September 3, 2019

Attorney’s Fees and the Requirement of Expert Witness Testimony in Florida

July, 2019

A party to litigation in Florida is often entitled to recoup its reasonable attorney’s fees from the opposing party pursuant to a statute or a contract between the parties. Florida law requires in most cases that a party seeking its fees from the opposing party introduce the testimony of an expert witness in support of the request for attorney’s fees. The role of the expert attorney’s fees witness is generally to testify regarding the reasonableness of the attorney’s fees being sought, which includes such aspects as the hourly rate and number of hours expended.

Attorneys and courts have questioned whether expert fee witnesses should be required for a party to establish the reasonableness of its fees. The Fourth DCA has expressed doubt that expert witnesses are more knowledgeable than trial judges as to the reasonableness of attorney’s fees in many cases. SeeIsland Hoppers, Ltd. v. Keith, 820 So. 2d 967, 972 (Fla. 4th DCA 2002). The court noted that appellate courts do not hesitate to disregard expert testimony and reverse “patently excessive” fee awards. Id.Concurring specially, Judge Gross stated that the requirement rests on “shaky theoretical grounds,” because it traces back to Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964), a case where the court justified the requirement on public policy grounds but failed to cite any authority.

 The Fourth DCA expressed similar concern about the requirement in Robin Roshkind, P.A. v. Machiela, 45 So. 3d 480 (Fla. 4th DCA 2010). In Roshkind, the Fourth DCA reluctantly affirmed the denial of a law firm’s motion for attorney’s fees against a former client pursuant to a charging lien where the law firm introduced its billing records but did not provide expert witness testimony. 45 So. 3d at 482. The Fourth DCA noted that the requirement of expert witness testimony is “judicially-created” and increases litigation costs. Id. at 481-482. The Fourth DCA certified the question to the Florida Supreme Court as one of great public importance. Id. at 482. The Florida Supreme Court initially accepted jurisdiction, but later discharged jurisdiction and declined to decide the case following briefing and oral argument. Robin Roshkind, P.A. v. Machiela, 64 So. 3d 1245 (Fla. 2011).

With a few exceptions, Florida law continues to require an independent expert witness to establish the reasonableness of fees, regardless of whether a first or third party is responsible for payment. The rationale for the requirement is that “attorneys have an ethical duty, pursuant to the Florida Rules Regulating the Florida Bar, to charge fair and reasonable fees, regardless of the terms of the fee agreement.” Roshkind, 45 So. 3d at 481-482.Several attorneys of Bresky Law are experienced in serving as expert fee witnesses regarding attorney’s fees incurred in appellate and trial court matters. We would be happy to assist you and your client in pursuing your client’s attorney’s fees.