Is expert testimony really needed in attorneys' fees litigation? Island Hoppers' call for change and other ways to reduce the burdens of fees hearings.

• Author: Hauser, Robert J.
• Position: Florida

The Fourth District Court of Appeal's recent opinion in Island Hoppers, Ltd. v. Keith, 820 So. 2d 967 (Fla. 4th DCA 2002), brings to the forefront the issue of whether expert testimony should be required to support a court's award of attorneys' fees to a prevailing party which has proven its entitlement to fees. It is the opinion of these authors that this practice is cumbersome and unnecessary, and should no longer be required.

The current procedures for fee-shifting hearings can be almost as complex, time-consuming, and expensive as the underlying lawsuit on the merits. This article offers a critique of the present system, including its requirement of expert testimony, as well as suggestions for making the award of attorneys' fees a less arduous and less expensive process that still contains safeguards to litigants.

The Island Hoppers Case

Island Hoppers was a wrongful death action against a dive operator and two of its instructors, in which the sole appellate issue was the amount of an attorneys' fee award to which entitlement had already been established and affirmed pursuant to Florida's proposal for settlement statute. (1)

Appellant Island Hoppers argued that the trial court erred in admitting the deposition testimony of the appellee-estate's expert fees witness, and hence the estate's fees claim lacked expert testimony to support the claim. (2) The Fourth DCA agreed that "Florida courts have required testimony by the attorney performing the services (for which the fees are sought) and testimony by an expert fees witness as to the value of those services." (3)

The appellee's expert admitted that he "spent a scant three hours of preparation in forming his opinion regarding the reasonableness of fees" sought by the appellee's counsel, and that he had reviewed "absolutely none" of the 20 boxes of litigation materials provided to him by the appellee. (4) In forming his opinion, the expert reviewed "a jury reporter verdict blurb, the motion for fees and the attached affidavits, the fee contract between [the appellee and its attorneys], closing arguments and opening statements from trial, and the appellate briefs from the prior appeal on the merits." (5) The expert also discussed the case with the appellee's counsel, had some limited experience with these attorneys, and discussed their reputations with other lawyers in the community. (6) When Island Hoppers objected to the admission of this expert's testimony at trial, asserting a lack of underlying factual predicate, the trial court reviewed the expert's deposition transcript, found that the expert was very familiar with the numerous issues involved in the underlying case, and admitted his deposition as supportive expert testimony. (7)

Although noting that it would have been better practice for the appellee to present an expert fees witness who was "notably more familiar with the actual litigation files themselves," the Fourth DCA held that there was no abuse of discretion in the trial court's consideration of the expert's opinion in reaching its determination about what constituted a reasonable fee. (8)

In so holding, however, the Fourth DCA questioned whether the requirement of "the corroborative testimony of an expert `fees witness' ... is always the best, or most judicious, practice." The Fourth DCA also questioned whether these experts provided any real assistance to the triers of fact, who were already intimately familiar with the underlying litigation and the attorneys involved. (9) The court noted that:

this practice [of requiring testimony of expert fees witnesses] has existed since at least the 1960s. See, e.g., Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964). Yet, we note as our profession matures and evolves, as it has over the past forty years, and continues to do so, our trial judges have become highly experienced in all aspects of litigation, often with knowledge equal to, or in some cases far superior to, that of those attorneys who are called upon to provide expert testimony as "fees witnesses." Our trial judges see attorneys representing all levels of skill and experience in their courtroom; it is not uncommon for a trial judge to conduct multiple fee hearings practically every week. At the most basic level, we fail to see what, if any, "guidance" these "fees experts" actually provide to the well-versed trial judges of this state, who ultimately have the responsibility to determine, in their relatively unfettered discretion, whether the hours sought are reasonable, and what hourly fee(s) should be applied. (10)

Judge Gross, concurring specially in the Island Hoppers opinion, agreed that the courts were well equipped to handle the issue of attorneys' fees without the need for expert testimony:

Attorneys' fees is the single most litigated issue in civil courts. As a result, trial courts are adept at handling this issue. After six months on the civil bench, a judge has heard enough testimony to qualify as an expert on the reasonable value of legal fees in his or her community. The trial judge has also had the benefit of observing the legal work first hand in the case in which fees are sought. (11)

Island Hoppers thus strongly suggested, but did not actually decide, that expert fees witnesses are no longer a necessary part of attorneys' fees hearings.

Evolution of the Rule Requiring Expert Testimony

In his Island Hoppers concurrence, Judge Gross stated that "the rule requiring an independent `expert' in every attorneys' fee case rests on shaky theoretical grounds." (12)

There is no Florida rule of civil procedure, rule of evidence, or statute requiring expert testimony to support an award of attorneys' fees. This requirement originated in case Law. (13) In Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964), cert. denied, 172 So. 2d 601 (Fla. 1964), the Second DCA held that expert testimony was required to prove the nature and necessity of the services rendered and the reasonableness of the charges. The Lyle court reversed the fee award because no expert testimony had been presented. (14) In that court's opinion, the testimony of the attorney seeking fees, if not supported by expert testimony, was insufficient to support an award of fees. (15)

Significantly, the Second DCA did not cite any authority for its...