eService Live!

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I just filed some appeal-related documents in Broward County, and the Portal asked me about email addresses for eService. I was able to add attorneys by looking them up by bar number, by registered user name, and add supplemental e-mail addresses to the default — which was a good thing, because the email address listed for one of the parties was different from the one on my certificate of service and on the e-mail notice previously filed in the case. The system also gives the user the option to update or add email addresses for him- or herself when filing. The system remembered the changes I made for the first document when I went in to file a second document. Two weeks ago when I filed the notice of appeal, none of this was an option.

I had already served the documents before filing this once, but from now on, I will wait to see if eservice is available. The system sends a copy of the email to the sending attorney as well, with the filed document, to act as a receipt. Like many, I will be so happy to see the need for creating those “Service of Court Document” emails go by the wayside.

Florida Supreme Court Approves Alternative Fee Recovery

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The Florida Supreme Court last week resolved a circuit split between the Second and Fourth District Courts of Appeal and held that alternative fee recovery clauses in attorney engagement contracts are permissible and enforceable. What is an alternative fee recovery clause and why is it important to lawyers and clients? An alternative fee recovery clause, in essence, allows the court to award attorneys fees for the true value of the work performed, even if the client actually paid a discount rate. This allows lawyers to take cases their clients might not otherwise be able to afford, with the promise of a market rate fee award at the end of the litigation. As explained by the Court:

This clause generally provides for an attorney’s fee of the greater of either (i) a specified fee if the fee is paid by the client, or (ii) a court-awarded reasonable fee if the fee is paid by a third-party pursuant to a fee-shifting provision.

First Baptist Church of Cape Coral, Florida, Inc. v. Compass Const., Inc., __ So.3d ___, No. SC11-1278, 2013 WL 2349380 (Fla. 2013) [.pdf].

The Court upheld the billing arrangement even though the issue arrose in the context of an indemnification action (which was the reason for the dissent of Justice Lewis). The Court noted that the balancing act required by the lodestar analysis ensures that the resulting fee award is reasonable and not excessive.

The case is important because there is a line of fee award cases that hold that the recovery is limited to a reasonable fee or the amount actually paid by the client, whichever is greater. But First Baptist makes clear that the analysis is more nuanced — it’s limited not to what the client paid, but what the client agreed the fee would be. If the client agrees in advance that the fee is the greater of two calculations, the Court should conduct the calculations and award the greater of them, enforcing the parties’ contract.

That makes this case a must-read for any attorney considering having such a clause in his or her engagement contract.

New Issues a No Go on Rehearing

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The Fourth DCA recently issued an opinion on rehearing in which it reiterated a pretty basic, but nonetheless important point: If you didn’t raise an issue in your initial brief, you can’t raise it for the first time on a motion for rehearing before the appellate court. See Philip Morris USA, Inc. v. Naugle, No. 4D10-1607 (Dec. 12, 2012) [.pdf]. The lesson, of course, is that if it is important enough to argue it all, an issue must go in your initial brief. Remember, Rule 9.330 requires that a party seeking rehearing point out “with particularity the points that…the court has overlooked or misapprehended in its decision.” The court cannot misapprehend or overlook that which a party never argued to begin with!