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Contingency Fee Multipliers

March 24, 2025 | by Chepenik Trushin LLP

In Florida Patient’s Compensation Fund v. Rowe, the seminal 1985 case in Florida on prevailing party attorney’s fees, the Florida Supreme Court affirmed that when computing a reasonable attorney’s fee for the prevailing party in a case involving a contingency fee agreement, a significant factor to consider in the calculation is the contingency risk factor, or “multiplier.” In Rowe, the Court discussed the need for lawyers to offer services on a contingency basis in order to provide litigants with increased access to the court system and the service of attorneys, as well as the burden this places on attorneys who may only get paid if their client ultimately prevails in the litigation. The Rowe Court held that, upon calculating a preliminary “lodestar” award of attorney’s fees for the prevailing party (i.e., the reasonable hours expended on the litigation multiplied by a reasonable hourly rate for the services provided), Florida courts are authorized to enhance that lodestar by a multiplier of 1.5 to 3, depending on the prevailing party’s likelihood of success at the outset of the case. For example, if a court were to calculate a lodestar of $100,000.00 in reasonable attorney’s fees in a case involving a contingency fee agreement, Rowe would authorize the court to multiply that amount by 1.5 to 3 (resulting in a potential fee award of anywhere between $150,000.00 and $300,000.00). Specifically, the Rowe Court held that when success is more likely than not at the outset of litigation, the multiplier should be 1.5; when the likelihood of success is approximately even at the outset, the multiplier should be 2; and when success was unlikely at the time the case was initiated, the multiplier should be between 2.5 to 3.

A few years later, after the United States Supreme Court effectively eliminated the use of the contingency multiplier in Federal matters, the Florida Supreme Court reexamined its decision in Rowe. In Standard Guaranty Ins. Co., v. Quanstrom, the Florida Supreme Court modified the computation of the contingency fee multiplier. The Court placed attorney’s fees cases into three broad categories: (1) public policy enforcement cases, (2) tort and contract claims, and (3) family law, eminent domain, and trusts and estates matters. In the public policy category, the Florida Supreme Court agreed with the United States Supreme Court that the twelve factors set forth in Johnson v. Georgia Highway Express, should be utilized to determine a reasonable attorney’s fee. Second, in the tort and contract claims category, the court reaffirmed the factors set forth in Rowe and considered additional factors in determining whether to apply a multiplier: “(1) whether the relevant market requires a contingency fee multiplier to obtain competence counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.” The Court reasoned that a multiplier is still a useful tool which can help assist trial courts in determining reasonable fees when risk of nonpayment is established, though modified the multiplier factor established in Rowe to allow a multiplier of the calculated lodestar from 1.0 to 2.5 (replacing the previous standard of 1.5 to 3.0). However, in the family law, eminent domain, and trusts and estates category, the Court held that multipliers are generally not justified.

In 2017, the Florida Supreme Court again addressed the utilization of multipliers in Joyce v. Federated Nat’l Ins. Co. The Court made clear that the use of contingency fee multipliers is not limited to “rare” or “exceptional” circumstances, a position that had been taken by some lower state courts. However, in 2023, the Florida Statutes were amended at F.S. 57.104 to state that “there is a strong presumption that a lodestar fee is sufficient and reasonable. This presumption may be overcome only in a rare and exceptional circumstances with evidence that competent counsel could not otherwise be retained.” Thus, while a multiplier is still available under Florida law, the circumstances in which a court may apply a multiplier are now substantially constrained.

Does the losing side have to pay my attorney’s fees?

March 4, 2025 | by Chepenik Trushin LLP

Broadly speaking, there are two approaches to the payment of the winning, or “prevailing,” party’s attorney’s fees at the conclusion of litigation. In some countries outside the United States, courts follow the “English Rule” for determining who is responsible for paying the prevailing party’s attorney’s fees, where the losing party typically pays the prevailing party’s attorney’s fees as a matter of course. In contrast, the “American Rule” for attorney’s fees provides that each party is generally responsible for paying their own attorney’s fees, regardless of the outcome of the case. However, Florida recognizes exceptions to the American Rule, such that the losing party in a lawsuit may be required to pay the prevailing party’s attorney’s fees – namely, when a statute or contract expressly entitles the prevailing party to recover its attorney’s fees from the losing party in the event of litigation. In such instances, Florida law requires that the fee to be recovered from the losing party be reasonable, and a body of case law has been developed governing the calculation of a reasonable attorney’s fee for the prevailing party.

In Florida, the basic model for determining reasonable attorney’s fees primarily follows the federal “lodestar” approach. This method involves accounting for several criteria and calculating the total number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate to produce the “lodestar” amount. The court may then adjust this lodestar amount based on factors such as the contingency risk and the results obtained.

In determining reasonable attorney fees, Florida courts consider the following criteria:

Quarantined – take the time to review your estate planning documents, joint tenancy agreements and beneficiaries

April 22, 2020 | by Chepenik Trushin LLP

COVID 19 – Is Your Estate In Order? Non-Probate Transfers and Pitfalls of Beneficiary Designations

In the wake of the recent Corona virus pandemic, many people are understandably concerned about their estate plan. A common misconception is that if you have executed a will or even a trust, then you are all set. In fact, it may not be that simple. In fact, a will is not the only instrument capable of passing down an estate to the decedent’s heirs, and some assets may not be controlled by your will and/or trust at all.

For example, in a joint tenancy with rights of survivorship, the property automatically passes to the surviving owner. So, if A and B own a piece of land in joint tenancy and A dies, B immediately gains full ownership of the land, without a probate administration. A’s right to the land extinguishes and thus, A has nothing to leave to his heirs through a will, or otherwise. Another way to avoid probate is through accounts with Transfer-on-Death (TOD) clauses. An account with a TOD beneficiary will transfer the ownership of the account will be transferred to the beneficiary at the decedent’s death, without a will or trust.

Irrevocable Trusts, one tool in an estate planning tool box

January 24, 2018 | by Chepenik Trushin LLP

IRREVOCABLE SPENDTHRIFT TRUSTS

Trusts are popular estate planning instruments that may bring many benefits both during lifetime and in the case of death. Some common reasons for setting up a trust include the avoidance of costs and time consumption of probate proceedings, property management for those who cannot or do not wish to manage the property themselves, continuance of property management after death or during disability, and saving of taxes and protection of the assets against the claims of creditors. However, there are several types of trusts and not all of them provide these benefits to the same extent.

The revocable trust is the most flexible one as the creator (settlor) can at modify the terms of the trust or completely revoke it at any time. See Fla. Stat. § 736.0602. However, the assets transferred into such trust are still considered personal assets of the settlor and accordingly, can be reached by his or her creditors. See Fla. Stat. § 736.0505(1)(a). Therefore, the revocable trust is not an ideal solution for asset protection purposes. Upon death of the settlor, this trust becomes irrevocable, meaning that the rules for asset distribution can no longer be changed. It is also possible to make a trust irrevocable from the outset and to afford protection against creditors by adding a spendthrift provision. See Fla. Stat. § 736.0502.

Florida Passes the “Florida Fiduciary Access to Digital Assets Act”

March 21, 2016 | by Chepenik Trushin LLP

For hundreds of years, most information existed in tangible form, usually in paper documents. However the advent of digital technology, has transformed the way people acquire and store information and transact business. As people continue to embrace digital technology, many tangible documents have been replaced by digital files. This shift towards digital media has created challenges for fiduciaries tasked with corralling digital assets for individuals who have either lost capacity or died.

In Florida, when an individual dies or is declared incapacitated, a fiduciary is required to use their legal authority to inventory the person’s assets, pay the persons creditors and expenses, and preserve the assets while they are incapacitated or transfer the assets to the proper beneficiaries. Traditionally, an individual’s personal information could be located by searching their paper records, where one could find information regarding bank accounts and bills to be paid. However, the digitalization of personal information has made locating these records more complicated. Fiduciaries must identify and locate these digital assets, determine who has control over access to the assets, and figure out how to access those assets. Continue Reading

Valuable Estate Planning Lessons Can Be Learned from Lamar Odom’s Health Scare

October 28, 2015 | by Chepenik Trushin LLP

By now you have probably heard about former NBA star, Lamar Odom’s, health scare. Odom was found unconscious in a Nevada brothel on Tuesday, October 15, 2015. Fortunately, Odom’s condition has improved, and he appears to be on the road to recovery. What you might have not heard about in the news, however, are the estate implications and complications that came as a result of lax estate planning on behalf of Odom.

Although Odom was a highly-skilled NBA player, his increased fame can be attributed largely to his starring role on E!’s hit TV-series “Khloe & Lamar.” Because of the popularity of the series, Khloe Kardashian and Odom’s “divorce” got a lot of attention and publicity from the media, but apparently not from the California courts. As it turns out, the couple signed and filed divorce papers in July of 2015, but due to a severe backlog in the California courts, their divorce has not been finalized. As a result of the delay, Lamar Odom and Khloe Kardashian are still legally married. These circumstances created an interesting situation when Odom was found unconscious at the brothel because, as his legal spouse, Khloe Kardashian is responsible for making medical decisions on Odom’s behalf.