attorneys’ fees

The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

Posted by David Adelstein on October 19, 2017
Trial Perspectives / Comments Off on The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have virtually eliminated the application of the contingency fee multiplier. Boo!  This multiplier is important as it incentivizes those attorneys that handle difficult contingency fee cases by adding a multiplier on the reasonably determined attorney’s fees. (For example, if the Court determines that an attorney’s reasonable attorney’s fees are $35,000, the Court can order a multiplier of 2, meaning the attorney’s fees would be $70,000). As they say, with risk comes reward!

In what I think to be noteworthy language regarding the contingency fee multiplier, the Court pronounced:

[T]he contingency fee multiplier provides trial courts with the flexibility to ensure that lawyers, who take a difficult case on a contingency fee basis, are adequately compensated. We also do not agree that the contingency fee multiplier encourages “nonmeritorious claims” and would, instead, posit that solely because a case is “difficult” or “complicated” does not mean that the case is nonmeritorious. Indeed, without the option of a contingency fee multiplier, those with difficult and complicated cases will likely be unable or find it difficult to obtain counsel willing to represent them.

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The point being, the lodestar amount, which awards an attorney for the work performed on the case, is properly analyzed through the hindsight of the actual outcome of the case, whereas the contingency fee multiplier, which is intended to incentivize the attorney to take a potentially difficult or complex case, is properly analyzed through the same lens as the attorney when making the decision to take the case. We disagree that the possibility of receiving a contingency fee multiplier leads to a “windfall.” … While the attorney for the insurer charges and receives an hourly rate regardless of whether the defense is successful, the insured’s attorney bears the risk of never being compensated for the number of hours spent litigating the case. This risk, among other factors, is what entitles the attorney to seek, and the trial court to consider, the application of a contingency fee multiplier.

Joyce v. Federated National Ins. Co., 42 Fla.L.Weekly S852a (Fla. 2017).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Posted by David Adelstein on June 25, 2017
Appeal / Comments Off on Timely Move for Appellate Attorney’s Fees (if You have a Basis!)

Moving for appellate attorney’s fees? If you do, make sure you TIMELY file a motion!  Appeals take time…in many instances, lots of time…and if there is a basis to recover attorney’s fees, you want to make sure a motion is timely filed and supported by a contractual or statutory basis.

Florida Rule of Appellate Procedure 9.400 governs appellate costs and fees.   This Rule provides:

(a) Costs. Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include

(1) fees for filing and service of process;

(2) charges for preparation of the record and any hearing or trial transcripts necessary to determine the proceeding;

(3) bond premiums; and

(4) other costs permitted by law.

Costs shall be taxed by the lower tribunal on a motion served no later than 45 days after rendition of the court’s order. If an order is entered either staying the issuance of or recalling a mandate, the lower tribunal is prohibited from taking any further action on costs pending the issuance of a mandate or further order of the court.

(b) Attorneys’ Fees. With the exception of motions filed pursuant to rule 9.410(b), a motion for attorneys’ fees shall state the grounds on which recovery is sought and shall be served not later than:

(1) in appeals, the time for service of the reply brief; or

(2) in original proceedings, the time for service of the petitioner’s reply to the response to the petition.

The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys’ fees are assessed by the court, the lower tribunal may enforce payment.

(c) Review. Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.

The entitlement to attorney’s fees must be supported by a statutory or contractual basis. State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007).   It is incumbent on a party to timely file a motion for appellate attorney’s fees if they want to recover attorney’s fees relating to the appeal.  An appellate court has jurisdiction to award appellate attorney’s fees. Bartow HMA, LLC v. Kirkland, 146 So.3d 1213, 1215 (Fla. 2d DCA 2014).   “Once the appellate court determines that an award of appellate attorney’s fees is appropriate, a mandate is issued to the trial court to impose the fees after conducting a hearing. Absent a mandate, the trial court has no jurisdiction to award appellate attorney’s fees.” Respiratory Care Services, Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Litigating the Amount of Contractual Attorney’s Fees

Posted by David Adelstein on April 14, 2017
Trial Perspectives / Comments Off on Litigating the Amount of Contractual Attorney’s Fees

Recovering attorney’s fees is a vital component of many claims. Parties that have a contractual or statutory basis to recover attorney’s fees want to know they will get a judgment for reasonable attorney’s fees if they prevail in the underlying action.   This oftentimes results in litigating the amount of fees.

There is authority that when parties seek fees pursuant to a statute, they are not entitled to fees associated with litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993).

What about if a party seeks fees pursuant to a contract? Can the party recover attorney’s fees associated with litigating the amount of contractual fees?  The answer is it depends on the contractual attorney’s fees provision. The broader the scope the greater the chance a party will be entitled to attorney’s fees for litigating the amount of contractual fees owed to the prevailing party.

In Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 42 Fla.L.Weekly D848a (Fla. 2d DCA 2017), the Second District addressed whether a prevailing party is entitled to recover contractual attorney’s fees associated with litigating the amount of reasonable attorney’s fees.   The Court held yes based on the scope of the contractual attorney’s fees provision since contracting parties are free to contract on the scope and issue of attorney’s fees.

The provision at-issue read in material part:

…prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.

The court held that this language in the attorney’s fees provision was broad enough to encompass fees associated with litigating the amount of fees.

Remember, contracting parties are fee to negotiate and contract on the issue of attorney’s fees.  Based on the provision, a prevailing party will be entitled to attorney’s fees for litigating the amount of fees.  This perhaps may make a party think twice regarding litigating the amount of contractual fees if the issue can get resolved without an evidentiary proceeding on the amount. 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Innovative or Alternative Fees Can be a Win-Win!

Posted by David Adelstein on February 18, 2017
Uncategorized / Comments Off on Innovative or Alternative Fees Can be a Win-Win!

What is the traditional model of lawyering?  Simply put, it is hourly billing.  There is nothing wrong with this model; however, there are other alternative or innovative attorney’s fee models out there that factor in performance, results, and efficiency.  These are models that incentivize performance which is always in a client’s best interest.  Stepping out of a comfort zone is tough considering we are all creatures of habit.  But, there are instances where trying something innovative or alternative is a win-win for you from a budgetary standpoint and, importantly, a results standpoint.  If you are interested in learning more about attorney’s fee models that may benefit your interests, check out the below chart and feel free to contact me.

 

Download (PDF, 273KB)

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein on February 11, 2017
Trial Perspectives / Comments Off on Timely Filing Motion for Attorney’s Fees and Costs

Florida Rule of Civil Procedure 1.525 provides:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made within 30 days after the filing of a judgment or voluntary dismissal that concludes the action as to that party. (A court in certain circumstances may grant an extension of time to this 30 day period if the motion for extension is filed within 30 days).   Not timely filing a motion for attorney’s fees and costs can result in…(you guessed it)…a loss of a party’s right to recover attorney’s fees and costs.

In Hovercraft of South Florida, LLC v. Reynolds, 42 Fla. L Weekly D367a (Fla. 5th DCA 2017), the plaintiffs prevailed and received a final judgment. The defendant moved for a new trial and/or rehearing which was denied.   Within 30 days of the denial of the defendant’s motion for rehearing, but well outside the 30 days from when the final judgment was entered, the plaintiffs moved for attorney’s fees and costs. However, the motion for attorney’s fees was not timely filed within 30 days of the filing of the final judgment meaning…(you guessed it again)…the plaintiff’s lost the right to recover their attorney’s fees and costs!!!  Do not let this happen to you.  

Notably, an exception to this 30 day requirement is if the final judgment itself determines entitlement to attorney’s fees reserving only the right to determine the quantum of the reasonable attorney’s fees.   Hovercraft of South Florida, supra (“In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed.”) Notwithstanding this exception, file the motion for attorney’s fees and costs within 30 days — no excuses.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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Appealing Entitlement to Attorney’s Fees

Posted by David Adelstein on January 08, 2017
Appeal / Comments Off on Appealing Entitlement to Attorney’s Fees

After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues relating to entitlement to attorney’s fees appealable? Yes.

 

“‘A party’s entitlement to an award of attorney’s fees under a statute or procedural rule is a legal question subject to de novo review.’” Newman v. Guerra, 2017 WL 33702 (Fla. 4th DCA 2017) quoting Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4th DCA 2015).

 

For instance, in a recent case, an owner established that a contractor’s lien was fraudulent. The contractor, however, prevailed in its breach of contract claim. The owner moved for his entitlement to statutory attorney’s fees since he prevailed in the contractor’s lien action. The trial court denied the owner’s motion for attorney’s fees because after considering all of the claims asserted in the case found that the contractor prevailed on the significant issues in the case. The owner appealed the trial court’s denial and this issue was subject to a de novo standard of appellate review.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

Posted by David Adelstein on November 03, 2016
Trial Perspectives / Comments Off on Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

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To be entitled to attorney’s fees, there needs to be a contractual or statutory basis to recover attorney’s fees (absent serving a proposal for settlement). There is oftentimes the misconception in breach of contract cases that the party that recovers a positive net judgment will automatically recover their attorney’s fees. While, certainly, sometimes this is the case, this is NOT what you should be banking on. The law has tried to progress to a point where it does not want certain cases to be driven solely by the prospect of recovering attorney’s fees just because you won $1.  

The Florida Supreme Court in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992) held that in a breach of contract action the significant issues test applied to determine the prevailing party for purposes of awarding attorney’s fees.  A party prevails on the significant issues if the party prevails on any significant issue in the case that achieved a benefit sought by the parties in the action.

A year later, the Florida Supreme Court in Prosperi v. Code, Inc., 626 So.2d 1360 (Fla. 1993) addressed this significant issues test in the context of a construction lien action where the contractor received a net judgment in its favor but did not prevail on its construction lien (that provided a statutory basis for fees).  In this case, the owner prevailed on the contractor’s lien claim but the contactor prevailed in a breach of contract action and, therefore, recovered a net judgment in its favor.  For purposes of the case, a net judgment was “when the claimant fails to foreclose a mechanic’s lien but obtains a judgment for the underlying claim which exceeds any claim of the owner.”   Prosperi, 626 at n.1.   Here, the Court explained that recovering a net judgment is a significant factor to determine the prevailing party for purposes for purposes of attorney’s fees, but was NOT the only consideration. The equities of the case must be considered at the trial court’s discretion to determine the party that prevailed on the significant issues to be deemed the prevailing party for purposes of attorney’s fees.

Years later, this issue was brought up again to the Florida Supreme Court in Trytek v. Gale Industries, Inc., 3 So.3d 1194 (Fla. 2009), as to whether the significant issues test applied when a contractor obtained a net judgment against an owner on its lien even though the lien amount was reduced by the owner’s claim for repair costs.  In finding that the significant issues test applied, the court further explained that the trial court has discretion to examine all factors including issues litigated, claim amount, amount recovered, and counterclaims, and can determine that neither party was the prevailing party for purposes of attorney’s fees

As you can see, the trend to determine the prevailing party for purposes of attorney’s fees in a breach of contract action is to apply the significant issues test. Because the trial court has the discretion to examine the equities to determine the party that prevailed on the significant issues in a given case, there is not any objective or bright-line rule to refer to in order to determine whether your situation will deem you the prevailing party for purposes of attorney’s fees.   This component makes it challenging to predict how a trial judge or arbitrator may rule and whether a party will be deemed the prevailing party for purposes of attorney’s fees. Recovering a net judgment is still an important factor, but it will not be the sole deciding factor because the prospect of a party recovering $1 and being deemed the prevailing party for purposes of attorney’s fees may prevent that party from becoming reasonable with their settlement terms.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proposals for Settlement when there is a Contractual or Statutory Basis for Attorney’s Fees

Posted by David Adelstein on October 16, 2016
Trial Perspectives / Comments Off on Proposals for Settlement when there is a Contractual or Statutory Basis for Attorney’s Fees

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In an earlier posting I talked about proposals for settlement / offers of judgment.   Again, these are used as a vehicle to create an argument for attorney’s fees down the road, particularly in cases where a party does not have a contractual or statutory basis to recover attorney’s fees. Please check out this article for more information on proposals for settlement because they have become an unnecessarily complicated vehicle with nuances that have resulted in an exorbitant amount of case law, some of which is conflicting. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is an argument and not a guaranty.

Sometimes, parties with a contractual or statutory basis to recover attorney’s fees will still serve a proposal for settlement. This becomes tricky because the right to attorney’s fees per the contract or statute is not cut-off by virtue of the proposal for settlement.

Say, for example, a defendant serves a proposal for settlement. The plaintiff, however, prevails in the case through trial in a claim in which the plaintiff is entitled to contractual attorney’s fees. There are two considerations.  

First, when determining the merits of a proposal for settlement, you need to look at the “net” judgment, which would include attorney’s fees and costs incurred by the opposing party (party receiving offer that prevailed in the case) through the date of the offer. See Leon F. Cohn, M.D., P.A. v. Visual Health and Surgical Center, Inc., 125 So.3d 860, 863 (Fla. 4th DCA 2013) (“Because Cohn prevailed on the breach of contract claim and the contract contained a provision awarding attorney’s fees to the prevailing party, we reverse and remand for the trial court to reconsider the issue of Cohn’s entitlement to fees after conducting an evidentiary hearing to determine the total net judgment, which shall include the amount of fees and taxable costs incurred by Cohn in litigating the breach of contract claim up to the date of the offer.”). Since the proposal for settlement is based on the net judgment, to determine whether the above defendant would be a prevailing party for purposes of recovering its attorney’s fees from the date of the proposal on forward would require an analysis to see what the total net judgment to the plaintiff would be factoring in fees and taxable costs through the date the defendant served the proposal.   The issue in looking at the net judgment is to determine whether the defendant could offset some of the attorney’s fees entitled to the plaintiff by being entitled to attorney’s fees from the date of the proposal on forward.

Second, the proposal for settlement does not cut-off the opposing party’s contractual right to fees incurred after the proposal for settlement is served. See Tierra Holdings, Ltd. v. Mercantile Bank, 78 So.3d 558 (Fla. 1st DCA 2011).   The above plaintiff would still be entitled to its attorney’s fees if deemed the prevailing party under the contract through the trial.   The issue, as discussed above, is whether the defendant could offset some of the fees entitled to the plaintiff by being entitled to attorney’s fees from the date of the proposal on forward.

Let’s use real numbers. Assume the defendant served the proposal for settlement to the plaintiff for $100,000. The plaintiff has a contractual right to attorney’s fees. The plaintiff rejects the proposal for settlement and at trial the plaintiff is awarded $40,000. Now, let’s assume the total net judgment through the date of the proposal for settlement factoring in fees and costs entitled to the plaintiff as the prevailing party under the contract is $60,000.   This $60,000 is at least 25% less than the defendant’s proposal for settlement of $100,000, meaning the defendant would be entitled to its attorney’s fees from the date of the proposal on forward. Assume those reasonable fees are $75,000. Assume the plaintiff’s total reasonable fees are $90,000.

Under step one, the defendant would presumably be the prevailing party for purposes of fees per the proposal for settlement and be entitled to its reasonable fees of $75,000 from the date of the proposal through trial.   The reason being is that the total net judgment to the plaintiff at the time the defendant served the proposal when factoring in fees and costs was at least $25% less than the defendant’s proposal for settlement.

Under step two, the plaintiff is still entitled to its attorney’s fees for prevailing under the contract, which are $90,000 through trial. Thus, the $75,000 owed to the defendant in fees would simply be credited in a judgment given to the plaintiff (reducing the plaintiff’s judgment by $75,000). For example, if the court entered an attorney’s fees judgment, the plaintiff would be entitled to $15,000 in fees, or the difference between the $90,000 and the $75,000.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Discoverability of Opposing Party’s Attorney’s Fees Records

Posted by David Adelstein on March 24, 2016
Evidence, Trial Perspectives / Comments Off on Discoverability of Opposing Party’s Attorney’s Fees Records

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Interesting new Florida Supreme Court case regarding the discoverability of an opposing party’s attorney’s fees records in a dispute regarding the reasonableness of your fees.

For instance, say you are entitled to your reasonable attorney’s fees after prevailing in a dispute. The parties are entitled to an evidentiary fee hearing to determine the reasonableness of your fees—to determine the reasonable hourly rate and number of expended hours. Oftentimes, the party that prevailed serves discovery on the opposing / contesting party to discover their attorney’s fees records. The opposing / contesting party typically objects to this discovery as being irrelevant. But, not so fast…

The Florida Supreme Court in Patton v. Geico Ins. Co., 41 Fla.L.Weekly S115a (Fla. 2016) recently chimed in on this specific issue in a matter where a party recovered a judgment against an insurance carrier. The Florida Supreme Court expressed:

[T]he billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorney’s fees, and their discovery falls within the discretion of the trial court when the fees are contested….The hours expended by the attorneys for the [defendant] insurance company will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a multiplying factor.

It is safe to say that this rationale is probably not limited to an entitlement of attorney’s fees against an insurance company. Rather, the rationale could reasonably apply to any dispute where the attorney’s fees are contested. What if the opposing / contesting party had a higher hourly rate? What if the opposing / contesting party billed more hours?  The answers to these questions are the reasons why the opposing / contesting party’s attorney’s fees records are sought when your fees are contested.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Your Reasonable Attorney’s Fees Expert May be a Taxable Cost

Posted by David Adelstein on September 17, 2015
Expert Testimony / Comments Off on Your Reasonable Attorney’s Fees Expert May be a Taxable Cost

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I am the prevailing party and I am entitled to recover my attorney’s fees from the opposing party! Now what?

If you are unable to come to an agreement with the opposing side regarding the amount of attorney’s fees you incurred, then you need to have an evidentiary hearing for the court to determine your reasonable attorney’s fees. This requires your attorney to testify as to the rates and the number of hours expended on the matter. This also importantly requires to you to have an expert testify as to the reasonableness of the attorney’s fees you incurred. See Jaffe v. In re: Guardianship of Jaffe, 147 So.3d 578, 581 (Fla. 3d DCA 2014) (explaining that proving reasonable attorney’s fees must be supported by expert witness testimony). This expert is nothing more than another attorney that testifies that the rates are reasonable and the number of hours expended was reasonable.   This expert is known as a reasonable attorney’s fees expert.

The good news is that this reasonable attorney’s fees expert may be taxed as a cost against the opposing party. Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); accord Jaffe, 147 So.3d 578; Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 1999).

More than likely, a court is going to tax your reasonable attorney’s fees expert as a cost against the opposing party. Knowing this, a so-called losing party should try to avoid the evidentiary attorney’s fees hearing by coming to an agreement with the prevailing party as to the reasonable attorney’s fees.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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