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When lawyers are looking to get fees out of a fee motion, judges can often be a little overly critical. But apparently in Canada, judges might have even more unreasonable expectations.
In one case out of Ontario, a judge cut attorney time from a fee motion for research, among other things, and suggested that the line item could have been taken care of with artificial intelligence software. Though the judge didn't name a specific product, he completely cut out the $900 charge for legal research.
In the Canadian case, the Honorable Mr. Justice Whitten seemed to agree with the plaintiff that was being taxed the fees and costs, that the legal research being charged for was completely excessive, particularly given the fact that everything researched seemed to be available for free, on a free to access website.
In addition to suggesting the use of AI, and questioning the amount of time the successful attorneys spent fending off the plaintiff's case, the judge also questioned whether more than one attorney was even necessary and seemed to take offense to more than one attorney working on the defense side.
However, while there are some line items that most every attorney would find objectionable if removed, the judge seemed to be doing the right thing in some instances, such as when the defense expended nearly 30 hours to fight the plaintiff's pro forma amendment of claims. Mr. Justice explained: "To allow the time claimed in advancing a position of dubious merit for which there were costs consequences against the defendant, would undermine the findings ... and in a way be rewarding a questionable tactic."
As you might expect, judges really just don't want to see unreasonable line items in fee motions. When submitting a boilerplate motion or response, don't try to pass it off as the first time you've ever drafted it. Yes, had you created it from scratch, it might have taken you 20 hours, but when you're just "finding and replacing" names, hims and hers, it's more like a couple hours at most. So no, you don't have to use AI, but you if you're billing like a troglodyte, don't be surprised when a judge tells you that you do.
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