Attorney's Fees Update - Vinson & Elkins LLP

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2. Preclusion of other employment The Johnson court stated that “[t]his guideline involves the dual consideration of otherwise available business which is foreclosed because of conflicts of interest which occur from the representation, and the fact that once the employment is undertaken the attorney is not free to use the time spent on the client’s behalf for other purposes.” See Johnson, 488 F.2d at 718; see also Mandell v. Mandell, 214 S.W.3d 682, 690-91 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (attorney testified that he spent seven to eight months responding to a claim in excess of one million dollars and was deprived of employment on other cases due to the resources required to respond to the suit). However, it is not clear that an attorney’s having refused other employment, standing alone, necessarily justifies an upward departure from the product of a reasonable fee and the number of hours necessary to represent the client. Cf. Land Rover U.K. Ltd. v. Hinojosa, 210 S.W.3d 604, 608-09 (Tex. 2006) (“absent exceptional circumstances” or a specific rule provision, guardian ad litem, whose compensation is largely based on the same Rule 1.04 factors applied to other attorney’s fees questions, should not have been awarded $25,000 more than reasonable hourly fees as compensation for turning down retainers in other matters). 3. Fee customarily charged in the locality for similar legal services Evidence of the “customary fee” factor includes testimony of the standard fee for similar legal services in the county of the suit. See Weber, 238 S.W.3d at 586-87 (defendant’s attorney testified he was familiar with the fee customarily charged in the county because he had been performing similar legal services in the county for over thirty years). This testimony can include a range of standard fees or standard contingency percentages. Id. In addition to testifying regarding his or her own knowledge of the customary fee, an attorney can introduce third-party evidence, such as survey data, supporting his or her testimony regarding the customary fee. See Travelers Indem. Co. v. Espinosa, No. 01-05-00836-CV, 2007 WL 1559936, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2007, no pet.) (mem op.) (to support his showing that his fees were in line with fees O-3 customarily charged in the locality for similar legal services, defendant’s attorney attached an article from the Texas Lawyer entitled “Charging More in 2004,” which explained that “billing rates [were] up slightly at Texas firms”). 4. Amount involved and results obtained In assessing fees, the Johnson court stated that the court should consider both the amount of damages awarded and the effect on the law of the decision obtained. See Johnson, 488 F.2d at 718-19. For the purpose of determining an appropriate fee, one recent case shows that results obtained may include not only a judgment after a contested trial, but also pretrial work and services that have outcome-determinative impact. See Weber, 238 S.W.3d at 586. In Weber, a condemnation case, the defendant’s attorney testified that as a result of lengthy negotiations with the condemning authority, the amount of land targeted for condemnation was reduced. See id. In addition, a special commissioners’ hearing resulted in his client’s being awarded a significantly higher price for the property that was to be condemned, leading the condemning authority to drop the condemnation proceeding rather than pay the increased value. Id. The court found both successes relevant in upholding the award of attorney’s fees under Texas Property Code § 21.109(b). 5. Time limitations imposed by client or circumstances A client’s priority work that delays the lawyer’s other legal work should be considered in the award of attorney’s fees. See Johnson, 488 F.2d at 718. This factor is particularly important when new counsel is called in to prosecute the appeal or handle other matters at a late stage in the proceedings. Id. 6. Nature and length of professional relationship with the client A lawyer in private practice may vary his fee for similar work in the light of the professional relationship of the client with his office. See Johnson, 488 F.2d at 719. The court may appropriately consider this factor in determining the amount of fees that would be reasonable. Id.
A longstanding relationship with a client may be relevant evidence of a reasonable attorney fee. See Weber, 238 S.W.3d at 585-86 (defendant’s attorney testified that because he had known and represented the condemnee for approximately thirty years, he agreed to a lower contingency fee rate (20%) than was customary in the county; this testimony supported defendant’s argument that the contracted contingency fee was “more than fair” and the court’s finding that the award based on that contracted fee was reasonable); see also Mandell, 214 S.W.3d at 691 (the appellee’s attorney had testified at trial to a long standing relationship with the appellee and that he had thirty-three years’ experience as the administrator and representative of estates like those at issue in the case). 7. Experience, reputation, and ability of lawyers performing services While longevity per se does not dictate a higher fee, see Johnson, 488 F.2d at 718, the court may consider evidence of how long the attorney has practiced, any specializations the attorney has achieved, and the number of similar cases the attorney has handled in arriving at a reasonable fee. See Weber, 238 S.W.3d at 585-86; see also Bryan v. Bryan, No. 04-06-00553-CV, 2007 WL 2042759, *2 (Tex. App.—San Antonio July 18, 2007, no pet.) (mem. op.) (attorney testified as twenty-five years of practice experience, mainly in the area of family law, a specialty in which she had been board certified for six years). 8. Whether fee is fixed or contingent, or collection is uncertain The fact that a case is handled on a contingency basis is relevant to a fee award, but a party may not merely offer his contingent fee contract and seek a recovery of attorney’s fees on that basis alone. See Mercier v. Southwestern Bell Yellow Pages, Inc., 214 S.W.3d 770, 777 (Tex. App.— Corpus Christi 2007, no pet.) (citing Arthur Andersen, 945 S.W.2d at 818). Rather, a party’s proof must include evidence of the Rule 1.04 factors so that fact finder has a meaningful way to determine if the fees were reasonable and necessary. Id. (citing Arthur Andersen, 945 S.W.2d at 818-19). Moreover, the fact finder must award attorney’s fees in a specific dollar amount rather than as a percentage of some unknown recovery. See Arthur Andersen, 945 S.W.2d at 819. O-4 A court has discretion to consider that a case was handled on contingency as one of several “enhancement factors” under Johnson for purposes of awarding fees in an amount greater than the “lodestar” amount. See City of Houston v. Levingston, 221 S.W.3d 204, 236-37 (Tex. App.—Houston [1st Dist.] 2006, no pet. h.) (affirming award of fees approximately 13% greater than the lodestar amount, where plaintiff showed that case was handled on contingency, involved substantial discovery, was tried over two weeks, involved numerous fact and expert witnesses, involved voluminous documentary evidence, and contained complicated legal issues). B. Manner of proof 1. Testimony of case counsel and other experts Generally, the issues of reasonableness and necessity of attorney’s fees must be proven through expert testimony. See Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762, 770 (Tex. App.—Dallas 2007, pet. denied) (citing Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—Austin 2000, pet. denied)). As with all expert testimony, the proponent of expert testimony on attorney’s fees bears the burden of demonstrating that the expert is properly qualified and that his or her testimony is relevant and reliable. See id. at 770-71 (citing TEX. R. EVID. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998)). An attorney’s testimony that fees are reasonable and necessary is legally sufficient if supported by facts relevant to the Rule 1.04 factors. See State and County Mutual Fire Insurance Co. v. Walker, 228 S.W.3d 404, 409 (Tex. App.—Fort Worth 2007, no pet. h.). In Walker, the fee claimant’s attorney testified regarding his professional experience and background, described the work performed and the time spent on the case, and testified as to his familiarity with reasonable charges in the locality. See id. The appeals court held that the attorney’s testimony as to reasonableness and necessity, being based on facts rather than conclusory assertions, was legally sufficient to support an award of fees. See id.
Page 1 and 2: ATTORNEY’S FEES UPDATE Jason M. P
Page 3 and 4: Table of Contents (Continued) Page
Page 5: (2) the likelihood that the accepta
Page 9 and 10: amount requested for appellate fees
Page 11 and 12: When reviewing an award of fees in
Page 13 and 14: To recover appellate fees and post-
Page 15 and 16: damages. The jury found the demand
Page 17 and 18: case. See id. at *17. The appeals c
Page 19 and 20: educe the amount collected on the n
Page 21 and 22: finding because plaintiff’s couns
Page 23 and 24: appeals court of jurisdiction where
Page 25: clients may recover attorney’s fe

Attorney's Fees Update - Vinson & Elkins LLP

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