Panel debates reasonableness rules for attorney-fee awards in suits involving the state (SB 39)

Senator Greg Hertz, Senate District 7, told the Judiciary Committee that Senate Bill 39 seeks to define “reasonableness” when courts award attorney fees, proposing required itemized time entries, limits on duplicative counsel at depositions and oral arguments, and caps tied to statewide average hourly rates for attorneys with less than 10 years’ practice.

Hertz described bill provisions requiring task‑level time entries (billed in tenths of an hour), itemized expenses, and a list of “unreasonable” charges, such as sending more than one attorney to a deposition, more than two to oral argument, and billing for telephone calls or faxes. He said the intent was to give courts clearer guidance on documenting and evaluating fees.

Al Smith, identified in the hearing as representing a Montana attorneys’ organization, opposed SB 39 and emphasized the rarity of fee awards against the state. Smith warned the committee that subsection language establishing a “rebuttable presumption” could shift burdens and that the bill’s drafting left ambiguity about whether it applies only to fee awards against the state or more broadly. Committee members asked the sponsor and counsel to clarify scope; the attorney general’s delegate and other witnesses noted the bill’s language might apply more broadly than intended and recommended clarifying amendments.

Why it matters: SB 39 would standardize what courts must see to find fees reasonable, potentially reducing disputed fee awards and litigation over fee awards but also creating drafting challenges about scope, presumptions, and application to state versus private litigation.

No committee vote on SB 39 was recorded in the transcript; the sponsor asked the panel to take the bill under advisement for amendment work.