Florida Probate Litigation Lawyer Blog
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:
(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
First, the court must determine the number of hours reasonably spent working on the case. Florida courts have consistently highlighted the importance of lawyers keeping accurate records of time and work expended on cases, so that the courts are able to analyze the work performed by the attorneys and assess whether the time expended on a given task was in fact reasonable. The prevailing party, to maximize its recovery from the losing party, should present detailed records to the court itemizing the tasks performed and the time spent on each task. Inadequate record-keeping could lead to a reduction in the fee ultimately awarded to the prevailing party, as the law will not require the losing party to pay the prevailing party for unsubstantiated time. Even if the prevailing party’s lawyer’s time records are otherwise appropriately detailed, the court can still reduce the number of hours awardable if the court finds any time spent to be excessive or unnecessary under the circumstances.
Next, the court determines a reasonable hourly rate for the services of the prevailing party’s attorney. In determining a reasonable hourly rate, the court considers the skill needed to perform the legal service properly, the fee usually charged for similar legal services in the area, the amount involved, the time limitations imposed, the nature and length of the relationship with the client, as well as the experience, reputation, and ability of the lawyer or lawyers performing the services.
Then, the court will multiply the number of hours reasonably expended by the reasonable hourly rate to determine the “lodestar” amount of reasonable fees. The court may then add or subtract from the fee based upon a “contingency risk” factor and the “results obtained.”
Often, each party will retain an expert in the calculation of attorney’s fees to assist the court is determining a reasonable fee award, with each expert offering their opinion to the court via affidavit or live testimony. If you are involved in an attorney’s fee dispute or may be in need of a consulting and/or testifying expert in an attorney’s fee dispute, whether you are the prevailing or losing party, the attorneys at Chepenik Trushin LLP are ready, willing and able to assist. Please give us a call today at 305-981-8889 to discuss any matter pertaining to the award of a reasonable attorney’s fee.
