California: Presiding Judge Clarke of Salinas WCAB Issues Guidelines—Appropriate Reimbursable Amounts for Deposition Attorneys Fees

California: Presiding Judge Thomas Clarke of the Salinas WCAB Has Issued Guidelines Regarding Appropriate Reimbursable Amounts for Deposition Attorneys Fees Under Labor Code §5710 Effective December 13, 2010

Every few years, the presiding judge of the Salinas WCAB issues new voluntary guidelines to enhance uniformity regarding appropriately reimbursable amounts for deposition attorney’s fees.  The current recommendation as of December 13, 2010 provides as follows:

   $300 per hour for attorneys with up to 5 years experience in workers' compensation law.

   $350 per hour for attorneys with 5-9 years experience in workers' compensation law.

   $400 per hour for attorneys with 10+ years experience in workers' compensation law or who are certified as specialists by the State Bar Board of Legal Specialization.

The guidelines memorandum emphasizes that the recommendations are advisory only, and are not binding on attorneys, judges, employers, or carriers.  Moreover, travel time is allowed where required at the full rate door to door.

Attorneys are appropriately reimbursed 30-60 minutes for client preparation, and for subsequent review of the deposition transcript with the applicant.  Finally, the memorandum encourages parties to agree on an appropriate reimbursable fee at the time of the deposition to avoid subsequent disputes.

As has occurred in the past, the issue may be reviewed approximately every two years based on recommendations by the executive committee of the Monterey County Workers' Compensation Attorneys Association.  In so doing, the Salinas WCAB has raised the guideline reimbursable amount for attorney fees by $100 per hour since this topic was last addressed on June 6, 2008.

Attorney Fee Guidelines-a Contextual Perspective

The Salinas WCAB, like many other local Boards, attempts to seek uniformity of decision with respect to appropriately reimbursable amounts for deposition attorney’s fees. Salinas is a unique community in the sense that there exists a local attorneys group, the Monterey County Workers' Compensation Attorneys Association, who meet regularly to discuss common issues of law and procedure. As a relatively close-knit community, the practitioners before the Salinas WCAB generally know each other pretty well, and by extension, recognize that maintaining appropriate professional relationships is necessary in order to effectively resolve claims.  Despite vigorous advocacy on both sides, most parties at the Salinas WCAB maintain a degree of civility with each other which most observers would characterize as a different experience from the more confrontational tactics maintained at some District Offices further to the north and in Southern California.

Guidelines are Guidelines

The defendant has the right and discretion to challenge appropriately reimbursable amounts for any given deposition.  Moreover, requesting proof or documentation of qualification for the different tier levels is entirely appropriate in a deposition setting.  Finally, the recommendation to agree on an appropriately reimbursable fee at the time of the deposition is well taken and may appropriately save the defendant unnecessary litigation costs.

What This Means for You

Increased costs for applicant attorney deposition fees are becoming more prevalent secondary to the perceived proportionate reduction in the average attorney fees applicant attorneys are receiving subsequent to SB 899. Appropriate objections to excessive or inappropriate requests attorney’s fees should always be made.  Although the Salinas memorandum is a guideline only, it is anticipated that applicant attorneys throughout the state, especially in Southern California, will tout the recommendations as binding precedent.  It is foreseeable that Southern California attorneys, especially in the Los Angeles and Orange County area, will demand even higher deposition fees.

© Copyright 2010 Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.