Guidelines for Attorney Fees Assessment in Georgia State Court
Understanding the principles and statutes governing attorney fees in Georgia State Court, including O.C.G.A. codes 13-6-11, 13-1-11, and 9-15-14. Details on expert testimony requirements, allocation issues, and evidentiary basis for fee assessments. Tips on establishing the evidentiary basis, value, and need for attorney fees. Emphasis on avoiding frivolous litigation fees and implications for unsuccessful claims.
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Attorneys Fees Judge Wayne M. Purdom State Court DeKalb County, Georgia October 16, 2019 Council of State Court Judges
Citations Citations are in the materials are in the materials Talk covers: Broad conclusions of important principles Special concerns of trial judges
Generally Applicable Principles Generally Applicable Principles O.C.G.A. 13-6-11 O.C.G.A. 13-1-11 (unlike others) O.C.G.A. 9-15-14
Materials Discovery O.C.G.A. 9-11-68: (1) Offers of Judgment (2) O.C.G.A. 9-15-14, 51-7-80 tried to jury
Generally Applicable Principles Generally Applicable Principles O.C.G.A. 13-6-11 O.C.G.A. 13-1-11 (unlike others) O.C.G.A. 9-15-14
Attorney fees are based on statute or contract Some contractual provisions are controlled by OCGA 13-1-11, Some aren t
Most fees are unliquidated Require expert opinion testimony Right to hearing unless waived: If pled, waiver explicit If by motion, Rule 6.3 may implicitly waive. CAUTION 9-15-14 especially
Allocation a big issue Improper conduct fees related to conduct Frivolous litigation fees can t reach unsuccessful claims BIG cause of reversals
Evidentiary Basis Value and need Broad statements regarding tasks performed may lack sufficient particularity Reasonable and customary (compared to others of similar experience); need and quality comes into play Hourly statements are generally best, but they are neither always needed, nor always sufficient Statements may not be sufficient either to show the work was called for, or that it related to compensable work Ignore old hearsay analysis new Evidence Code
Generally Applicable Principles Generally Applicable Principles O.C.G.A. 13-6-11 O.C.G.A. 13-1-11 (unlike others) O.C.G.A. 9-15-14
3 Grounds From the underlying events: Bad Faith Facts causing liability, How Defendant acted to Plaintiff, After the underlying events, handling the case: Stubborn Litigiousness Unnecessary trouble and expense
Tort and contract Plaintiffs, Includes plaintiffs in (independent) counterclaims Specially pled Jury trial unless explicitly waived or SJ
Standard for SJ and DV and JNOV Never grant for claimant Any evidence? Only rare case where there was absolutely no evidence to support All reasonable inferences But wait de novo review +
Bad faith even slight evidence enough Court should grant SJ if no evidence of bad faith If more than one inference, leave to jury Bona fide controversy irrelevant I think of punitives with lower standard of proof, when in doubt JNOV Other 2 bona fide controversy usually precludes finding of fees Is it a question of: fact, applying law to facts, or evaluating law? I err on side of presenting to jury, sometimes in second phase.
Spoliation justifies trouble & expense with no BFC defense Special case BFC only for damages Raising at trial of a dispute as to the amount of liability, without more not BFC, but apply gingerly Fact of settlement offers and (non) response, not amount Naked Contingency fee opinions need a fig leaf Allocation issues here, too; hard to apply with jury Fees only to prevailing claims lump sum not enough
IF denied: Summary Judgment issues will appear again at Directed Verdict and JNOV
Default Judgment Tension between Covington Square analysis and Fresh Floors holding Fresh Floors says if 2 & 3 are pled, must award Covington Square says may means may, always discretionary How is not answering stubbornly litigious? Don t apply Fresh Floors when Defendant appears, can contradict, get jury trial Practice Tips 2 samples Amended complaints are denied and not effective unless personally served.
Generally Applicable Principles Generally Applicable Principles O.C.G.A. 13-6-11 O.C.G.A. 13-1-11 (unlike others) O.C.G.A. 9-15-14
Evidence of Indebtedness Broadly construed, including leases of all types: we hold that the term evidence of indebtedness, as used in OCGA 13-1-11, has reference to any printed or written instrument, signed or otherwise executed by the obligor(s), which evidences on its face a legally enforceable obligation to pay money. Radio Shack Residential lease must be reciprocal Exceptions: Personal services, including legal; Real estate listings; Homeowners Associations Declaration (look at on other contracts).
Notice (1) be in writing, (2) to the party sought to be held on the obligation, (3) after maturity, (4) that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced, and (5) that the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees. Substantial compliance all that is needed When recovery less than demand, see citations in Textile Rubber and Chem. Co. v. Thermo-Flex Tech., 308 Ga. App. 89 (1b) (2011). From memory Notice can be given in complaint, good after 10 days
Fees are liquidated if other damages are Liability is a jury trial issue, but usually facts undisputed Fees are based on other damages per formula Reasonable = 10% plus + $25 Amount in contract up to 15% actually incurred, you incur Hamilton State Bank v. Kelly Capital Investments, LLC, 335 Ga. App. 252, 265, 779 S.E.2d 757, 767 (2015). $20,000 defendant may petition for hearing, then reasonable
Never for a tort tort claim can arise out of contractual relations Must be collected by attorney
Generally Applicable Principles Generally Applicable Principles O.C.G.A. 13-6-11 O.C.G.A. 13-1-11 (unlike others) O.C.G.A. 9-15-14
2 Grounds, one Defense a) Objective standard complete absence of any justiciable issue of law or fact shall Can t believe reasonable lawyer In assessing fee to party or attorney, be just c) Related defense Good faith effort to extend law some recognized precedential or persuasive authority
Section (b) may assess These standards are at least mostly a subjective standard based on your factual finding of improper motive less clear substantially frivolous, substantially groundless. Specifically says the court may raise sua sponte CAUTION if raising it yourself: 1. notice and 2. right to an evidentiary hearing.
Civil action Civil action Parties Parties - - Time Time O.C.G.A. 9-15-14 may not be used by non-party Can t be claimed by pro se party What that means varies by statute Can be raised any time until 45 days after judgment Can also be raised in post-judgment proceedings
Findings of fact Findings of fact Required only when granting fees Doesn t mean evidence standard is any different (flip side on 9-11-68) FTA does not establish grounds for award
Findings of Fact, continued When awarding: Findings should include: Standard that was met (reference to subsection being applied) Reasonableness of fees, Parts of the representation for which fee is awarded, Basis of allocation of fees to the parts of representation where conduct was improper or objectively unreasonable, Clear demarcation of findings of fact
Standard of Review Any evidence standard: ordinarily is marked by deference but when an assessment of the state of the law at the time a party advanced a legal argument - no deference
Practice Tips Don t dispense with evidentiary hearing except maybe certain denials Can consider matters arising after motion filed Can clarify proof of amount through questioning Credibility issues Fairer Attorney for respondent may be conflicted
More Tips If a fee award is made after a voluntary dismissal, the requirement to pay the award before re-filing the case may motivate plaintiff to challenge that award. If you award all the attorney fees movant asks for, you re more vulnerable to a challenge. While you generally can t award more money than supported by expert opinion, you can reduce it based on your experience; When you re finding facts, you can be strict on showing.
OCGA 51-7-80 et seq. Extra damages Requires malice, notice special defense If court of record and only expenses of litigation and reasonable attorney's fees, use 9-15-14 Motion under 9-15-14 doesn t preclude extra damages bit is conclusive as to the issues resolved therein.
Citations Hamilton State Bank v. Kelly Capital Investments, LLC, 335 Ga. App. 252, 265, 779 S.E.2d 757, 767 (2015) Off topic evidentiary hearings in spoliation hearings Cooper Tire & Rubber Company v. Koch, 303 Ga. 336, 812 S.E.2d 256 (2018). Anthem Companies, Inc. v. Wills, 305 Ga. 313, 316, 823 S.E.2d 781, 784 (2019).
