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Attorney’s Fee Awards

Attorney’s fee awards can be frustrating.  The reason being is the award is based on a mini-bench-trial after the trial aimed at determining reasonableness of the attorney’s fees.  An expert, i.e., another lawyer, is required to opine as to the reasonableness of the attorney’s fees.  Fees are not just rubberstamped and banking on recovering 100% of the attorney’s fees incurred is probably not realistic. In fact, you should not “bank” on that mindset when determining whether to settle the attorney’s fees or the dispute.

A recent case, Kovar Law Group, PLLC v. Jordan, 49 Fla.L.Weekly D431a (Fla. 2d DCA 2024), touches upon attorney’s fees award and the standard for proving and substantiating attorney’s fees:

Fee awards must be supported by ‘a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services.‘ ” Mitchell v. Flatt, 344 So. 3d 588, 592 (Fla. 2d DCA 2022) (quoting Cooper v. Cooper, 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981)). But [prevailing party for purposes of attorney’s fees] did not introduce her time records into evidence or testify regarding the hours she worked. See Morton v. Heathcock, 913 So. 2d 662, 670 (Fla. 3d DCA 2005) (“And while these attorneys did file affidavits and detailed time statements delineating the nature and extent of their services, neither the affidavits nor the time records were authenticated or introduced into evidence.”); see also Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280, 281-82 (Fla. 2d DCA 2014) (“A document that was identified but never admitted into evidence as an exhibit is not competent evidence to support a judgment.” (citing Correa v. U.S. Bank Nat’l Ass’n, 118 So. 3d 952, 955 (Fla. 2d DCA 2013))). And [co-counsel] presented no expert testimony whatsoever to support his fee claim. See Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351, 352-53 (Fla. 1987) (“[I]t is well settled that the testimony of an expert witness concerning a reasonable attorney’s fee is necessary to support the establishment of the fee.”); see also Snow v. Harlan Bakeries, Inc., 932 So. 2d 411, 412 (Fla. 2d DCA 2006) (“They [Harlan Bakeries’ trial and appellate attorneys] both testified at the attorney’s fee hearing that they thought their fees were reasonable. However, there was no testimony from an expert witness on the reasonable amount of the fees. Therefore, the trial court erred in establishing the amount of attorney’s fees.” (footnotes omitted)).

Because the record is not “completely devoid of evidence” supporting [counsel’s] fees, however, see id. at 413, under the facts of this case we deem it appropriate that they should be given the opportunity to provide further evidence supporting the amounts they claim — provided, of course, that the trial court finds entitlement on remandSee id. (remanding to permit the trial court to take further evidence where the trial and appellate attorneys had provided sworn affidavits on their fees but failed to provide expert testimony); see also Rodriguez v. Campbell, 720 So. 2d 266, 268 (Fla. 4th DCA 1998) (“[W]hen the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.”). Accordingly, we reverse the fee award and remand for further proceedings consistent with this opinion.

Remember, if attorney’s fees are disputed and you are deemed the prevailing party for purposes of entitlement, a mini-bench trial will be conducted where you will need to present evidence which should be your counsel’s statements and your counsel’s testimony.  You will also need to present an expert to opine that your rates and hours were reasonable given the circumstances of the dispute.

Please contact David Adelstein at [email protected] 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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