Just over three years ago, Florida lawmakers effectively ended one-way attorney fees, disincentivizing much of the costly property insurance claims li
tigation that had plagued the industry. But fees can still be awarded to either side in a lawsuit, in a process that involves hiring expert witnesses to testify on the appropriate amount.
Last week, a Florida appeals court issued what it called a “sea change” and long-overdue decision—one that could reduce insurers’ defense costs and streamline at least some lawsuits and appeals. The 6th Distric
t Court of Appeals, covering part of south-central Florida, threw out the 62-year-old court practice that had required expert witnesses and court hearings,.
The court’s opinion “is strong, well-reasoned, and compelling. I hope other DCAs follow it,” said Matt Lavisky, an insurance defense attorney with the Butler Weihmuller law firm, in Tampa.
Lawyers on both sides of the claims litigation divide said the fee-expert and hearing practice, which was never required by Florida statute and is not followed in federal courts, has been time-consuming, costly and un
necessary. As the 6th DCA court said in its March 20 opinion, judges themselves can decide fees, based on their own wisdom and briefs filed by counsel.
“I often wondered why we needed experts to tell judges (most of whom have practiced for many years) how to rule on attorney’s fees and costs,” said Lynn Brauer, a Miami plaintiffs’ attorney.
Brauer has served as an expert on fees, herself, and she ended up feeling like the arguments she made could have been done through court filings.
Lavisky, a former president of the Florida Defense Lawyers Association, pointed out that the requirement had led to a cottage industry of people who testify as fee experts and ask for exorbitant hourly rates to do so.
“The party seeking the fees never pays it. Instead, it is requested as a taxable cost against the opposing party,” he said in an email. “Thus, the threat of cost
of the fee expert becomes a leverage point to negotiate an unreasonable fee.”
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Before the 2022 legislative changes, insurance industry advocates often gave examples of claims lawsuits that ended with five-digit awards for plaintiff policyh
olders but six-figure attorney fees, paid by insurance companies. Judges often based those fee awards on expert testimony and fee multipliers that added thou
sands of dollars due to various circumstances, such as the plaintiffs’ reported difficulty in finding legal representation.
Attorneys’ fees “seem to drive some litigation where the underlying dispute pales in comparison to the potential of a fee award,” the 6th District court wrote, quoting from the 4th District Court of Appeals in a 2010 case.
It turns out that many of the testifying “experts” are simply friends of the attorneys in the case, the 6th District opinion noted. But judges don’t need that and c
an gain enough competent information from the lawyers involved in a case, along with billing records, affidavits and other documentation, the court said.
“There was never any legal basis for the expert testimony requirement, or the requirement for universal evidentiary hearings to which it led, and these judicially invented requirements have caused the misspent expenditure of hundreds of thousands if not millions of hours of time by attorneys and judges across our state since their wrongful inception,” 6th District Judge Joshua Mize wrote in the opinion. “It is long overdue for these errors to be corrected, and we do so today.”
