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Attorney Fees in Civil Cases Mark Weidemaier

Attorney Fees in Civil Cases Mark Weidemaier. District Court Judges Fall Conference September 29 – October 1, 2004. G.S. 6-21.1 Type of suit Personal injury, “property damage” Insured/beneficiary v. insurance co. if unwarranted refusal to pay claim if

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Attorney Fees in Civil Cases Mark Weidemaier

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  1. Attorney Fees in Civil Cases Mark Weidemaier District Court Judges Fall ConferenceSeptember 29 – October 1, 2004

  2. G.S. 6-21.1 • Type of suit • Personal injury, “property damage” • Insured/beneficiary v. insurance co. if unwarranted refusal to pay claim • if • “Judgment for recovery of damages” is $10,000 or less • To whom? • Attorney for “litigant obtaining a judgment for damages”

  3. Whether to award fees Reasonableness of fee award Required findings:

  4. Whether to award fees: Settlement offers before action instituted Offers of judgment, and whether “judgment finally obtained” was more favorable Whether defendant unjustly exercised superior bargaining power Context in which the dispute arose (in suits against insurer) Timing of settlement offers Amount of any settlement offers compared to jury verdict Required findings:

  5. Reasonableness of fee: time and labor expended the skill required customary fee for like work the experience or ability of the attorney Required findings:

  6. P sues D for injuries after automobile accident. Jury verdict for P: $8500 in compensatory damages $2500 in punitive damages Defining “judgment for the recovery of damages” . . . “Judgment for the recovery of damages <= $10000?

  7. P sues D for injuries after automobile accident. Jury verdict for P: $8500 in compensatory damages $2500 in punitive damages Defining “judgment for the recovery of damages” . . . “Judgment for the recovery of damages <= $10000? YES

  8. Jury verdict for P: $8500 in compensatory damages $2500 in punitive damages Assume P also receives: $1000 in prejudgment interest (G.S. 24-5) $750 in taxable costs Defining “judgment for the recovery of damages” . . . “Judgment for the recovery of damages” <= $10000?

  9. Jury verdict for P: $8500 in compensatory damages $2500 in punitive damages Assume P also receives: $1000 in prejudgment interest (G.S. 24-5) $750 in taxable costs Defining “judgment for the recovery of damages” . . . “Judgment for the recovery of damages” <= $10000? YES

  10. Computing: Contemplates only compensatory damages Includes prejudgment interest but probablynot discretionary costs “Judgment for the recovery of damages” . . .

  11. Who is entitled to recover . . .? P sues D for breach of termite inspection contract, alleges $5000 damage to home. Verdict for P = $5000. P moves for fees. D objects that suit is not a “personal injury or property damage suit.” May court award fees?

  12. Who is entitled to recover . . .? P sues D for breach of termite inspection contract, alleges $5000 damage to home. Verdict for P = $5000. P moves for fees. D objects that suit is not a “personal injury or property damage suit.” May court award fees? NO

  13. No fees in breach of contract cases. Negligent performance of contract? injury occurs to person or property of someone other than promisee personal injury to promisee, or other property of promisee damaged promisor owed duty as a matter of law (common carriers) willful injury or conversion

  14. Who is entitled to recover . . .? After car accident, P sues D for personal injury. D counterclaims for damage to car. Jury finds P was negligent and awards D $2500. Is D entitled to fees?

  15. Who is entitled to recover . . .? After car accident, P sues D for personal injury. D counterclaims for damage to car. Jury finds P was negligent and awards D $2500. Is D entitled to fees? YES

  16. What fees may D recover? • Not entirely clear; best rule: • Counterclaim only, unless • Work overlaps; work on defense furthers counterclaim

  17. Computing Contemplates only compensatory damages Includes prejudgment interest but probablynot discretionary costs To whom? includes counterclaims (attorney for “litigant obtaining a judgment for damages”) For what? Prosecuting successful claims only, unless work overlaps with or furthers successful claim G.S. 6-21.1 summary

  18. Permits party defending against a claim to make an offer of judgment for specified amount, “with costs then accrued.” If “judgment finally obtained” is not more favorable than offer, “the offeree must pay the costs incurred after the making of the offer.” Rule 68 Offer of Judgment

  19. Rule 68 – steps: • Calculate “judgment finally obtained” • Determine amount of offer • Compare “judgment finally obtained” to offer • If “judgment finally obtained” is not more favorable, plaintiff pays costs incurred after offer

  20. P declines offer of “$5000 inclusive of any and all costs, fees, and interest.” Jury returns verdict awarding P $500. At time of offer, P’s court costs were $200 and accrued interest was $50 After trial, P’s costs total $500 and accrued interest is $100 What is the “judgment finally obtained by P?” Rule 68: What is the “judgment finally obtained” . . .? $500 $750 $1100

  21. P declines offer of “$5000 inclusive of any and all costs, fees, and interest.” Jury returns verdict awarding P $500. At time of offer, P’s court costs were $200 and accrued interest was $50 After trial, P’s costs total $500 and accrued interest is $100 What is the “judgment finally obtained by P?” Rule 68: What is the “judgment finally obtained” . . .? $500 $750 $1100 (for now)

  22. P declines offer of “$5000, inclusive of any and all costs, fees, and interest.” Verdict = $500 Court costs = $500 Prejudgment interest = $100 P seeks attorney fee of $5000. Is “judgment finally obtained” > offer? Rule 68: What is the “judgment finally obtained” . . .?

  23. P declines offer of “$5000, inclusive of any and all costs, fees, and interest.” Verdict = $500 Court costs = $500 Prejudgment interest = $100 P seeks attorney fee of $5000. Is “judgment finally obtained” > offer? Rule 68: What is the “judgment finally obtained” . . .? Y, if fees are awarded

  24. 1. Calculate “judgment finally obtained” Includes verdict + court costs and interestaccrued before and after offer Includes pre- and post-offer attorney fees (if awarded) Rule 68 – steps:

  25. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? Rule 68: Determine amount of offer . . .

  26. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? Rule 68: Determine amount of offer . . . $1800

  27. 1. Calculate “judgment finally obtained” Includes verdict + costs and interest accrued before and after offer Includes pre- and post-offer attorney fees. Determine amount of offer Is offer for a lump sum? Rule 68 – steps:

  28. 1. Calculate “judgment finally obtained” Includes verdict + costs and interest accrued before and after offer Includes pre- and post-offer attorney fees. Determine amount of offer Is offer for a lump sum? “$5000 for all damages, attorney fees taxable as costs, and the remaining costs accrued at the time this offer is filed.” “$5000 together with all costs then accrued.” Rule 68 – steps:

  29. 1. Calculate “judgment finally obtained” Includes verdict + costs and interest accrued before and after offer Includes pre- and post-offer attorney fees. Determine amount of offer Is offer for a lump sum? “$5000 for all damages, attorney fees taxable as costs, and the remaining costs accrued at the time this offer is filed.” “$5000 together with all costs then accrued.” Rule 68 – steps: Y

  30. 1. Calculate “judgment finally obtained” Includes verdict + costs and interest accrued before and after offer Includes pre- and post-offer attorney fees. Determine amount of offer Is offer for a lump sum? “$5000 for all damages, attorney fees taxable as costs, and the remaining costs accrued at the time this offer is filed.” “$5000 together with all costs then accrued.” Rule 68 – steps: Y N

  31. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What is “judgment finally obtained?” Rule 68: Compare “J.F.O.” to offer . . . $1800

  32. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What is “judgment finally obtained?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $2100

  33. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What is “judgment finally obtained?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $2100

  34. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What is “judgment finally obtained?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $2100

  35. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What is “judgment finally obtained?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $2100

  36. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What is “judgment finally obtained?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $2100

  37. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What if court does not award fees?” Rule 68: Compare “J.F.O.” to offer . . . $1800

  38. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What if court does not award fees?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $1100

  39. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What if court does not award fees?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $1100

  40. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What if court does not award fees?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $1100

  41. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? What if court does not award fees?” Rule 68: Compare “J.F.O.” to offer . . . $1800 $1100

  42. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? Rule 68: Compare “J.F.O.” to offer . . . $1800 So, how much will judgment actually be?

  43. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? Rule 68: Compare “J.F.O.” to offer . . . $1800 $800 So, how much will judgment actually be?

  44. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? Rule 68: Compare “J.F.O.” to offer . . . $1800 $800 So, how much will judgment actually be?

  45. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? Rule 68: Compare “J.F.O.” to offer . . . $1800 $800 So, how much will judgment actually be?

  46. P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.” Verdict is $500, plus: $500 in court costs ($250 pre-offer) $100 interest ($50 pre-offer) $1000 attorney fee ($500 pre-offer) How much is offer? Rule 68: Compare “J.F.O.” to offer . . . $1800 $800 So, how much will judgment actually be?

  47. 1. Calculate “judgment finally obtained” Includes verdict + costs and interest accrued before and after offer Includes pre- and post-offer attorney fees (if awarded) Determine amount of offer Is offer a lump sum offer? 3. Is “judgment finally obtained” more favorable than offer? If no, plaintiff pays costs incurred after offer May still recover pre-offer interest, costs, and fees (if awarded) Rule 68 – steps:

  48. Stays further proceedings in trial court “upon the judgment appealed from, or upon the matter embraced therein.” G.S. 1-294. Likely divests court of jurisdiction to consider fees motion (see handout) Possible exception where motion filed after rendition of judgment, but before entry Fees are generally available for appeal & post-trial motions Appeal

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