Practice Pointer: Avoiding Common Fee Application Reductions

The National Vaccine Injury Compensation Program (“VICP”) allows for an award of attorneys’ fees and costs for petitions filed in good faith and supported by a reasonable basis, but fee applications can be reduced or delayed if billing records are unclear, inadequately documented, or incomplete. 

To help practitioners avoid common pitfalls, the Office of Special Masters (“OSM”) has published two helpful resources: 

• Attorneys’ Fees and Costs Common Mistakes to Avoid https://www.uscfc.uscourts.gov/sites/cfc/files/osm_fees_and_costs_checklist.pdf
• Costs and Attorneys’ Fees Checklist https://www.uscfc.uscourts.gov/sites/cfc/files/osm_fees_and_costs_common_mistakes.pdf

Both are worth revisiting regularly. Drawing from OSM guidance and years of Vaccine Program practice, below are several practical suggestions for preparing fee applications.

1. Keep Detailed, Contemporaneous Billing Records

Detailed timekeeping remains one of the best ways to avoid fee reductions.

Entries such as “review file,” “telephone conference,” or “work on case” provide little information about the work performed and may invite additional scrutiny. Instead, describe both the task and its purpose. Clear, specific time entries make it easier for the special master to evaluate the reasonableness of the work performed and can reduce the need for follow-up questions or supplemental filings.

2. Avoid Billing for Clerical or Administrative Tasks

OSM reminds practitioners that purely clerical or secretarial work is considered office overhead and generally is not compensable. Examples of non-compensable administrative tasks may include calendaring deadlines, filing documents through CM/ECF, scanning or organizing records, preparing mailing labels, and scheduling appointments. Before filing a fee motion, practitioners should carefully review billing records and exercise billing judgment to ensure that purely clerical or administrative tasks have been removed from the fee request.

3. Delegate Work Appropriately

The reasonableness of a fee request often depends not only on the amount of time spent, but also on who performed the work. Tasks such as obtaining records, organizing exhibits, managing record requests, and compiling damages documentation can frequently be handled efficiently by paralegals or support staff. Thoughtful delegation promotes efficiency, reduces costs, and demonstrates sound billing judgment.

4. Be Mindful of Excessive Conferencing and Duplicative Work

Many Vaccine Program cases involve complicated medical and scientific issues. At the same time, practitioners should be mindful that fee decisions frequently scrutinize internal conferences and staffing decisions and may reduce or disallow time viewed as duplicative or unnecessary. Counsel should therefore exercise billing judgment when recording conferencing time and ensure that billing entries clearly describe the purpose of the discussion and the necessity of the work performed.

5. Document Costs Carefully

Unsupported costs are one of the most common reasons fee motions require supplementation. Throughout the life of a case, practitioners should maintain organized documentation for all litigation expenses, including expert invoices, medical record invoices, travel expenses, shipping and postage costs, court reporter invoices, and any expenses personally incurred by the petitioner. Maintaining these records as the case progresses can significantly streamline the preparation of interim and final fee motions and help avoid delays caused by requests for additional documentation.

6. Bill Travel Time and Expenses Carefully

OSM guidance notes that attorney travel time during which no substantive legal work is performed traditionally has been compensated at one-half of the attorney’s hourly rate. Similarly, practitioners should exercise billing judgment when incurring travel expenses and maintain supporting documentation for all travel-related costs.

7. Do Not Bill for Learning the Vaccine Program

OSM also cautions that attorneys should not seek compensation for time spent learning the basic principles of Vaccine Program practice. As all practitioners know, Vaccine Act litigation presents unique procedural and substantive issues. Nevertheless, time spent becoming familiar with foundational aspects of the Program generally should not be included in a fee request.

8. Use the OSM Fee Checklist Before Filing

Perhaps the easiest way to avoid delays is to use OSM’s Costs and Attorneys’ Fees Checklist before every filing. The checklist serves as an excellent quality-control tool and helps ensure that fee motions contain all required supporting materials.

Although every case is different, practitioners should generally confirm that a fee motion includes:

• A motion requesting attorneys’ fees and costs;
• Itemized contemporaneous billing records;
• Documentation supporting all requested costs and expenses;
• Information supporting requested hourly rates for attorneys and experts, where necessary;
• Information regarding any prior fee awards in the case, including interim fee awards;
• Documentation supporting any personally incurred costs sought by the petitioner; and
• Any additional materials required by Vaccine Rule 13, applicable case law, or a special master’s specific instructions.

Final Thoughts

Careful billing practices benefit everyone involved in the Vaccine Program. Thorough, well-documented fee applications facilitate review by the Office of Special Masters, reduce delays, and promote efficiency throughout the Program.

Practitioners are encouraged to periodically revisit OSM’s Attorneys’ Fees and Costs Common Mistakes to Avoid and Costs and Attorneys’ Fees Checklist when preparing interim or final fee applications.

Practice Pointer is a recurring VIP Bar series designed to provide practical guidance to attorneys practicing in the National Vaccine Injury Compensation Program. This article is intended for informational purposes only and does not constitute legal advice. Practitioners should consult the Vaccine Rules, OSM guidance, and applicable caselaw when litigating Vaccine Act claims.