TRIAL BY CHECKLIST: ATTORNEY’S FEES
July 9, 2010 § 20 Comments
A practice tip about trial factors is here.
If you are expecting an award of attorney’s fees in your case, you must put on proof of the quantity of work that was done to earn the fees, as well as the amount of the fees. In the case of McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), the Mississippi Supreme Court set out the following factors that must be considered by the court in determining the proper amount of attorney’s fees to be awarded:
- The parties’ relative financial ability;
- The skill and standing of the attorney;
- The novelty and difficulty of the issues;
- The degree of responsibility involved in management of the case;
- Time and labor;
- The usual and customary charge in the community;
- Preclusion of other employment as a result of accepting the case.
If McKee factor evidence is not submitted, the court may deny your prayer for attorney’s fee, and if the trial court does award it, it may be thrown out on appeal.
In a divorce case, an award of an attorney’s fee is properly made only to a party who proves inability to pay and there is proof of the McKee factors. In Turner v. Turner, 744 So.2d 332, 338 (Miss. App. 1999), the trial court’s award of attorney’s fees was reversed where no itemized account was introduced into evidence, and the only testimony of fees was that the fee charged was $1,500 and that the party seeking the award was unable to pay it.
In other cases, an award of attorney’s fees may be made regardless of ability to pay where the party is found in contempt, or is found guilty of dilatory behavior or behavior that causes the other party undue expense, or for frivolous litigation, or for unfounded allegations of domestic abuse. In such cases, the proof of attorney’s fees should be supported by proof of the McKee factors.