A recent Law.com story by Jimmy Hoover, “Justices to Examine Meaning of ‘Prevailing Party’ in Attorney Fee Disputes”, reports that, to those who follow legal news, it’s not uncommon to see parties declaring victory after a court decision that seems to go against them.  Texas Attorney General Ken Paxton was criticized last week for doing just that on social media last week after the U.S. Supreme Court allowed takings litigation to proceed against the state over property flooding caused by a highway barrier.

Usually, the stakes of such episodes involve little more than attorneys’ egos and their win-loss records.  But an appeal taken up by the Supreme Court shows that deciding after litigation has concluded which side is the “prevailing party” can affect more than just bragging rights but real dollars and cents in the form of attorney fees.

The high court granted certiorari, or review, in Lackey v. Stinnie, an appeal by the Virginia Department of Motor Vehicles, which is now on the hook for potentially more than $1 million in legal fees from plaintiffs who had secured a preliminary injunction against the DMV in a civil rights lawsuit.  The agency’s petition raises two questions for the justices, which will hear the dispute next term.

The first is whether a party “must obtain a ruling that conclusively decides the merits in its favor,” rather than just a preliminary injunction, to obtain attorney fees in a civil rights suit under Section 1988 of the 1976 Civil Rights Attorney’s Fees Award Act.  The second is whether the parties’ legal relationship must change through a “judicial act” or whether a nonjudicial event mooting the case is enough to obtain fees under the statute.

The case, the DMV has said, could affect who’s eligible for attorney fees in a number of other areas, as well, such as trademark infringement, voting rights and disability discrimination, where fee-shifting laws use the phrase “prevailing party.”  In their putative class action against the DMV, a number of plaintiffs with past criminal convictions accused the agency of violating their rights by automatically suspending their licenses over court fees they could not afford to pay.

The plaintiffs won a preliminary injunction from the district court blocking state officials from enforcing the Virginia law against them, as the judge concluding they were likely to succeed on the merits of their procedural due process claim.  As the case proceeded to trial, the litigation was delayed and ultimately rendered moot by the Virginia General Assembly, which suspended and later repealed the law in question after public pushback.

The plaintiffs’ original request for attorney fees was rejected, but on appeal, the U.S. Court of Appeals for the Fourth Circuit agreed to rehear the case en banc.  The court’s 7-4 ruling held that, “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.”

In its certiorari petition to the Supreme Court in November, the DMV said the standard for obtaining attorneys’ fees under Section 1988 “presents multiple circuit splits” and the case is one of importance that the Supreme Court should resolve.  “[A]ttorney’s fees in civil rights cases often impose substantial financial burdens on state governments,” the DMV wrote in its petition filed by lawyers from the Virginia attorney general’s office and Hunton Andrews Kurth LLP.

“Plaintiffs have already requested an award of more than $767,000 in appellate fees alone,” the petition stated.  “Their total fee request likely will run into the millions of dollars, considering the years of litigation in the district court.”  Further, the state agency wrote, “the risk of large, unpredictable fee awards will deter States from voluntarily altering allegedly unlawful behavior.”

The term “prevailing party” is also peppered throughout many fee-shifting statutes, so the issue is one that could affect attorneys’ fees in the areas of trademark law, disability discrimination and voting rights, the state added.  “[T]he effect of the term’s interpretation is sweeping,” the petition stated.

The plaintiffs had asked the court to pass on the case, denying there was any split “requiring this Court’s resolution.”  They wrote that the earlier injunction in the case was “on the merits” and “materially altered the legal relationship between the parties.”  “Respondents are prevailing parties and would be in every circuit,” stated the brief in opposition, filed by lawyers at McGuire Woods.  Oral arguments have not yet been scheduled in the case. The court is expected to render its decision by the end of June 2025.

A recent Law.com story by Lisa Willis, “New Ruling Affects Fees For Lawyers Who Serve as Expert Witnesses”, reports that, an appeal in Florida’s Fourth District Court of Appeals— challenging a trial court’s decision to award appellate attorney fees and include an expert witness fee as a cost—has been affirmed.

One South Florida attorney said this appeals case ruling seemingly undid the Florida Supreme Court’s 1985 decision in Travieso v. Travieso, which had found that such fees were awarded at the court’s discretion.  Now, the new opinion clarifies whether an expert witness is necessary to confirm the amount of fees being claimed.

“Basically, they said they’re kind of overruling the 1985 Supreme Court case, saying that if you have an attorney testifying as an expert, [the] fees must be awarded as costs,” Palm Beach County attorney Peter M. Feaman said.  Feaman and Nancy E. Guffey of Peter M. Feaman P.A. in Boynton Beach represented the appellee, Suzanne J. Trombino.  The ruling was entered pursuant to the Fourth DCA’s reversal opinion and attorney’s fees order in Trombino v. Echeverria from 2022.

In affirming the lower court ruling, the appeal court stated, “Our order permitted the trial court to award attorney’s fees to appellate Suzanne J. Trombino (individually and as trustee of two family trusts) if it found that the equities favored the imposition of fees. … The trial court determined Trombino was entitled to fees.”

Feaman, who has been practicing law more than 40 years, said the body of case law that has developed since the 1985 ruling says attorneys must have an independent expert every time to testify to the reasonableness of fees.  “So that’s why the 1985 Supreme Court opinion can be interpreted differently now because the law has changed and been clarified via this ruling as to whether an expert witness is necessary to corroborate the amount of fees being claimed,” Feaman said.  “The Fourth DCA appears to be saying is not discretionary any longer.”  “I think that’s a significant part of the ruling, which is kind of a departure from the 1985 Supreme Court case, where they ruled it was discretionary with the trial court,” Feaman said.

The appeal was Dale Echeverria v. v. Suzanne J. Trombino as trustee of The Family Trust Created Under the Jose I Echeverria 2006 Trust, and as trustee of the Dorothy Jeanne 2006 Trust.  It stems from a prior decision in Trombino v. Echeverria, where the appeals court had reversed a ruling and allowed for the potential awarding of attorney’s fees to Suzanne J. Trombino under specific statutory conditions.  Palm Beach County Circuit Court Judge Charles E. Burton was the presiding judge in the Palm Beach County case.

Judge Alan O. Forst wrote the opinion with judges Martha C. Warner and Dorian K. Damoorgian concurring specially with opinion.  “Hearings for the assessment of reasonable attorney’s fees have become much more complicated and time consuming since 1985 when the supreme court decided Travieso,” Warner wrote in concurring with opinion.

The jurist said that time spent reviewing an attorney’s work and testifying at a fee hearing has increased substantially.  “No longer does one find an attorney at the courthouse on the day of the hearing to briefly review the case file and opine on the fee,” Warner said.  “More likely, this case is an example of a typical contested fee hearing.”

The appellee’s attorney is in agreement.  “When an attorney is testifying as an expert, his fees must be taxed as costs as part of the award,” Feaman said.  “Previous to this, all the judges thought that it was discretionary.  I think in the fourth district, that’s no longer the case.”

Upon remand to the trial court, Trombino sought attorney’s fees, arguing that the circumstances warranted such an award.  However, the trial court sided with Trombino, finding she was entitled to the fees.  Echeverria appealed.

Feaman said this ruling makes sense because, in 1985, the law was unsettled as to whether you needed an expert witness to corroborate your fee request.  “Since that time, the law has developed now quite clearly, you must have an expert witness,” Feaman said. “So now that you must have an expert witness to corroborate your fee requests, it only makes sense that those fees incurred by that expert be taxed as cost because now it’s mandatory that you have an expert fee witness.  So his charges or her charges should be mandatory as well that those charges get taxed.”

Trombino presented evidence of the costs incurred during the appeal process and introduced an expert in attorney’s fees, who testified that the requested amount was reasonable.  Dale Echeverria also brought forth an expert, advocating for a lower fee, but the court ultimately ruled in favor of Trombino’s original request and included the full amount of the expert’s fee as a taxed cost.

Echeverria’s appeal raised three primary issues: the timing of the equity determination for the fee award, the evidence supporting the fee award, and the inclusion of the expert’s fee as a taxable cost.  In affirming the trial court’s decision, the appellate court noted Echeverria’s own use of an expert witness to challenge the fee amount, which further justified the trial court’s discretion in this matter.

“The parties getting fees shouldn’t have to bear the brunt of the expert that now must testify to support those fees,” Feaman said. “Because if you’re the prevailing party and you’re getting fees, why should you have to be penalized for bringing in an expert witness? It should all be part of the cost incurred.”