The Texas Supreme Court recently laid out what evidence is needed to prove up attorneys fees at trial. This case has been lauded as one of the most important cases to come out of the Texas Supreme Court. In Rohrmoos Venture v. UTSW DVA Healthcare LLP (578 S.W.3d 469), the Court addressed two different methods of calculating fees – the 8-factor test from the Arthur Andersen case (945 S.W.2d 812) versus the lodestar method – concluding that the lodestar method is the right place to start in calculating fees.

The lodestar method means that the court determines the attorneys fees to be awarded by multiplying the number of necessary hours reasonably spent by the trial attorney by the reasonable hourly rate.

The Rohrmoos opinion suggested that detailed billing records are strongly encouraged to prove up the elements of attorneys fees. This ruling will likely affect lawyers with alternative billing (like flat fee) arrangements. Further, this opinion suggests that lawyers could be subjected to thorough cross-examination on the fees expended. Opposing counsel could use the billing records as an opportunity to prod over work performed. Many cases will bring in outside experts on fee issues to offer testimony as to the reasonableness or necessity of the fees.

The Court hinted that agreement between attorneys in advance of trial as to the amount of fees would avoid contentious fee fights. But, without such agreement, the litigation will be more complex and lengthy.

A few weeks after the Rohrmoos case came down, the Texas Supreme Court reiterated its decision in Nath v. Texas Children’s Hospital (446 S.W.3d 355) where it applied the same requirements to attorney’s fees when awarded as a sanction as opposed to damages.

Here are some practice pointers based on Rohrmoos:

  • Keep contemporaneous billing records in all cases, including hybrid and contingent fee cases;
  • Try to stipulate to the fee award prior to trial;
  • Enter your fee agreement and billing records into evidence at trial;
  • Be careful about redacting your entries in the fee agreement;
  • Introduce evidence to explain why all entries included were reasonable and necessary;
  • Consider getting an outside expert to support or challenge the fee request.

Certain questions appear to remain open even after the Rohrmoos opinion, including:

  • How to calculate appellate attorney fees, which must be estimated in advance?
  • Whether the lodestar approach applies in a contract dispute between client and attorney where the question involves enforcement of a contingent fee contract?
  • Under what circumstances the amount of attorney’s fees should be decided by the jury or the judge and whether live testimony is required or may the evidence be established by affidavit?
  • May a lay witness law the factual elements of the lodestar method, or is expert testimony required?
  • What is the proper remedy when reverse – remand or rendition?

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.