Civil Litigation Home

Civil Litigation Council

Civil Litigation Projects

Civil Litigation Links

See the VBA News Journal for more articles by members of the VBA Civil Litigation Section!

• The Virginia Approach to Exploring Bias in Expert Witnesses by John M. Fitzpatrick, LeClair Ryan, PC

• Challenging Experts' Testimony in Federal Courts and Virginia Courts by D. Alan Rudlin and Harry M. Johnson III, Hunton & Williams

• Communications with Experts/Discoverability/Ghostwriting/Spoliation by Gilbert E. Schill Jr., McGuireWoods LLP

Recovering Attorney Fees in Virginia
William R. Mauck Jr.

At the 111th Annual Meeting of The Virginia Bar Association, the Civil Litigation Section sponsored an informative and well-attended program entitled “Attorney Fees in Civil Cases: Staking your Claim.”

With gratitude to the three panelists — Robert E. Eicher, Williams, Mullen, Clark & Dobbins, P.C.; R. Peyton Mahaffey, McCandlish & Lillard, P.C.; and Thomas E. Spahn, McGuireWoods, L.L.P. — this article will provide a brief overview of some of the material presented concerning recovery of attorney fees under Virginia law.

As most Virginia law practitioners know, Virginia follows “the American Rule” which provides that in the absence of a statute or contract to the contrary, a court may not award attorney fees to the prevailing party. The Virginia Supreme Court recently affirmed the American Rule in Prospect Development Co. v. Bershader, 258 Va. 75, 515 S.E.2d 291 (1999).

Over the years, Virginia courts have recognized several exceptions to the American Rule. For instance, a prevailing party prosecuting a cause of action for malicious prosecution or false imprisonment may recover attorney fees. A party who has been forced to maintain or defend a suit with a third party because of the breach of contract of another, may recover attorney fees incurred by him in the former suit provided they are reasonable. A trustee defending a trust in good faith may recover attorney fees from the estate. Attorney fees may also be recovered in certain cases involving alimony and support disputes even though such awards were neither authorized by statute nor contract. Virginia courts also recognize an exception to the American Rule where bad faith or vexatious, willful or wanton behavior are involved and to do justice between the parties. In Bershader, for instance, the Virginia Supreme Court held that in a fraud suit, a chancellor, in the exercise of his discretion, may award attorney fees to a defrauded party in order to furnish complete relief.

As the exceptions make clear, the American Rule is just that — a rule. It is not a blanket prohibition against the award of attorney fees absent a contractual or statutory provision.

Unlike the federal courts, Virginia has not established a procedure for recovering an award of attorney fees in civil cases. In practice, the procedure can vary from court to court and typically involves a process agreed upon by trial counsel and approved by the court. Absent an agreed and approved procedure, a claim for attorney fees presents a question of fact based on the evidence and, in the case of a jury trial, the court’s instructions.

Where a jury trial is involved, trial counsel may request the court to bifurcate the trial in order that evidence on the issue of attorney fees is not presented unless the jury returns a verdict on the merits for the party claiming fees. Trial counsel may also agree and seek court approval that the attorney fees issues should be submitted to the court for resolution after verdict. In no event, however, should counsel assume that a court, in the absence of agreement and court approval, will permit evidence of fees to be taken after the case has been tried and a jury verdict or a court decision has been returned. Counsel who make this assumption may risk losing the opportunity to present the fee claim.

A party seeking to recover legal fees must establish as part of its prima facie case that the fees charged are reasonable. In determining whether such case has been made, a fact finder may consider the time and effort expended by the attorney, the nature of the services rendered, the complexity of the services, the value of the services to the client, the results obtained, whether the fees incurred were consistent with those generally charged for similar services, and whether the services were necessary and appropriate. Chawla v. BurgerBusters, Inc., 225 Va. 616, 623, 499 S.E.2d 829, 833 (1998).

Once a prima facie case is shown, the party contesting the fees award bears the burden of going forward with evidence that the fees sought are unreasonable by demonstrating, for example, that the hours or rates were excessive, or that the work was not necessary or was duplicative, or that recovery is sought for work performed on unsuccessful claims.

Where a contract stipulates recovery of a percentage of a judgment amount as attorney fees, there is a rebuttable presumption of reasonableness. If a contract or statute provides for recovery of “reasonable” attorney fees without specifying a percentage amount, the party seeking a fees award must put on evidence of reasonableness. Ordinarily, expert testimony will be required to assist the fact finder in determining reasonableness. A trial court is not bound by such testimony, however, and is permitted to consider its own experience and knowledge of the character of the services in issue.
If expert testimony is to be presented, counsel must consider whether to submit the testimony by affidavit or ore tenus. While affidavit submission is standard practice in federal court, in state court counsel should have an agreement with opposing counsel on admissibility of affidavit testimony. Otherwise, the affidavit may be objected to as hearsay.

Counsel seeking an attorney fees award should consider auditing all time records before producing them to the expert. A prevailing party is not entitled to recover fees for duplicative work or, as a general rule, for work performed on unsuccessful claims. Hence, counsel for the prevailing party should critically review billing records and delete entries that indicate overstaffing, redundant work, churning of work, or excessive hours.

The expert witness will be called upon to express an informed opinion, i.e., an opinion reached upon a careful and diligent investigation of the particulars of the case. Since the bases for the expert’s opinion may be tested and even challenged on cross-examination, the expert should make an independent investigation of the case including a review of the pleadings, the discovery, the issues presented, the proof, the trial, the character and content of services rendered and by whom, the experience, expertise and reputation of counsel, and itemized billings of time devoted and charges made for services. Once familiar with the case, the expert must review the time entries and identify any that reflect redundant or excessive work, overstaffing, work done to compensate for a flawed presentation of original work, work done on lost issues, etc. If the expert believes any entries are unreasonable, the expert should delete them and be prepared to explain his reasoning for doing so in his testimony. In a due diligence investigation, the expert’s mission is not to defend the reasonableness of the fees charged, but to be an independent, dispassionate auditor of reasonableness.

In most cases the reasonableness of rates charged is not contested. When rates are contested, however, the expert should survey the prevailing rates of law firms in the locality in comparable cases with lawyers of comparable experience, expertise and reputation. Consistent with his obligation to present an informed opinion, the expert should be prepared to explain the basis for an opinion that the rates are reasonable under the circumstances of the case.

Ultimately, the expert witness’ testimony will consist of two components, whether the services rendered in the representation were necessary and reasonable for competent, diligent and effective representation and whether the fees charged for such services were reasonable.

A contract often will provide for the recovery of attorney fees incurred in collecting a judgment. Trial courts rarely award post-judgment attorney fees because they rest on speculation. A provision permitting recovery of fees incurred in collection of a judgment gives rise to a distinct cause of action which accrues when the fees are incurred. Accordingly, counsel should consider deferring claims for future attorney fees in collecting a judgment until the judgment has been collected and the fees have been quantified.

ABOUT THE AUTHOR: William R. Mauck Jr. is a partner in the Litigation Department at Williams Mullen in Richmond. His practice principally consists of construction litigation. He is also experienced in arbitration of construction claims and counsels clients in the drafting, review, and administration of contract documents. Mr. Mauck is a member of the VBA’s Litigation, Construction & Public Contracts Law (of which he is a former chair), and Environment, Natural Resources & Energy Law sections, in addition to other professional organizations. Mr. Mauck attended Washington and Lee University, where he received his Juris Doctor degree in 1985 and his Bachelor of Arts degree in 1979.