The Role of Experts in Proving Appellate Attorney’s Fees

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You’ve won your appeal. You’ve gotten an award entitling you to appellate attorney’s fees. And now, you have to prove up what your attorney’s efforts are going to cost the other side. This is a case of “you have to spend money to make money” — because if you do not pay an expert to testify to the reasonablness of the fee, your award will be in jeopardy.

Experts Are Required to Prove Reasonablness of Fees

In Sourcetrack, LLC v. Ariba, Inc., 34 So.2d 766 (Fla. 2d DCA May 7, 2010) [.pdf], the Court struck a $302,617.75 award of appellate attorney’s fees because the party entitled to fees failed to present any expert testimony regarding the reasonable and necessary attorney’s fees. The Second DCA held that while a trial court has discretion in awarding attorney’s fees, that discretion can only be exercised based upon the evidence in the record. (Other DCA’s may be more lax on this, but why take a chance?). The Court also admonished that the award will be limited to what is considered a fair fee for a competant local attorney — so if you bring in expensive counsel from out of state, don’t expect to get reimbursed for their full fees.

What Is a Reasonable Attorney’s Fee?

Not a month later, the Second District overturned another award of fees, but this time, for being too low. In D’Alusio v. Gould & Lamb LLC, 26 So.2d 842 (Fla. 2d DCA June 2, 2010) [.pdf], the Court held that the trial court abused its discretion in awarding only $6,875 in fees where the parties and their experts pretty much agreed that the attorneys should reasonably be reimbursed for around 85 hours at $275-450 an hour for their work, for a total of $20-25,000. The Court held:

the circuit court abused its discretion in drastically reducing the number of hours that was reasonable for this appeal, in contravention of the amount agreed to by both experts, without any specific findings. Although the judge was not bound by the expert opinions or attorney affidavits in setting the award, the record is totally devoid of any evidence to support a conclusion that the award was reasonable.

Do I get Reimbursed for the Expert’s Fees?

The Court also held that the fees paid to the expert to testify as to reasonablenes of attorney’s fees are taxable as costs, and reversed the trial court’s failure to make such an award:

[e]xpert witness fees paid to the testifying expert are not discretionary if the attorney expects to be compensated for his testimony. (citations omitted).

There’s a lot of meat in D’Alusio, so definitely give it a read if you are pursuing attorney’s fees on appeal, especially in the Second DCA. It’s not enough to win an award, you have to prove what the attorney’s time was worth, too.

Typography in Appellate Briefs

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Rules geeks also tend to be typography geeks. It’s no wonder, then, that I adore Typography for Lawyers. This lovely website is chock full of suggestions for making your briefs more readable, and yes, just plain more beautiful. Sadly, the site correctly points out that one does not really have much leeway when it comes to briefs filed in the Florida appellate courts — your choices are Times New Roman or Courier, and that’s it — but it does contain many important points on basic typography. I knew I would agree with the site when I saw Lesson One. Straight quotes are my big pet peeve, right up there with people using the open single quote mark when they mean to use an apostrophe. (OK, the open single quote for apostrophe is worse. But barely. And I firmly blame Microsoft Word for much of this problem in the world).

Most of the lessons here I learned in college, when I took a magazine publishing class. One of my text books was a small softback called The Mac is Not a Typewriter. I am sure it is painfully out of date as far as its statements about the use of a 15 year old Macintosh computer are concerned. But the typography lessons I learned from that book and in that class were timeless.

Am I able to implement all of those lessons in every brief? No. For example, I agree that one should use a single space after a period when using a proportional font, but because most people don’t agree, I am always told things look wrong if I do it that way, and I have just stopped fighting the tide on that one. (I wish I could walk the walk on my own blog, but the reality is, that double-space is just too ingrained in my hands right now to go back and forth). But knowing the right way, even if you make a conscious choice not to follow it, is far better than laboring along in ignorance. So check it out.

Electronic Record in the First DCA

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Furthering its mission to become the first District Court of Appeal to have all electronic filing, the First District announced by administrative order that “lower courts, lower tribunals, and state agencies” within its purview will soon be required to upload the record on appeal electronically. Administrative Order 10-4 [.pdf] provides the clerks of court with detailed instructions for providing the First DCA with a certified copy of the notice of appeal using the eDCA portal, filing the order on appeal as a separate document, and also filing a separate “Notice of Appeal Transmittal Form,” electronically. ¶¶ 1, 1(e) and 1(f). For the time being, the filing fee will still be transmitted the old fashioned way. ¶ 1(b). The clerks are encouraged to start now, and required to fully implement the electronic filing of the notice of appeal and accompanying documents by October 1, 2010.

The Courts of Appeal were given the authority to dispense with paper filing back in June.

The record, too, will be required to be transmitted electronically starting October 1, 2010. Recognizing the bulk of the record, the transfer is done via ftp rather than upload to the eDCA system. ¶ 2. The clerks can obtain a waiver on a case-by-case basis if it is impossible to transmit the record electronically.

Court reporters also need to take heed of this order. They, too, must register with eDCA if they are going to ask for or file any pleadings with the Court. So if a court report wants an extension to prepare a transcript, she or he needs to file a motion using the eDCA portal. ¶ 3.