EXPERT’S REVIEW OF FILE AND BILLS
Before getting into a costly and possibly futile fee dispute with an attorney, a client may wish to hire an attorney expert witness to review the file as well as to review the bills in order to give the client a preliminary opinion on whether or not the fees were reasonable and necessary. Based on that expert opinion, a client can then decide whether to go into fee arbitration, work out a settlement, or proceed with litigation. The expert will then be available to testify on the client’s behalf as an expert witness at trial.
A collection action by an attorney may generate a cross-complaint for legal malpractice, or, at least the client may threaten to file a cross-complaint if the attorney proceeds with a collection action. The attorney’s collection lawsuit may at least be met with an answer containing an affirmative defense of an offset or an actual cross-complaint for legal malpractice (whether justified or not). Such claims can be made in bad faith. Such claims often have no basis in fact, but the client has gotten in over his head and is looking for a potential easy way out. (Of course, there are some cases where there are legitimate disputes about the quality of legal services. An attorney expert witness on the subject of standard of care is required for that.)
The clients are also aware (or may be advised by counsel) that an attorney will have to report such a cross-complaint to his or her malpractice carrier and the insurance policy will likely have a deductible. Thus, the threat of a malpractice claim is designed to scare the attorney into giving up his or her claim for fees.
Of course, attorneys make mistakes from time to time (like everyone else) and that is why they have professional liability insurance. The highest percentage of claims made against attorneys is based on a failure to file legal papers such as a complaint or an answer on time (by the due date or deadline). When this happens, the client’s claim maybe lost (or be barred by the statute of limitations) or his default may be taken. The percentage of these types of claims is around 30%. Mallen, “Legal Malpractice” (1995 4th Ed.) §6.9, p. 417.
THE AMERICAN RULE
Under “the American Rule”, each side is required to bear his, her or its own attorneys fees. Trope v Katz (1995) 11 Cal.4th 274, 276. “The American Rule” is followed in California. California Code of Civil Procedure § 1021. See Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311. Notwithstanding the American Rule, the parties themselves may agree that in all disputes arising out of the contract, the “prevailing party” will be entitled to his or her attorney’s fees. See Calif. Civil Code § 1717. Be sure to check your legal services agreement for an attorney’s fees provision.
FEE SHIFTING STATUTES
There also may be laws which “shift the fees” to the other party, such as in family law (California Family Code §§ 2030, 271 or 1101), elder financial abuse (California Wel. & Inst. Code § 15657.5 – one-way in favor of successful plaintiffs, anti-SLAPP motions (CCP § 425.16), etc. There also may be attorney fees awards based on judicially recognized legal theories such as “private attorney general,” “common fund doctrine,” or “tort of another.”
WRITTEN FEE AGREEMENT
Under California law, if the attorneys fees are expected to exceed more than $1,000, there must be a written fee agreement. Bus. & Prof. Code § 6148. If there is no written legal services agreement, then the attorney’s fee recovery is limited to the reasonable value of his or her services also known by the Latin phrase “quantum meruit.” Such fees could result in an award less than the fees provided for in a written fee agreement.
MICHAEL G. WATTERS, ESQ.
Michael G. Watters, Esq. is available to represent a party in fee disputes themselves or act as an expert witness in a fee arbitration or at trial.
Watters has been the Head of the Litigation Department of his Santa Rosa based law firm since its founding in 1982. He has also been the firm’s Managing Partner for many years. Over his legal career, he has reviewed thousands of pre-bills in thousands of cases. He has also handled fee disputes up to and including mandatory fee arbitration. He has been an expert witness in a significant fee dispute. See attached redacted copy of her testimony in that case. He has handled collection actions as well as malpractice claims.
As an active civil litigator, he has also handled many different kinds of civil cases from “A-Z” and “soup to nuts.” He has extensive jury and court trial as well as appellate case experience. (He was in trial approximately 250 days between 2009-2015.)
He is also an expert in reviewing files and bills and is available for such expert witness assignments throughout California.
He has considerable experience in professional liability cases and is also a “standard of care expert” in legal malpractice cases. (See CACI 600 and following.) (Judicial Council of California, Civil Jury Instructions.)