The 6th District Court of Appeals covering part of south-central Florida eliminated a 62-year-old court practice requiring expert witnesses to testify on attorney fee awards in a March 20 decision. The appellate court called the ruling a “sea change” that could reduce insurers’ defense costs and streamline lawsuits and appeals. The practice had never been required by Florida statute and is not followed in federal courts.
“It is long overdue for these errors to be corrected, and we do so today,” 6th District Judge Joshua Mize wrote in the opinion. The court noted its decision conflicts with at least 37 decisions from other Florida appeals courts over the last six decades, including those in five insurance cases. Mize wrote that the 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.”
“I hope other DCAs follow it,” said Matt Lavisky, an insurance defense attorney with the Butler Weihmuller law firm in Tampa. 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. “The party seeking the fees never pays it. Instead, it is requested as a taxable cost against the opposing party,” he said. “Thus, the threat of cost of the fee expert becomes a leverage point to negotiate an unreasonable fee.”
“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 and ended up feeling like the arguments she made could have been done through court filings. The court noted that many of the testifying “experts” are simply friends of the attorneys in the case, but judges can gain enough competent information from the lawyers involved along with billing records and affidavits.
Before 2022 legislative changes, insurance industry advocates often cited examples of claims lawsuits that ended with five-digit awards for plaintiff policyholders but six-figure attorney fees paid by insurance companies. “Attorneys’ fees seem to drive some litigation where the underlying dispute pales in comparison to the potential of a fee award,” the court wrote, quoting from the 4th District Court of Appeals in a 2010 case. Judges often based those fee awards on expert testimony and fee multipliers that added thousands of dollars due to various circumstances.
The 6th District judges tracked the origins of the fee-expert requirement to a 1964 2nd District Court of Appeals decision known as Lyle vs. Lyle. That court’s rationale was that attorneys claiming fee awards may have a vested interest in inflating the time and hourly rates involved, and an outside perspective was needed. However, that 1964 decision cited no legal authority, and while several appellate decisions through the years have questioned the need for fee experts, most have followed the precedent.
Michael Packer, a Fort Lauderdale-based insurance defense attorney with the Marshall Dennehey law firm, said if other appellate courts follow suit and abandon the practice, it will mean statewide changes for insurance companies and plaintiffs in how they manage fees and fee disputes. The 6th District’s opinion does not forbid expert witnesses or hearings if they are deemed necessary, and those may still be requested by either side. “We may continue to see parties utilizing experts to support fee claims or parties utilizing expert witnesses to support their position that the amount of fees sought is excessive or that a fee multiplier is not appropriate,” Packer said. “I would expect that practice to continue in larger, more complex cases or where the fees being sought are significant or a fee multiplier is sought.”