By: Esther E. Galicia
As published in the Daily Business Review
Never underestimate the need to present expert testimony to support the reasonableness of the requested attorney fees award. In Mitchell v. Flatt, No. 2D21-487, 2022 WL 3129170 (Fla. 2d DCA Aug. 5, 2022), the Second District reversed the fees award without remand instructions because the attorney ignored his evidentiary obligations.
Mitchell involved a loan dispute between former spouses. When the ex-wife failed to appear for her deposition, the ex-husband sought discovery sanctions against the ex-wife’s attorney because the ex-wife did not attend the deposition based on the advice of her counsel. While the ex-husband’s attorney testified that his fees were reasonable, the fees expert he retained was unexpectedly unavailable and did not testify at the hearing. Additionally, the expert’s affidavit was excluded as hearsay. The trial court eventually awarded $4,695 in fees against the ex-wife’s attorney based on the ex-husband’s attorney’s billing records. However, the trial court was never presented with evidence as to the reasonableness of the number of hours and billing rate via expert testimony and the ex-husband’s attorney argued it was unnecessary.
On appeal, the Second District stated that the trial court clearly “erred in determining the amount of attorney fees without considering expert testimony as to reasonableness.” Moreover, the appellate court refused to remand with directions that the ex-husband’s attorney be given another opportunity to present the requisite expert testimony. In so holding, the Mitchell court reasoned that the ex-husband’s attorney strategically decided not to continue the hearing, made a “conscious decision to not present necessary evidence,” and “expressly chose to proceed without that essential expert testimony.” The Second District further observed that while an expert’s affidavit is not required, “expert testimony must be presented” and it therefore refused to give the attorney—who argued such evidence was not required—a “second bite at the apple.”
Lesson to be learned: Make sure you do not, like the ex-husband’s attorney in Mitchell, go down a slippery slope against well-established legal precedent requiring expert testimony addressing the reasonableness of the attorney fees you seek to be awarded.
Esther E. Galicia is a shareholder in Fowler White's appellate practice group where she focuses her practice in civil appeals at all levels and provides litigation and trial support. She received her J.D., cum laude, from the University of Miami School of Law.