LEGAL FEE REASONABLENESS AT TRIAL
1st edition (2014)
Kenneth Moscaret, Esq.
This new trial resource for California attorneys (8½" x 11" downloadable/printable PDF e-book, which we call a "mini-handbook") is grounded in the California Rules of Professional Conduct, mainly Rule 4-200, the ethical rule for attorneys in California that relates to legal fee reasonableness.
This mini-handbook is particularly designed for California litigators in cases where legal fees of $250,000 or less are being claimed as damages, where fee reasonableness must be proven at arbitration or trial, and the cost of retaining a testifying fee expert may not be justified. It offers expert guidance on proving up the reasonableness of legal fees at an affordable price.
We encourage you to scroll down to read the explanatory information below first to answer any questions you may have about the California mini-handbook, then to click on the thumbnail image for a sneak peek at its contents. You can place an order at the bottom of this page.
Introduction to the California Mini-Handbook
Many legal fee cases in California are too small to justify the cost of retaining an expert to testify about fee reasonableness (or lack thereof) at arbitration, trial, or mediation. Yet a party seeking to recover legal fees as damages in any litigated matter in California must be able to demonstrate fee reasonableness to a judge, jury, arbitrator, or mediator, just as the party opposing the claimed fees will want to show unreasonableness.
Kenneth Moscaret, Esq. is a leading trial expert in California and the U.S. in large, complex attorney's-fees-as-damages cases. Mr. Moscaret typically testifies on fee reasonableness in such cases involving multimillion-dollar legal fees. He is best known for his success as a fee expert in the Enron case, and is regularly retained by the largest law firms in California and the U.S. Mr. Moscaret has been invited on several occasions to provide training seminars on legal fee reasonableness to national organizations of arbitrators and mediators.
Mr. Moscaret has developed a trial expert methodology for California attorney's-fees-as-damages cases consisting of 14 discrete, substantive factors. These factors are drawn primarily from Rule 4-200, the ethical rule which relates to legal fee reasonableness (not just legal fee conscionability) in California. See People ex rel. Dept. of Transportation v. Yuki (1995) 31 Cal. App. 4th 1754, 1771. Mr. Moscaret has repeatedly utilized his 14-factor methodology to testify on fee reasonableness at arbitration, trial, and mediation in California. See example here.
Because Mr. Moscaret's expert methodology expressly draws upon the California Rules of Professional Conduct, his methodology has been admitted into evidence by California trial judges and arbitrators. His methodology is applicable at trial in California state and federal courts, and in arbitrations and mediations in California. Read less
The California Mini-Handbook Covers the Most Relevant Fee Reasonableness Factors
Mr. Moscaret has condensed his expert methodology into a concise, clear, practical mini-handbook for California attorneys, Legal Fee Reasonableness At Trial In California (1st edition 2014). Like his expert methodology, the California mini-handbook provides a standardized framework for determining fee reasonableness in any attorney's-fees-as-damages case in California. It lays out the most relevant factors regarding fee reasonableness, with supporting expert commentary and explanation.
Because the California mini-handbook contains the same methodology that Mr. Moscaret uses at trial on behalf of both clients and law firms in large, complex attorney's-fees-as-damages cases, the mini-handbook can be useful to both clients and law firms involved in smaller fee cases where it may be cost-prohibitive to retain a fee expert (for example, cases involving legal fees of $250,000 or less).
NOTE: for use with post-trial, prevailing-party fee awards by judges and arbitrators in statutory and contractual fee-shifting cases in California, please see FAQ section below. Read less
The California Mini-Handbook's Benefits to Clients
In-house counsel, CFOs, and other corporate executives who are paying legal fees to outside counsel on litigated matters will find the California mini-handbook useful in the following types of cases in California where reasonable attorney's fees are recoverable as damages at trial:
- attorney-client fee arbitrations and fee mediations in which law firms are seeking to recover unpaid legal fees from clients
- court lawsuits by law firms against clients to recover unpaid legal fees
- legal malpractice cases, if they include claims for unpaid legal fees by law firms against clients
- insurance recovery actions by policyholders against insurers (or an insurer's declaratory relief action against a policyholder) to recover unpaid underlying defense fees incurred by a policyholder
- contractual indemnification cases involving claims for legal fees incurred
- malicious prosecution cases
- tort of another cases
The California Mini-Handbook's Benefits to Law Firms
Law firms can use the California mini-handbook as an evidentiary roadmap to understand how to go about proving up the reasonableness of their own fees at trial before a judge, jury, or arbitrator, or to make a strong presentation at mediation. Law firms need to be able to demonstrate, through persuasive evidence, why their fees are reasonable. The mini-handbook gives them a viable framework for doing that.
Law firms can use the California mini-handbook to help shape their attorney's-fees-as-damages cases in different ways. For instance, the mini-handbook can be printed out and attached as an exhibit to a mediation brief prepared by a law firm. Alternatively, the mini-handbook can become a behind-the-scenes guide for marshalling the most persuasive evidence of fee reasonableness at arbitration or trial.
The 14 different factors in the California mini-handbook can be discussed by counsel in their written briefs in an attorney's-fees-as-damages case. Counsel also has the flexibility to mention additional factors if they so choose beyond those contained in the mini-handbook. For example, "risk" to a law firm may occasionally be a fee reasonableness factor at trial (although it is a much more prevalent factor in the post-trial, fee-shifting context).
A second version of Mr. Moscaret's mini-handbook applicable to fee reasonableness in all 49 other states besides California is planned for release in the near future. Read less
Some Frequently-Asked Questions
Q. Why are there different versions of the mini-handbook for California cases versus the other 49 states?
A. Because there are currently slight differences in the factors evidencing legal fee reasonableness in California compared to the other 49 states under the rules of professional conduct for attorneys in each state which relate to fee reasonableness.
Q. Can the California mini-handbook be used in any attorney's-fees-as-damages case of any size or dollar amount in California?
A. Yes, but it makes particular economic sense in cases involving $250,000 or less in claimed legal fees, where fee reasonableness is a triable issue, and the cost of hiring a testifying fee expert may not be justified.
Q. Can I use the California mini-handbook to support or oppose a post-trial, prevailing-party fee application in a fee-shifting case in federal court or state court in California?
A. Yes, notwithstanding that we advertise the California mini-handbook as a trial resource in attorney's-fees-as-damages cases. In our experience, California trial judges and arbitrators will consider many of the 14 factors in the mini-handbook in making a post-trial reasonable fee award to a prevailing party. Be aware, however, that judges and arbitrators may also consider other factors in a fee-shifting situation not covered in the mini-handbook, such as certain timekeeping practices by a fee applicant law firm (like block billing or vague time entries), or the amount of risk which the law firm faced in the case.
Q. If I purchase the California mini-handbook, can I use it repeatedly in any fee cases that I handle from now on?
A. Yes, but see the Disclaimer/Acknowledgement of Terms section below for restrictions on transfers to any unrelated third parties. The California mini-handbook is a protected work under the copyright laws of the United States.
Q. If I decide later that I don't want or need the California mini-handbook, can I return it?
A. No. Since it is a downloadable/printable PDF e-book, all sales of the California mini-handbook are final, with no refunds, returns, or credits.
Q. Is the California mini-handbook intended to provide "legal advice?"
A. No, the California mini-handbook contains expert consultant advice only (by a fee expert who happens to be a longtime California-licensed attorney), not legal advice. No attorney-client relationship or provision of legal services is created by the purchase of the California mini-handbook. By purchasing the California mini-handbook, you are acknowledging your agreement with and acceptance of the above terms.
Q. Can I share the California mini-handbook with third parties who have not purchased it themselves?
A. Only if those third parties are directly associated or affiliated with you as the purchaser. Please see the Disclaimer/Acknowledgement of Terms section below for restrictions on transfers to any unrelated third parties.
EXPANDABLE THUMBNAIL IMAGE OF THE CALIFORNIA MINI-HANDBOOK
Click here to enlarge thumbnail to full-size view and for sneak peek at the cover page, table of contents, preface, and the author's expert credentials.
Disclaimer/Acknowledgement of Terms
The California mini-handbook contains expert consultant advice only, not legal advice. No attorney-client relationship or provision of legal services is created by the purchase of the California mini-handbook. There are no general or specific representations, warranties, promises, or guarantees of any kind, whether express or implied, offered or made in connection with your purchase of the California mini-handbook. If you purchase the California mini-handbook, we do not become liable to you or to any other person(s) in any way, or become liable for any damages or losses of any kind, arising from your use of or reliance on the information contained in the California mini-handbook, either in contract, tort, or under any other legal theory.
The California mini-handbook is a protected work under the copyright laws of the United States. A purchaser of the California mini-handbook, whether an individual, corporation, law firm, organization, or other entity is not authorized to and may not distribute, disseminate, or circulate the California mini-handbook to third parties who use the work for their own benefit without purchasing it themselves if those third parties are not directly associated or affiliated with the purchaser. For example, an in-house counsel can share the California mini-handbook with all of their law department colleagues, but CANNOT distribute, disseminate, or circulate it outside their company, such as to other companies or to their outside law firms (unless they are working together on the same case at the time). Likewise, a law firm partner can share the California mini-handbook with other attorneys within their own law firm, but CANNOT share it with other law firms or with their own clients (unless they are working together on the same case at the time).
By purchasing the California mini-handbook, you are acknowledging your agreement with and acceptance of the above terms.
Inquiries/How To Order
For questions about the California mini-handbook or to purchase it, please call 425-557-8985 or e-mail firstname.lastname@example.org.
(with no California sales tax charged on this
downloadable/printable PDF e-book)
NOTE: Price of the California mini-handbook is less than the cost of one hour of expert consultation time with our firm.
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