HOW TO DETERMINE REASONABLE ATTORNEY’S FEES AND COSTS IN FLORIDA

You won the case. The trial court has already granted entitlement to prevailing party attorneys’ fees and costs. Yet, you still haven’t received the check. The trial court must still determine the reasonableness and collectability of the attorney’s fees and costs that you claim. This article briefly describes this process; the last steps to your award of prevailing party fees and costs. If you have any questions about determining reasonableness of attorney’s fees and costs, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.

Bernhard Law FirmUnder Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and progeny, the trial court must determine and award the amount of attorney’s fees and costs after finding for entitlement. Rowe at 1150; see also Joyce v. Federated Nat’l Ins. Co., 228 So. 3d 1122, 1134 (Fla. 2017) (confirming fee multiplier of 2.0 was warranted). To do so, the trial court should first determine the “lodestar amount,” which is the number of attorney hours reasonably expended in your lawsuit, multiplied by a reasonable hourly rate given a variety of considerations relating to your lawsuit. Rowe at 1150; Joyce at 1126.

In calculating the hourly rate of the lodestar, the Court should look at the eight Rowe factors (listed and discussed herein below, derived from Florida Patient’s Compensation Fund v. Rowe), except “the ‘time and labor required,’ the ‘novelty and difficulty of the question involved,’ the ‘results obtained,’ and ‘whether the fee is fixed or contingent.’” Joyce at 1126.

The Court must set forth “specific findings” as to its determination of the number of hours, the hourly rate, and any reduction or enhancement factors. Id. The Court may then adjust the lodestar amount based on contingency risk and the results obtained. Id.

To provide evidence supporting the lodestar amount, the moving party need only present records detailing the work performed; the records should show the work was reasonable and necessary given the novelty and difficulty of the question involved in your lawsuit and the quantity of opposition you received in the litigation. Rowe at 1150; Joyce at 1134.

The attorney’s hourly rate should be reasonable, with reasonableness determined by assuming the fee will be paid irrespective of the result, and considering the market rate charged by Miami lawyers of comparable skill, experience and reputation, for similar services. Rowe at 1151. The number of hours reasonably expended, multiplied by the reasonable hourly rate, and added upon by the positive results obtained, provides a proper determination of attorneys’ fees and costs. Id.

Thus, when moving for determination of reasonable fees and costs, a party should first evidence and explain the proper lodestar, i.e. the attorney’s fixed rate and number of hours actually worked. The moving party should show this his or her records and affidavits filed in the action. After a detailed review of the case file, docket, filings, and supporting documentation, a qualified expert should attest that this amount of time and rate is reasonable and necessary under the circumstances.

The moving party should then compare this record to the Rowe factors, to confirm that the hours and rate is a reasonable lodestar amount. For example, the moving party may wish to discuss that:

  • Whether there was a high degree of skill required to perform the legal service properly, and whether the litigation involved complex contractual interpretation, certain legal distinctions, or difficult results to be achieved; therefore, whether the litigation required in-depth knowledge of contracts, investment, real estate, marketing, or whatever field was at issue.
  • Whether there was a high likelihood that the acceptance of this litigation employment would preclude other employment for moving counsel, given that prior to engagement, the dispute already showed to be very contentious, as foretold through prior correspondence or other records; therefore, whether acceptance of this litigation showed it would likely involve a contentious and lengthy litigation, precluding any engaging attorney from other employment.
  • Whether the fee customarily charged in the locality for similar legal services was near the fee being charged; the expert report should indicate whether the fee rate is at the lower or higher end of those charged for representation of a similar (corporate or non-corporate) client.
  • Whether the amount involved in the litigation was significant, as the dispute involved property with a certain purported value, along with any other considerations (interest, fees, charges, accruing loss, future issues), for a total case value.
  • Whether the time limitations imposed by the client or by the circumstances were demanding; whether timely and effective results were crucial, given pending issues, requirements for day-to-day coordination of pressing matters, or short sales window for a contingency (e.g. a sale, delivery, or operation).
  • Whether prior to the engagement, moving counsel had any connection, acquaintance, or relationship with the client.
  • Whether moving counsel’s experience, reputation, and ability support the rate requested. Moving counsel may discuss emphasis of practice, experience, accommodations, awards and honors, publications, education, and record of significant cases, to be compared with counsel’s customary hourly billing rate.
  • Whether the fee in the matter was fixed; whether all efforts were made to quickly and efficiently end this dispute at the least expense possible.

After consideration of these Rowe factors and expert testimony, the trial court should make a finding whether the hourly rate requested is a proper lodestar rate. After confirmation of work done in affidavits and records, supported by expert review and testimony, the trial court should find the number of work hours that is a proper lodestar amount. After consideration of the positive results obtained and any additional opposition created to obtaining a fee/cost determination, the trial court should confirm and award the total fees and costs. If you have any questions about determining reasonableness of attorney’s fees and costs, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.

Bernhard Law Firm

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