the term so why is it appropriate for the council seems to have conceded that block billing is grounds for this scanning the fee and the here's where i mean the reason i brought it up is kind of a set up to the rest of us posties his the analysis from the state bar that the district court relied upon had a range in which walk billing may ultimately inflate the total amount of time little in that range i believe was between ten and thirty percent that that's the problem with the study we don't know what it was looking at and all that's saying is that in bills that may consume a percentage of loc billing if you take a look at the block billing components that inflates the overall happen i think what the quote the court did is in in view of the state bar article what he did was he picked a middle range and i believe that he picked that range so that instead of having to go through each and every single entry in the time she's which even the two ninth circuit decisions that the court indicated it wanted to discuss with us today would not require that his records do you pick the middle range of how much waffling could possibly inflate there the time she's he picked the middle range i believe he did that so that he wasn't then burdened with having to go through each and every single entry so he says well it's between ten and thirty and seems to be a fairly refutable study i think we can acknowledge that blocking is probably less interest and that allowed him to therefore take a percentage off the top of the entire bill rather than go back and look at every single entry and determine if that was appropriate or not based on law feeling and against you conclude with that it's plain it's a burden to produce that information terms of having argued over every single thing and probably couldn't get anyone to agree on anything sometimes that happens clearly the district court was annoyed with us and you know i take not seriously but the motion was made and really all these objections we're talking about today were not raised by the defense they never raise fluff eeling quarterly hours they never attacked the particular items that the judge had trouble with they talked about the hourly prevailing rate but didn't submit any evidence they basically said we shouldn't get any fees at all and then the judge did not hold a hearing so to a certain extent we were able to help  that their work there were some that were flock out and the court did look at the study and the court i think did pull out at least one of the block build and looked at that individually and found it to be too much so on that portion of it why would that be an abuse of discretion that portion of the polling that item out but i've been put looked at some of them but you know looked at a little bit of the block selling looked at a study and i mean it's you know didn't just say hey i think i'm just pulling twenty percent out you know look at that looked at the study and what the study had found so you know is it a little you know like reading a law review article or what's going on out there in educating yourself then actually looked at a portion of the block filling and found that to be in you know i think that's too much time was spent here and probably reduce that one by fifty percent but then only cut twenty now i don't count that the other ones that are like field ok ok but why w ouldn't twenty percent just to the block filling one why would that not be a in the face of discretion basically that's the approach that you take i think because on this study is really just a paper and there's no support for the numbers  so i understand a district court maybe found somebody who said something and relied on it but you have to go and look at what that what that report says it's an unsupported statement it's not backed up by any kind of surveys or or i'm going to reduce them down to ten percent of the time times the hourly rate so the net effect could well be you either get twenty percent reductions across the board or you wind up with a twenty percent reduction because of this other number that ten percent number that is fixed outflow what what's what's the principal distinction between the two i don't think there is in the way you've presented it i think