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Was awarded attorney's fees but judge says they're not reasonable

Discussion in 'Child Support' started by HeighHoHeighHo, Aug 8, 2020.

  1. HeighHoHeighHo

    HeighHoHeighHo Law Topic Starter New Member

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    My ex wasn't paying support and I was awarded a judgement against them. He disputed the judgement and we had a hearing about it. Our separation agreement has an indemnification clause that has the other party paying attorney's fees to enforce the agreement. The case was very complicated with over 1,000 pages of documents so the fees were very high. The judge ruled that the fees were too high to be reasonable so I was just awarded about 1/2 of my attorney's bill. Do I have any recourse for my attorney racking up more fees than the court says were reasonable or must I pay the balance of the bill myself?
     
  2. Tax Counsel

    Tax Counsel Well-Known Member

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    The court uses a particular standard to determine what fees are considered reasonable when the other party is being forced to pay those fees. That doesn't necessarily mean that what your lawyer did wasn't useful for your case or that the lawyer overcharged you. It may just mean that the court doesn't think the other party should have to pay for it all. That is not all that uncommon. If the fees were justified you'd be obligated to pay the portion that your ex isn't ordered to pay. You'd need to have the bills reviewed by an independent party to determine if they are excessive or if work was done that was truly not needed.

    I suggest you start by asking your lawyer about the fees that the court did not approve and why those were necessary. That may help you determine the need for what was done. As your lawyer evidently was successful in pursuing the enforcement of the agreement and getting lawyer's fees awarded overall it sounds like he or she did a good job, but that doesn't mean that everything that was done was really necessary. Be careful in using too much hindsight. Sometimes as a case unfolds it can appear a certain step is needed that later on it later turns outs out wasn't really necessary. Unfortunately the courts sometimes use too much hindsight when determining what fees are reasonable.

    The Colorado Bar Association (CBA) does offer a fee arbitration service. The CBA is not a government agency, however, and the process is completely voluntary by both you and your lawyer.
     
    HeighHoHeighHo likes this.
  3. HeighHoHeighHo

    HeighHoHeighHo Law Topic Starter New Member

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    Agreed about your hindsight insights.

    Basically there was a letter I was forced to sign under duress that said that my ex was current on support many years back. The judge did not accept that it was signed under duress and accepted it - so everything prior to that was moot, which made the case 99% simpler. For such a simple case, the judge says fees should be 'X.' Most of the work my attorney did was focused on dissecting the 1,000 pages of documents prior to that point.

    So you would recommend just saying to my attorney 'Hey, the court says these fees were not reasonable, would you be able to meet me halfway on the remaining balance' or something of the like?
     
  4. Zigner

    Zigner Well-Known Member

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    The problem you have is that you willingly signed a paper stating that your ex was up to date on his child support payments. It was your choice to fight it, even though you willingly signed it.

    Duress doesn't mean that he was going to make things uncomfortable for you or that he might make good on a threat to skip out of town if you didn't sign. Duress means something along the lines of you having a gun held to your head and being forced to sign.
     
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  5. adjusterjack

    adjusterjack Super Moderator

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    Couldn't hurt.
     
  6. Tax Counsel

    Tax Counsel Well-Known Member

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    While that is indeed one instance of duress, duress can occur in a number of other ways as well. Under Colorado law, duress as applied to pressure to sign a contract, disclaimer, and similar agreements — like the letter involved here — means:

    A contract is voidable on the grounds of duress if a party's manifestation of assent is induced by an improper threat that leaves no reasonable alternative. See Restatement (Second) of Contracts § 175 (1981); DeJean v. United Airlines, Inc., 839 P.2d 1153, 1160 (Colo.1992).

    The Restatement (Second) of Contracts § 176 (1981) provides:

    (1) A threat is improper if
    (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property,
    (b) what is threatened is a criminal prosecution,
    (c) what is threatened is the use of civil process and the threat is made in bad faith, or
    (d) the threat is a breach of the duty of good faith and fair dealing under a contract with a recipient.
    (2) A threat is improper if the resulting exchange is not on fair terms, and
    (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat,
    (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or
    (c) what is threatened is otherwise a use of power for illegitimate ends.
    Hence, an improper threat is one that is “so shocking that the court will not inquire into the fairness of the resulting exchange,” or a threat “in which the impropriety consists of the threat in combination with resulting unfairness.”4 Restatement (Second) of Contracts § 176 cmt. a (1981). A threat is not improper, however, if the resulting exchange is on fair terms. See id.

    Vail/Arrowhead, Inc. v. Dist. Court for the Fifth Judicial Dist., Eagle Cty., 954 P.2d 608, 612–13 (Colo. 1998). So, an improper threat is what leads to duress and, as the Court stated, improper threats include more than just threats of physical violence. It can in some instances be a close call whether duress was in play in getting the person to sign the document. Without knowing the circumstances involved here I cannot say if duress might have been involved. Obviously, though, the judge in this matter believed it wasn't and the judge's view matters more than mine.
     
  7. Tax Counsel

    Tax Counsel Well-Known Member

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    You can certainly try that and see how it goes. But this kind of situation the courts are typically not going to award you fees for something in which ultimately you ultimately didn't prevail. Here's a break down of how that works out. The ex has your signed statement that the child support was current as of whatever date. If that statement is accurate it wipes out all your claims for support prior to that, making a determination on that prior support easy. Your lawyer thinks that he may be able to attack the signed statement as having been made under duress and can make a push to get that prior support. Making that case — both for the duress and to establish the child support arrears that were due for that earlier period — takes a fair amount of work from the lawyer. And unless the duress issue was truly clear cut, it could have gone either way. So your lawyer makes the effort to to get the statement tossed out on duress and to make the case for how much support is owed. And loses. But your lawyer does prevail on other matters in the case, thus justifying the award of at least some attorney's fees.

    But is it fair to hit your ex for all of those fees you had for trying to toss the statement you signed when the court found your ex didn't use duress to sign it? It wasn't your ex's fault that your lawyer made a run to get that tossed, after all. And had your lawyer not made that ultimately unsuccessful attempt the case would have turned out the same and those fees would not have been incurred. As a result, courts will generally not give you all of those fees because even though the effort might have been justified on your end in case it succeeded, it would not be reasonable to hold your ex responsible for payment of fees for something that the ex ultimately prevailed on.

    So unless it should have been pretty clear to your lawyer that the duress issue was a loser your lawyer may have been justified in making the effort to get that statement tossed. And the legal fees in that case would be fairly earned. But since the court ruled against you on that issue, you can't then expect the court to make your ex pay for that.

    You did get an award of fees because you did prevail on other matters in the case. Even there, courts will not always give you all the fees your lawyer bills. The standards the courts use try to limit the fees awarded based on the typical rates lawyers in that geographic area charge for that type of work and limited to the hours the court finds reasonable for work that was truly necessary for case. Courts tend to be conservative in those assessments to discourage lawyers from generating large fees to stick to the other side recognizing that since the other side isn't the client the other side has no control over what is done. You, on the other hand, can control what work the lawyer does.
     
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  8. Zigner

    Zigner Well-Known Member

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    Thanks for the thorough clarification of that :)
     
  9. zddoodah

    zddoodah Well-Known Member

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    I assume "he" refers to your ex. If that's the case, then to whom does "them" refer?

    Your recourse is to discuss what happened with your attorney and see if he/she will agree to give you a discount.

    Exactly.
     

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