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© Copyright, 2000 to  2010,  by Leonard  Bucklin.

Attorney fee litigation: Proven tips and tactics.

Tip # 1. If you do not have (A) experience in fee contests, you need (B) a short handbook of law and tactics. To win attorney fee awards -- or successfully defend against them --- If you don't have item (A), then you need (B). It's that simple.

We emphasize the words "short handbook." Before the case starts is when you need to know what to do, starting on Day 1 of an attorney fee award case. You need to read a handbook. A thick textbook of a 1000 pages 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. 

Tip # 2. An  attorney in the case is usually not a believable witness in a contested case.

The first problem on the attorney herself/himself testifying as an "expert" in a legal fee dispute is  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.  Rarer still is the attorney who worked on the case who knows how to analyze the work done, and then prepare a discovery disclosure and an opinion that will pass a Daubert-style gatekeeping exclusion motion.

Moreover, judges and juries  are not stupid;  they recognize the bias of the attorney in the case. An attorney testifying on why her work was wonderful and reasonable own fee shoves her  bias into the face of the factfinder. She even loses effectiveness in arguing other aspects of your case.

 

Handbook & Experts

Legal Fee Experts:

 

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 # 3.  The attorney in the case cannot testify about the other side's fees.

States commonly allow the attorney  who did the work or a trial attorney for a party to testify on the issue of reasonable attorney fees in the case.  That's because the disciplinary rules have an exception to the ethics bar against an attorney testifying in his own case to allow an attorney in the case to testify on what is a reasonable fee for his own work done in the case.

However, these 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 adverse counsel.

Tip # 4. When an attorney declares himself/herself to be a testifying "expert" -- he/she is subject to a discovery deposition. Just as any witness, the adverse attorney as a witness can be tied down to the basis of his/her opinion and the weaknesses in foundation or reliability, so that you can make a solid trial objection to the introduction of that opinion into evidence.

The adverse attorney has the right not only to cross examine the declared expert on everything he/she did in the case, but also 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 work product documents that were seen and considered in determining the reasonable value of legal services in producing the document. A testifying expert -- even an attorney for a party in the case -- has no privilege to withhold documents that are a part of the basis for forming an opinion as to reasonable time spent creating or reviewing those documents. 

Tip #5. If the attorney fee amount is decided by a jury, even the fees for the appeals work must be supported by evidence presented during the trial.. For example, see Cantu v Moore, Texas App., Case 04-01-00524-CV (Texas, San Antonio, 2002). The 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 (unless the parties agree to submit attorney fees to the judge for decision), 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 # 6. 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 # 7. 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.


Tip # 8. Do not expect an expert determining the reasonable amount of a fee to be able to do it in a few hours or days.

Looking at the underlying work done and determining a reasonable fee is labor intensive, frequently requiring painstaking reading and much reconstruction of the work done by the attorney in question.   A good expert fee opinion regarding reasonableness of an attorney fee normally must be based on reading large amounts of the case or transaction documents to reconstruct the work done by the attorneys.

Fee billings must be examined --- item by item. As the fee billings are examined they frequently have to be categorized and a unique calculation matrix and table of information established for the case, so that facts, tables of information, and exhibits can be provided to the fact-finder.

Read more about the high cost of the detailed and intensive fee analysis needed for a good expert opinion on legal fees.