### IN THE SUPREME COURT, STATE OF WYOMING

201 3 W Y 9

OCTOBER TERM, A.D. 2012

J a n u a r y 2 5 , 2 0 1 3

I N T H E M A T T E R O F T H E ATTORNEY’ S F E E S A N D C O S T S I

N T H E T E R M I

N A T I O N O F P A

R E N T A L R I G H T S T O : N R

F a n d J W F , M i n o r Children,

D O N A L D L E E T O L I

N , A t t o r n e y f

o r LMB, Natural Mother,

Appellant (Respondent),

v.

S T A T E O F W Y O M I N G , D E P A R T M E N T O F F A M I L Y SERVICES,

Appellee (Petitioner). S

- 12

- 0067

Ap peal from the District Court of Natrona County The Honorable Catherine E. Wilking , Judge

Representing Appellant: D onald Lee Tolin

, Law Offices of Donald Tolin, Casper, Wyoming

R e presenting Appellee: G r egory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Susan K. Stipe, Senior Assistant Attorney GeneralB e

f o r e K I T E , C

. J

. , a n d G O L D E N , * H I L L , V O I G T , a n d B U R K E , J J

.

* J u s t i c e G o l d e n r e t i r e d e f f e c t i v e S e p t e m b e r 3 0 , 2 0 1 2

N O T I C E : T h i

s o p i n i o n i s s u b j e c t t o f

o r m a l r e v i

s i o n b e f o r e p u b l i c a t i o n i n P a c i f i c R e p o r t e r T h i

r d

. R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e C l e r k o f t h e S u p r e m e C o u r t , S u p r e m e C o u r t B u i l d i n g , C h e y e n n e , W

y o m i n g 8 2 0 0 2 , o f a n y t y p o g r a p h i c a l o r o t h e r f

o r m a l e r r o r s s o t h a t c o r r e c t i o n m a y b e

m a d e b e f o r e f i n a l p u b l i c a t i o n i n t h e p e r m a n e n t v o l

u m e
.1

G O L D E N
, J

u s t i c e

. [¶1] Attorney Donald L. Tolin, who was court appointed to represent an indigent parent in a parental rights termination action filed by the State of Wyoming, Department of Family Services (DFS), which is a state agency legislatively o b l i g a t e d t o p a y f

o r t h e c o s t s of the action including the indigent parent’s attorney fee, Wyo. Stat. Ann. § 14

- 2

- 31 8 ( d) ( ii ) (LexisNexis 201 1 ) , appeals the district court’s fifty percent reduction of his requested amount of attorney fees for his representat ion in this action. As more fully explained below, we hold that the district court did not abuse its discretion by reducing Mr. Tolin’s fee application and, therefore, we affirm that fee reduction.

I S S U E

[¶2] Mr. Tolin states the issue as:

W h e t h e r o r n ot the [district court] abused its discretion in cutting attorney’s fee by 50% , and whether or not its decision

was un supported by the evidence, arbitrary, and capricious.

S T A N D A R D O F R E V I E W

[¶3] In the usual case where the trial court observed the attor ney’s work first hand from the start of the litigation through its conclusion, an appellate court plays a limited role in reviewing a trial court’s award of an attorney’s fee. In the usual case, the appellate court customarily defers to the trial court’s judgment and reviews the trial court’s attorney fee award for abuse of discretion. Joe’s Concrete & Lumber, Inc., v. Concrete Works of Colorado, Inc. , 2011 WY 74, ¶ 12, 252 P.3d 445 , 448 (Wyo. 2011); Ultra Resources, Inc. v. Hartman , 201 0 WY 36, ¶ 149, 22 6 P.3d 889, 935 (Wyo. 2010). “ We can hardly think of a sphere of judicial decisionmaking in which appellate micromanagement has less to recommend it.” Fox v. Vice
, --- U.S.

--- , 131 S.Ct. 2205, 2216, 180 L.Ed. 2d 45 (2011). The instant case is not, however , the usual case because District Court Judge Scott Skavdahl, who observed Mr. Tolin’s work from the start of the litigation through the end of the trial, resigned from his state judicial office and entered his federal judicial office long before Mr. Tolin filed his application for an award of his attorney’s fee. By the time Mr. Tolin filed his fee application, District Court Judge Catherine Wilking, appointed to fill Judge Skavdahl’s vacated state judicial office, had been in that office nine months. It

w as Judge Wilking, not Judge Skavdahl, who reviewed and acted upon Mr. Tolin’s fee application. In Mr. Tolin’s appellate brief, he does not assert that our standard of review of his fee award is other than an abuse of discretion. We are confident that giv en Judge Wilking’s experience and knowledge, both as a lawyer before her appointment to the trial bench and as a trial judge after that appointment, she was well

- qualified to consider judiciously Mr. Tolin’s fee application. We also would note here that w e agree with

m any federal appellate courts that appellate judges, such as those on this Court

, “ a r e2

t h e m s e l v e s e x p e r t s i n a s s e s s i n g t h e r e a s o n a b l e n e s s o f a n a t t o r n e y ’ s f e e a w a r d

, a n d

. . . t

h e appellate court may independently review the record, or itself set the fee.” New Jersey v. EPA , 687 F.3d 386, 390 (D.C. Cir. 2012) (per curiam) (quoting Envtl. Def. Fund, Inc. v. EPA , 672 F.2d 4 2, 54 (D.C. Cir. 1982) ) ; see also ACLU of Georgia v. Barnes

, 1 6 8 F

. 3 d 4 2 3
, 4 3 2 ( 1 1 t h C i r

. 1 9 9 9 ) ; H a l d e r m a n v

. P e n n h u r

s t S t a t e S c h

. & H

o s p

. , 4 9 F

. 3 d 9 3 9
, 9 4 2

- 4 5 ( 3 r d C i r

. 1 9 9 5 ) ; R u m C r e e k C o a l S a l e s , I n c

. v

. C a p e r t o n , 3 1 F

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, 1 8 1 ( 4 t h C i r

. 1 9 9 4 ) ; a n d S i d a g A k t i e n g e s e l l s c h a f t v

. S m o k e d F o o d s P r o d s

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. , I n c

. , 9 6 0 F

. 2 d 5 6 4
, 5 6 6

- 6 7 ( 5 t h C i r

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.

B A C K G R O U N D

[¶4] On March 1 6, 2009, District Court Judge Scott Skavdahl appointed Mr. Tolin to represent indigent LMB in a termination of parental rights action filed by the Wyoming Department of Family Services (DFS). State law requires DFS to pay for the costs of the action, in c l u d ing the attorney’s fee for the indigent parent. Wyo. Stat. Ann. § 14

- 2

- 318 (d)(ii) (LexisNexis 2011) . The action was tried before Judge Skavdahl and a six

person jury over seven trial days beginning September 27, 2010, and, with an intervening weekend b reak, ending October 5, 2010, with the jury’s verdict terminating LMB’s parental rights. Mr. Tolin timely filed LMB’s notice of appeal on October 21, 2010, but on November 30, 20 10 , pursuant to LMB’s decision, he filed a notice withdrawing that appeal.

[¶5] On February 1, 2011, Judge Skavdahl, having on January 31, 2011, resigned from his state judicial office, was installed as Federal Magistrate Judge for the District of Wyoming; on that same date, Judge Catherine Wilking was installed in the state jud i c i a l

o f f i c e v a c a t e d b y J

u d g e S k a v d a h l

. 1 On October 26, 2011, some eleven months after Mr. Tolin had filed LMB’s notice withdrawing her appeal of the district court’s order terminating her parental rights, and nearly nine months after Judge Skavdahl had l eft his state judicial office, Mr. Tolin filed in state dist rict court his motion for an order approving payment of his attorney’s fees in his representation of LMB. His motion included his twenty

- six page detailed itemized billing showing that for the pe riod of February 27, 2009, through February 24, 2011, he claimed 487 .17 hours at the hourly rate of $100, for a total of $48,717.00. He also claimed expenses of $334.30. Between early November 2011 and December 14, 2011, DFS filed its response to Mr. Tol in’s fee motion

, and Mr. Tolin filed his redacted motion as well as a seventy

- eight page affidavit and a four

- page affidavit, all in support of his fee motion.

[¶6] On December 15, 2011, Judge Wilking held a thirty minute hearing on Mr. Tolin’s fee moti on. On January 9, 2012, Judge Wilking issued her decision letter, which was followed on January 10, 2012, by her order awarding Mr. Tolin $24,358.50 in fees, a fifty

1 This Court has personal knowledge of these facts and takes judicial notice of them.3

p e r c e n t r e d

u c t i o n f r o m t h e f e e s s o u g h t i n h i s m o t i o n , a n d $ 3 3 4

. 3 0 i n e x p e n s e s

. M r

. T o l i n t i m e l y a p p e a l e d t

h a t o r d e r

.

D I S C U S S I O N

[¶ 7 ] In the district court’s decision letter, the court correctly observed the following principles:

Wyoming has adopted the federal “ lodestar ” test for

the determination of the reasonableness of attorney fees. UNC Teton Exploration Drilling, Inc. v. Peyton , 774 P.2d 584 (Wyo. 1989). See Stanbury v. Larsen , 803 P.2d 349 (Wyo. 1990). The lodestar test requires that two factors be

c onsidered: (1) whether the fee charged represents the product of reasonable hours t imes a reasonable rate; and (2) whether other factors of discretionary application should be considered to adjust the fee either upward or downward. UNC Teton , 774 P.2d at 595. The party who is seeking an award of fees has the burden of providing proof of the reasonableness of his fee. See Miles v. CEC Homes, Inc ., 753 P.2d 1021 (Wyo. 1988); Jones Land & Livestock v. Federal Land Bank , 733 P.2d 258 (Wyo. 1987). In order to meet that burden of proof, the claimant must present not only an i temized billi ng reflecting the time and the rate, but there

m ust be evidence demonstrating that the fee was reasonable. UNC Teton

.

H i n c k l e y v

. H i n c k l e y , 8 1 2 P

. 2 d 9 0 7
, 9 1 5 ( W y o

. 1 9 9 1 )

. S e e a l

s o U l t r a R e s o u r c e s , I

n c

. , ¶ 162, 226 P.3d at 938. The district court dete rmined that an hourly rate of $100 was a reasonable rate for Mr. Tolin’s fee claim in the parental rights termination action and that rate is not an issue in this appeal. Similarly, the district court’s award of $334.30 in expenses is not an issue here. The only issue before us is Mr. Tolin’s claim that 487 .17 hours is reasonable and the district court abused its discretion by reducing the hours claimed by fifty percent. The district court explained that reduction in its decision letter (emphasis added) :
Considering the “reasonable hours” factor, the Court

thoroughly reviewed the itemized fees requested by Mr. Tolin and was concerned by several entries and concerned with the “reasonableness” of the hours spent by Mr. Tolin overall. The Court will detai l many of those concerns herein, but will also note that the concerns listed are merely illustrative and by no means exhaustive :4 1

. Mr. Tolin’s invoice reflects over four (4) hours of legal research regarding the pretrial memorandum. Yet a review of the pretrial memorandum submitted by Mr. Tolin fails to reveal why that research was undertaken, as no case law is cited by Mr. Tolin in that memorandum and the memorandum does not mention any unique or novel legal issues involved in the termination action;

2

. Mr. Tolin’s invoice contains many entries for time billed for clerical work, such as walking to and from the courthouse to file documents or to retrieve documents;

3

. M u c h o f t h e t i m e b i l l e d b y M r

. T o l i n i s c l e a r l y

e x c e s s i v e f

o r t h e a c t u a l w o r k d o n e

. F o r e x a m p l e , M r

. T o l i n b i l l e d t h i r t y ( 3 0 ) m

i n u t e s t o r e a d a N o t i c e o f S e t t i n g f o r a P r e t r i a l C o n f

e r e n c e , a d o c

u m e n t t h a

t w o u l d t a k e o n l y a f

e w

m i n u t e s t o r e a d ;

4

. Mr. Tolin’s invoice contains entries for over forty (40) hours of time spent reviewing eight

- hundred and nine (809) pages of discovery, which the court finds excessive;

5

. T h e i n v

o i c e i n d i c a t e s t h a t i t t o o k M r

. T o l i n approximately twelve (12) hours to review the Department of Family Service’s exhibits, which the court finds excessive;

6

. Mr. Tol in’s billing for actual trial time is also

e x c e ssive. For example, the invoice contains entries for 17.83 hours billed on September 25, 2010; 17.72 hours billed on September 27, 2010; and 21.49 hours on September 28, 2010.

[¶ 8 ] Mr. Tolin voices an initi al criticism of the district court’s decision, stating “unfortunately, Judge Wilking has made judicial determinations on matters in which she was not directly involved. At the time of trial, Judge Wilking was a private attorney and a contracted Guardian A d Litem for the State of Wyoming. Prior to that she was a prosecutor for the State of Wyoming in [sic] as an Assistant District Attorney in the Seventh Judicial District.” Unfortunately, Mr. Tolin has no one but himself to blame that Judge Skavdahl, who presided over the litigation, did not make the judicial determinations on Mr. Tolin’s fee application. Recall that the trial in this case concluded on October 5, 2010; Mr. Tolin withdrew LMB’s appeal on November 30, 2010; Judge Skavdahl did not join the f e d e r a l j u d i c i a r y u n t i l F e b r u a r y 1
, 2 0 1 1 ; a

n d M r

. T o l i n d i d n o t5

f i l e h i s f e e a p p l i c a t i o n u n

t i l O c t o b e r 2 6
, 2 0 1 1

. A s w e s a i d e a r l i e r i n t h i s o p i n i o n , g

i v e n Judge Wilking’s experience and knowledge, both as a lawyer before her appointment to the state trial bench and as a trial judge after that appointment, she was well

- qualified to consider judiciously and make judicial determinations about Mr. Tolin’s fee application. Combs v. Walters , 518 P.2d 1254 (Wyo. 1974) (per curiam).

[¶ 9 ] The overall tenor of Mr. Tolin’s argument seems to be that the district court should have accepted his evidentiary submissions (including his bill records) at face value and awarded his fee application in the full amount. To the contrary, the court’s discretion in fashioning a f ee award “is by no means shackled by” the attorney’s billing records; “it is the court’s prerogative (indeed, its duty) to winnow out excessive hours.” Gay Officers Action League v. Puerto Rico , 247 F.3d 288, 296 ( 1 st C i r

. 2 0 0 1 )

. T h e d i s t r i c t c o u r t h a s t h e o b l i g a t i o n t o p e r

u s e t h e f e e a p p l i c a t i o n w i t h a n e x p e r i e n c e d e y e

. F o l e y v

. C i t y o f L o w e l l

, M a s s

. , 9 4 8 F

. 2 d 1 0
, 1 9 ( 1 s t C i r

. 1 9 9 1 )

. W e a g r e e w i t h t h e f

e d e r a l

c o u r t s f r o m w h i c h w e a d o p t e d t h e l o d e s t a r t e s t , U N C T e t o n E x p l o r a t i o n D r i l l i n

g I n c

. v

. P e y t o n , 7 7 4 P

. 2 d 5 8 4
, 5 9 4

- 9 5 (Wyo. 1989), that “[b]illing for legal services . . . should not be a merely mechanical exercise. . . . [T]he C ourt must scrutinize the claim with particular care. . . . A reasonable fee can only be fixed by the exercise of judgment.” Copeland v. Marshall , 641 F.2d 880, 888 (D.C. Cir. 1980). This is particularly true where the fee is sought from a public agency like DFS that has the ability to pay with legislatively authorized funds. Id. We agree with the many federal courts that e m phasize the importance of “billing judgment.” Because the attorney who is seeking an award of f ees has the burden of providing proof of the reasonableness of his fee, that attorney must prove he or she has exercised “billing judgment.” Hensley v. Eckerh art , 461 U.S. 424, 434 , 103 S.Ct. 1933, 1939

- 40, 76 L.Ed.2d 40 (1983); UNC Teton, 774 P.2d at 594

- 9 5 ; Green v. Adm ’ rs of Tulane Educ. Fund , 284 F.3d 642, 662 (5 th C i r

. 2 0 0 2 )

. “ B i l l i n g j u d g m e n t i s u s u a l l y s h o w n b y t h e a t

t o r n e y w r i t i n g o f f u n p r o d u c t i v

e , e x c essive, or redundant hours.” Green , 284 F.3d at 662; see also Barnes , 168 F.3d at 428 (fee applicant must exclude from fee application excessive, redundant, or otherwise unnecessary hours that would be unreasonable to bill a client irrespective of the ski ll, reputation or experience of counsel); National Ass’n of Concerned Veterans v. Secretary of Defense , 675 F.2d 1319, 1327

- 28 (D.C. Cir. 1982) (fees are not recoverable for nonproductive time; therefore, the fee application should indicate whether nonprod uctive time or time expended on unsuccessful claims was excluded and, if time was excluded, the nature of the work and the number of hours involved should be stated); R a m o s v

. L a m m , 7 1 3 F

. 2 d 5 4 6
, 5 5 3 ( 1 0 t h C i r

. 1 9 8 3 )

. [¶ 10 ] Against this backdrop of the fe e applicant’s burden of proof and the district court’s duty to winnow out unproductive, excessive, and redundant hours, we now turn to Mr. Tolin’s criticisms of the district court’s six enumerated “merely illustrative and by no means exhaustive” concerns a bout several entries of Mr. Tolin’s billing records and the reasonableness of the overall hours claimed by Mr. Tolin. The district court’s selection

o f t h i s s h o r t r e p r e s e n

t a t i v e l i s t o f c o n c e r n s i s u n d e r s t a n d a b l e , a s t h e r e i s n o r e q u i r e m e n t6

f o r a l i n e

- b y

- l i n e o r b l o w

- b y

- b l o w e x a m i n a t i o n o f t h e f e e a p p l i c a n t ’ s e n t i r e b i l l i n g

r e c o r d

. C

a s e v

. U n i f i e d S c h

. D i s t

. N

o

. 2 3

, J o h n s o n C n t y

. , K a n

. , 1 5 7 F

. 3 d 1 2 4 3
, 1 2 5 4 ( 1 0 t h C i r

. 1 9 9 8 ) ; F

o l e y , 9 4 8 F

. 2 d a t 2 0 . As Justice Elena Kagan has colorfully stated, the “trial c ourts need not, and indeed should not, become green

- eyeshade accountants.” Fox v. Vice
, --- U.S. at

--- , 131 S. Ct. at 2216

. [¶1 1 ] The district court’s first enumerated concern was Mr. Tolin’s billing entry of over four hours of legal research regarding h is pretrial memorandum. Our review of that entry identifies that he claimed 2.03 hours on July 27, 2009, (6 a.m. to 8:02 a.m.) ( “ Research case law for pretrial memorandum and pretrial conference ” ) and 2.15 hours on July 28, 2009 (10:45 a.m. to 12:54 p .m.) ( “ Additional Research on case law for Pretrial Memorandum ” ) for a total of $418.00; and the billing entry for August 4, 2009, shows he attended a one hour pretrial conference on that date. Mr. Tolin’s pretrial memorandum, as the district court correctly observed, contains no case law citations and does not mention any unique or novel legal issues involved in the parental rights termination action. Indeed, the memorandum states that there are no known issues with respect to service of process, parties, jur isdiction or venue, and amendments to pleadings; and no known contested issues of law. Mr. Tolin’s appellate argument asserts that he researched legal issues regarding parental rights terminations, pretrial memorandum requirements, and the question of a j ury trial without an indigent parent’s payment of jury fees. He does not identify any other specific legal issue. In his affidavit in support of his fee application, he states that he is a very knowledgeable and experienced trial attorney representing ch ildren and parents in civil and criminal bench and jury trials over a thirty

three year period; and has taken a significant number of continuing legal education hours related to representation of children and parents and trial advocacy. Given Mr. Tolin’s professed experience, knowledge, and familiarity of the applicable law, and his failure to identify any specific issues that he researched, we agree with the district court’s exercise of discretion in eliminating these hours. Ursic v. Bethlehem Mines , 719 F.2d 670, 67 6

- 7 7 ( 3 r d C i r

. 1 9 8 3 )

. M r

. T o l i n ’ s i n c l u s i o n o f b i l l i n g e n t r i e s l i k e t h e s e r e v e a l s t h a t h e h a s f a i l e d t o e x e r c i s e b i l l i n g j u d g m e n t

. [¶1 2 ] The district court’s second enumerated concern was Mr. Tolin’s many billing entries for clerical work, s uch as walking to and from the courthouse to file or retrieve documents. Mr. Tolin’s appellate criticism is that the district court did not cite specific instances and his argument is “no time was billed for strictly clerical work.” Our own review of his billing entries found at least fourteen such entries:

 3 / 1 2 / 2 0 0 9 T a k e p a p e r w o r k t o A n g i e / D i s t r i c t C o u r t : A f

f i d a v i t o f I n d i g e n c y ( c l i e n t ) ( 0

. 2 5 h o u r s / $ 2 5

. 0 0 ) ;

 3/16/2009 Pickup from Clerk of Court’s office and review certified copy of court order appointi ng counsel for mother (0.25 hours/$25.00);7

 4/02/2009 Pickup from Clerk of Court’s office and review Notice of Setting for default hearing on father (0.17 hours/$17.00);

 6 / 0 9 / 2 0 0 9 P i c k

u p a n d r e v i e w c o r r e s p o n d e n c e : N o t i c e o f S e t t i n g o f P r e t r i a l C o n f e r e n c e s i g n e d b y J u d g e S k a v d a h l ( 0

. 5 0 h o u r s / $ 5 0

. 0 0 ) ;

 8/03/2009 Pickup from Clerk of Court’s office and review copy of proposed court order (0.20 hours/$20.00);

 8/03/2009 Pickup from Clerk of Court’s office and review pleading (0.32 hours/$32.00);

 7 / 1 4 / 2 0 1 0 F i l e a n d m a i l p l e a d i n g s a n d c e r t i f i c a t e o f s e r v i c e ( 1

. 0 5 h o u r s / $ 1 0 5

. 0 0 ) ;

 7 / 2 6 / 2 0 1 0 F i l e p l e a

d i n g s w i t h C l e r k o f C o u r t ( 0

. 2 5 h o u r s / $ 2 5

. 0 0 ) ;

 7/26/2010 Pickup from Clerk’s office and review certified copy of court order granting modification of scheduling or der (0.20 hours/$20.00);

 8 / 1 0 / 2 0 1 0 P i c k

u p f r o m c o u r t h o u s e a n d r e v

i e w c e r t i f i e d c o p y o f O r d e r G r a n t i n g M o d i f i c a t i o n o f S c h e d u l i n g O r d e r ( 0

. 2 8 h o u r s / $ 2 8

. 0 0 ) ;

 9/22/2010 Pickup juror list from Sam/District Court Clerk ’s Office (0.25 hours/$25.00);

 9 / 2 9 / 2 0 1 0 File pleadings with Clerk of Court: Stipulation of Respondent’s Exhibits (0.17 hours/$17.00 ) ;

 1 0 / 2 2 / 2 0 1 0 P i c k

u p p a p e r w o r k a t c o u r t

h o u s e ( 0

. 2 5 h o u r s / $ 2 5

. 0 0 ) ;

 11/09/2010 Pickup from Clerk of Court’s office and review proposed court order appointing counse l returned unsigned and noted by judge to hold for hearing (0.10 hours/$10.00).

[¶1 3 ] The case law is clear that “purely clerical or secretarial tasks should not be billed at a paralegal rate regardless of who performs them.” Missouri v. Jenkins , 491 U.S . 274, 288 n.10 , 109 S.Ct. 2463, 2472 n.10 , 105 L.Ed.2d 229 (1989). “Clerical work, however, should be compensated at a different rate from legal work.” W a l k e r v

. U n i t e d S t a t e s Dep ’ t

. of HUD , 99 F.3d 761, 770

- 71 (5 th Cir. 1996). “[C]lerical or secretari a l t a s k s o u g h t not to be billed at lawyers ’ rates, even if a lawyer perform s them.” Lipsett v. Blanco

, 9 7 5 F

. 2 d 9 3 4
, 9 4 0 ( 1 s t C i r

. 1 9 9 2 )

. M r

. T o l i n ’ s i n c l u s i o n o f b i l l i n g e n t r i e s l i k e t h e s e a l s o

r e v e a l s t h a t h e h a s f

a i l e d t o e x e r c i s e b i l l i n g j u d g m e n t

.8

[ ¶1 4 ] The district court’ s third, fourth, and fifth enumerated concerns give examples of clearly excessive billing hours, including reading a notice of setting for a pretrial conference, spending over forty hours reviewing 809 pages of discovery , and spendi ng twelve hours to review DFS exhibits. Mr. Tolin’s appellate responses range from the district court has no basis to know how much time was taken to do a specific task and should take his word for it, to “counsel’s reading speed is counsel’s reading spee d,” and to reviewing exhibits for a seven

- day trial cannot be just a quick skim through. We reject these responses and find the following passage a suitable explanation for that rejection:

There is no requirement, either in this court or elsewhere, that district courts identify and justify each disallowed hour. See New York State Association for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983); Copeland v. Marshall, 641 F.2d at 903. Nor is there any requirement that district
courts annou nce what hours are permitted for each legal task. Such a rule would lead to disagreement of the most odious sort between court and counsel.

N o o b j e c t i v e s t a n d a r d e x i s t s t o r e s o l v e a d i s p u t e , f

o r

e x a m p l e , o v e r t e n h o u r s l o g g

e d f o r d r a f t i n g i n t e r r o g

a t o r i e s

. A l a w y e r m a y i n s i s t t h e t i m e w a s n e c e s s a r y , w h i l e a c o u r t , b a s e d u p o n e x

p e r i e n c e a n d j u d g

m e n t , i n c l u d i n g k

n o w l e d g e o f
t h e c a s e i t s e l f

, m a y d e c l a r e h a l f t h e t i m e t o h a v e b e e n unnecessary. Under the theory proposed by plaintiffs ’ counsel, dozens of subsidia ry questions then arise. Was the lawyer interrupted while drafting? Was the draft in longhand or dictated? Did the lawyer use previous forms on a word processor? Was research necessary? Were, for example, f ourteen of thirty interrogatories really necessary ? Is the l a w y e r a s l o w t h i n k e r , a p o o r w r i t e r ( o c c a s i o n i ng many drafts), or harassing the opposition for tactical purposes?

A s w e s t a t e d

, s u c h i n q

u i r i e s w o u l d q u i c k l y b e c o m e

o d i o u s

. T h e p r o c e s s w o u l d d e s c e n d t o a c o n t e s t b e t w e e n c o u r

t

a n d c o u n s e l

, w i t h c o u n s e l i n s i s t i n g t h a t h i s o r h e r i n t e g r i t y i s b e i n g i m p u g n e d e v e r y t i m e t h e c o u r t q u e s t i o n s t h e n u m b e r o f h o u r s l o g g

e d f o r a g i v e n d a y o r a p a r t i c u l a r t a s k

. A n d

, s u c h a p r o c e s s w o u l d s t i l l n o t r e s u l t i n a p r o d u c t f r e e o f d i s p u t e

. T o t h e c o n t r a r y , d i s p u t e s w o u l d b e m u l t i p l i ed, violating the Supreme Court’ s cauti on that a “request for attorney’ s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437, 103 S.Ct. at 1941.9 A general reduction of hours claimed in order to achieve what the c ourt determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use. Hensley, 461 U.S. at 424, 103 S.Ct. 1933; Love v. Mayor of Cheyenne, 620 F.2d 235, 237 (10th Cir. 1980) ; Northcross v. Board of Edu cation, 611 F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980); Davis v. Fletcher, 598 F.2d 469 (5th Cir. 1979). For example, in Hensley the Supreme Court expressly found to be proper a one

- third reduction of one at torney's hours, “to account for his inexperience and failure to keep contemporaneous time records.” 461 U.S. at 438 n.13, 103 S.Ct. at 1942 n.13. I

n [ Pennsylvania v. ] Delaware Valley [ Citizens’ Council for Clean Air , 478 U.S. 546 , 106 S.Ct. 3088 , 92 L.Ed.2 d 439 (1986)]

, the Supreme Court expressed no disagreement with general reductions by the district court of 48% and 33 1/3 % in time claimed by various counsel. Reasons given for those reductions included findings of “unnecessary, unreasonable or unproducti ve” time, 106 S.Ct. at 3099, a nd that “the time spent on the particular activity was ‘excessive,’ or that a less amount of time was ‘reasonable,’ ” id. at 3092 n. 2.

M a r e s v

. C r e d i t B u r e a u o

f R a t o n , 8 0 1 F

. 2 d 1 1 9 7
, 1 2 0 2

- 0 3 ( 1 0 t h C i r

. 1 9 8 6 )

. [¶1 5 ] The dist rict court’s sixth enumerated concern was Mr. Tolin’s excessive billing for “actual trial time,” as exemplified by entries for 17.83 hours on Saturday, September 25, 2010; 17.72 hours on Monday, September 27, 2010; and 21.49 hours on Tuesday, September 28, 2010. In Mr. Tolin’s appellate response, he correctly observes that the first trial day was Monday, September 27, 2010, and his actual “in trial” hours were 6 .95 hours (3.23 hours in the morning and 3.72 hours in the afternoon). He also correctly observ es that on the second trial day, Tuesday, September 28, 2010, his actual “in trial” hours were 6.02 hours (2.52 hours in the morning and 3.50 hours in the afternoon )

. Obviously, the district court misspoke about those hours being “actual trial time.” But those corrections about “actual trial time” do not cast doubt on the excessiveness of Mr. Tolin’s billing for the period from Friday, September 24, 2010, through Tuesday, October 5, 2010

. In the entries that follow, as highlighted, we have paid particula r attention to the last entries of one day and the first entries of the next day; one must ask: when did the attorney sleep, eat, and take care of other personal matters

. His billing entries for that period are:

 F r i d a y , S e p t e m

b e r 2 4
, 2 0 1 010 H i s f i r s t e n t r y i s a t 5 : 0 0 a

. m

. a n d h i s l a s t e n t r y i s 1 1 : 5 0 p

. m

. , a n d h e

c l a i m e d 1 3

. 0 4 h o u r s

.

 S a t u r d a y , S e

p t e m b e r 2 5
, 2 0 1 0

H i s f i r s t e n t r y i s 6 : 0 0 a

. m

. a n d h i s l a s t e n t r y i s 1 1 : 5 0 p

. m

. , a n d h e c l a i m e d 1 7

. 8 3 h o u r s

.

 S u n d a y , S e

p t e m b e r 2 6
, 2 0 1 0

H i s f i r s t e n t r y i s 4 : 3 0 a

. m

. a n d h i s l a s t e n t r y i s 1 1 : 5 7 p

. m

. , a n d h e c l a i m e d 1 9

. 3 3 h o u r s

.

 M o n d a y , S e

p t e m b e r 2 7
, 2 0 1 0 ( f

i r s t t r i a l d a y )

H i s f i r s t e n t r y i s 5 : 3 0 a

. m

. a n d h i s l a s t e n t r y i s 1 1 : 5 5 p
. m

. , a n d h e c l a i m e d 1 7

. 7 2 h o u r s

.

 T u e s d a y , S e p t e m

b e r 2 8
, 2 0 1 0 ( s e c o n d t r i a l d a y )

H i s f i r s t e n t r y i s 1 : 0 0 a
. m
. a n d h i s l a s t e n t r y i s 1 1 : 5 5 p
. m
. , a n d h e

c l a i m e d 2 1

. 4 9 h o u r s

.

 W e d n e s d a y , S e p t e m

b e r 2 9
, 2 0 1 0 ( t

h i r d t r i a l d a y )

H i s f i r s t e n t r y i s 1 : 3 0 a
. m
. a n d h i s l a s t e n t r y i s 1 1 : 5 5 p
. m
. , a n d h e

c l a i m e d 2 1

. 3 7 h o u r s

.

 T h u r s d a y , S e p t e m

b e r 3 0
, 2 0 1 0 ( f

o u r t h t r i a l d a y )

H i s f i r s t e n t r y i s 2 : 0 0 a
. m
. a n d h i s l a s t e n t r y i s 1 1 : 5 5 p
. m
. , a n d h e

c l a i m e d 1 9

. 3 9 h o u r s

.

 F r i d a y , O c t o b e r 1
, 2 0 1 0 ( f i f t h t r i a l d a y )

H i s f i r s t e n t r y i s 1 : 0 0 a
. m
. a n d h i s l a s t e n t r y i s 1 1 : 5 8 p
. m
. , a n d h e

c l a i m e d 2 0

. 5 8 h o u r s

.

 S a t u r d a y , O c t o b e r 2
, 2 0 1 0 ( w e e k e n d b r e a k )11 H i s f i r s t e n t r y i s 6 : 0 5 a

. m

. a n d h i s l a s t e n t r y i s 1 1 : 3 0 p

. m

. , a n d h e c l a i m e d 1 5 h o u r s

.

 S u n d a y , O c t o b e r 3
, 2 0 1 0 ( w e e k e n d b r e a k )

H i s f i r s t e n t r y i s 6 : 0 0 a

. m

. a n d h i s l a s t e n t r y i s 4 : 0 6 p

. m

. , a n d h e c l a i m e d 1 0

. 1 0 h o u r s

.

 M o n d a y , O c t o b e r 4
, 2 0 1 0 ( s i x t h t r i a l d a y )

H i s f i r s t e n t r y i s 2 : 0 0 a
. m
. a n d h i s l a s t e n t r y i s 1 1 : 5 9 p
. m
. , a n d h e

c l a i m e d 2 1

. 2 3 h o u r s

.

 T u e s d a y , O c t o b e r 5
, 2 0 1 0 ( s e v e n t h d a y o f t r i a l )

H i s f i r s t e n t r y i s 1 : 0 0 a
. m
. a n d h i s l a s t e n t r y i s 7 : 5 4 p

. m

. , a n d h e c l a i m e d 1 6

. 4 7 h o u r s

. [¶1 6 ] The total hours billed for the period Friday, September 24, 2010, through Tuesday, October 5, 2010, are 213. 55 hours. For that twelve day period, there are 288 hours (12 x 24 hours). Of that 288 hour period, Mr. Tolin billed 213

. 55 hours. We find this billing clearly excessive.

[¶1 7 ] Another time period is equally excessive, from Friday, August 27, 2010, through Sunday, Au gust 29, 2010, and again we highlight the last entry on one day and the first entry on the next day:

 F r i d a y , A

u g u s t 2 7
, 2 0 1 0 H i s e n t r i e s b e g

a n a t 5 : 5 1 p

. m

. a n d e n d e d a t 1 1 : 4 5 p
. m
. , a n d h e c l a i m e d 5

. 9 0 h o u r s

.

 S a t u r d a y , A

u g u s t 2 8
, 2 0 1 0

H i s f i r s t e n t r y i s 1 2 : 0 0 a
. m
. t h r o u g h 8 : 0 0 a

. m

. ( 8 h o u r s ) ; h i s n e x t e n t r y i s 9 : 0 0 a

. m

. t h r o u g

h 2 : 0 0 p

. m

. ( 5 h o u r s ) ; h i s n e x t e n t r y i s 2 : 3 0 p

. m

. t h r o u g h 6 : 0 0 p

. m

. ( 3

. 5 h o u r s ) ; h i s n e x t e n t r y i s 7 : 0 0 p

. m

. t h r o u g h 9 : 4 5 p

. m

. ( 2

. 7 5 h o u r s ) ; a n d h i s f

i n a l e n t r y i s 1 0 : 0 0 p
. m
. t h r o u g h 1 1 : 4 5 p
. m
. ( 1

. 7 5 h o u r s )

. T o t a l h o u r s b i l l e d f

o r r e v i e w i n g d i s c o v e r y f

r o m D F S f

i l e s i s 2 1 h o u r s

.

 S u n d a y , A

u g u s t 2 9
, 2 0 1 0

H i s f i r s t e n t r y i s 1 : 0 0 a
. m
. t

h r o u g h 9 : 1 5 a

. m

. ( 8

. 2 5 h o u r s ) ; h i s n e x t e n t r y i s 1 0 : 0 0 a

. m

. t h r o u g

h 4 : 0 0 p

. m

. ( 6 h o u r s ) ; h i s n e x t e n t r y i s 5 : 3 0 p

. m

. t h r o u g h12 7 : 1 5 p

. m

. ( 1

. 7 5 h o u r s ) ; a n d h i s l a s t e n t r y i s 7 : 1 5 p

. m

. t h r o u g h 1 1 : 3 0 p

. m

. ( 4

. 6 7 h o u r s )

. T o t a l h o u r s r e v i e w i n g d i s c o v e r y f r o m D F S f

i l e s a n d

r e s e a r c h i n g D F S p o l i c i e s i s 2 0

. 6 7 h o u r s

.

T h u s , f o r t h e p e r i o d F r i d a y , A u g u s t 2 7
, 2 0 1 0
, t

h r o u g h S u n d a y , A

u g u s t 2 9
, 2 0 1 0
, h e

c l a i m s 4 7

. 5 7 h o u r s

. [¶1 8 ] The above and foregoing billing entries for A ugust 27 through August 29, 2010, and September 24 through October 5, 2010, are patently excessive. Metro Data Systems, Inc. v. Durango Systems, Inc. , 597 F.Supp. 244, 246 (D. Ariz. 1984) (accuracy of time records called into question by lawyer’s claim to have logged 18.9 hours in one day; to have accomplished this, he would have had to have been in his office from 5:06 in the morning until midnight, without taking any time for meals, to relieve himself or to do anything else); Chrapliwy v. Uniroyal, Inc.

, 583 F.Supp. 40, 49 (N.D. Ind. 1983) (court is deeply concerned about lead counsel’s excessive hours; on thirty

- four occasions he billed for ten hours or more; on seventeen occasions he billed for twelve hours or more; he billed for one twenty hour day as well as eight days where his hours billed equaled or exceeded fifteen hours). In Ramos v. Lamm , the appeals court observed:

[ L ] a w y e r s w

h o r e m e m

b e r s p e n d i n g t h e e n t i r e d a y w o r k i n g o n

a c a s e a r e l i k e l y t o o v

e r s t a t e t h e h o u r s w o r k e d b y f o r g e t t i n g i n t e r r u p t i o n s a n d i n t r

u s i o n s u n r e l a

t e d t o t h e c a s e

. I

n t h e instant ca se, for example, Ms. Wiesenberg’ s reconstructed time records for May 3, 1980 to May 23, 1980 show the f ollowing hours of her time expended on the appeal: 10, 12.25, 14.05, 12.85, 13, 15, 5.5, 6.75 , 20.75, 13.5, 9.65, 11.8, 13.05, 8.85, 14, 18, 0, 15.5, 11.85, 15.9, and 15.4.

. . . W e consider it doubtful that one lawyer, briefing an appeal, would work 20 days of a consecutive 21

- day period, never spending less than 5.5 hours on the case and spendin g between 11.80 hours and 20.75 hours on 15 of those days. The district court should give special scrutiny to any reconstructions or estimates of time expended and make reductions when appropriate.

7 1 3 F

. 2 d a t 5 5 3 n

. 2

. O n t h i s r e c o r d

, w e c a n n o t escape t he judgment that Mr. Tolin’s litigation efforts became overkill. Oklahoma Aerotronics, Inc. v. United States , 943 F.2d 1344, 1347 (D.C. Cir. 1991).

[¶1 9 ] In dealing with excessive hours resulting from the fee applicant’s failure to exercise billing judgm ent, the district court has the discretion to reduce by a reasonable percentage the number of hours claimed “ as a practical means of trimming fat from a fee application ,” as the district court did in the instant case. Kirsch v. Fleet Street, Ltd.

, 1 4 813

F

. 3 d 1 4 9
, 1 7 3 ( 2 n d Cir. 1998) (quoting New York Ass’n for Retarded Children v. Carey

, 711 F.2d 1136, 1146 (2 nd Cir. 1983); see also Saizan v. Delta Concrete Prod. Co., 448 F.3d 795, 799

- 800 (5 th Cir. 2006) (same); Role Models America, Inc. v. Brownlee

, 3 5 3 F

. 3 d 9 6 2
, 9 7 3 ( D

. C

. C i r

. 2 0 0 4 ) ( s a m e ) ; W a l k e r v

. C i t y o f M e s q u i t e , T

e x

. , 3 1 3 F

. 3 d 2 4 6
, 2 5 1 ( 5 t

h C i r

. 2 0 0 2 ) ( s a m e ) ; G r e e n , 2 8 4 F

. 3 d a t 6 6 2 ( s a m e ) ; G a

y O f f i c e r s A c t i o n L e a g u e , 2 4 7 F

. 3 d a t 2 9 9 ( s a m e ) ; W a l k e r , 9 9 F

. 3 d a

t 7 6 9 ( s a m e ) ; J

a n e L

. v

. B a n

g e r t e r , 6 1 F

. 3 d 1 5 0 5
, 1 5 1 0 ( 1 0 t

h C i r

. 1 9 9 5 ) ( s a m e ) ; U

n i t e d S t a t e s E

. E

. O

. C

. v

. A I C S e c

. I n v e s t i g a t i o n s , L t d

. , 5 5 F

. 3 d 1 2 7 6
, 1 2 8 8 ( 7 t h C i r

. 1 9 9 5 ) ( s a m e ) ; F o l e y , 9 4 8 F

. 2 d a t 1 8

- 2 0 ( s a m e ) ; O k l a h o m a A e

r o t r o n i c s , 9 4 3 F

. 2 d a t 1 3 4 7 ( s a m e ) ; L e r o y v

. C i t y o f H o u s t o n , 8 3 1 F

. 2 d 5 7 6
, 5 8 6 ( 5 t h C i r

. 1 9 8 7 ) ( s a m e ) ; a n d M a r e s , 8 0 1 F

. 2 d a t 1 2 0 4 ( s a m e )

. [¶ 20 ] Having laboriously reviewed the record in light of the district court’s decision letter, Mr. Tolin’s contentions, and the considerations set forth in this opinion, we hold that the dis trict court did not abuse its discretion when it reduced Mr. Tolin’s fee application by fifty percent. Affirmed.