July 11th, 2014

Experts on Attorneys fees

Is expert testimony required to recover a reasonable attorney's fee?

Given the experience trial judges have with attorneys and attorneys' fees, one might question the usefulness of an attorney/expert witness to testify about the reasonableness of the fee. There is no question that the amount of a reasonable attorney's fee is in the discretion of the trial court. Further, even if an expert does testify, the trial court's discretion is not limited by his/her expert testimony. Twenty-six years ago in Harrell v. Sproul, 426 So.2d 63 (Fla. 5th DCA 1983) the Fifth District Court of Appeal reviewed a trial court's decision awarding the attorney fees for 250 hours instead of the 450 hours which two experts testified was reasonable. The district court affirmed the trial judge stating, “While the opinion of an expert witness testifying on attorney's fees is persuasive, it is not binding on the court in determination of a reasonable fee. Such testimony is to be weighed with the other evidence in the case bearing upon the value of the services.” Id. at 64. The court does not state what the “other evidence” in the case was, but the opinion reveals that only two experts testified, both of whom supported the attorney's claim.

The Fourth District also held a trial court may reject an attorney/expert's opinion of a reasonable attorney's fee in Baldwin Piano and Organ Co. v. Dote, 740 So.2d 1230 (Fla. 4th DCA 1999). In that case the district court affirmed the decision of the trial court to award a fee less than the uncontradicted testimony of the movant's attorney/expert. The district court explained its affirmance on two grounds. First the court stated the trial judge could have reduced the award based on the cross examination of the expert. Secondly, the court held, “the trial court was not bound by the testimony of the expert as to the amount of a reasonable attorney's fee, even though there was no opposing expert. Id. at 1231. By relying on the trial court's right to reject the expert testimony as a separate ground from the trial court's reliance on cross examination of the expert the district court seems to allow the trial court to base its decision on its own “expert” evaluation of the case.

In addition to recognizing the trial court's discretion to reject uncontradicted expert testimony, the Fourth District has reserved to itself the discretion to reject uncontradicted expert testimony based on “our own expertise.” Miller v. First American Bank and Trust, 607 So.2d 483, 485 (Fla. 4th DCA 1992). In that case the trial court had awarded fees based on specific findings of a reasonable number of hours and a reasonable hourly rate for each of several attorneys who had provided services. The district court reversed even though the record contained no transcript of the attorneys' fee hearing on which the trial court's findings had been based. “Nor are we precluded from reaching this result by the fact that, under Applegate, we must presume that someone testified that the hours in question were actually employed and that an 'expert' opined that they and the fee awarded were 'reasonable.' The existence of such evidence does not require that we abandon our own expertise, much less our common sense.” Id.at 485 (underlining added).

If the trial court can rely on its own knowledge and experience in rejecting the testimony of an attorney/expert on attorney's fees, it would seem the court could rely on its own knowledge and experience in determining a reasonable fee without expert testimony? That seems to be the position of the Fourth District Court of Appeal in Island Hopper, Ltd. v. Keith, 820 So.2d 967 (Fla. 4th DCA 2002). The holding of that case allowed a contingency risk multiplier in cases in which fees were awarded under the Offer of Judgment Statute. That holding subsequently was rejected by the Supreme Court in Sarkis v. Allstate Ins. Co., 863 So.2d 10 (Fla. 2003). However, the court also discussed the role of expert testimony.

Though Florida courts have long required the corroborativetestimony of an expert "fees witness," we question whether the rule is always the best, or most judicious, practice. We note this practice has existed since at least the 1960s. Yet, we note as our profession matures and evolves, as it has over the past forty years, and continues to do so, our trial judges have become highly experienced in all aspects of litigation, often with knowledge equal to, or in some cases far superior to, that of those attorneys who are called upon to provide expert testimony as a "fees witness." Our trial judges see attorneys representing all levels of skill and experience in their courtroom; it is not uncommon for a trial judge to conduct multiple fee hearings practically every week. At the most basic level, we fail to see what, if any, 'guidance' these 'fees experts' actually provide to the well- versed trial judges of this state, who ultimately have the responsibility to determine, in their relatively unfettered discretion, whether the hours sought are reasonable, and what hourly fee(s) should be applied. 820 So.2d at 972. (Citations omitted).

In his concurring opinion Judge Gross was even blunter stating, “I concur with the result of the majority opinion and write separately to emphasize that the rule requiring an independent 'expert' in every attorney's fee case rests on shaky theoretical grounds.” Id. at 976.

After Island Hoppers, supra, it appeared the testimony of an attorney/expert at a fee hearing was no longer required. However, as with Mark Twain, the rumors of the death of that requirement had been greatly exaggerated.Only one year after its decision in Island Hoppers, supra, the Fourth DCA, the same court that lauded the “highly experienced” trial judges in Island Hoppers, held the evidence supported an award of attorney's fees as a sanction against the appellant/attorney, Steve Rakusin, but reversed the award. The court held, “Even when an attorney's fee award is entered as a sanction, it must be supported by expert evidence as to the reasonableness of the amount of time expended and the reasonableness of the hourly fee.” Rakusin v. Christiansen and Jacknin, 863 So.2d 442, 443 (Fla. 4th DCA 2003). Recognizing its language in Island Hoppers, supra, might have led litigants to believe expert testimony was no longer required, a completely different panel of the same court stated, “However, agreeable or not, the existing case law requires the presentation of corroborating testimony of the reasonableness of attorney's fees.” Rakusin, supra, at 444. For now, at least, an award of attorney's fees still requires expert testimony even though the trial judge is free to ignore it and substitute his/her own expertise for the evidence.

Now for the most interesting part of this article. Yes, Mr. Rakusin, supra, is the same Steve Rakusin who practiced in this circuit in the 1980's. Those who litigated against Mr. Rakusin may want to read the opinion to learn the facts which the district court held justified an award of attorney's fees against Mr. Rakusin.