By Jonathan T. Gilbert
You’ve taken the case to trial and won. You’ve got a collectable defendant. And best of all, you’ve triggered an attorney fee provision. Now, how do you effectively prepare for and handle the attorney fee hearing to ensure you maximize the recovery of attorney fees and costs?
Attorney fees can be triggered in a variety of ways such as:
Some of these should not be pled in the complaint, some can be pled in the complaint (arbitration demand), and some must be pled in the complaint (contractual provisions) to be enforceable.
Identify which type of fee(s) you may be seeking while the pleadings are still open so you can ensure you preserve your claim to each type of fee. Later on, you must also reserve as to the court’s determination of entitlement and amount of fees at the time of entry of final judgment -- otherwise, you may have forfeited that right.
The key to conducting an attorney fee hearing properly is preparation. An attorney fee hearing is like a miniature non-jury trial, but it is often overlooked and underestimated as to its importance. Oftentimes attorneys come to the hearing unprepared. Hopefully, some of the practical tips detailed in this article can help to avoid that.
Communicate with the opposing party about the number of hours, hourly rate, entitlement to a fee multiplier and other aspects.
To prepare for an attorney fee hearing, the first step is to find out what the presiding judge expects of you. That will assist you in constructing your motion, developing strategy and presenting evidence. Sometimes, your judge will have a standard order preliminary to the fee hearing. Such an order may refer you to mandatory mediation on the issues before you can go forward with the hearing. The order may set deadlines to share with the defense your fee and cost invoices or deadlines for producing fee expert affidavits or disclosing expert opinions through reports. Obviously, you will want to plan out how to meet these deadlines, and if you know the language of the order before it is rendered, you can plot this out even more extensively.
Even absent such an order, it could be fruitful to communicate with the opposing party about the number of hours, hourly rate, entitlement to a fee multiplier, amount of the multiplier, taxable cost items and other aspects of the fee hearing such as the number of experts, submission of expert testimony by affidavit and testimony by the trial attorneys.
The parties may be able to come to an agreement on a number of these issues, which simplifies the issues in dispute at the fee hearing, and simplification is usually in your favor. You can propose entering into stipulations on as many items as can be agreed upon. The Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (2013 WL 6164572) is a guide that may support your position on several taxable cost items. If your opposing party disputes your entitlement to fees altogether, you will need to conduct a preliminary hearing on entitlement.
Drafting your motion for attorney fees and costs is important, because that is the first time you are educating the court on the basis for awarding fees and costs. The motion needs to advise:
Make sure to provide the memorandum to the court at least a few days before the hearing to make its contents meaningful for the judge by giving him ample time for review.
The use of demonstrative aids is permitted and can be a powerful tool for an attorney fee hearing.
Give yourself plenty of hearing time when noticing the hearing. This is probably not a one-hour hearing. If you think you can present your evidence in an hour, it needs to be noticed for two hours, as your opposing party is to be given equal time to respond.
Once you are in the courtroom, just like in a trial, the first thing you should do is pre-mark exhibits for identification. Be prepared to announce to the judge on the record about agreements and stipulations reached with opposing counsel, preferably with formalized agreements that can be presented. You should also consider invoking the Rule of Sequestration, which would allow you and your client to remain in the room but require other non-witnesses to remain outside the courtroom until called to testify.
The use of demonstrative aids is permitted and can be a powerful tool for an attorney fee hearing. Specifically, a summary sheet detailing what is being asked for that is broken down into simple terms for the judge can be very useful. It can be marked, though, should you decide you want it as part of the record for appeal.
You should have an Order of Proof that you follow, just like in trial. If there are issues remaining as to both fees and costs, these should be addressed separately. Costs can be addressed using the Statewide Uniform Guidelines, which divides costs into taxable costs, costs that may be taxed but are not required to be, and non-taxable costs.
Your goal is to show both entitlement and reasonableness of the amount sought.
The star witness for an attorney fee hearing is you. Though the lead attorney for the case is not required to testify under some circumstances, you probably will present the evidence in the most effective manner. This means you may wish to have co-counsel question you. The other options are to present testimony by affidavit or to testify without co-counsel in narrative form.
When your fee expert testifies, make sure he or she has an ultimate opinion that is supported by facts: the fee expert must be able to explain both why and how he or she arrived at the hourly rate as well as the reasonableness of the number of hours sought. Have your expert focus on the disputed issues and avoid wasting time on the portions of the affidavit that went without objection or disputes you have already resolved by stipulation. Providing the court with a timesheet containing disputed charges that are highlighted can be an effective aid to addressing those charges in an expeditious manner.
In presenting your fee case, keep in mind that your goal, in fact your burden, is to show both entitlement and reasonableness of the amount sought. Though case law does not require an attorney fee affidavit, it can be instrumental in presenting your evidence, because it forces you to assemble the key information needed. If you triggered a fee recovery on one count, but not on other counts, you have the “affirmative burden” to demonstrate what portion of your time relates to the count upon which you prevailed, as opposed to the other counts.
In an ideal world, you will have kept impeccable time records that transfer directly into an exhibit to your fee motion. In reality, this is usually not the case, and the courts have been generally understanding about the recreation of time records.
Regardless of how the time is recorded, if challenged, be prepared to explain:
The testimony by the attorney and the fee expert cannot be speculative in nature; instead, the award sought needs to be directly supported by the evidence as to each of these three criteria.
If awarded a statutorily-based fee, you may also wish to seek a multiplier. The court must consider such a contingency risk factor under most circumstances where a statutorily-based fee is awarded. In order to obtain a multiplier, the court will consider several factors you should be prepared to include as part of your evidence, including:
At the conclusion of your hearing, you may wish to present the court with a proposed order for entry. Such an order can contain specific findings supported by the testimony and evidence.
Jonathan T. Gilbert is a lawyer with Colling Gilbert Wright & Carter, LLC, The Florida Firm, Orlando, Florida. He can be reached via email: JGilbert@TheFloridaFirm.com and telephone: 407-712-7300. Jon focuses his practice on representing those who have suffered a personal injury, been a victim of medical malpractice or have a loved one who has been subjected to nursing home neglect or abuse. Jon’s practice is devoted to litigation in these three areas, where he actively practices with the aim of providing his clients with a valuable recovery for what they have endured.
Jon received the honor of being inducted as one of the National Trial Lawyers “Top 40 Under 40” for the State of Florida. This is an honor bestowed upon the top forty civil and criminal defense trial attorneys under the age of forty in each state. His membership in the NTLA has been ongoing each year since being initially inducted in 2012.