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reasonable fees

Attorney’s Fees on Attorney’s Fees

Posted by David Adelstein on July 04, 2019
Trial Perspectives / Comments Off on Attorney’s Fees on Attorney’s Fees

Can I recover my attorney’s fees for litigating the reasonable amount of attorney’s fees I should be entitled to for prevailing in my lawsuit?  This concept is known as “fees on fees.”  It depends.

Generally, [i]t is settled that in litigating over attorney’[s] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees.  Nonetheless, certain contractual provisions are sufficiently broad to warrant an exception.

The Burton Family Partnership v. Luani Plaza, Inc., 44 Fla. L. Weekly D1720c (Fla. 3d DCA 2019) (internal quotations and citations omitted) (finding bylaws created entitlement to attorney’s fees allowed to prevailing party to recover fees incurred for litigating the amount of attorney’s fees).

Entitlement to attorney’s fees is a creature of contract or statute.  

Statutory bases for entitlement to attorney’s fees are not really going to allow you to recover “fees on fees.” 

Contractual provisions may IF there is language in the contract that would allow such recovery.  Typically, there will be a provision that expresses that a prevailing party can recover attorney’s fees including attorney’s fees incurred in litigating the reasonable amount of attorney’s fees. 

While there are times I include or agree to such language, I am generally wary of this language because it disincentivizes a party from agreeing to settle the reasonable amount of attorney’s fees in advance of an evidentiary hearing to determine the reasonable amount because they know they will get “fees on fees.”   For example, what if the other side prevailed and they incurred $150,000 in attorney’s fees.  You want to settle the issue for $120,000.   The other side may likely be disincentived from settling this amount because not only do they know a court may award them more than the $120,000 in reasonable attorney’s fees, but now they get reasonable fees for litigating the amount that should be deemed reasonable.  Thus, you may be better off agreeing to the $150,000 because you would have to incur attorney’s fees too in litigating the amount of fees.  Something to consider when agreeing to or dealing with this provision.

 

 

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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