Courts rarely allow significant time for fee considerations, and frequently counsel for the impecunious spouse feels shortchanged in the award of attorney's fees, suit monies, and costs. Most judges, who were for the most part practicing attorneys before ascending to the bench, believe that they know how to assess the reasonableness and necessity of fees and, more frequently than not, are capable of doing so in the ordinary or run-of-the-mill divorce case involving no unique issues or unusual time demands. However, where extraordinary time is required, either due to the uniqueness of the issues or the recalcitrance of the opposing party, having an attorney testify as to the reasonableness and necessity of legal services performed and suit monies and costs expended can be of great assistance to the court and the party seeking recovery.
Family Advocate: Outstanding Financial Experts (Buy Issue)In matrimonial litigation, it is generally accepted that the spouse with the greater assets or income bears the burden of his or her own fees, suit monies, and costs, as well as those of the less monied spouse to ensure an even playing field in such controversies.

The expert should be an attorney who has practiced extensively in the matrimonial field and is knowledgeable and competent in such controversies. Credentials, such as state specialty certification, active membership in the ABA Section of Family Law, and Fellowship of the American Academy of Matrimonial Lawyers or a Diplomate of the American College of Family Trial Attorneys can help immeasurably.

The expert can examine each hour spent and determine its necessity in detail. Such analysis is, for the most part, beyond the time constraints of the court. The expert should examine thoroughly the attorney's file, review the court file, and peruse the exhibits and deposition transcripts. The expert may also confer with opposing counsel as to his or her views and time records. Then the expert can articulate the number of hours expended, the complexity of the issues, the difficulty caused by the opposing side, and provide a detailed conclusion as to the amount of fees that are reasonable and the suit monies and costs that were required.

Although the conclusion of the attorney's fees expert is not binding on the court, a detailed analysis is helpful and usually persuasive in helping the court reach a fair and equitable conclusion. The expert's opinion gives the court a basis from which to rule and helps to support the court's conclusion.

The court's discretion

A witness fee for the expert should be similar to fees for any other expert witness, and generally such fees are at the court's discretion. Certainly fees should be awarded in the exceptional case where the time required for preparation and testifying is burdensome. However, as one justice of the Florida Supreme Court articulated:

It is rather clear that the majority of the Court expects lawyers who are called upon to testify as to a reasonable attorney's fee to testify without charge. I too feel that as of?cers of the Court lawyers have a strong obligation to the profession and to the judiciary as a courtesy to do the necessaries so that the trial court has the requisite competent evidence to determine reasonable fees where such are to be awarded by the court. While I am of the opinion that a lawyer so testifying is entitled absolutely under the statute to an expert witness fee, I would nonetheless hope that these professional courtesies that over the years lawyers traditionally extended to each other in this area do not go the way of the five cent cigar and the nickel Baby Ruth and Hershey bar.

Justice Ray Erlich in concurring opinion in Travieso v. Travieso, 474 So.2d 1184, 1187 (Fla. 1985). FA

Melvyn B. Frumkes practices family law with Frumkes & Associates in Miami, Florida. Jack A. Rounick practices family law with Flamm, Boroff and Bacine in Blue Bell, Pennsylvania. Both are members of the Family Advocate Editorial Board.

Published in Family Advocate, Volume 29, No. 4, Spring 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.