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

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....

16 October

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

Posted by David Adelstein

in Trial Perspectives

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. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is...

24 March

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Discoverability of Opposing Party’s Attorney’s Fees Records

Posted by David Adelstein

in Evidence, Trial Perspectives

Interesting new Florida Supreme Court case regarding the discoverability of an opposing party’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...

17 September

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

Posted by David Adelstein

in Expert Testimony

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....

02 September

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Strategic Reasons for Serving a “Good Faith” Proposal for Settlement

Posted by David Adelstein

in Trial Perspectives

You know how proposals for settlement / offers of judgment ("proposals for settlement") work because I previously wrote about this topic. You know that such proposals for settlement need to be made in good faith. Remember, proposals for settlement create the argument to recover attorney's fees from the date the proposal for settlement is served on forward. The recent case of Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 40 Fla. L. Weekly D2052b (Fla. 3d DCA 2015), exemplifies a defendant relying on a proposal for settlement. In this case, a defendant served the plaintiff with a proposal for settlement....

29 March

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Considerations Involving Proposals for Settlement / Offers for Judgment

Posted by David Adelstein

in Trial Perspectives

There needs to be a contractual or statutory basis in order to be entitled to recover your reasonable attorneys' fees at trial. See Cadenhead v. Gaetz, 677 So.2d 96, 97 (Fla. 1st DCA 1996). This means either the contract needs to support a basis for the party to recover attorney’s fees (such as a prevailing party attorneys’ fees provision or a contractual indemnification provision that authorizes attorneys’ fees) or there needs to be a statute that authorizes you to recover reasonable attorneys' fees. Absent these bases, there is generally no basis to recover attorneys' fees. However, there is a vehicle under...