The Recovery of Attorney Fees in Utah: a Procedural Primer for Practitioners - Part Ii
| Publication year | 1997 |
| Pages | 10 |
James E. Magleby, J.
Editor's note: Part I was published in the December 1996 issue of the Bar Journal.
d. Reasonableness of Fees
Once the initial evidentiary burdens are met,[57] the trial court must determine what constitutes a "reasonable" attorney fee, the issue upon which practitioners will probably find the majority of their energy focused once an award of fees is made.[58]
In determining a reasonable attorney fee, Utah trial courts have considered a number of factors, although it is important to note that "[t]he question of what is a reasonable attorney [J fee in a contested matter is not necessarily controlled by any set formula."[59] Among others,[60] Utah courts have considered the following factors:[61]
1. The difficulty of the litigation.
2. The efficiency of the attorneys in presenting the case.
3. The fee customarily charged in the locality for similar services.
4. The amount involved in the case.
5. The result attained.
6. The expertise and experience of the attorneys involved.[62]
7. The amount in controversy.
8. The extent of services rendered.
9. "[O]ther factors which the trial court is in an advantaged position to judge."[63]
10. The relationship of the fee to the amount recovered.
11. The novelty and difficulty of the issues involved.
12. The overall result achieved.
13. The necessity of initiating the lawsuit.[64]
In addition, although never explicitly listed as a factor, the courts have considered whether the opposing party pursued an "inconsistent and unmeritorious" litigation strategy,[65] or acted to "complicate[] and make more difficult" the discovery process.[66]
However, in Dixie State Bank v. Bracken,[67]the Utah Supreme Court recognized the confusion created by Utah case law,[68] and "in order to foster consistent and equitable fee awards . . . constructed 'practical guidelines' for analyzing the reasonableness of attorney fees, by consolidating the approaches advocated in then-existing case law into a simple four-step procedure."[69] The court announced the general rule that although many "factors may be explicitly considered in determining a reasonable fee, as a practical matter the trial court should find answers to four questions:"[70]
1. What legal work was actually performed?
2. How much of the work performed was reasonably necessary to adequately prosecute the matter?
3. Is the attorney's billing rate consistent with the rates customarily charged in the locality for similar services?
4. Are there circumstances which require consideration of additional factors, including those listed in the Code of Professional Responsibility?[71]
Accordingly, at the minimum, practitioners who seek an award of attorney fees should argue these four factors before the trial court to withstand appeal. If additional factors are to be argued, practitioners should alert the court that they are properly considered under the fourth step of Dixie.[72]
The Dixie court's attempt to clarify the I appropriate procedure for determining reasonable attorney fees has not, however, eliminated the confusion over the issue. Despite the Dixie court's attempt to create a uniform format for considering the reasonableness of an award of attorney fees, Utah courts have not demanded rigorous adherence to the four factors,[73] even as recently as 1996.[74] At first glance, this may suggest that so long as the trial court's award is based upon consideration of some mix of factors, and is supported by the evidence, it will withstand review. This is not, however, always the case.[75]
The Utah Court of Appeals has addressed this apparent deviation, noting that Cabrera "is often cited for the same principles as Dixie."[76] Although it is not immediately obvious from a comparison of the cases,[77] the Quinn court concluded that both Cabrera and Dixie "ultimately recommend consideration of the same factors."[78] However, the Quinn court went on to apply Dixie, "both because it was decided after Cabrera, and because we believe its four step approach is simpler to apply, and will therefore lead to more consistently correct results."[79]
The confusion is enhanced by occasional reliance by Utah courts upon Rule 4-505 of the Utah Code of Judicial Administration to affirm the reasonableness of attorney fees. Although Rule 4-505 appears designed to facilitate the submission of evidence regarding attorney fees, and does not specifically[80] call for practitioners to submit evidence on all four factors enunciated in Dixie,[81] practitioners who comply with the rule can argue that under Utah law, they have offered sufficient evidence of reasonableness to withstand appeal.[82]
In addition, practitioners should take care that the trial court does not improperly modify a request for attorney fees based upon considerations disfavored by Utah appellate courts. First, it should be noted that attorney fees in excess of a damages award are not per se unreasonable.[83] Furthermore, "what an attorney bills or the number of hours spent on a case is not determinative."[84] Finally, "although the amount in controversy can be a factor in determining a reasonable fee, care should be used in putting much reliance on this factor."[85] Accordingly, if the trial court appears inclined to base an award of attorney fees on one or more of these factors, a practitioner should encourage the trial court to do so as part of its consideration of the four factors enumerated in Dixie.
Because of the inconsistent manner in which the reasonableness analysis is conducted in Utah case law, practitioners face the dilemma of how to proceed in presenting reasonableness arguments. The best possible approach appears to be that taken in Quinn, which suggests that practitioners should urge trial courts to explicitly consider, at the minimum, the first three factors enunciated in Dixie. The trial court should then undertake evaluate the fourth Dixie factor, and determine if other evidence would be helpful. If the answer is affirmative, then any of the additional factors may be considered.[86]
e. Findings
Once an award of attorney fees has been made, the trial court must make written findings of fact explaining the grounds for the award, and why the amount awarded constitutes a reasonable fee. The only established exception[87] to this rule under Utah law is where all the relevant facts are undisputed, as in a summary judgment motion.[88] However, even in this context, practitioners should be wary, as it takes little to create a disputed issue of fact.[89] However, trial courts often fail to make findings in support of an award of attorney fees,[90] or make findings which fails to consider the appropriate factors,[91] requiring the case to be remanded after appeal. Practitioners who prevail at trial should therefore take care that the trial court makes findings articulating the grounds for an award of attorney fees in a manner which will withstand appellate review.
Findings are required in almost every situation where attorney fees have been contested. Utah appellate courts "have consistently encouraged trial courts to make findings to explain the factors which they considered relevant in arriving at an attorney fee award. Findings are particularly important when the evidence on attorney fees is in dispute . . . ."[92] Detailed findings are also particularly important in complex cases.[93] Trial courts have also shown a tendency to reduce attorney fee awards sua sponte, or in the face of uncontested evidentiary submissions.[94] In this event, the necessity of detailed findings is even more imperative. Where the evidence supporting the reasonableness of requested attorney fees is both adequate and entirely undisputed, as it was here, the court abuses its discretion in awarding less than the amount requested unless the reduction is warranted by one or more of the factors described in [Dixie State Bank]. ... To permit meaningful review on appeal, it is necessary that the trial court, on the record, identify such factors and otherwise explain the basis for its sua sponte reduction.[95] Accordingly, in order for almost any award of attorney fees to survive appeal, the trial court must enter findings in support of the award. Practitioners, therefore, should encourage the trial court to make findings regarding the award. Although it may be counter-intuitive, this is particularly true in cases where a party does not oppose a fee request, but has the fee reduced by the trial court in their favor. Utah appellate courts are especially demanding about findings in this situation.
f. Sufficient Findings
Although it is clear that trial courts must make findings in support of a fee award, the amount of detail required is not as obvious. The exact amount of detail required to survive appellate review is difficult to...
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