The Role of Experts in Proving Appellate Attorney’s Fees

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.