This handbook will improve your odds of wining the attorney fee award dispute - no matter on which side of the contest you are on.

This  page is devoted to sundry tips you should be aware when requesting an award of reasonable attorney fees, or defending against the request.

Our first tip is made because it is what you need to know at the start.

Tip # 1. Either experience or handbook is needed. To win attorney fee awards -- or successfully defend against them --- you, the attorney, need to either (1) have experience in fee award contests or (2) read a short handbook on the law and tactics of attorney fee awards contest.

If you don't have item # 1, then you need item # 2.

We emphasize the words "short handbook." Thick textbooks have their place, but you won't read it cover to cover -- before you start a case in which an attorney fee award may be involved. And before the case starts is when you need to know what to do, starting on Day 1 of an attorney fee award case. Hence a thick textbook actually won't help you much in your day to day work on new cases. That's why you should have in your library a short handbook on attorney fees (with forms). Be alert and armed to do what needs to be done. 

The links on the left side of this page will take you to additional discussions designed to help you with handling attorney fee award disputes.  One of those links takes you to a page with more about the handbook.

Length of 199 pages (including the pages of forms) makes this handbook readable is a few hours, to guide you in an attorney fee award dispute. Includes forms for preventing mistakes and saving time.

Tip # 2. Attorney’s fees must be proven by expert testimony. The attorney in the case is not the best expert witness. Attorney fees now usually have to be proved in court by something more than the attorney who did the work saying his/her charge per hour is a specific amount, or that his/her contract says the charge will be a specific amount.  More on the elements of proof.   Most states now require expert opinion and testimony.  It is true that in cases like  Aquilla Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 SW3d 225 (Texas, San Antonio, 2001) the attorney himself was the only person testifying as to fees, and it was held sufficient without any real evidence of the attorney's qualifications as an expert. However, in that case the Texas court pointed out there was no challenge to the evidence on a reasonable attorney's fee and no attempt to offer contrary proof.  

The first problem on the attorney herself/himself testifying as an "expert" in a legal fee dispute is the appearance it creates for the judge or jury. The attorney must qualify as an expert (thus appearing to be engaging in unseemly "boasting"  of what a great and experienced attorney he/she is) and then testify on the "customary" fees.   Juries recognize the bias of the attorney. The rules against an attorney being both a witness and an attorney in the same case are founded on experience and the practical difficulties involved. There are even ethics opinions in some states that say that although the rules of professional conduct have an exception in the attorney-as-witness-rule to allow an attorney to testify on the amount and nature of his own attorney fees, it is poor practice for the lawyer in the case to do so.

The second problem: the average attorney really has no satisfactory expert qualifications to evaluate his/her own work or the "customary" fees.   Unless the attorney has been "in the business" of setting fees other than his/her own, it is the rare attorney who has taken the time to become an expert in what are the "customary" fees in the state.

The third, the biggest, problem: when the attorney herself/himself is declared to be a testifying "expert" -- he/she is subject to a deposition.  The defense attorney has the right to demand to see every document which the "expert" has considered in determining the value of services. In most states and the federal courts that means "every document" including privileged and work product documents. An expert -- even an attorney expert -- has no privilege to withhold documents if they were seen during the course of the expert's work.

Warning: in most states, the Rules of Professional Conduct do not contain an exception to the attorney-as-witness-rule to allow  a lawyer to testify as an expert on the fees of the adversary counsel.

In many states contract claims and appeals procedures can produce awards of attorneys fees. These contract cases and appeals fees cases furnish much of the law on this subject. But negligence cases, civil rights cases, and other types of tort cases also furnish law on the subject of what is a reasonable fee.

Warning: if the attorney fee amount is decided by a jury, even the fees for the appeals work must be supported by evidence. For example, see Cantu v Moore, Texas App., Case 04-01-00524-CV (Texas, San Antonio, 2002). Tthe Court of Appeals reversed an award of attorney’s fees for appeals work,  in part, finding that appellees failed to establish their entitlement to an award of conditional appellate attorney’s fees. The only testimony regarding appellate attorney’s fees was the testimony of a person who was not an attorney.  No expert testimony was introduced to prove the amount of attorney’s fees that would be reasonable for the appeals work.  The court noted that expert testimony is required to support an award of attorneys’ fees.

In Texas, which takes the matter of the amount of attorney fees away from judges if the case is a jury case, see cases like Lesikar v. Rappeport, 33 S.W.3d 282, 308 (Tex. App.—Texarkana 2000, pet. denied); Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000, pet. denied). “A court does not have authority to adjudicate the reasonableness of attorney’s fees on judicial knowledge without the benefit of evidence.” Woollett, 23 S.W.3d at 53. Because there is no evidence in the record to support an award of attorneys’ fees for an appeal, the trial court's award of $50,000 in attorney's fees was reversed.. Brown & Root U.S.A., Inc. v. Trevino, 802 S.W.2d 13, 16 (Tex. App.—El Paso 1990, no writ).

Tip # 3. The attorney's fee expense of litigating the amount of the attorney fee is may be recoverable.  In litigation in which attorneys fees are allowed, the expense of reasonable attorney's fees in claiming and proving attorney's fees  can be awarded. See, e.g, the civil rights case of hompson v. Pharmacy Corp. of America Inc., No. 02-13402 (11th Cir., June 25). 

Tip # 4. The attorney's fee expense of litigation with third party caused by wrongful acts of defendant may be recoverable.   It is usually said that attorney fees may be awarded only if there is a statutory or contractual basis for the claim, or if the attorney’s services create a common fund from which the fee can be paid. E.g., see Kittel v. Kittel, 210 So. 2d 1, 3 (Fla.1967); Israel v. Lee, 470 So. 2d 861, 862 (Fla. 2d D.C.A. 1985). Yet there are times other than when a statute or contract allows fees that  the fees may be recoverable as special damages.  For example, in Blair v. Boulger, 336 NW2d 337 (North Dakota, 1983) held that where the wrongful acts of a person caused another to become involved in litigation with a third party, the expense of litigating against the third party may be recovered from the wrongdoer that caused the litigation.  The court recognized this as a "third party exception" to the normal doctrine that attorney's fees are not recoverable by a winning party.

Tip # 5. Attorney fees may be awarded in insurance policy litigation. Insurance policy disputes involve the need for expert testimony giving opinions on   the reasonable value of attorney fees.  The cost of expert testimony is usually less than the amount the award may be adjusted upward or downward by the award or denial of attorneys fees in insurance policy disputes.  Hence, there is an economic benefit to obtaining expert testimony on the reasonable value of attorney's fees in the case.

Tip # 6. The attorney's fee in proving the underlying litigation claim in a legal malpractice action may be recoverable.  In legal malpractice actions claiming the defendant attorney committed malpractice in handling litigation, a frequent legal hurdle the claimant must pass is proving the underlying litigation would have been successful but for the malpractice of the defendant attorney. The claimant's attorney fees and costs in proving the underlying case is recoverable in the claimant's legal malpractice action. Most attorneys, even experts in legal malpractice claims, often are not aware of this element of damages.

"If Fulton had been required to prove his underlying discrimination claim, he may have been entitled to attorney fees incurred as a result of proving up his underlying claim in the malpractice action. See Lorenzetti v. Jolles, 120 F. Supp. 2d 181, 190 (D. Conn. 2000) (permitting a prevailing party to recover those attorney fees incurred as a result of proving an underlying claim in a legal malpractice claim); Fitzgerald v. Walker, 121 Idaho 589, 594, 826 P.2d 1301, 1306 (1992) (affirming denial of attorney fees in malpractice case involving underlying antitrust claim because attorney tried to prove his fees by post-trial affidavit; held: fees to prove underlying claim are part of measure of damages and must be submitted at trial as part of proof of damages); Admiral Merchs. Motor Freight, Inc. v. O'Connor & Hannan, 494 N.W.2d 261, 267 (Minn. 1992) ("In Minnesota malpractice cases, attorney fees incurred in the underlying dispute constituting the alleged malpractice may be recovered."); Glamann v. St. Paul Fire and Marine Ins. Co., 424 N.W.2d 924, 927 (Wis. 1988) (awarding attorney fees to prevailing party in legal malpractice action for portion of claim that went to proving underlying employment discrimination claim)."  Fulton v. Schermer, No. C7-01-1449 (Minn.App. 04/02/2002)

Remember: Showing attorney fees are Reasonable usually needs an expert witness. 

Ditto for showing the fees are unreasonable.