Can’t wait until you win the case to get your attorney fees? Consider seeking an interim fee award based on your success along the way.
Awarding interim fees (i.e., a fee award made before the case is completed) is an accepted procedure in federal courts. You can apply for interim fees any time after obtaining relief under a fee-shifting statute at an interim stage of the litigation, even though other parts of the action still need to be resolved. There are no established time limits for interim fee motions.
To qualify for an interim award, the plaintiff must have prevailed on the merits at some interim stage; an interim procedural victory won’t suffice.
Here’s a couple of points about interim fees:
The longer the case, the better your chances. Courts are more likely to award interim fees when the litigation has gone on for several years and counsel hasn’t been paid. Under the federal rules, the court has the power to direct immediate payment of the interim fees when “delay[ing] a fee until the entire litigation is concluded would work substantial hardship on plaintiffs and their counsel.” Bradley v School Bd. (1974) 416 US 696, 723, 94 S Ct 2006.
No immediate appeal. Interim fee awards and the orders directing their payment generally aren’t immediately appealable. This raises a potential problem for the attorneys receiving the interim award if there’s a chance that an appeal from the final judgment might reverse the award. Basically, don’t spend it all in one place because you may have to repay the fee opponent if all or part of the interim award is ultimately reversed.
As far as California law on interim fees goes, the few decisions involving interim fee awards don’t expressly discuss the issue. But it’s safe to say that California courts are likely to follow the federal approach to interim fees. Granting interim fees is consistent with the rule in California that, in some circumstances, entitlement to fees may not depend on the ultimate resolution of the action. For example, in Bartling v Glendale Adventist Med. Ctr. (1986) 184 CA3d 97, the plaintiff had won an appellate ruling affording him the right to refuse medical treatment. The trial court denied plaintiff’s request for fees under CCP §1021.5 because the issue of his consent to treatment had not yet been resolved. The appellate court reversed, holding that plaintiff’s entitlement to fees was established by its favorable ruling on the merits and did not depend on the ultimate resolution of his claim.
But not all California statutory fees may be recovered on an interim basis. In Bell v Farmers Ins. Exch. (2001) 87 CA4th 805, the court held that because Lab C §1194 conditioned attorney fees on the “recovery” of wages, it didn’t authorize an award of interim fees based on a summary adjudication of liability.
Getting paid for your work is obviously key to any law practice, and sometimes you can’t wait until the end of a case to get your fees. Find expert analysis and advice on all aspects of claiming trial court fees in CEB’s California Attorney Fee Awards, chapter 11.
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