Though case law does not require an attorney fee affidavit, it can be instrumental in presenting your evidence, because it forces you to assemble the key information needed.
Providing the court with a timesheet containing disputed charges that are highlighted can be an effective aid to addressing those charges in an expeditious manner. In presenting your fee case, keep in mind that your goal, in fact your burden, is to show both entitlement and reasonableness of the amount sought.
• If the parties are not present and the court transfers venue, the clerk transfers the case papers to the transferee court after the appeal period has run and sends a copy of the transmittal letter or transfer order to all parties together with information regarding costs awarded.
Costs can be addressed using the Statewide Uniform Guidelines, which divides costs into taxable costs, costs that may be taxed but are not required to be, and non-taxable costs. Your goal is to show both entitlement and reasonableness of the amount sought. The star witness for an attorney fee hearing is you.
Consider how much you are willing to do to organize your evidence, provide your witness contacts, write down a chronology (time line) of events, and generally sell yourself to your attorney, as well as the case, by appearing organized. Tell your story in the shortest possible way.
The first phase of the discovery process is the written discovery phase. During this phase, your attorney may send and receive requests to produce documents, requests for admissions of facts, and written interrogatories.
Discovery is conducted by sending written requests in a proscribed form to the opposing party specifically listing the type of discovery sought, the manner in which it will be obtained, and the time for complying with the request. Check your state and local rules for the required form of these requests.
Discovery, in the law of common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and ...
There are different standards in different circumstances. For example, in criminal cases, the burden of proving the defendant's guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt. In civil cases, the plaintiff has the burden of proving his case by a preponderance of the evidence.
depositionsOne of the most common methods of discovery is to take depositions. A deposition is an out-of-court statement given under oath by any person involved in the case. It is to be used at trial or in preparation for trial. It may be in the form of a written transcript, a videotape, or both.
The most commonly used discovery devices are depositions, interrogatories, requests for admissions, requests for production of documents, requests for inspection and e-discovery.
The Civil Discovery Act permits a party to a civil action to obtain discovery, as specified, by inspecting documents, tangible things, and land or other property in the possession of any other party to the action.
If they produce documents which prove not to be producible under R. 7-1(1), they may be guilty of breaching their client's confidence; yet if they decline to produce they may breach their duty as officer of the court.
Most civil cases are settled by mutual agreement between the parties. A dispute can be settled even before a suit is filed. Once a suit is filed, it can be settled before the trial begins, during the trial, while the jury is deliberating, or even after a verdict is rendered.
Evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant.
Vacating a Default Judgment If the defendant wins, the case will be set for a new trial. The motion's success will likely depend on whether the defendant knew about the trial date and other pertinent factors.
Depending on what stage your case is at, you might want to amend your complaint to add this.
First, you would raise this as a defense in the foreclosure case and as an affirmative allegation in your case. Second, the evidence would be submitted either through a Motion for Summary Judgment or at trial.
The key to conducting an attorney fee hearing properly is preparation. An attorney fee hearing is like a miniature non-jury trial, but it is often overlooked and underestimated as to its importance. Oftentimes attorneys come to the hearing unprepared.
Drafting your motion for attorney fees and costs is important, because that is the first time you are educating the court on the basis for awarding fees and costs. The motion needs to advise: What you are seeking (e.g. Fees, costs, or both) The legal basis for it. The court’s basis for jurisdiction.
To prepare for an attorney fee hearing, the first step is to find out what the presiding judge expects of you. That will assist you in constructing your motion, developing strategy and presenting evidence. Sometimes, your judge will have a standard order preliminary to the fee hearing.
Make sure to provide the memorandum to the court at least a few days before the hearing to make its contents meaningful for the judge by giving him ample time for review.
This is probably not a one-hour hearing. If you think you can present your evidence in an hour, it needs to be noticed for two hours, as your opposing party is to be given equal time to respond.
The star witness for an attorney fee hearing is you. Though the lead attorney for the case is not required to testify under some circumstances, you probably will present the evidence in the most effective manner. This means you may wish to have co-counsel question you. The other options are to present testimony by affidavit or to testify without co-counsel in narrative form.
Though case law does not require an attorney fee affidavit, it can be instrumental in presenting your evidence, because it forces you to assemble the key information needed.
Some attorneys charge different amounts for different types of work, billing higher rates for more complex work and lower rates for easier tasks .
Factors considered in determining whether the fees are reasonable include: The attorney’s experience and education; The typical attorney fee in the area for the same services; The complexity of the case; The attorney’s reputation; The type of fee arrangement – whether it is fixed or contingent;
A written contract prevents misunderstandings because the client has a chance to review what the attorney believes to be their agreement.
Attorney fees and costs are one of the biggest concerns when hiring legal representation. Understanding how attorneys charge and determining what a good rate is can be confusing.
Some common legal fees and costs that are virtually inescapable include: 1 Cost of serving a lawsuit on an opposing party; 2 Cost of filing lawsuit with court; 3 Cost of filing required paperwork, like articles forming a business, with the state; 4 State or local licensing fees; 5 Trademark or copyright filing fees; and 6 Court report and space rental costs for depositions.
The first step to resolving these disputes is communication . If there is a disagreement, clients and attorneys should first seek to discuss it and try to reach a mutually agreeable solution. Often, small disagreements balloon merely because both the attorney and the client avoided talking to the other out of fear.
Hourly rates have traditionally been the most common legal fee arrangement. However, as technology changes and the practice of law evolves, it is more common to see “non-traditional” fee arrangements like flat-fee packages.
As civil litigators in North Carolina know, in order to support most motions for attorney fees (pursuant to statutes that authorize them), a party must present evidence as to the time and labor expended, the skill required, the experience and ability of the attorney, and the customary fee for like work. See, e.g., Cotton v. Stanley, 94 N.C. App. 367 (1989). In turn, a court’s order awarding a fee must make findings on these issues. It is typical for the moving party to present evidence of the first three factors through affidavits from the attorneys who did the work. These affidavits often will include hourly billing statements, invoices, and similar documentation. As for the fourth factor—“customary fee for like work”–parties often present affidavits from other attorneys confirming that the fee being sought is in line with the relevant market. In recent years, however, it seems it has become more common (albeit not yet typical) for parties to forgo acquiring these outside attorney affidavits and opt instead to ask the judge to take notice of a reasonable fee. The idea is that surely a judge—having observed years of billing rates in motion after motion—will be at least as good a source as a practicing lawyer. But is resorting to the court’s own expertise a permissible way for a party to demonstrate “customary fee”?
Going forward, to avoid the issue encountered in Lynnwood, attorneys in civil cases should at least include statements about customary fees in their own fee affidavits, as the Lynnwood court suggests. Better still, where practical, attorneys should return to (if they ever left) the practice of getting colleagues from the Bar to submit supporting affidavits. It’s more work, sure, but it’s also more convincing. Not every judge will take an attorney’s own word for it. And somewhere down the line an appellate court may decide that the attorney’s own opinion on the matter is not enough.
Instead, they are equitable provisions to allow a trial court to accomplish fairness. For instance, attorney’s fees are commonly awarded where there is a significant difference in incomes between the parties, such as to a stay-at-home mom from the husband who is the “bread winner”. Because there are so many factual situations in paternity ...
Because there are so many factual situations in paternity and divorce cases (unlike other civil litigation) where it is “fair” to award attorney’s fees, the judge has wide discretion to hear evidence and make such an award.
A common statement or question from litigants relates to obtaining attorney’s fees for the expenses for their attorney in general civil litigation and divorce and paternity cases. Most of America’s laws are based on English common law.
The first is where the contract (if that is the basis of the litigation) has a provision for legal fees. Prevailing on appeal on some or all the issues may trigger an order by the Court of Appeals to awarded fees by the trial court; these must be reasonable. In divorce and paternity cases, a trial court may award appellate fees normally based on ...
Perhaps the most common civil litigation where attorney’s fees may be recovered and awarded is in paternity and divorce cases. Under the Paternity Act and the Divorce Act, the Legislature has passed laws to allow a party to seek fees in a significant departure from the American rule.
This noted, many contractual provisions, such as a lease of a car or home, have provisions that the party to the contract who “won” the litigation could recover fees. There is a constitutional right to contract and the parties to any contract may agree in the event of litigation, the prevailing party may seek fees from the trial court, so long as they are reasonable. If you are suing or being sued in contract, does your contract allow for fee recovery?
However, to ensure due process and fundamental fairness, certain statutes and, constitutional rights allow recovery of attorney’s fees. In general, civil litigation between a plaintiff and defendant, there are a few statutes based on public policy that allow recovery of attorney’s fees, such as for certain crime victims who may recover fees in ...
The plaintiff shall pay filing and other fees as otherwise provided by law to the clerk of the court to which the case is transferred, and such clerk shall process the claim as if it were a new civil action. The plaintiff shall prepare and present the order of transfer to the transferring court for entry, after which time the case shall be removed from the pending
A plaintiff initiates a civil case in the general district court by filing a pleading describing the complaint or dispute with the defendant named in the pleading and remitting all appropriate fees. Va. Code §§ 17.1-272, 16.1-69.48:2, 17.1-278, 17.1-281, and 42.1-70. All pleadings, motions, briefs, and other documents filed in the court shall be on paper eight and one-half by eleven inches in size, with certain exceptions for evidentiary items. See Rule 7A:7. Whenever a party files, or causes to be filed, with the court a motion, pleading, subpoena, exhibit, or other document containing a social security number or other identification number appearing on a driver's license, credit card, debit card, bank account, or other electronic billing and payment system, the party shall make reasonable efforts to redact all but the last four digits of the
Where such a matter is pending, if the plaintiff is seeking to increase or decrease the amount of the claim to an amount wherein the general district court and the circuit court would have concurrent jurisdiction, the court shall transfer the matter to either the general district court or the circuit court, as directed by the plaintiff, provided that such court otherwise has jurisdiction over the matter.
While a matter is pending in a general district court or a circuit court, upon motion of the plaintiff seeking to increase or decrease the amount of the claim, the court shall order transfer of the matter to the general district court or circuit court that has jurisdiction over the amended amount of the claim without requiring that the case first be dismissed or that the plaintiff suffer a nonsuit, and the tolling of the applicable statutes of limitations governing the pending matter shall be unaffected by the transfer.
Civil cases are brought to enforce, redress, or protect the private rights of an individual, organization or government entity. The remedies available in a civil action include the recovery of money damages and the issuance of a court order requiring a party to the suit to complete an agreement or to refrain from some activity. The party who initiates the suit is the “plaintiff,” and the party against whom the suit is brought is the “defendant.” In civil cases, the plaintiff must prove his case by “a preponderance of the evidence.”
The general civil jurisdiction statute for general district courts sets forth additional situations in which district courts have jurisdiction, whether it is exclusive or concurrent with the circuit courts. A court must have jurisdiction over the parties and the action in order to hear the case.
NOTE:If an original defendant whose presence created venue is dismissed after the parties are at issue, the remaining defendants may object to venue within ten days of dismissal if they can show that the dismissed defendant was not properly joined as a defendant or was added to create the venue. However, the judge may deny the request and retain the case on plaintiff’s motion and for good cause.
The issue of attorneys’ fees is often a litigation afterthought—appearing at the back of the pleadings, raised through the last witness or even after trial, and discussed at the end of the appellate opinion. It makes sense to present the merits of a case before talking about fees. But fee-shifting is becoming increasingly more available in Texas, the law more developed, and the stakes higher. Counsel cannot afford to wait until the last minute to consider the issue of attorneys’ fees.
This mindset likely comes from the idea that, in Texas, parties typically pay their own attorneys’ fees. Even recently, the Texas Supreme Court has written that “[a]s a general rule, litigants in Texas are responsible for their own attorneys’ fees and expenses in litigation.”Ashford Partners, Ltd. v. ECO Resources, Inc., 401 S.W.3d 35, 41 (Tex.
Because fee-shifting in Texas is a product of statute or contract, the individual procedures and standards vary based on the particular statutory or contractual provisions at play. Counsel should never assume that the same rules apply to proving or defending fee awards that are controlled by a different fee-shifting provision.
The notion that parties generally pay their own attorneys’ fees is well-ingrained in the minds of Texas lawyers. But the “American Rule” in Texas is increasingly being limited by statute and contract provisions that allow for fee-shifting awards in a variety of lawsuits. Counsel for clients both seeking and defending against an award of attorneys’ fees should make sure that consideration of the law and facts relevant to the fee award is not an afterthought.