After 62 Years, Florida Appeals Court Drops the Expert Witness Rule on Attorney Fees

Just over three years ago, Florida lawmakers effectively ended one-way attorney fees, disincentivizing much of the costly property insurance claims litigation that had plagued the industry.

Last week, a Florida appeals court issued what it called a “sea change” and long-overdue decision—one that could further reduce insurers’ defense costs and streamline at least some lawsuits and appeals. The 6^th District Court of Appeals, covering part of south-central Florida, threw out a 62-year-old court practice that had required expert witnesses to testify and courts to hold hearings on the level of fees that should be awarded.

The court’s opinion “is strong, well-reasoned, and compelling. I hope other DCAs follow it,” said Matt Lavisky, an insurance defense attorney with the Butler Weihmuller law firm, in Tampa.

Lawyers on both sides of the claims litigation divide said the fee-expert and hearing practice, which was never required by Florida statute and is not followed in federal courts, is unnecessary, time-consuming and costly. As the 6^th DCA court said in its March 20 opinion, judges themselves can decide fees, based on their own wisdom and briefs filed by counsel.

“I often wondered why we needed experts to tell judges (most of whom have practiced for many years) how to rule on attorney’s fees and costs,” said Lynn Brauer, a Miami plaintiffs’ attorney.

Brauer has served as an expert on fees, and she ended up feeling like the arguments she made could have been done through court filings.

Lavisky, a former president of the Florida Defense Lawyers Association, pointed out that the requirement had led to a cottage industry of people who testify as fee experts and ask for exorbitant hourly rates to do so.

“The party seeking the fees never pays it. Instead, it is requested as a taxable cost against the opposing party,” he said in an email. “Thus, the threat of cost of the fee expert becomes a leverage point to negotiate an unreasonable fee.”

Before the 2022 legislative changes, insurance industry advocates often gave examples of claims lawsuits that ended with five-digit awards for plaintiff policyholders but six-figure attorney fees, paid by insurance companies. Judges often based those fee awards on expert testimony and fee multipliers that added thousands of dollars due to various circumstances, such as the plaintiffs’ reported difficulty in finding legal representation.

Attorneys’ fees “seem to drive some litigation where the underlying dispute pales in comparison to the potential of a fee award,” the court wrote, quoting from the 4^th District Court of Appeals in a 2010 case.

It turns out that many of the testifying “experts” are simply friends of the attorneys in the case, the 6^th District opinion noted. But judges don’t need that and can gain enough competent information from the lawyers involved in a case, along with billing records, affidavits and other documentation, the court said.

“There was never any legal basis for the expert testimony requirement, or the requirement for universal evidentiary hearings to which it led, and these judicially invented requirements have caused the misspent expenditure of hundreds of thousands if not millions of hours of time by attorneys and judges across our state since their wrongful inception,” 6^th District Judge Joshua Mize wrote in the opinion. “It is long overdue for these errors to be corrected, and we do so today.”

The court noted that its opinion is now in conflict with at least 37 decisions from other Florida appeals courts over the last six decades, including those in five insurance cases. If other appellate courts follow suit and abandon the practice, it will mean statewide changes for insurance companies and for plaintiffs in how they manage fees and fee disputes, said Michael Packer, a Fort Lauderdale-based insurance defense attorney with the Marshall Dennehey law firm.

The 6^th District’s opinion, which came in a mortgage foreclosure case, does not forbid expert witnesses or hearings if they are deemed necessary. Those may still be requested by either side, the court said.

“We may continue to see parties utilizing experts to support fee claims or parties utilizing expert witnesses to support their position that the amount of fees sought is excessive or that a fee multiplier is not appropriate,” Packer said. “I would expect that practice to continue in larger, more complex cases or where the fees being sought are significant or a fee multiplier is sought.”

The 6^th District judges tracked the origins of the fee-expert requirement to a 1964 2^nd District Court of Appeals’ decision known as Lyle vs. Lyle. That court’s rationale was that attorneys claiming fee awards may have a vested interest in inflating the time and hourly rates involved, and an outside perspective was needed.

But that 1964 decision cited no legal authority. And while several appellate decisions through the years have questioned the need for fee experts, most have followed the precedent. The exception has been in workers’ compensation cases, the 6^th District opinion explained.

The appeals court noted that trial judges could now use some guidance on the issue, and suggested that the Florida Supreme Court consider amending the official rules of civil procedure to spell out how lawyers should justify, document or oppose requests for fee awards.

Topics Florida