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Attorney Fees in Civil Cases Mark Weidemaier. District Court Judges Fall Conference September 29 – October 1, 2004. G.S. 6-21.1 Type of suit Personal injury, “property damage” Insured/beneficiary v. insurance co. if unwarranted refusal to pay claim if

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Attorney fees in civil cases mark weidemaier

Attorney Fees in Civil Cases

Mark Weidemaier

District Court Judges Fall ConferenceSeptember 29 – October 1, 2004


Attorney fees in civil cases mark weidemaier

  • G.S. 6-21.1

    • Type of suit

      • Personal injury, “property damage”

      • Insured/beneficiary v. insurance co. if unwarranted refusal to pay claim

      • if

      • “Judgment for recovery of damages” is $10,000 or less

    • To whom?

      • Attorney for “litigant obtaining a judgment for damages”


Required findings

Whether to award fees

Reasonableness of fee award

Required findings:


Required findings1

Whether to award fees:

Settlement offers before action instituted

Offers of judgment, and whether “judgment finally obtained” was more favorable

Whether defendant unjustly exercised superior bargaining power

Context in which the dispute arose (in suits against insurer)

Timing of settlement offers

Amount of any settlement offers compared to jury verdict

Required findings:


Required findings2

Reasonableness of fee:

time and labor expended

the skill required

customary fee for like work

the experience or ability of the attorney

Required findings:


Defining judgment for the recovery of damages

P sues D for injuries after automobile accident. Jury verdict for P:

$8500 in compensatory damages

$2500 in punitive damages

Defining “judgment for the recovery of damages” . . .

“Judgment for the recovery of damages <= $10000?


Defining judgment for the recovery of damages1

P sues D for injuries after automobile accident. Jury verdict for P:

$8500 in compensatory damages

$2500 in punitive damages

Defining “judgment for the recovery of damages” . . .

“Judgment for the recovery of damages <= $10000?

YES


Defining judgment for the recovery of damages2

Jury verdict for P: verdict for P:

$8500 in compensatory damages

$2500 in punitive damages

Assume P also receives:

$1000 in prejudgment interest (G.S. 24-5)

$750 in taxable costs

Defining “judgment for the recovery of damages” . . .

“Judgment for the recovery of damages” <= $10000?


Defining judgment for the recovery of damages3

Jury verdict for P: verdict for P:

$8500 in compensatory damages

$2500 in punitive damages

Assume P also receives:

$1000 in prejudgment interest (G.S. 24-5)

$750 in taxable costs

Defining “judgment for the recovery of damages” . . .

“Judgment for the recovery of damages” <= $10000?

YES


Judgment for the recovery of damages

Computing: verdict for P:

Contemplates only compensatory damages

Includes prejudgment interest but probablynot discretionary costs

“Judgment for the recovery of damages” . . .


Who is entitled to recover
Who is entitled to recover . . .? verdict for P:

P sues D for breach of termite inspection contract, alleges $5000 damage to home. Verdict for P = $5000. P moves for fees. D objects that suit is not a “personal injury or property damage suit.”

May court award fees?


Who is entitled to recover1
Who is entitled to recover . . .? verdict for P:

P sues D for breach of termite inspection contract, alleges $5000 damage to home. Verdict for P = $5000. P moves for fees. D objects that suit is not a “personal injury or property damage suit.”

May court award fees?

NO


Attorney fees in civil cases mark weidemaier

No fees in breach of contract cases. verdict for P:

Negligent performance of contract?

injury occurs to person or property of someone other than promisee

personal injury to promisee, or other property of promisee damaged

promisor owed duty as a matter of law (common carriers)

willful injury or conversion


Who is entitled to recover2
Who is entitled to recover . . .? verdict for P:

After car accident, P sues D for personal injury. D counterclaims for damage to car. Jury finds P was negligent and awards D $2500.

Is D entitled to fees?


Who is entitled to recover3
Who is entitled to recover . . .? verdict for P:

After car accident, P sues D for personal injury. D counterclaims for damage to car. Jury finds P was negligent and awards D $2500.

Is D entitled to fees?

YES


Attorney fees in civil cases mark weidemaier

  • What fees may D recover? verdict for P:

    • Not entirely clear; best rule:

      • Counterclaim only, unless

      • Work overlaps; work on defense furthers counterclaim


G s 6 21 1 summary

Computing verdict for P:

Contemplates only compensatory damages

Includes prejudgment interest but probablynot discretionary costs

To whom?

includes counterclaims (attorney for “litigant obtaining a judgment for damages”)

For what?

Prosecuting successful claims only, unless work overlaps with or furthers successful claim

G.S. 6-21.1 summary


Rule 68 offer of judgment

Permits party defending against a claim to make an offer of judgment for specified amount, “with costs then accrued.” If “judgment finally obtained” is not more favorable than offer, “the offeree must pay the costs incurred after the making of the offer.”

Rule 68 Offer of Judgment


Attorney fees in civil cases mark weidemaier

Rule 68 – steps: judgment for specified amount, “with costs then accrued.” If “judgment finally obtained” is not more favorable than offer, “the offeree must pay the costs incurred after the making of the offer.”

  • Calculate “judgment finally obtained”

  • Determine amount of offer

  • Compare “judgment finally obtained” to offer

  • If “judgment finally obtained” is not more favorable, plaintiff pays costs incurred after offer


Rule 68 what is the judgment finally obtained

P declines offer of “$5000 inclusive of any and all costs, fees, and interest.” Jury returns verdict awarding P $500.

At time of offer, P’s court costs were $200 and accrued interest was $50

After trial, P’s costs total $500 and accrued interest is $100

What is the “judgment finally obtained by P?”

Rule 68: What is the “judgment finally obtained” . . .?

$500

$750

$1100


Rule 68 what is the judgment finally obtained1

P declines offer of “$5000 inclusive of any and all costs, fees, and interest.” Jury returns verdict awarding P $500.

At time of offer, P’s court costs were $200 and accrued interest was $50

After trial, P’s costs total $500 and accrued interest is $100

What is the “judgment finally obtained by P?”

Rule 68: What is the “judgment finally obtained” . . .?

$500

$750

$1100 (for now)


Rule 68 what is the judgment finally obtained2

P declines offer of “$5000, inclusive of any and all costs, fees, and interest.”

Verdict = $500

Court costs = $500

Prejudgment interest = $100

P seeks attorney fee of $5000.

Is “judgment finally obtained” > offer?

Rule 68: What is the “judgment finally obtained” . . .?


Rule 68 what is the judgment finally obtained3

P declines offer of “$5000, inclusive of any and all costs, fees, and interest.”

Verdict = $500

Court costs = $500

Prejudgment interest = $100

P seeks attorney fee of $5000.

Is “judgment finally obtained” > offer?

Rule 68: What is the “judgment finally obtained” . . .?

Y, if fees are awarded


Rule 68 steps

1. Calculate “judgment finally obtained” costs, fees, and interest.”

Includes verdict + court costs and interestaccrued before and after offer

Includes pre- and post-offer attorney fees (if awarded)

Rule 68 – steps:


Rule 68 determine amount of offer

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

Rule 68: Determine amount of offer . . .


Rule 68 determine amount of offer1

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

Rule 68: Determine amount of offer . . .

$1800


Rule 68 steps1

1. Calculate “judgment finally obtained” accrued as of the date of this offer.”

Includes verdict + costs and interest accrued before and after offer

Includes pre- and post-offer attorney fees.

Determine amount of offer

Is offer for a lump sum?

Rule 68 – steps:


Rule 68 steps2

1. Calculate “judgment finally obtained” accrued as of the date of this offer.”

Includes verdict + costs and interest accrued before and after offer

Includes pre- and post-offer attorney fees.

Determine amount of offer

Is offer for a lump sum?

“$5000 for all damages, attorney fees taxable as costs, and the remaining costs accrued at the time this offer is filed.”

“$5000 together with all costs then accrued.”

Rule 68 – steps:


Rule 68 steps3

1. Calculate “judgment finally obtained” accrued as of the date of this offer.”

Includes verdict + costs and interest accrued before and after offer

Includes pre- and post-offer attorney fees.

Determine amount of offer

Is offer for a lump sum?

“$5000 for all damages, attorney fees taxable as costs, and the remaining costs accrued at the time this offer is filed.”

“$5000 together with all costs then accrued.”

Rule 68 – steps:

Y


Rule 68 steps4

1. Calculate “judgment finally obtained” accrued as of the date of this offer.”

Includes verdict + costs and interest accrued before and after offer

Includes pre- and post-offer attorney fees.

Determine amount of offer

Is offer for a lump sum?

“$5000 for all damages, attorney fees taxable as costs, and the remaining costs accrued at the time this offer is filed.”

“$5000 together with all costs then accrued.”

Rule 68 – steps:

Y

N


Rule 68 compare j f o to offer

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What is “judgment finally obtained?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800


Rule 68 compare j f o to offer1

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What is “judgment finally obtained?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$2100


Rule 68 compare j f o to offer2

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What is “judgment finally obtained?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$2100


Rule 68 compare j f o to offer3

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What is “judgment finally obtained?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$2100


Rule 68 compare j f o to offer4

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What is “judgment finally obtained?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$2100


Rule 68 compare j f o to offer5

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What is “judgment finally obtained?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$2100


Rule 68 compare j f o to offer6

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What if court does not award fees?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800


Rule 68 compare j f o to offer7

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What if court does not award fees?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$1100


Rule 68 compare j f o to offer8

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What if court does not award fees?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$1100


Rule 68 compare j f o to offer9

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What if court does not award fees?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$1100


Rule 68 compare j f o to offer10

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

What if court does not award fees?”

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$1100


Rule 68 compare j f o to offer11

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

Rule 68: Compare “J.F.O.” to offer . . .

$1800

So, how much will judgment actually be?


Rule 68 compare j f o to offer12

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$800

So, how much will judgment actually be?


Rule 68 compare j f o to offer13

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$800

So, how much will judgment actually be?


Rule 68 compare j f o to offer14

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$800

So, how much will judgment actually be?


Rule 68 compare j f o to offer15

P declines offer of “$1000, plus costs, interest, and fees accrued as of the date of this offer.”

Verdict is $500, plus:

$500 in court costs ($250 pre-offer)

$100 interest ($50 pre-offer)

$1000 attorney fee ($500 pre-offer)

How much is offer?

Rule 68: Compare “J.F.O.” to offer . . .

$1800

$800

So, how much will judgment actually be?


Rule 68 steps5

1. Calculate “judgment finally obtained” accrued as of the date of this offer.”

Includes verdict + costs and interest accrued before and after offer

Includes pre- and post-offer attorney fees (if awarded)

Determine amount of offer

Is offer a lump sum offer?

3. Is “judgment finally obtained” more favorable than offer?

If no, plaintiff pays costs incurred after offer

May still recover pre-offer interest, costs, and fees (if awarded)

Rule 68 – steps:


Appeal

Stays further proceedings in trial court “upon the judgment appealed from, or upon the matter embraced therein.” G.S. 1-294.

Likely divests court of jurisdiction to consider fees motion (see handout)

Possible exception where motion filed after rendition of judgment, but before entry

Fees are generally available for appeal & post-trial motions

Appeal