A Shortcut for Attorney’s Fees?
July 15, 2013 § 3 Comments
We’ve talked here before about what it takes to make a record on attorney’s fees that will withstand scrutiny on appeal. Here’s a link to one such post among many. As I’ve said, it should be a subject of vital interest to attorneys who spend any time in court.
Did you know that there is actually a shortcut to proving attorney’s fees?
Here it is … MCA 9-1-41:
In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.
That would seem to be pretty clear, then. No proof as to reasonableness is required, and the court makes its award “based on the information already before it and the court’s own opinion based on experience and observation …, ” with the proviso that you can put in other evidence to support the award.
Does this mean that the McKee factors need not be considered? Not necessarily. In the case of Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 54 (Miss. 1998), in a case dealing with attorney’s fees on an open account, which has its own particular body of law, the MSSC said, “This does not mean these factors are not relevant, just that proof of them is not required before a court awards attorney fees. This Court does not leave the reasonableness of an award for attorneys’ fees to the arbitrary discretion of the trial court.”
I think you can take from the Par Industries case that the appellate courts require the trial judge to flesh out how she arrived at a determination of reasonableness, and how the court calculated what the fee will be. In other words, a blanket award like “Plaintiff is awarded $5,000, which the court deems reasonable,” will not do the job. But an award that spells out what the court considered in making its decision will (or should).
The Better Chancery Practice Blog 
[…] A point raised in Judge Carlton’s dissent on the attorney’s fee issue is that the trial judge is empowered by MCA 9-1-41 to take judicial notice of a reasonable attorney’s fee, so that the chancellor’s decision should not be reversed. That is a code section that I called to your attention in a prior post. […]
Given the choice between (1) hoping the court makes an appeal-proof showing of reasonableness on its own, and (2) offering the factors, I think I would go with (2).
You have a point there.