Given Brandt 's distinction between recoverable and non-recoverable fees, plaintiff must prove allocation. In other words, he or she must produce evidence of what portion of the attorney's fee was attributable to obtaining policy benefits and what portion was attributable to other portions of the award. Failure to produce evidence of allocation can jeopardize plaintiff s right to any fee award. For example, in Slottow v. American Cas. Plaintiff's counsel should keep careful records of time spent on the case, broken down in such a way that one can easily determine allocation.
Time records are also important to help show the fee is reasonable.
See discussion below. To assist in showing reasonableness, the insured should produce documentation with sufficient detail. Ideally, the insured should be able to show how much time was worked, a description of the work, and the hourly rate. Brandt fees are not recoverable where there is no evidence that the insured actually incurred liability for fees. Waters held that Brandt fees are not recoverable where there is no evidence to support the claim that fees were incurred, since no proof of a fee agreement of any sort was presented.