Fees by Motion

Attorney's Fees by Motion

Fees by Motion

Federal Rule of Civil Procedure 54(d)(2)(A) sets the ordinary route for a winning party who wants its lawyer's fees: "A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages."¹ The default is a request to the judge after the merits are decided, with no evidence of fees put before the jury. The "unless" clause carves out a narrow exception for claims in which the fees are themselves the loss being sued for. The next section takes up that exception.

Fees wait until judgment because most fee awards cannot be valued until the case is over. A prevailing-party award goes only to the side that won, and it rests in the court's discretion, so no one knows whether fees are owed until the merits are resolved. Fees are therefore ordinarily sought only after the litigation ends, and a motion for them is a different thing from a motion to alter or amend a judgment.² Trying fees alongside the merits would force both sides to prove hours and rates for an award that may never come, and it would clutter a trial that should stay on liability and damages. The volume of material is real, too. Fee claims can be complex and slow to resolve, and in Ray Haluch Gravel Co. v. Central Pension Fund, a rather simple case, the fee-related submissions filled well over 100 pages of the joint appendix.³ The 1993 amendment to Rule 54(d) gave fee claims their own procedure, including a deadline of 14 days after final judgment unless the court or a statute provides otherwise.⁴

The rule reaches past lawyers' charges to related nontaxable expenses, meaning litigation expenses outside the items a clerk taxes as costs. In Ray Haluch the Funds requested $143,600.44 in total, and $6,537 of that was auditor's fees. The Court explained that statutory fee claims are not always limited to attorney's fees themselves, because many fee-shifting statutes also authorize additional litigation expenses, such as expert fees. Where such charges are claimed alongside the attorney's fees, they travel with the fee claim.⁵ An expert's or auditor's bill that accompanies a fee request therefore rides the motion track and is not handled as an ordinary cost.

Ordinary taxable costs run on a different track. Rule 54(d)(1) provides that costs other than attorney's fees should be allowed to the prevailing party unless a federal statute, the rules, or a court order says otherwise. The clerk may tax those costs on 14 days' notice, and the court may review the clerk's action on a motion served within the next 7 days.⁶ The clerk's quick, on-notice procedure suits routine items. Fees and the expenses that accompany them call for a judge's decision on both entitlement and amount, so Rule 54(d)(2) routes them through a motion.

A diversity case adds a choice-of-law question, and the answer divides the work between federal and state law. In Clark v. Podesta the fee claim rested on a state statute, and the party opposing the motion, Podesta, argued that state procedure governed it. The court disagreed. In diversity actions federal law resolves procedural questions within the contours of the Erie doctrine, so the Federal Rules of Civil Procedure determine timely filing and the procedural standards for a fee motion, even when the basis for the motion and the award lies in a state statute.⁷ The rule's own words, "substantive law," mark the division. Federal law controls how and when the fee claim is presented. The law that creates the right to fees controls whether the fees are an element of damages that must be proved at trial.

A bar-exam stem that mentions a fee clause or a fee statute is really asking whether the motion route applies at all, and the answer turns on what the fees are within the claim.

That second scene previews the exception developed in the next section. For now, the default and its edges can be stated in a form to carry into an exam.