On Bills, Both Phone & Block: A Response to Jerry Lee Canfield

100

hulkTwenty-three.

That’s how many calls to and from Daily & Woods, for which the City was billed, that I identified as not having been made, according to my phone records for November 2013 and January through April 2014.

Five.

That’s how many calls Jerry Lee Canfield accounted for in Daily & Woods’ review of Daily & Woods bills, assuming we give him every benefit of the doubt while reading his petulant letter about “the Little Rock lawyer.”  But we’ll do that.  Because we’re nice people.

Now…maybe it’s my Missouri education kicking in, but I’m pretty sure that twenty-three is eighteen greater than five.

/checks math

/confirms result

Yep.  So that’s 18 phone calls — roughly 78% of the original total, in case you like percentages[foot]Spoiler: No one but dave likes percentages[/foot] — for which Jerry Lee Canfield could not account.  Yet, rather than admit that Daily & Woods billed for things that did not happen, Jerry Lee Canfield took a different route:

He decided to lie about it and hope everyone else understood cell phones as poorly as he does.

Actually…we’re getting ahead of ourselves.[foot]That’s always a risk when you are dealing with disingenuous explanations that don’t match reality.  But I digress.[/foot]  Let’s just back up and take the first part of Jerry Lee Canfield’s letter to Ray Gosack piece by piece.  (Here’s the full letter with attachments.)

“At your request, we provide this response, with supporting documentation, where applicable.”

“One allegation is that the city of Fort Smith has been billed for excessive time.  The billings to the city reflect the actual time reasonably spent on matters we were asked to handle. […] The time spent by members of our firm preparing responses at the request of the City is accurately reflected in the billings to the City.”

Not that I don’t trust Jerry Lee Canfield,[foot]I don’t. Not even a little.[/foot] but here’s the thing: when someone questions your billing because you put everything in block format and it’s impossible to break out how much time was spent on any one activity, simply saying that your bills “relect the actual time reasonably spent” is not actually proof of anything.

In fact, considering their report on the whole review of Daily & Woods’ records included a page that purported to be a City of Fort Smith Time Log, and considering that Jerry Lee Canfield said the report would include “supporting documentation, where applicable,” Jerry Lee Canfield’s failure to include ALL of the relevant time logs in support of his assertion is pretty telling.[foot]What’s that? A FOIA request for all time logs? I’m way ahead of you, hypothetical reader![/foot]  Or it would be, if the time logs didn’t have the exact same block billing — which, as mentioned, is wholly incapable of review after the fact — as the invoices.  So, I suppose my initial response is, ” Really?  The time log’s block entry matches the block entry that was put on the invoice based on the time log? That’s just amazing and convincing.”  (Spoiler: It’s not convincing.)

Moving on….

“The allegations have been made by opposing counsel in what initially began as a Civil Service Commission proceeding and then subsequently developed into four separate lawsuits, several Freedom of Information Act requests, and the suggestion by that attorney that one or more additional lawsuits could be filed depending on the City’s responses to his demands.”

You’ll have to forgive Jerry Lee Canfield’s poor memory.  Since he hasn’t actually had a role in any of the litigation, aside from being sued in the original FOIA suit, he appears to be a little confused.  In reality, I began representing the officers in late October 2013.  When the FSPD — through self-proclaimed FOIA guru, Sgt. Daniel Grubbs[foot]Note: He’s a FOIA expert like I’m an expert in m-theory.  That is, I’ve heard of it.  I know vaguely what is involved.  But I would sound like an idiot if I spoke to a real expert about it.[/foot] — failed to comply with the FOIA, I sued to get the records.  Daily & Woods defended the suit just long enough to ensure that I was repaid my costs and they generated nearly $7000 in billing for a two-week suit that required minimal effort.  The Civil Service hearing, wherein I got the five-day suspension of one of my clients overturned — was not until December 5, and three suits (not four) have been filed post-December 5.

As for “the suggestion by that attorney that one or more additional lawsuits could be filed depending on the City’s responses to his demands,” that did happen.  Because, call me crazy, but when Ray Gosack defames my clients, I tend to bristle.  Thankfully, Ray Gosack gave a half-hearted apology/retraction, so nothing further needed to be done there.

“The second allegation revolves around billings related to telephone calls.”

Twenty-three (23) of them, in fact.  Rather than continue to go through Jerry Lee Canfield’s phone-call explanation line by line, allow me to summarize: Daily & Woods produced records related to different phone numbers than the main Daily & Woods number (479-782-0361).  Reviewing those records in the light most charitable to Daily & Woods, Jerry Lee Canfield accounted for November 18, November 22, January 16, February 10, and one of three for February 14.

So what about the other 18 calls?  Here’s where it gets fun.

“Further, the blogs assert that the Little Rock attorney has no record of receiving additional calls referenced in the firm’s billings. Apparently, the Little Rock attorney does not have a full- time secretary and, consequently, a number of phone calls were placed to his office that were not answered by a human or were not answered at all.”

Jerry Lee Canfield is correct in that I do not have a full-time secretary.  I don’t need one because (a) I can keep my billing straight, since I am not trying to justify billing for things that did not happen, and (b) I use a Google Voice number for my office line, so that any call to my office rings to my cell phone.

Now, think of your cell phone bill.  It is possible that a call will not show up on your bill if (a) you do not have a signal (or the phone is off) when the call is made, and it goes straight to voice mail for the caller without ever causing the phone to ring on your end, or (b) you are on the other line when a call comes in and you decline the second call, sending it to voice mail instead.

What is not possible, however, is for a call that goes to voice mail to not show up on the calling party’s phone bill.  Because that’s how phones work: as soon as there is a connection — even if it the automated voice answering system on a cell phone — the caller’s phone service begins counting the time spent, and that call shows up on a phone bill.  In fact, you know how we know this is true even for Daily & Woods?

Because the phone bills that Jerry Lee Canfield provided actually show it.

The November 18, 2013 call from Rick Wade to me was 0.3 minutes, aka 18 seconds.  Clearly, we did not have a conversation in that amount of time.  As you can see in this handy dandy side-by-side comparison of the two bills, when he called at 3:08pm, I was in the middle of a 20-minute phone call that began at 2:58pm.  Shortly after finishing that call, I checked my voice mail, so I assume he either hung up after hearing the voice mail message and the beep or he left a short message in that same 18-second window.

Likewise, there are calls of less than one minute in the documented calls on January 16 and February 14, both of which were followed by my checking my voice mail a short time later.  Why one call that went to voice mail would show up on February 14 and another call to me would not is never explained.  Probably because the answer is, completely irrespective of whether my phone rang or whether the call was answered by a human[foot]Jerry Lee Canfield has no time for your robot receptionists![/foot], a call made by Daily & Woods shows up on their phone bills unless they hang up before there is any connection between the lines.  So, to whatever extent they are saying that calls that went to my voice mail won’t show up on their bills, that excuse is belied by the actual bills they’ve provided.

Jerry Lee Canfield continued:

“Calls were sometimes ‘answered’ at his office by a voice message indicating his message box was full.”

This is a lie.  100%, plain and simple, this is completely false.  My phone account holds up to 40 4-minute voice mails.  I have never in my life had 40 voice mails on my phone at one time.  My assertion is supported by the phone bills that I provided, actually; over that five-month span, never once did I have a ridiculously long call to listen to messages, which would have been required if I was going to delete them and make space for new messages.  And, since Daily & Woods have left me voice messages at various points over the five-month period, I would have had to clear out space prior to their newer messages if we are going to buy this excuse.

Now, last month (May), which is irrelevant to this discussion, there was a one-day period where I switched my office number to route to an alternate cell phone which did not have voice mail set up on it.  Doug Carson called me that day (May 23) and literally the first thing he mentioned was that he had tried to call my office number and had gotten a recording that there was something wrong with the voice mail.  So the one day where there actually was a brief problem with the voice mail, Doug Carson mentions it as soon as we begin speaking, but Jerry Lee Canfield expects all of us to believe that there were multiple other instances where Carson and Wade were unable to leave messages, yet no one felt the need to mention that to me even once?

Moving on…

In those instances, it is customary for our firm’s attorneys to document the attempted call(s) in order to keep an accurate record of legal services.

Oddly enough, this weak attempt at explanation might be the most interesting part of Jerry Lee Canfield’s letter.  After all, Daily & Woods bills the City of Fort Smith in 1/10 hour increments.  By definition, if they do something and write it down for billing, the smallest possible increment of time that they can use for an action is 0.1.  Knowing that, answer me this:

Why is Daily & Woods billing the city for an 18-second phone call? 

More accurately, how do you think the taxpayers of Fort Smith would feel if they knew that the 18-second phone call — in which nothing was accomplished — cost the taxpayers $14.00 (one-tenth of an hour at $140 per hour)?

My guess is, Jerry Lee Canfield will claim that Daily & Woods isn’t actually billing the City for those calls and that the calls are just listed for record-keeping purposes.  Except (a) we’ve already seen that the record keeping leaves much to be desired and (b) again, we have no way of knowing whether this is a true statement, since Daily & Woods is using block billing.  I would also add, putting the phone calls into the block of time being billed is rather bizarre if they are not actually part of the time that is being billed; anyone seeing that bill would certainly (and rightfully) assume that the items listed on the bill are actually things that are being billed for.

At the end of the day, however, Jerry Lee Canfield’s review of Daily & Woods bills is the farce that most of us assumed it would be from the get-go.  No meaningful amount of documentation was included that would establish that the time billed was actually the time spent.  He accounted for five calls out of twenty-three, then made up a technologically impossible excuse to try to explain away the rest.

The disappointing thing is, I’d be willing to bet that Ray Gosack is completely satisfied with Jerry Lee Canfield’s response.  Hopefully, some of the elected city officials will not be as pleased.