, 25 tweets, 13 min read Read on Twitter
Good evening #threadnought - let's talk attorney's fees, and how they work in a case like this.

Fair warning: I have neither the time nor inclination tonight to do Texas law research, so I'm going to be going on a broad view of the subject.
That said, I had to do pretty extensive research on this subject a couple of times, including once for a judge. And a lot of that research looked at national trends. So I might not be on the mark, but I shouldn't be too far off.
Let's start - for our overseas followers - with a basic principle that surprises most of the rest of the world: The American Rule.

In most of the world, the loser pays the winner's attorneys' fees. In the USA, the rule is that each side bears its own fees win or lose.
There are some exceptions, however. The biggest is this: the American Rule can be overridden by statute. That means that the legislature can put a "loser pays" provision into the law.

Anti-SLAPP laws, as a rule, have such provisions. This is certainly true in Texas.
The TCPA requires that a losing plaintiff pay the defendant's fees. Today, @vicmignogna lost his entire case against @marchimark, so he's on the hook for her fees. This does not, however, mean that her lawyer, Sam "Magnificant Bastard" Johnson, will just mail Vic his bill.
@vicmignogna @marchimark The amount awarded will be determined by the court. Generally speaking, courts use a "lodestar approach" for all intents and purposes, this consists of the defendant sending the bill to the court for review, and the court determining if both the hourly rate and number of hours...
@vicmignogna @marchimark ...were reasonable, and making adjustments if the court feels the bill is too high.

The plaintiff usually can object on a line-item basis, and I'd assume that will happen here.
@vicmignogna @marchimark As someone who has had to review billing records for a judge, I wouldn't want to understate (Sam? You listening?) the importance of clearly presented, detailed, and easy-to-follow records.
@vicmignogna @marchimark Fees are available for both full and partial wins. There are a lot of ways partial win fees can be handled, ranging from "total amount divided by percentage victory" to "only fees you can show were accrued on the stuff you won" to "if you substantially prevailed, you get it all."
@vicmignogna @marchimark No idea what approach Texas uses; we'll cross that one if we get to it.

For full fees - which we know Marchi gets - Sam's job is to show the court that his hourly is reasonable, and the time spent was reasonable. Or be embarrassed when the court tells him what was reasonable.
@vicmignogna @marchimark And time spent on embedding secret messages might not be viewed as reasonable. Even if it was magnificent and damn funny.
@vicmignogna @marchimark As for how much -
I'm going to do some extremely crude guesswork right now. This is seriously going to lowball the hell out of everything, possibly including the hourly rate (and if so I apologize for the insult to Sam's dignity.)
@vicmignogna @marchimark To be clear: I didn't mean to imply that Sam would bill for that; I'm pretty sure that was a bonus for everyone. Just an example of something that a court might adjust.

@vicmignogna @marchimark Actually, given how the hearing went, I would be surprised if Sam doesn't get virtually all of his hours approved. (Fairly common for a court to ding a couple of small things, as that shows the appellate court that the invoice was "meaningfully reviewed" and not rubberstamped.)
@vicmignogna @marchimark So - let's do a massive lowball estimate of the possible fee award.

Here, I have relatively little experience, so I'm sure that Akiva, Lane, T-dot, and basically everyone else will be along to tell me I screwed up shortly. (This is part of the reason I'm looking to err low.)
@vicmignogna @marchimark So let's start by undervaluing Mr. Johnson's time at only $350 per hour - I'd be stunned if it's that low, but remember this is a best case of best cases for Vic.
@vicmignogna @marchimark I'll start by assuming 10 hours for the initial period - being hired, initial research, reading the petition, all of that - so that's $3,500.

Next, I'm just going to go to a lazy but simple method, and say that everything he wrote was done at 1 page per hour.
@vicmignogna @marchimark That's intended to cover drafting, revising, reviewing, research, the whole shooting match. It's a really crude estimate, in other words, for a lot of work.

3 pages for the answer.
18 pages for the TCPA motion
16 pages for the Reply.
37 x 350 = 12,950

Running total: $16,450
@vicmignogna @marchimark Now, do the depositions. He was there for all of all of them, but wasn't the primary questioner. I'm going to lowball his prep time, and - in the interest of round numbers and going to sleep, estimate 10 hours per deposition for him.
30*350 = 10,500

Running total: $26,950
@vicmignogna @marchimark And let's fold in this week. Safe to assume about 10 hours per day for Sat, Sun, Mon, between unravelling Ty's mess and communicating with other lawyers, reviewing filings, hearing strategy, etc. Call it another 20 total from Tues through today. 50 total hours.
@vicmignogna @marchimark That's another 17,500.

Running total: $44,450.

That's a lowball estimate, remember. It also doesn't directly factor in many, many other tasks, including reading all the other filings in the case. Even if we just call it 1 more hour per week for the 19 weeks...
@vicmignogna @marchimark ...we're now over the $50,000 mark.

That's just Marchi. That's a massive lowball estimate. And that's over 20% of the total in the GFM.
@vicmignogna @marchimark And remember - that was the easiest defense case out of the bunch, and the one that's likely to have the least amount of hours worked. By far the least, in fact.
@vicmignogna @marchimark And that's before sanctions. Sanctions are at the discretion of the judge. But if there was ever a case for sanctions, it's this. The case was sanctionable before Ty's notary misadventures and the filing of the sham affidavit. If Sam makes a good case on that stuff?
@vicmignogna @marchimark It wouldn't surprise me if he gets additional sanctions equal to his fees.

So, particularly if you make allowances for how much I'm lowballing the likely fees bill, it's not impossible that the loss on the Marchi claims alone will be about half the value of the GFM.

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