Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
When attorney’s fees are awarded in a Florida family law case, in certain instances, the amount of fees must be supported by expert testimony. What qualifies a witness to be an expert on attorney’s fees? This was an issue in the case Mendelson v. Howard, 4D21-1552 (Fla. 4th DCA October 26, 2022).
An evidentiary hearing was held in this case at which the plaintiff had an experienced Florida attorney testify about the reasonableness of the fees sought. The attorney had never testified as an expert before on this subject, but as a practicing attorney, was familiar with attorney billing, litigation of fee disputes and the reasonableness of of fees in similar matters. The trial court determined that because the attorney had never before testified as an expert, he was not qualified and his testimony was therefore excluded. The trial court then awarded fees based solely on the defendant’s expert’s testimony. The plaintiff appealed.
The appellate court noted “A witness is qualified to provide expert testimony if he or she possesses specialized ‘‘knowledge, skill, experience, training, or education’ so long as ‘(1) [t]he testimony is based upon sufficient facts or data; (2) [t]he testimony is the product of reliable principles and methods; and (3) [t]he witness has applied the principles and methods reliably to the facts of the case.’ § 90.702, Fla. Stat. (2020).” The court reversed, holding “Neither section 90.702 nor our case law require that an attorney have previously testified as an expert on the reasonableness of the amount of attorney’s fees and costs to be qualified as an expert. Instead, what is required for the testimony to be admissible is for the trial court ‘to assess whether the expert’s ‘reasoning or methodology properly can be applied to the facts in issue.’ [internal citation omitted]. The trial court clearly erred by excluding the plaintiff’s proffered expert testimony based on reasons that should only have been considered in determining the testimony’s weight, not its admissibility.”
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