On December 14 I wrote about an opinion that addressed the issue of charging fees to minors. The opinion was written by Judge Walter Kurtz, a Nashville Circuit Court judge sitting by designation on the Tennessee Court of Appeals.
I have been hearing some negative comments about this opinion. I respectfully disagree with them and submit that the opinion is not only an accurate statement of Tennessee law but is a correct result on the facts.
What upsets some lawyers is this language: "The most striking void in the record is the lack of any precise information as to the amount of time spent on the case by counsel for the plaintiff." Judge Kurtz explained further in this footnote: "Courts and commentators have observed that time records – time spent on the case – are “central” to the calculation of attorney’s fees." [Citations omitted.]
I suggest that lawyers should instead focus on what was not before the Court of Appeals. The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent. Nor did he introduce into evidence any information relevant to the RPC 1.5(a) factors that govern fees issues. Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.
I am not saying that this lawyer is not entitled to a one-third fee. Judge Kurtz did not say this lawyer was not entitled to a one-third fee. What Judge Kurtz said is that there was not sufficient evidence in the record to justify a one-third fee.
The message to lawyers is clear: make a record. To be sure, a local trial judge knows who you are and probably takes into account the RPC 1.5(a) factors in reaching a decision on fee requests. But an appellate court is forced to look only at the record. And the absence of information in the record will cause a significant problem on appeal.
How do you make a record? The safest way to do so is to have contemporaneous time-keeping in any case where a fee must be approved. The needs to be introduced into evidence via an affidavit, and that affidavit needs to address the other fee factors. Counsel may want to introduce the affidavit of another lawyer familiar with fees charged in similar cases and the claimant’s "experience, reputation, and ability." To be sure, it is difficult to "toot your own horn," but the evidence needs to be in the record.
One last related point. We lawyers need to do a better job helping judges understand the cost of running a law office. I will address that subject in a later post.