Rule would make experts in fees cases optional July 1, 2007 Regular News Rule would make experts in fees cases optional Mark D. Killian Managing Editor Should it be necessary to provide an expert opinion in all attorneys’ fees cases?The Bar’s Civil Procedure Rules Committee doesn’t think so and proposed a new rule to that effect as part of its regular review of the procedural rules.Keith H. Park, chair of the Civil Procedure Rules Committee, told the Supreme Court in oral argument June 6 it should not be necessary to provide expert opinion to support or oppose a claim or an award of costs, attorneys’ fees, or both, in every case. The proposed new rule would leave the decision to the judge to determine if expert testimony is needed.“Really, we looked upon it as a cost saving mechanism more than anything else and in most cases anybody can bring in experts,” Park said. “They can bring them in and have them testify. It does not take away that ability.”Marc Goldman of Miami, however, argued proposed Rule 1.526 would amend substantive case law and so is beyond the purview of the committee. He also said the rule as written would result in more litigation and hearings.Proposed Rule 1.526 went to the court along with several other proposed changes drafted after the Bar’s Commission on the Legal Needs of Children asked the rules panel to review the rules with an eye toward helping ensure that the procedural rights and needs of children are being met. Other proposed changes are technical or stem from a change in state statute. The entire package was overwhelmingly endorsed by both the rules panel and the Board of Governors. Only the attorneys’ fee expert opinion issue was debated at oral argument.Justice Harry Lee Anstead said he thought it unusual for the court to take up the fees issue through the rule-making process instead of through a case percolating up to the Supreme Court through a challenge.“Putting it in a rule seems to be a highly unusual way to approach this,” Anstead said, later adding, “This does not appear to me to be the appropriate topic of a rule.”Park said the committee has found, “the judge trying the cases probably has as much if not more knowledge and expertise on these matters than anybody testifying about it.”Park also emphasized that the proposed rule emphatically allows the introduction of expert witnesses.“If the judge feels like it is necessary to have it done, they can certainly do that,” Park said.Goldman, who said he has handled numerous appellate matters involving court awards of attorneys’ fees and the application of contingency risk factor multipliers, contends the rule — aside from being substantive and not procedural — as written is “ineffective and ambiguous.”“It is absolutely impractical to think the judge, except in very rare cases, when a motion for fees is filed and a hearing date is requested, is going to go, ‘Oh, yes. I remember that case. We need experts in that case,’” Goldman said. “So what you are doing is creating more hearings and more litigation.”Goldman said when moving parties file a motion for fees, they also will file a motion to require experts and there will have to be another hearing on that, as well.“Then we are going to have a diversity of rulings by the courts on whether the court required it,” Goldman said. “And then we are going to have appellate cases on that. The other potential is the moving party does not file that motion and comes into court with his expert. The nonmoving party may bring an expert or may not. In the case where the nonmoving party doesn’t bring an expert, the prevailing party is going to seek to tax the cost of his expert and the nonmoving party is going to go, ‘Wait a second, judge, you did not enter an order requiring this. Don’t tax it.’ Then we are going to have more appellate cases on that.”Justice Charles Wells said he’s concerned the proposed rule would do away with the need for a hearing and “probably these attorneys’ fee amounts need to be contested.”“What we are doing, it seems to me, is setting up a procedure in which you are going to have fewer contests about the amount of fees and fewer abilities to do it,” Wells said. “So I have a problem with that.”“We did not look at it in that fashion,” Park said. “We looked at it in the fashion of whether or not it was required. It is certainly permissive and from the standpoint of what evidence goes on, the parties are free to do that. They are free to prove it up anyway they wish. Under common and substantial evidence, you would still have to have the attorney testify about his time and about what the value of his services were. I don’t think you get around that.”Justice Raoul Cantero noted one of the problems with getting the court to address this issue through a case is the big financial risk that a lawyer would have to take.First a lawyer would have to attend a hearing without an expert when there is precedent saying an expert is required, Cantero said.“The trial judge is going to say, ‘No, you need an expert. I’m bound by the law,’” Cantero said. “The appellate court is going to say the same thing. They may or may not certify a question to this court. There really won’t be any — seems to me — conflict, and so the chances of us taking it are slim and then the chances of us taking it and reversing a 1987 case are slim.”Cantero speculated that’s why this proposal is coming up through the rules committee process and not through a case.( In Re: Amendments to the Florida Rules of Civil Procedure, Case No. SC07-173.) read more