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Charging attorneys fees to recover attorney’s fees

Client was owing 2,300 to the law firm which he felt overbil stonewalljacksonfan02/21/18
Did the parties sign a document concerning the mediation? 2tierreality02/21/18
Yes stonewalljacksonfan02/22/18
Not sure what the concern about mediation is. If your jx is jeffm02/22/18
My thought was that if you wanted to get really aggressive w 2tierreality02/22/18
Maybe so. I've never considered such an arrangement. Here, jeffm02/22/18
Litigate aggressively, and they will drop it. Have your clie guyingorillasuit02/21/18
My malpractice insurance bars me from ever suing a client ov thirdtierlaw02/21/18
They will drop it like a bad habit. Typically the deductible cocolawyer02/22/18
In my jx, a successful plaintiff can recover "reasonable and jeffm02/21/18
Your client sounds like a twat. What kind of person doesn't orgdonor02/21/18
If the subsequently signed mediation agreement doesn't inclu orgdonor02/21/18
I'm confused. Regardless of the underlying merits, you usual onehell02/22/18
The hex is Virginia - here everybody has a right to two tria stonewalljacksonfan02/22/18
Gotcha. In my state, the limited-jurisdiction courts aren't onehell02/23/18
You do have a right to a new trial de novo even if you did n stonewalljacksonfan02/24/18
Ah! That's different than what I previously thought. If fa jeffm02/24/18
well, you obviously cannot say that not showing up for the l stonewalljacksonfan02/24/18
That's right; it was the plaintiff, lol! I guess not... jeffm02/24/18
If plaintiff attempts to recover under multiple theories and jeffm02/24/18
Basically, there was a first hearing. Motion to amend ad da stonewalljacksonfan03/03/18
No updates for 8 months should be a suspension in all states dingbat03/03/18
I think he might have submitted a complaint for no communica stonewalljacksonfan03/04/18
You are beating a dead horse. Get over your fear and just t jeffm03/05/18
P.S. What do you predict a judge will think about their att jeffm03/05/18
Right on, I agree. Putting too much Mudd in the water would stonewalljacksonfan03/05/18
The sticky part of cases like these is that your client feel jeffm03/05/18
Well, the main thing is he submitted to mediation immediatel stonewalljacksonfan03/05/18
Is any of that story an affirmative defense which must be pl jeffm03/05/18
Well, I am not sure about affirmative defenses but since th stonewalljacksonfan03/05/18
Why do they have to show you evidence of those 8 factors pri jeffm03/05/18
That’s the legal rule...the 8 points in rule1.5. Also see stonewalljacksonfan03/05/18
Nothing in your link says they have to show you anything pri jeffm03/05/18
Well the link tells you what prima facie case is. They did stonewalljacksonfan03/06/18
OK. Maybe your procedure is different than ours. Here, we jeffm03/06/18
No, there is no rule like that but in my understanding every stonewalljacksonfan03/06/18

stonewalljacksonfan (Feb 21, 2018 - 6:12 pm)

Client was owing 2,300 to the law firm which he felt overbilled him. They went to optional mediation which did not resolve anything. Plaintiff law firm forgot about the trial date and my client got a default judgment. The law firm appealed to the next trial court level but is now claiming about 15,000 in collection costs to recover the 2300 because retainer said that the client will pay collection costs not less thank 25 percent of the debt. The bulk of the 15k comes from participation in mediation, motion to rehear after default judgment, addl court appearances to cure default judgment . State mediation program explicitly says mediation costs are the costs of each party. Issues?

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2tierreality (Feb 21, 2018 - 7:08 pm)

Did the parties sign a document concerning the mediation?

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stonewalljacksonfan (Feb 22, 2018 - 1:23 pm)

Yes

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jeffm (Feb 22, 2018 - 3:01 pm)

Not sure what the concern about mediation is. If your jx is like mine, each party "fronts" 1/2 the cost, but the prevailing party recovers its half from the losing party. And that's just the mediator's fee. Attorney's fees fall under the rule for recovery of attorney's fees.

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2tierreality (Feb 22, 2018 - 5:41 pm)

My thought was that if you wanted to get really aggressive with then, you could consider a countersuit for bad faith or abuse of process if they are trying to recover mediation fees when they clearly agreed in writing to cover half. That's pretty brazen, if you ask me, and may be considered bad faith or abuse of process, in the right jurisdiction.

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jeffm (Feb 22, 2018 - 8:11 pm)

Maybe so. I've never considered such an arrangement. Here, it is just custom to tax the mediator's fee as costs of court. Our statutory law or rules of court might also say that, but it's just such common practice, we never question it.

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guyingorillasuit (Feb 21, 2018 - 7:57 pm)

Litigate aggressively, and they will drop it. Have your client file and serve a malpractice complaint. They will have to tender to their carrier, and their deductible on defense costs will be over $2,300. They are likely to offer to drop their fees complaint in exchange for the malpractice complaint.

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thirdtierlaw (Feb 21, 2018 - 8:15 pm)

My malpractice insurance bars me from ever suing a client over unpaid fees for exactly that reason. But the trade off is that I don't pay a deductable unless the insurance company pays out.

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cocolawyer (Feb 22, 2018 - 5:35 pm)

They will drop it like a bad habit. Typically the deductible is $10,000.00. Plus the increase in their malpractice premiums are outrageous.

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jeffm (Feb 21, 2018 - 9:12 pm)

In my jx, a successful plaintiff can recover "reasonable and necessary" attorney's fees. I question how reasonable and necessary it was to have to jump through all those hoops regarding the plaintiff's own failure to appear.

I see reasonable and necessary as including a simple demand, a simple original petition, mediation, maybe some limited discovery that's on-point and not excessive, trial prep and trial.

P.S. I recovered $15,000 in atty fees over a $2,000 case before. Jury gave me everything I asked for. What a crappy little case it was, but we collected!

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orgdonor (Feb 21, 2018 - 11:24 pm)

Your client sounds like a twat. What kind of person doesn't pay $2300? Make sure YOU have a retainer for 1.5x the fees you imagine billing on the case.

This is a real "first year lawyer's case." Although I think the original law firm is also ridiculous. Who pursues $2300? Same same.

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orgdonor (Feb 21, 2018 - 11:25 pm)

If the subsequently signed mediation agreement doesn't include costs, then I think that supersedes the fee agreement. "Later modification," of the agreement or something like that.

But your client is on the hook for everything else.

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onehell (Feb 22, 2018 - 3:32 pm)

I'm confused. Regardless of the underlying merits, you usually have to set aside the default before you can reach them. A motion to set aside default is a motion with the original trial court, not an appeal. What grounds could plaintiff have for setting that aside, and for using an appellate forum to do that? I'm guessing the original case must have been in some kind of limited jurisdiction/small claims type of court and I know that such courts often provide a right to trial de novo in regular court, but is that right available even in a default scenario? If it is, then why bother to show up for the lower court trials in the first place? Just default and go to regular court so you can beef up your fees.

If the new court conducts a de novo trial and you lose, I would argue that the fees have been inflated unreasonably because the lower court could have resolved the matter on the merits but for the plaintiff's own actions. But if there was malpractice involved, you should also look at counterclaims, not to mention like I described above, argue if possible that the default precludes reaching the merits at all if such an argument is available to you under the rules in your jdx.

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stonewalljacksonfan (Feb 22, 2018 - 9:08 pm)

The hex is Virginia - here everybody has a right to two trials, the second of them being on record.

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onehell (Feb 23, 2018 - 11:57 am)

Gotcha. In my state, the limited-jurisdiction courts aren't required to make a record but if they do (and they always do), then the general-jurisdiction court hears it as a conventional appeal.

However, they don't have court reporters in the JP courts so they just make audio recordings and the appellant must pay for a transcript to be made. If the transcript comes back with a bunch of [unintelligible] on it, then the general jurisdiction court can also conclude that the record is insufficient and conduct a trial de novo.

But that said, even if your state does provide for more general right to trial de novo, do you still have a right to the second trial where, as here, plaintiff didn't even show up for the first one? That seems contrary to the intent of such a rule which presupposes the LJ court had some opportunity to actually consider the merits.

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stonewalljacksonfan (Feb 24, 2018 - 7:59 am)

You do have a right to a new trial de novo even if you did not show up. So it could be a strategy to just not come to Lj and appeal right away to the court of record. The question is whether attorneys costs in this case for the court of record and reasonable and necessary in accordance with the 8 point test in rule 1.5.

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jeffm (Feb 24, 2018 - 8:22 am)

Ah! That's different than what I previously thought. If failure to appear was actually a strategy that didn't cause unreasonable or unnecessary work, then you can make that pitch, and maybe the judge will agree all the fees are recoverable.

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stonewalljacksonfan (Feb 24, 2018 - 9:36 am)

well, you obviously cannot say that not showing up for the lawsuit you filed as a plaintiff was a legal strategy - that would be contempt of court. But people can do it and say that that they inadvertently forgot. The no show for lower small claims court does create a lot more work in the court of record, and fyi, me, the OP is representing the defendant, so hopefully not...

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jeffm (Feb 24, 2018 - 1:36 pm)

That's right; it was the plaintiff, lol! I guess not...

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jeffm (Feb 24, 2018 - 1:45 pm)

If plaintiff attempts to recover under multiple theories and not all theories support an award of attorney fees, our jx says plaintiff must put on evidence to segregate which work was for recoverable theories and which work was not. However, if the causes are "inextricably intertwined," then, they can put on evidence of that. Otherwise, I have seen reversals of attorney fees awards for failure to segregate.

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stonewalljacksonfan (Mar 3, 2018 - 6:18 pm)

Basically, there was a first hearing. Motion to amend ad damnum granted (has to be granted liberally, could have been increased from 2.5k to 3 mil in theory.) Amount of damages is increased from 2,500 to 20k. 17.5k extra mainly consists of first tier trial court filing, preparing and coming to mediation, filing motion to rehear after non-appearance by the plaintiff to trial and second tier trial court litigation. 20k is not fully supported right now. So mediation was requested before first tier trial court filing (small claims), but plaintiff filed anyway before being mandated by the judge to go to mediation. Mediation agreement states that each party bears its own costs. We dont think that second tier trial costs are reasonable or necessary because plaintiff did not appear to trial in the first tier court and then appealed. Does it appear that any of the 17.5k is reasonable or necessary? There is apparently also an expert about the costs, but his testimony may be limited to hourly rates.
Could there be grounds for a bar complaint for including clearly non-recoverable costs in amount pleaded (particularly 5k for preparing and coming to mediation)? Also. they charged 11k for motion to suppress and hearing in a DUI 1st case, no trial. Client was quoted 2.5k total for that, then he got the bill 2 months after representation concluded after no updates for 8 months.

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dingbat (Mar 3, 2018 - 9:57 pm)

No updates for 8 months should be a suspension in all states. (Second most common reason for suspensions - right after financial malfeasance)

Help your client sue for overcharging and simultaneously file a bar complaint for failure to communicate. Watch how quick they’ll settle

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stonewalljacksonfan (Mar 4, 2018 - 12:04 am)

I think he might have submitted a complaint for no communication of the bill among other things but it was dismissed without investigation. We are thinking about filing another one about knowingly billing for free mediation (9 hours on the day for mediation that took 1.5 hours and 6 hours for preparation). What are the elements of lawsuit for overcharging?

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jeffm (Mar 5, 2018 - 3:17 pm)

You are beating a dead horse. Get over your fear and just take the issue to trial. Inform your client if he is liable, he will owe at least some, if not all, of the attorney's fees claimed. All the rest of that crap, like entertaining motions for sanctions and grievances, is just screwing around and making a simple issue more painful than it should be.

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jeffm (Mar 5, 2018 - 4:03 pm)

P.S. What do you predict a judge will think about their attorney's fees being reasonable after you file unsuccessful motions, claims and/or grievances and try to run your opponent through the mill? If you make it hard on them, your client is just that much more exposed.

"Quick and simple" is the way out if your client doesn't want to settle but can't afford to pay a judgment of the size to which he is exposed.

The only record which looks best for your client is one where you announce ready for trial very early and don't make busy work for the other side. If you have to have some discovery, you should make it very quick and easy - like a short, oral deposition at opposing counsel's office which goes straight to the point and skips all the questions about where they grew up and went to high school. I wouldn't initiate written discovery, except for attaching a duces tecum to the deposition notice, asking for the barebones basics, such as "Produce documents evidencing all your bills sent to defendant and all payments made by defendant to you."

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stonewalljacksonfan (Mar 5, 2018 - 7:03 pm)

Right on, I agree. Putting too much Mudd in the water would just make the defendant look more guilty. On the other hand, the other party has not present a prima facie case to all 8 elements of rule 1.5 and has not explained why the cut the 11k bill for motion to suppress to 5k. I guess instead of putting them on notice we can just surprise them.

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jeffm (Mar 5, 2018 - 7:09 pm)

The sticky part of cases like these is that your client feels $2,300 was too high, but if plaintiff recovers even $1,000, the court must award reasonable attorney's fees. There is case law on this (at least in my jx). There are also cases holding excessive demands will not support an award of attorney's fees. It could all come down to arguing what is an "excessive" demand. Then, also, there might be case law suggesting defendant must tender the "undisputed" amount if he is to avoid liability for attorney's fees.

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stonewalljacksonfan (Mar 5, 2018 - 7:16 pm)

Well, the main thing is he submitted to mediation immediately after billing and then after they sued in small claims. Mediation is supposed to be free per the agreement. Mediation fails, back to district court, no show, default judgment. Plaintiff appeals to circuit court of record, a lot more expensive trial. The question is whether my client is liable for any of these costs of collection.

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jeffm (Mar 5, 2018 - 7:24 pm)

Is any of that story an affirmative defense which must be pled or waived?

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stonewalljacksonfan (Mar 5, 2018 - 7:41 pm)

Well, I am not sure about affirmative defenses but since the plaintiff has to prove by clear and convincing standard that all costs were reasonable and necessary in accordance with rule 1.5 (8 factors), then I guess the main defense is showing to the court that there is no prima facie case from the get go. In other words, rebutting the prima facie evidence (they have not shown during discovery that costs were reasonable or necessary and did not present the 8 factors analysis - customery fees in the community, reasonable effort, novelty, etc.).

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jeffm (Mar 5, 2018 - 7:52 pm)

Why do they have to show you evidence of those 8 factors prior to trial? (What "are" the 8 factors, anyway?)

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stonewalljacksonfan (Mar 5, 2018 - 7:59 pm)

That’s the legal rule...the 8 points in rule1.5. Also see http://www.rpb-law.com/EDVAUpdate/supreme-court-of-virginia-provides-added-guidance-on-attorneys-fees-awards/

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jeffm (Mar 5, 2018 - 9:06 pm)

Nothing in your link says they have to show you anything prior to trial.


Also, from your link:

"A party may not recover fees for duplicative work or for work that was performed on unsuccessful claims."

"In Denton v. Browntown Valley Associates, Record No. 160999 (Va. Aug. 31, 2017), a decision also authored by Justice Mims, the Supreme Court made clear that the fees incurred in litigating the reasonableness of the underlying attorney’s fees are themselves recoverable."

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stonewalljacksonfan (Mar 6, 2018 - 1:28 pm)

Well the link tells you what prima facie case is. They did not present a prima facie case during discovery, so presumably it is not there yet. Fees are recoverable in general, but of course one cannot inflate fees without end and charge 3 mil collection on $100 debt.

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jeffm (Mar 6, 2018 - 7:36 pm)

OK. Maybe your procedure is different than ours. Here, we must put on a prima facie case at trial. We don't present prima facie cases during discovery. I've never heard of that.

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stonewalljacksonfan (Mar 6, 2018 - 7:39 pm)

No, there is no rule like that but in my understanding everything has to be disclosed at discovery.

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