Board Certified in Appellate Practice

There is only thing more satisfying than getting a good verdict from the jury (with your clothes on, that is). That is recovering an attorneys fee award paid by the defendant which is better than your maximum percentage fee under Rule 4-1.5. Cases involving fee awards for litigating insurance coverage issues under Section 627.728, Fla. Stat., beating your Proposal for Settlement, and contractual attorneys fee provisions make it clear that your fee award may exceed the amount of the principal judgment by many times and still be affirmed on appeal.

The first of two cases which come to mind to demonstrate the potential in the court-awarded fee context is the landmark PIP case of State Farm Fire & Cas. Co. v. Palma, 555 So. 2d 836 (Fla. 1990), in which an attorneys fee of $253,000 was awarded on a PIP claim involving a $600 medical bill. The second case is one in which I had the pleasure of serving as the appellate attorney’s fee expert: Lugassy v. Independent Fire Ins. Co., in which more then $1,000,000 in trial-level and appellate attorneys fees was awarded and collected on a fire insurance claim in where the jury awarded the plaintiffs less than $100,000, including prejudgment interest.

You could write a book on law on recovering court awarded fees. (no, come to think of it, the book already has been written: a multi-volume treatise by Judge James Hauser, which I keep within easy reach.) Rather than writing a book, I offer a few bullet points to remember when litigating contested court-awarded fees.

The first thing you will discover in litigating a court-awarded attorneys fees issue is that the discovery and harassment from the defendant is as intense (if not more so) than it was during the trial of the main case. The first thing you can expect to receive is a request for production of your time records, attorneys fee agreement, and other documentation. None of us keep contemporaneous time records, and we should know by now such a failure is not fatal to a good court-award. Nothing else will be said on the subject of time records at this time.

Instead, this bullet pertains to your duty to have an to produce a valid attorneys fee agreement signed by you and your client. The bottom line is that such an agreement must comply in every respect with the rules regulating the Florida Bar Rule 4-1.5 to be enforceable and to support an award of fees from the defendant. See, Chandris v. Yanakakis, 668 So.2d 180, 185-96 (Fla. 1995) in which the Supreme Court clearly stated: "likewise, we hold that a contingent fee contract entered into by a member of the Florida Bar must comply with the rule governing contingent fees in order to be enforceable." Make sure your fee agreement meets all the requirements of rule 4-1.5, including being signed by you, not exceeding the maximum percentages, referencing the statement of clients rights and so on.

The next problem to over come in obtaining a decent court-awarded fee is to make sure that your fee agreement does not limit you to a percentage of recovery, unless your fee agreement had a provision that you will recover the greater of the percentages permitted under Rule 4-1.5, "or a court-awarded fee," you will be capped at the percentage recovery, even on a claim against the opposing party. See, Orlando Regional Medical Center v. Chmielewski, 573 So.2d 876 (Fla. 5^th DCA 1990). The pitfall in that case costed the trial lawyer significantly, when a "loadestar" fee would have amounted to around $141,000, but the court held that the fee should be limited to the $34,000 which was a percent of the plaintiff’s recovery. Don’t let that happen to you.

If the jury is still out, or you haven’t started trial yet, it is not too late to modify your fee agreement. Lugassy v. Independent Fire Ins. Co., 636 So. 2d 1332 (Fla. 1994), it occurred to the plaintiffs’ attorneys that they had a Kimbolusky problem while the jury was deliberating. They agreed with the plaintiffs that they had all along intended that the insurance company would be liable for a court-awarded fee, and went back to their office and modified the fee agreement accordingly. The Supreme Court held that modifications to a contingent fee agreement were acceptable up to the time the jury returned its verdict. If the jury is still out, take a look at your fee agreement and act accordingly.

Don’t let the defense attorney conduct all the discovery on the fee issue. There is authority supporting the proposition that the defendant’s attorney’s hours are irrelevant to the number of hours your expended in the case. See, State Farm Fire & Cas. Co. v. Palma, 555 So. 2d 836-837 (Fla. 1990), in which the Supreme Court affirmed the award of 650 hours to the plaintiff’s attorney’s stating: "We note that State Farm’s counsel expended 731 hours on this case.

Similarly, in Chrysler Corp. v. Weinstein, 522 So. 2d 894, 895-96 (Fla. 3^rd DCA 1988), the Third District approved the trial court finding as follows: "a review of the record shows that the trial judge found the number of hours [expended by the plaintiffs attorneys] to be reasonable in comparison to those spent by Chrysler’s attorneys." See, also LaFerney v. Scott Smith Oldsmobile, Inc., 410 So. 2d 534 (Fla. 5^th DCA 1982), in which court of appeal reversed the trial court’s award of attorneys fees which significantly reduced the number of hours awarded to the plaintiff, noting that the 90.5 hours awarded were not excessive in light of the 60.25 hours expended by the defendant’s attorney. Language that trial lawyers everywhere will find comforting is the portion of the 5^th DCA’s decision in that case which recognizes "the greater effort usually required by representing a plaintiff as opposed to a defendant."

Id. at 535.

If you are in Federal court, there is good authority supporting your efforts to obtain discovery of the defense attorney’s hours, including the case of Ruiz v. Estelle, 553, F. Supp. 567 (S.D. Tex. 1982), in which the court discusses at length the relevance of the amount of hours expended by the defendant’s attorneys, holding: "Federal courts have repeatedly noted the value of information concerning the defendants’ counsel’s time expenditure, in assessing the reasonableness of time claimed by plaintiff." One of the best circuit court cases on the point is the 7^th Circuit’s decision in Charapliwy v. Uniroyal, Inc., 670 F. 2d 760 (7^th Cir. 1982). In footnote 18 on page 768 on that decision, the court discusses the importance of knowing how much time the defense attorney expended in the case, and holds: "in the case before us, . . . we suggest that the hours and hourly rates charged by the defendant’s provide a helpful guide in determining whether similarly high rates and hours requested by the plaintiff were reasonable." Granted, the trial court’s decision to grant or deny you discovery of the defense attorney’s time is subject to an abuse of discretion standard. See, Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720, 724 (Fla. 5^th DCA 1999) ("Florida has not yet adopted a hard and fast rule regarding discovery and admission of opposing counsel’s fees. This reflects the salutary view that the discovery may be justified in some cases and not in others and that it is a matter that should rest within the sound discretion of the trial court." But with the foregoing authority recognizing the importance of such evidence, persuasive trial attorneys such as you should be able to convince the trial judge to correctly exercise his or her discretion in the matter.

Florida Law still requires expert testimony to support an award of attorneys fees. While the ususal practice is to obtain an affidavit concerning the reasonable number of hours and reasonable hourly rates, be careful with that. Unless you have an agreement that the affidavit will be admissible, it can be excluded as here say. See, Don Hondy v. Schimpeler, 528 So. 2d 484 (Fa. 3^rd DCA 1988); Soundcraft’s v. Laird, 467 So. 2d 480 (Fla. 5^th DCA 1985).

If you do have the agreement of defense counsel and do not want to inconvience your expert, an affidavit will be admissible. See, Insurance Co. of North American v. Julien P. Benjiman Equip. Co., 481 So. 2d 511 (Fla. 1^st DCA 1985). I suggest that you find a well-qualified expert and present him or her live to impress upon the trial court the significance of the matter and the weigh of the expert testimony on the measure of the fees.

Some courts have express frustration with the legal requirement of expert testimony on a matter of such familiarity as the measure of attorneys fees. See, Island Hoppers, Ltd. v. Keith, 820 So. 2d 967 (Fla. 4^th DCA 2002). The court in that case expressed the belief that the trial court ought to be able to determine the reasonable amount of a loadestar fee even without expert testimony, which it symically viewed as being simply a rubber-stamp of the prevailing attorney’s claimed number of hours and hourly rate. "Gross J., concurring specially". Still, the cases required expert testimony on the subject. E.g., Lafferty v. Lafferty, 413 So. 2d 170, 171 (Fla. 2^nd DCA 1982); Taner v. Taner, 391 So. 2d 305 (Fla. 4^th DCA 1980).

Much more can be said on the subject of court-awarded attorneys fees. This tip does not even mention the subject of multipliers, which are near and dear to our heart, but becoming much more difficult to recovery. More to come in a later installment.