October 13, 2010 § 7 Comments

You would think that the award of an attorney’s fee would get special attention from both the client and the attorney.  After all, the client is looking for some help with the financial burden, and the lawyer representing him is looking for some assurance that she will be paid.  And one of the best ways to impress your client favorably is to hang your fees on the opposing party.

In many cases, though, I find that the lawyer takes a sort of slap-dash approach.  Sometimes the lawyer confers with the other side and reaches a low-ball stipulation about a reasonable fee.  Or the lawyer takes the witness stand (one of the very few occasions when an advocate is allowed to testify per Rule 3.7 of the Rules of Professional Conduct) and offers some general testimony in vague terms about a ballpark figure.  Or the lawyer simply asks his client what she paid him and apparently thinks that will suffice.

Proving a reasonable attorney’s fee is actually a fairly simple process, but you need to cover all the points to make your client’s claim airtight.  Before we talk about what you need to prove at trial, though, be sure you’ve done what you need to do before trial to lay a foundation for your claim:

  • Record your time as you move toward trial, and have your time record printed neatly.  You will need it for your testimony in court.
  • Be sure there is a prayer for a reasonable attorney’s fee in your pleading.  You are asking the court to take your opponent’s money, and that requires due process.

Now that the preliminaries are in order, here are the five steps to prove attorney’s fees:

  1. Be sure to have your client testify about his or her ability to pay.  In divorce cases, ability to pay is the most critical consideration, and if you do not establish your client’s inability to pay, she will not be eligible for an award of an attorney’s fee.  Deen v. Deen, 856 So.2d 736, 739 (Miss. App. 2003); Bates v. Bates, 755 So.2d 478, 482 (Miss. App. 1998).  Even in a contempt case, where inability to pay is not required, you are wise to offer testimony about the financial effect of the contempt and the resulting attorney’s fees on your client, since an award of an attorney’s fee is not mandatory in contempt.  Suess v. Suess, 718 So.2d 1126, 1129 (Miss. App. 1998).  Remember that the ethical rules do not allow you as an advocate to testify about the contested merits of the case.  If you are going to prove your client’s inability to pay, you will need your client’s testimony. 
  2. Testify yourself about the prevailing rate charged by attorneys in the district.  The award must be reasonable, and one of the key touchstones for reasonability is the usual and customary rate charged by attorneys in the district.  But the prevailing rate is not binding on the court.  The judge may award a fee at a greater or lesser rate if the circumstances warrant it.  If you charged a rate different from the prevailing rate in the district, what rate did you charge and why?  And if your rate exceeded the prevailing rate, what is your justification for doing so?  Make your record.
  3. Put into evidence an itemization of the time you devoted to the case.  Here’s where that itemized statement comes in.  Identify it and ask that it be admitted into evidence.  Before you do, though ask yourself:  Is it credible?  Does it look like a genuine fee statement that one would tender to a client for payment, or does it look like something you scratched together 5 minutes before setting foot in the courtroom?  Are the times reported credible?  Does it reflect charges for “one competent lawyer,” or are there charges included for others?  Before you ever get to trial, pore over your statement and subject it to your own cross examination.
  4. Be sure to capture all the time in the case.  Ask the court to take judicial notice of the time spent to that point in the trial, and estimate for the record how much more time will be needed to complete the trial.  Estimate also the total number of hours that will be needed for any post-trial matters, such as drafting a judgment or preparing proposed findings of fact and conclusions of law.
  5. Address each and every one of the McKee factors.  You can read more about the McKee factors here.  The McKee factors govern the amount of the award, but as a practical matter, if you don’t prove them there is nothing in the record to determine what is reasonable, which means that a reward of zero is most likely.  No matter how badly you and your client want that attorney’s fee award, if you don’t include proof of the McKee factors, you likely won’t get it.

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  • […] required to apply in order to justify an award of attorney’s fees. We’ve also addressed the steps you need to take to prove attorney’s fees. It’s not complicated. It just requires a little preparation and […]

  • […] Make sure you have adequate time records or other documentation in support of your testimony as to time spent, expenses, work done, and put your records into evidence. Here is a link to a helpful post on what you need to prove to get that award of attorney’s fees. […]

  • Anderson says:

    I’m sorry — 54(c), not (b).

    “Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings; however, final judgment shall not be entered for a monetary amount greater than that demanded in the pleadings or amended pleadings.”

    Sorry for the typo!

    • Larry says:

      Interesting point. I wonder how our COA or SC would apply it. They have construed the pleading rules more stringently than I think they were intended to be when the rules were drafted in 1981.

      54(d) reflects pre-rules practice in Chancery where the Chancellor could, with a prayer for general relief, grant pretty far-reaching relief. Unfortunately, since the rules, most of our appellate judges have little or no experience with Chancery Court and its traditional role, and I have the impression that most have never been trial judges, so they have considerably shrunk the scope of the Chancellor’s role over time.

      My best guess is that for 54(d) to come into play, you would first have to lay the groundwork under 15(b) and then make your motion to conform the pleadings to the proof, and then ask for 54(d) relief. I know that’s cumbersome, but it’s the only way I see to harmonize the two rules.

      Thanks for bringing that rule to light.

  • Anderson says:

    “Be sure there is a prayer for a reasonable attorney’s fee in your pleading. You are asking the court to take your opponent’s money, and that requires due process.”

    Is that strictly necessary? Rule 54(b) allows relief when it’s proved, even if not demanded in the pleadings. I would guess that a motion for fees suffices for due process.

    Not to dispute, of course, that it’s the better practice to include att’y fees in the prayer for relief on general principle, at least in a case where they might plausibly be recovered.

    • Larry says:

      If you don’t plead for attorney’s fees and the other party doesn’t object to your proof, the issue is tried by consent and MRCP 15(b) would favor an amendment at the conclusion of your case to conform the pleadings to the proof. In this district, in my experience, it’s rare for one lawyer to let the other get away with that; hence my advice to plead it.

      As for Rule 54(b), I’m not sure there’s anything there that supports what you say. You may have been referring to Rule 15(b). I made an earlier post on 54(b) here.

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You are currently reading FIVE SIMPLE STEPS TO PROVE ATTORNEY’S FEES at The Better Chancery Practice Blog.


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