by Jadd Masso and Elizabeth Griffin
Recovery of attorney’s fees in Texas state courts has seen significant developments in recent years, with appellate courts requiring increasingly detailed evidence to uphold both summary judgment and trial awards. Since attorney’s fees can be a significant part of a client’s recovery, sometimes exceeding the amount of damages, litigators should take care to ensure compliance with the evolving pleading and evidentiary standards. Below are a collection of best practices developed from the latest rulings.
A party must affirmatively plead for attorney’s fees. But a general prayer for attorney’s fees may not provide adequate notice. A party must plead sufficient detail of the legal basis for fees to enable responding parties to determine what evidence may be relevant. So a party should not only plead that it is entitled to attorney’s fees, but also why.
However, the level of specificity in pleading a basis for fees can raise a conundrum of sorts. If a pleading is too vague, it may not provide fair notice of the basis for recovery. But if it is too specific, it may limit the party’s grounds for recovery by barring recovery on grounds not specifically pleaded. One court has held that so long as a pleading alleges facts that would entitle the party to the relief sought, it need not specifically name the applicable statute. Regardless, the best practice is to identify any legal bases for attorney’s fees in your pleading and allege adequate facts to support them.
Remember to lay the proper foundation for your expert’s opinion. A party must show the expert is qualified to opine on the reasonableness and necessity of the fees. An expert’s testimony should begin by discussing the expert’s background and experience.
Next, the testimony should establish that the expert’s analysis and opinions are based on a thorough review of the contemporaneous time and billing records and the expert’s familiarity with the case. If the expert is also trial counsel, she should prove-up these records. If not, the expert should explain what she did to gain knowledge of the case.
After establishing a solid foundation, the expert should testify regarding the work performed on the case. For each attorney who worked on the case, the expert should identify the attorney’s:
- Basic qualifications including their title, years of experience, specialty area, etc.;
- Hourly rate;
- Number of hours billed to the file; and
- Role or focus in the case, such as discovery, motion briefing, trial support, etc.
The expert should opine as to (1) whether each attorney’s hourly rates are reasonable for the case based on their training and experience, and (2) whether the number of hours worked in the case were reasonable and necessary, explaining how much time the work required. The expert should discuss the nature and extent of legal services performed by each attorney and when. The expert should also provide the basis for an opinion regarding the amount of recoverable fees that were necessary and reasonable, discussing the Arthur Anderson (Arthur Anderson & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997) factors.
Expert testimony should also include the amount of expenses incurred by the attorneys, briefly describing the types of expenses involved and whether they are reasonable and necessary.
If contingent appellate fees are sought, the expert should not only opine on likely appellate fees and expenses, but also identify the attorneys who would be involved and discuss their qualifications, rates, and an estimate of potential hours for each. Remember to address each phase of appellate proceedings: appeal to the court of appeals, petition for review to the Texas Supreme Court, merits briefing, and oral argument.
If the case involves claims for which attorney’s fees are recoverable and claims for which they are not, the expert must testify regarding segregation of fees. Rather than specifically stating a number of hours or dollars, the expert may testify to the percentage of total fees that are recoverable. In a jury trial, the party should ensure the jury question on attorney’s fees is appropriately tailored to the recoverable claim.
Finally, a party should make sure to present evidence to satisfy any particular requirements of statutes authorizing attorney’s fees awards. For example, for fee claims under Chapter 38 of the Civil Practice & Remedies Code, issues may arise about whether the defendant is in fact a “corporation” or whether the claiming party adequately “presented” its claim. If those issues are disputed, a jury finding may be necessary.
Jadd Masso is partner at Strasburger & Price, LLP. Elizabeth Griffin is an associate at at the firm. They can be reached at firstname.lastname@example.org and email@example.com, respectively.